''--«^^- K3 I 4 SO Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN nenoRY of JUDGE DOUGLASS BOARDMAN FIRST DEAN OF THE SCHOOL By his tVife and Daughter A. M. BOARDMAN and ELLEN D. WILLIAMS Cornell University Library KD 1480.L67 1875 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924021859321 PRACTICAL TREATISE THE LAW OF TEUSTS. BY THOMAS LEWIN, ESQ., OF TRINITY COLLEGE, OXFORD, M.A., AND OF LINCOLN'S INN, BAKRISTEU-AT-LAW, ONE OF THE CONVEVANCING COUNSEL TO THE COURT OF CHANCERY. ASSISTED BY PEEDERICK ALBEET LEWIN, ESQ., FELLOW OF aONVILLE AND CAIUS COLLEGE, CAMBRIDGE, AND OF LINCOLN'S INS, BARKISTEE-AT-LAW. SIXTH EDITION. LONDON : W. MAXWELL & SON, 29, FLEET STEEET, XatD JJoofeaelUrs anft ^ut)Us{)«ra: HODGES, SMITH & Co., DUBLIN. 1875. I ^ BKYDEN PKESS : - o. DAVY AND SONS, PEIKTBKS, 137 LONG ACRE, LONDON. EIGHT HONORABLE LORD ST. LEONARDS, ETC. ETC. ETC. My Lord, The rare talents and indefatigable industry, which, without any extrinsic aid, have raised your Lordship to the highest eminence, command the admiration and respect of every Member Nof the profession. Pei'sonally I feel' myself under peculiar obligations. Your Lordship's writings have been the models, and have furnished no inconsiderable 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 retire- ment from pubhc hfe may still be accompanied with the blessing of health, I remain. Your Lordship's most obhged and grateful Servant, THE AUTHOR. PEEFACE. In the present Edition, ^e Author, in order to make his work as complete as possible, has introduced t-^ additional Chapters — one on the Duties of Trustees for Kaising Portions (an extensive subject, and necessarily treated of in a very compressed form), and the other on the Duties of Trustees for Making Purchases, a limited branch of inquiry, but thought likely to be useful. Eecent cases and recent statutes have been incorporated with all the care the Author could command, but as regards the statutes, legislation marches so fast that it has been found difficult to keep pace with it. Even while the work has been passing through the press, most important changes have been introduced. The labour and pains bestowed on a former edition by Mr. F. 0. Haynes of the Chancery Bar require, (as the benefit of them stiU con- tinues) to be again acknowledged, and the Author begs to repeat as on former occasions, that " the value of the work (whatever it may be) has been unquestionably much enhanced by the legal acumen and learning which Mr. Haynes has imported into it." The Index was originally compiled with the utmost industry and ability, by Mr. Paul A. Kingdon, and it is only hoped that the large additions which have since been made may not be altogether unworthy of the strong foundations on which they rest. The Author is indebted to his relative, Mr. F. A. Lewin, not VI PREFACE. only for the correction of the press (a toilsome and tedious task), but also for valuable services in many other respects, and more particularly in calling attention to the results of recent legislation, and not unfrequently to modifications of legal principles, the effect of later decisions by the Court. In conclusion, the practitioner is respectfully requested, in order that the work may be brought down to as late a date as possible, to cause the Addenda and Corrigenda (which are very considerable), to be entered up in their proper places. 1st January, 1875. 10, Old Square, Lincoln's Inn. ADDENDA ET CORRIGENDA. PAGE 17. Add at the foot, " By 37 & 38 Vict. c. 83, a. 2, the commencement of the Supreme Court of Judicature Act, 1873, has been postponed to the 1st November, 1875." 20 note (c), add. And see Stewart v. Green, 5 I. R Eq. 470. 24, — (c), — See now 37 & 38 V. c. 50, s. 5, which makes the husband liable to the extent of the property received by the husband from the wife. 34. Just before paragraph 5, add, " By 37 & 38 V, o. 78, s. 6, it is enacted that when any freehold or copyhold hereditaments shall be vested in a married woman as a hare trustee, she may convey or surrender the same as if she were a. feme sole.'" 37, At the end of paragraph 8, at the 9th line from the bottom, add, as an authority, Forster v. Abrahams, 17 L. E. Eq. 351. 37, note (&), add Curtis's Trust, 5 I. R. Eq. 429. 38, — (a), — Barnes v. Addy, 9 L. E. Ch. App. 244. 43, — (/), — Paget v. Ede, 18 L. E. Eq. 118. 44, — (c), — Edwards v. Warden, 9 L. E. Ch. App. 495. 56, — (a), — Creagh v. Murphy, 7 I. R. Eq. 182. 62, — {a), — Richards v. Delhridge, 18 L. E. Eq. 11. 63, — {d), — 'But s,e% Richards \ . Delhridge, 18 L. E. Eq. 11. 65, — [h), — Richards V. Delhridge, 18 L. R. Eq. 11. 84, — (/), — The case of Occleston v. Fidlalove has since been reversed ; 9 L. E. Ch. App. 147, and the law on the subject has by the decisions of L. J. J. James and Mellish, against the opinion of Lord Selborne, been considerably modified; see and consider the judgments of the L.J.J. 84, — (g), — Dorin v. Dorin, 17 L. E. Eq. 463 ; Occleston v. Fullalove, 9 L. E. Ch. App. 147; In Ri Goodwin's Trusts, 17 L. E. Eq. 345. 94, — (a), — Dawsonv. Small, 18 L. E. Eq. 104. 94, — (5), — Dawson v. SthcUI, 18 L. E. Eq. 104. 97^ _ (^d), — Collier v. Walters, 17 L. E. Eq. 252 ; Hervey v. Hervezj, W. N. 1874, p. 41 ; Drew v. Maslen, W. N. 1874, p. 66. VIU ADDENDA ET CORRIGENDA. PAGE 111. At the end of paragraph 22 add, " "Where freeholds and chattels real were devised to trustees in trust for the testator's son for life, with a direc- tion that, if he married, the trustees should settle and secure the pre- mises as a jointure to the wife for her life, and to the issue share and share alike ; and the son died, having married twice, but having had issue by the first wife onlj-, viz. three daughters, the Court directed a settlement of the whole on the second wife for life byway of jointure, with remainder as to the freeholds to the three daughters as tenants in common in tail, with cross remainders between them, and as to the chattels real, as tenants in common absolutely, Mason v. Mason, 5 I. R. Eq. 288." 111. After paragraph 24 add, " If a testator bequeath a fund in trust for a feme, and direct that in case of her marriage, it shall be so settled that she may enjoy the same for her life, the Court will settle it with a clause against anticipation. In Re Dunnill's Trust, 6 I. R. Eq. 322, and see Turner v. Sargent, 17 Beav. 515 ; Stanley v. Jackman, 23 Beav. 450." 112, note (i), add. In Re Grier\ estate, 6 I. R. Eq. 1. 115. After 6th line from the top add " beg," Corhet v. Corlet, 7 I. R. Eq. 456. 115, note (s), add Curnick v. Tucker, 17 L. R. Eq. 320; Le Marchant v. Le Marchant, 18 L. R. Eq. 414. 116, note ig), — Reid\. Atkinson, 5 I. R. Eq 373, 162. - 120, — (e), — Corhet v. Corhet, 7 I. R. Eq. 456. 127, — [a), — Steed Y. Preece, 18 L. R. Eq. 192. 127. At the end of the first paragraph, add, " However in a sale of an infant's estate under a partition suit, the conversion is absolute, and the pro- ceeds are personalty ; Steed \ . Preece, 18 L. R. Eq. 192." 132, note (c), add Smith v. Harding, W. N. 1874, p. 101. 133, — {g), — Hamilton Y. Foot, 6 I. R. Eq. 572. 133, — ig), — The Attorney General v. Lomas, 9 L. R. Exch. 29. 137, — (h), — Dawson v. Small, 18 L. R. Eq. 104. 140, — [d], after Maugham v. Mason, I V. & B. 410, add Smith v. Harding, W. N. 1874, p. 101. 156, note {g), add, O'Brien v. Sheil, 7 I. R. Eq. 255. 158. To the last paragraph of 158, add, " Or daughter ;" O'Brien, v. Sheil, 7 I. R. Eq. 255. 161, note (a), add, And see Hill v. HiU, 8 I. R. Eq. 140. 161, — («), — In the matter of P. Dane, 5 I. R. Eq. 498. 167, — (d), — Honywood v. Honywood, 18 L. R. Eq. 306. 168, — (c), — Honywood v. Honywood, 18 L. R. Eq. 306. 170, — {d), — Curnick v. Tucker, 17 L. R. Eq. 320. 176, — {g), — White v. M'Dermott, 7 I. R. Exch. 1. 178, — (c), — White v. M'Dermott, 7 I. R. Exch. 1. 179, — (6), — And see White v. M'Dermott, 7 I. R. Exch. 1. 184, in 7th line, for " on or after January," read " on or after 1st January." 190, — (/), — Collier v. Wqlters, 17 L. R. Eq. 252. ADDENDA ET COEKIGENDA. IX PAGE 195, note (o), add, at the end Lambert v. Browne, 5 I. R. Ex. 218. 196, At the end of paragraph numbered 1, and just before paragraph numbered 2, add, " And by another Act (37 & 38 V. c. 78, s. 5), upon the death of a bare trustee, of a fee-simple, that is one who has no duty to discharge but is a mere depositary, the dry legal estate is made to vest, lilce a chattel real, in the legal personal repre- sentative from time to time." 197, note (e), Goods of Mm-ant is now reported, 3 L. E. Prob. and Div. 151. 1 97. At the end of the paragraph numbered 2, add, " But it has not been settled that a person after renunciation may not on proper grounds retract his renunciation ; In Re Goods of Gill, 3 L. E. Prob. and Div. 113." 200. The paragraph commencing 8 lines from the bottom, " A residuary devisee of lands," &c., should stand thus : " Whether a residuary de- vise of lands to persons as tenants in common in equal shares will pass a trust estate, has never been expressly decided, but a judicial opinion has been expressed that such a devise would not pass a dry trust estate ; see Martin v. Laverton, 9 L. E. Eq. 563." 201, note (rf), add Ex parte Whiteacre, cited 1 Sand. Uses and Trusts, 359, 4th edition. 245 — (c), after Vyse v. FosUr, 8 L. R. Ch. App. 309, add, affirmed, W. N. 1874, p. 169. 246 — (5), — affirmed, W.N. 1874, p. 169. 247 — (a), after Vyse v. Foster, 8 L. R. Ch. App. 309, add, affirmed, W. N. 1874, p. 169. 253, — (5), — Neligan v. Roche, 7 1. E. Eq. 332. 265. At the end of paragraph 8, add, " and so a special power for the executors and trustees ' to continue invested any of the testator's ■ government securities ' will not justify the trustees in continuing long annuities ; Tickner v. Old, 18 L. R. Eq. 422." 279. At the end before paragraph 7, and just before the commencement of paragraph 8, insert, "By another Act (34 & 35 V. c. 47, s. 13) a trustee, executor, or other person empowered to invest money in public stocks or funds, or other Government securities, may, unless forbidden by the will or other instrument under which he acts, whether prior in date to the act or not, invest the same in consoli- dated stock created by the Metropolitan Board of Works." 282, note (6), for W. N. 1863, lege W. N. 1868. 284, — (/)> as to investments by the Court on foreign securities, as Italian, see In re Brackenbury'' s Trusts, W. N. 1872, p. 125. 286. In third line of paragraph 25, and just before the last 3 words of that line, insert, " And if trustees accept a security without making proper enquiries as to its nature and adequacy, though it may have been previously valued by a surveyor ; Bell v. Turner, W. N. 1874, p. 113." 286, note (c), add Bell v. Turner, W. N. 1874, p. 113. 290. At the end of the 11th line from the top, after the word Rolls, supply as a footnote, Ex parte Paiolett, 1 Phill. 570. 294, at the end of paragraph 48, add, " Even where the trustees were empowered by the will to continue any of the testator's Government stocks, it was held that they were not justified in continuing Long Annuities ; Tickner V. Old, 18 L. E. Eq. 422." X ADDENDA ET CORRIGENDA. PAGE 301, note (b), aftei- Ex parte Ogle, 8 L. R. Ch. App. 716, add, Hooper v. Hooper, W. N. 1874, p. 174." 301, note (c), add, affirmed, W. N. 1874, p. 169. 302, note (b), after Vyse v. Foster, 8 L. R. Ch. App. 333, add, affirmed, W. N, 1874, p. 169. 307, note (d), add And executors after distribution are bound to give all proper information to unpaid creditors, or will be deprived of their costs in suits by such creditors. In re Lindsay, 8 I. R. Eq. 61. 307, note (/), add. And see MoncUon v. Braddell, 71. R. Eq. 30 ; 6 I. R. Eq. 352. 308, note (J), add, Cooh v. Harvey, W. N. 1874, p. 69. 309, — (a), — Wedgwood v. Adams, 8 Beav. 105. 313, at the end of paragraph 33, add, " And an executor who has distributed assets amongst residuary legatees, with notice, not of an existing debt, but that a future debt might by possibility arise at a remote period, may if called upon to pay such debt recover back from the residuary legatees the amounts paid to them, but without interest ; Jervis v. Wolferstan, 18 L. R. Eq. 18." 343, note (a), add, Wandesforde v: Carrieh, 5 I. R. Eq. 486. 360, — (a), — III re Ooddard's Trust, 5 I. R. Eq. 14. 354, note (c), add, Keays v. Gilmore, 8 I. R. Eq. 290. 357, — (rf), — Leighton v. LeigUon, 18 L. R. Eq. 458. 357, — (e), — Leighton v. Leighton, 18 L. R. Eq. 468. 360, note (6), add As to interest on the advance made after the date of the will, see the decree in Beckton v. Barton, 27 Beav. 106. 376, — (c), — Tiirnefr v. Buck, 18 L. R. Eq. 301. 384, at the end of paragraph 31, add " By 37 & 38 V. c. 78, o. 1, trustees are empowered to sell with a 40 years' title." 420, note (a), for 7 L. R. Ch. App., read 4 L. R. Ch. App. 424, at the end of paragraph 4, add "And an agent not for sale, but for management only, stands in a confidential relation, and cannot purchase without putting himself at arm's length, and a full disclosure of his know- ledge. King v. Anderson, 8 I. R. Eq. 147." 434, note (i), add Ex parte James, 9 L. R. Ch. App. 609. 437, at the end of paragraph 4 add, " By 37 & 38 V. c. 78, s. 1, Trustees for making purchases are empowered to buy upon a 40 years' title." " And by ss. 2 & 3, Trustees authorized to purchase leaseholds can dispense with production of the lessor's title." 439, at the end of paragraph 10, add, " But under special circumstances the Court has sanctioned the purchase of mines ; Bellot v. Littler, W. N. 1874, p. 156." 472, at the end of paragraph 25, add " By 37 & 38 V. c. 87, The Powers of the Endowed Schools Commissioners have been transferred to the Charity Commissioners, and certain amendments of the law been introduced." 485, note {d), add Oilliland v. Crawford, 4 I. R. Eq. 42. 486, — (A), — Gilliland v. Crawford, 4 I. R. Eq. 35. 487, — (c), — Oilliland v. Craivford, 4 I. R. Eq. 35. 488, — (a), — affirmed, W. N. 1874, p. 169. ADDENDA ET CORRIGENDA. XI PAGE 491, note (/),!idcl, Culhertson v. Wood, 5 I. E. Eq. 23, see 41. 506, — (e), — White v. M'Dermott, 7 I. E. Ex. 1. 507, — (6), — White v. M'Dermott, 7 I. E. Ex. 1. 527, — («_), — Courtney v. Rumley, 6 I. E. Eq. 99. 527, at the top of this page, add " The fact of a trustee having been unsuccessful in litigation, either as plaintift' or defendant, will not in the absence of misconduct disentitle him to be reimbursed his costs ; Courtney v. Burnley, 6 I. E. Eq. 99." 531, note (/), add Jervis v. Wolferstan, 18 L. R. Eq. 24. 532, — (e), — Lees v. Lees, 6 I. R. Eq. 259; McCormicJc v. Patten, 5 I. R. Eq. 295. 560, line 4, " By 37 & 38 V u. 83, s. 2, the commencement of the Supreme Court of Judicature Act has been postponed to Nov. 1, 1875." 560, after paragraph 7, add, as a new paragraph, " If there be two cestuis que trust tenants in common, and one of them be put into possession, and cut timber, and be insolvent, the other cestui que trust can obtain an injunction; Smallman v. Onions, 2 B. C. C. 621." 571, — (c), — Payne v. Evens, 18 L. R. Eq. 356. 603, — (/«), — Lindsay v. Earl Wichlow, 7 I. R. Eq. 193. 614, — (6), — Nicholson v. CarUne, W. N. 1874, p. 151. 622, — {h), — Estate of H. H. Molyneux, 6 I. R. Eq. 411. 624, at end of paragraph 7, add " And if a jointure or other interest to arise on the cesser of the present marriage be provided for a feme covert, it may be so limited as to enure to her separate use, and be inalienable during the present coverture ; Estate of H. H. Molyneux, 6 I. R. Eq. 411." 624, note (6), add, And see Estate of H. H. Molyneux, 6 I. R. Eq. 411. 639, — {g) — Estate of H. H. Molyneux, 6 I. R. Eq. 411. 672, in 5th line of the text from the bottom, instead of {a) lege (6), and add by way of foot note to (61 Att. Gen. v. Sands, Freem. 131 ; Barthrop v. West, 2 Ch. Re. 33 ; Duke of Norfolk's case, 3 Ch. Ca. 10. 700, at the end of paragraph No. 1, add, " But by 37 & 38 V. c. 78, s. 7, no priority or protection by reason of the legal estate is now allowed even to a purchaser for value wiihcmt notice ; but any priority or protection so acquired before the commencement of the Act is not to be taken away ; and the Act is not to apply to Scotland." 700, note (h), add. But see now 37 & 38 V. c. 78, s. 7. 701, — {a), — Mumfordy. Stohwasser, 18 L. JR. Eq. 556. 703, — (a), for Warwick v. Warwick, 3 Atk. 291, lege Warrick v. Warrick, 2 Atk 291. 715, — (/) add Carey v. Cuthbert, 7 I. R. Eq. 542 ; Paijne v. Evens, 18 L. R. Eq. 356. 718, — {b), — Muthw V. Bigg, 18 L. R. Eq. 246. 718, — (e), — But see Carey v. Cuthbert, 7 I. R. Eq. 542. 719^ _ (^d), — In the matter oj P. Dane, 5 I. R. Eq. 498. XU ADDENDA ET CORRIGENDA. PAGE 722, note (rf), add, And see Paine v. Jones, 18 L. R. Eq. 320. » 744, _ (^), _ Kcitmer v. Old, 18 L. R. Eq. 422. 781, — {g), — Cooper v. Cooper, 7 L. R. Bng. & Ir. App. 53. 812, — {d), — Where two trustees defended jointly by the same solicitor, and one of the trustees was a defaulter, the other trustee was still held entitled to his whole costs ; Watson v. Row, W. N. 1874, p. 161. 839, at the end of note {a), add. In Re BonelWs Electric Telegraph Co., 18 L. R. Eq. 653, V.C. Bacon ordered a substituted service, and also service abroad. But see In Re Haney's Trusts, W. N. 1874, p. 221. 864, to 11th line of note (6), add, In re BurtmCs Trusts, 6 I. R. Eq. 270. 865, note, in 15th line, after Re Guibert, 16 Jur. 852, add, Curtis's Trust, 5 1. R. Eq. 429. TABULAR ANALYSIS. PAET I. Definition of a trust, p. 13. Classification of trusts, p. 18. Creation of trusts, p. 21. By aet of a party, p. 21. Necessary What property parties may be made to a trust, subject to a p. 21. trust, p. 42. Formalities required, p. 46. r."TT Of trans- mutation of pos- The object pro- posed by the trust, p. 74. p. 60. Lawful trusts, p. 74. Unlawful trusts, p. 84. By operation of law, p. 126. I Of the lan- guage de- clanng the trust, p. 96, Express trusts, p. 95. Implied trusts, p. 114. , Executed, p. 97. Executory, p. 97. In marriage ar- ticles, p, 99. In wills, p. 105. Settlor, Trustee, Cestui que p. 21. p. 39. trust, p. At common law, p. 45, Under Statute of Frauds, p. 47. Under Statute of WUls, p. 51. Resulting trusts, p. 126. Constructive trusts, as renewal of leaseholds, &c. 160. Legal interest, but not the equitable, disposed of, p. 126. Upon purchases in names of third persons, p. 144. By presumption of law, p. 127. By force of words, p. 130. In name of a stranger, p. 144. In name of a child, p. 151. TABULAE ANALYSIS. PAET II. The Trustee. ler, p. ]74. Acceptance, p. 178. The legal estate in the trustee, p. 186. I The office of trustee, p. 221. How vested, p. 186. Properties and devolution of , p. 196. I What owners of the estate bound by the trust, p. 2 '6. At common law. p. 196. By statute, p. 209. properties. Duties of trustees, p. 264. iciation, p. 221. ation, p, 223. nature of the office, !7. rarship, p. 230, lity, p. 231. ee excluded from all jfit, p. 243. Powers, p. 4B4. 1. General, p. 494. 2. Special, p. 499. Allowances, p. 518. 1. For trouble, p. 518. 3. For expenses, p. Relinquishment oi office, p. 634. . 525. By consent of cestui que trust, p. 634. By power, p. 634. By suit, p. 552. 3 of ,alty. lu trusts of renewable leaseholds, p. 318. In trusts to pre- serve contin- gent remain- ders, p. 336. In trusts for raising por- tions, p. 339, stioninto possession, 14. ustody, p. 260. rsion, p. 263. ment, p. 270. ity of trustees to pay- i of interest, p. 298. bution of the trust , p. 304. In trusts for In trusts for sale, p. 374. purchase, p. 436. In trusts for pay- ment of debts, p. 444. 1. General duties, p. 374. 2. Trustees' receipts, p. 392. 3. Purchase of the trust pro- perty by trustees, p. 422. In trusts for charities, p. 463. 1. Validity of trusts, p. 414. 2. What deeds revocable, p. 450. 3. Duties of trustees, p. 453. Who are portionists, p. 340. I Amount raisable, p. 360. When raisable, p. 366. How raisable, p. 370. ;ases obligation w, p. 318. In what manner fines to be levied, p. 321, 1. WTio are younger children, p. 340. 2. Time of vesting, p. 317. 3. Ademption and satisfaction, p. 353. TABULAE ANALYSIS. XV PART III. The Cestui que Trust. Estate as between ceaiui que trust and trustee, p. 556. Estate as affected by dealings of cestui que trust, or by operation of law, p. 572. Subsidiary rights of cestui que trust, p. 678. In tbe simple trust, p. 566. In the special trust, p. 568. Jua habendi, p. 556. Jus disponendi, p. 5fj6. Maxims of equity in support of thefes^wi que trust's estate against the acts of the trustee, p. 767. What ought to be doneshall be con- sidered as done, p. 767. Act of trustee shall not alter nature of cestui que trust's estate, p. 790. Conversion, p. 767. Election, p. 781. Who may elect, p. 781. How election may be manifested, p. 788. Kelief against failure of the trustee, p. 678. Eights in preven- tion of abreach of trust, p, 690. Assignment, p, 572. Testamentary disposition, p. 593. Seisin and dis-seisin, p. 596. Merger, p. 599. Dower and curtesy, p. 606. Eeme covert, p. 610. Judgments, p. 644. Extents, p. 664. Forfeiture, p. 665. Escheat, p, 669. Descent, p. 670. p. 672. Remedies in event of a breach of trust, p. 699. Appointment of proper trustees, p. 690. Compulsion of trustees to duty, p. 696. Injunction againstbreach of duty, p. 697. Of following the spe- cific trust estate. Of attaching property into which the trust estate has wrongfully been con- verted, p. 730. Remedy against the trustee personally, p. 735. Remedies on breaches of trust by trustees for charities, p. 756. Into whose hands, p. 699. Within what limits of time, p. 704. What account of mesne rents and profits, p. 724. Of the mode of redress, p. 756. Of the extent of redress, p. 763. XVI TABULAE ANALYSIS. PAET IV. Pleading and practice in reference to the Law of Trusts. iNecessary parties to suits, p. 796. Order ana manner of suing and defending, p. 811. Distringas, p. 813. General practice, p. 796. Production of documents, p. 813. Compulsory payinent into court, p. 819. Statutory ciianges in the practice, p. 806. Eeceivership, p. 824. Costs of suit, p. 826. ) Between trustees and cestuia que trust and strangers, p. 796. Between trustees and ceatuis que trust inter te, p. 799. Exceptional cases, p. 806. TABLE OF CASES. PAGE Abbot v. Gibbs . . .398 ■ V. Lee . . 134, 770, 776 Abington's case . . . 667 Abney v. Miller . . .160 Acherley v. Aoherley . . 47 V. Roe . . . .728 Acheson v. Fair . . .162 Ackland v. Lutley . . 190, 193 Ackroyd v. Smithson 131, 132, 133 Acland v. Gaisford . 124, 125 Acraman v. Corbett . . 68 Acton V. Peirce . . 650, 674 V. White . . . .639 V. Woodgate . . 461, 453 Adair v. Shaw . 700, 742, 827 V. New Kirer Company . 805 Adaraes v. Hallett ... 68 Adams' Will, re . . . 275 Adams v. Adams 192, 195, 344, 346 V. Barry .... 724 V. Beck . . . .343 V. Broke . . . .380 V. Buckland . . .230 V. Claxton . . . 261 V. Clifton 222, 434, 755, 830 V. Gale . . . .299 V. Gamble . . . 638 V. Paynter . . 546, 647 V. Robarts . . . 344 V. St. Leger . . 797, 803 ■ ■ V. Taunton . 178, 411, 506 V. Waller . . .493 Adamson v. Armitage . .621 Addison v. Cox . . . 584 Adey v. Arnold . . . 183 Adye v. Peuilleteau or Fennilit- teau . . . 270, 271, 300 Adlington v. Cann 45, 48, 49, 51, 53, 56, 59, 594 Agar V. Fairfax . . . 729 Aggas V. Pickerell . . 706, 711 Agra Bank, re ... 585 Agricidturists' Cattle Insurance Company, re . . .710 Aguilar v. Aguilar . . 627, 630 Aicken v. Macklin . . 591, 592 Ainslie v. Harcourt . . 322, 323 of) 16, PAGE Airey v. Hall . . 60, 62, 819 Alchorne v. Gomme . . . 560 Alcock V. Sloper . . . 265 Alden v. Gregory . . . . 710 Alderman v. Neate . . . 467 Alderson v. Temple . . 446, 448 Aldridge v. Westbrooke . 554, 812 Alexander, re , . . . 494 V. Alexander . . 226, V. Crosbie . . 390, V. MuUins V. Newman V. Wellington (Duke Alge, re . Alison's case . Allam V. Heber Allan V. Backhouse Allason v. Stark Allen's Will, in re Allen V. Allen V. Bonnett V. Imlett V. Jarvis . V. Knight V. Papworth V. Sayer . V. Walker Alleyn v. Alleyn AUeyne v. Darcy Allhusen v. Whittell Allies, re . Alloway v. Braine Allwood V. Heywood Alsop V. Bell . Alston V. TroUope Altham v. Anglesey Alton V. Harrison Alven V. Bond Amand v. Bradburne Ambrose v. Ambrose Ames V. Parkinson Amherst's Trusts, re Amhurst v. Dawling Amler v. Amler Amphlett v. Parke . Anandale (Marquis of) v. Mar oliioness of Anandale . 791, 793 h 257 649 804 93 22 783 56 459 323, 326, 372 . 467 . 840 35, 575 . 68 17, 205 . 529 . 590 . 625 . 710 560, 625, 639 359 170, 297, 531, 743 267, 268 . 290 . 715 . 561 . 532 . 493 6 525 427 526 50, 144, 148 258, 287, 296 . 91 . 205 . 776 130,133,141 68, TABLE OF CASES. Anderson, ex parte in re V. Pignet V. Stather PAGE . 553 550, 553 . 599 . 797 Andrew v. Trinity Hall, Camb. 175 V. Wrigley 416, 417, 421, 702, 705 Andrews, ex parte — — • V. Brown V. Bousfield V. Partington Angell V. Dawson V. Draper Angelo, re Angerstein v. Martin • ex parte 243,253,261,489 . 454 . 581 . 490 278, 485 . 645 847, 848 266, 267, 287, 489 . 826 Angier v. Stannard 306, 308, 565, 568 Angle, ex parte . . . 743 Angus V. Angus ... 43 Annand v. Honeywood . . 770 Annesley, ex parte . . . 467 V. Asburst . . . 498 V. Simeon . . . 559 Anonymous case (2 Atk. 223) . 667 (3 Atk. 129) . . .729 (Cartb. 15) . . 145,146 ■ (2Cb. Ca.-54) . . .459 (2 Ch. Ca. 207) . .160 (1 Com. 345) • . 131,140 (Dyer, 210 a) . . . 236 (2 Equity Ca. Ab. 12, pi. 20) 763 (Freem. 115) . . 674 ■ (2 Freem. 33 (cited) ) . 128 - — - (2 Freem. 114) . . 792 (4 Ir. Bq. Rep. 700) . 690 • (1 Jurist N. S. 974) . 836 (4 Leon, 207) . .177 (Lofft, 492) . . .270 (4 Mad. 273) . . .571 (6 Mad. 10) . . 384, 698 (6 Mad. 11) . . .375 (12 Mod. 560) . . 225, 231 (2 Moll. 483) . . .650 (Mos. 35) . . 222, 233 (Mos. 36) ... 222 (Mos. 96) ... 398 (Pr. Cb. 434) . . 417, 421 ■ (1 P. W. 327) . . 682 . (1 P. W. 445) . 10, 645 (2 P. W. 261) . . 594 (1 Poll. Rep. 56) . . 674 (2 Russ. 350) . . 426 (ISalk. 126) . . .732 (1 Salk. 153) . . .391 (1 Salk. 154) . . .462 ■ (1 Salk. 155) . . 244, 248 (Sel. Cb. Ca. 57) 730, 733, 734 (2 Sim. N. S. 71) . . 26 ■ . (4 Sim. 359) . . .822 793 210 300 . 248 433, 713 . 519 . 498 824, 825 . 824 . 633 . 622 . 116 812 191 187, PAGE Anonymous case (2 Sw. 300, 302) 474 (2 Vent. 394) . . 75, 678 (2 Vent. 361) . . .144 (1 Vern. 104) . . .372 (1 Vern. 105) . . .729 (2 Vern. 133) . . .458 (1 Ves. jun. 462, and 3 B- C. C. 515) (2 Ves. 586) (2 Ves. 630) (3 Ves. 515) (6 Ves. 632) (10 Ves. 103) (10 Ves. 104) (12 Ves. 4) (12 Ves. 5) — (18 Ves. 258) (7 Vin. 96) (8 Vin. Ab. 72) (1 Y. & C. 538) Anthony v. Rees Antrim (Lord) v. Duke of Buck- ingham .... 32 Antrobus v. Smith . . 62, 71, 72 Aplyn V. Brewer . . 233, 237 Appleton V. Rowley . . . 607 Appleyard v. Wood . . 594 Apsey, ex parte . . . 747 Archer v. Rooke . . 621, 623 Ardill V. Savage . . . 553 Arglasse v. Muscbamp . . 43 V. Coates . . 87, 641 Armston's Trusts, re . . 842 Armstrong «. Peirse . . 559 V. Timperon . . 61, 66 V. Walker . . .650 Armstrong's Settlement, re 541, 863 Arnold v. Blencowe . . .197 V. Chapman . . 131, 139 V. Garner . 245, 249, 519 ■ • V. Johnson . . . 776 V. Woodhams . 642, 750, 751 Arnould v. Grinstead . . 283 Arran v. Ty rawly . . .710 Arrowsmith's Trusts, re . 851, 856 Arthur v. Arthur . 621, 635, 636 V. Clarksou Ashburnbam v. Thompson Asbburton v. Ashburton . Asbby V. Ash by V. Blackwell V. Palmer Astley V. Essex (Ear V. Milles Ashton )i. Asbton V. Jones . V. M'Dougall V. Wood . Ashton Charity, re 71 298, 299 830, 834 . 793 . 612 . 310 777, 781, 788 of) . 708, 767 . 602, 604 . 107, 108 . 552 . 624 . 203 . 474, 759 TABLE OF CASES. XIX Askew V. Rooth ■ V. Thompson V. Woodliead Astbury V. Beasley Aston V. Aston . 635, V. Wood . Atcherley v. Vernon Atchison v. Leraann Athenaeum, &o. Society, Pooley Atkins V. Eowe Atkinson, re Atkyns v. Wright Attorney-General v. Alford PAGE . 635 . 460 . 740 262 636, 637 . 131 189, V. 622 638 . 704 . 149 . 580 117, 118 300, 301 837 V. Andrew . . 650, 653 V. Andrews . 488, 489, 594 ■ V. Arnold . . . 142 V. Aspinall . . 20, 22, 31 V. Avon (Portreeve &c. of) 805 V. Backhouse . . 479, 480 V. Balliol College . 480, 804 V. Bedford (Corporation of) 464 V. Berwick - upon - Tweed (Corporation of) I. Beverley 765 143 465 467 465 467 465 V. Black • V. Blizard . . 466, V. Boucherett . V. Bovill . . 466, • V. Brandreth . V. Brentwood School (Mas- ter of) ... 473 w. Brettingham 473, 474, 765 V. Brewers' Company 725, 763 764, 833 V. Brickdale . . .. 228 V. Bristol (Corporation of) 759 V. Bristol (Mayor of) 142, 143, 144 V. Brooke . 473, 478, 479 V. Brown . . .801 V. Browne's Hospital . 464 V. Brunning . . . 777 V. Buckland . . .682 V. BuUer . . 199, 200, 473 V. Caius College 30, 143, 471, 692, 765, 831 V. Calvert . . .465 • V. Carlisle (Corporation of) 765 V. Catherine Hall, Cambridge, (Master of) . .143, 463, 477 V. Chesterfield (Eari of) . 530 V. Christchurch (Dean of) 471, 473, 765 V. Christ's Hospital V. Clack . ■ V. Clapham ■ V. Clare Hall 143, 705, 765, 834 , 515, 551 468 . 464 PAGE Attoney-General v. Clarendon (Earl of) 30, 424, 464, 465, 476 V. Clifton . . 468, 691 V. Coopers' Company 143, 692 V. Coventry (Mayor of) . 143 V. Cowper . . .691 V. Crook . . 463, 480 V. Cross . . 477, 478, 479 V. Cuming, 76, 228, 230, 231, 501, 691, 753, 756, 812, 828 ■ V. Dallgars ■ V. Daugars • V. Davey . • V. Davy . • V. Day ■ V. Dedhara School ■ V. Dew • V. Dillon . ■ V. Dixie 744 . 691, 831 . 718, 723 . 77 . 475, 480 74, 464, 465 . 808 . 56 260, 464, 465, 471, 476, 477, 478 V. Downing (Lady) 678, 679, 680 V. Doyley . . 175 V. Drapers' Company 143, 765, 831, 834 V. Drummond . . . 831 V. Dudley (Lord) 423, 428, 431, 713 V. Dulwich College . . 464 V. Duplessis ... 56 V. Eastlake . . . 488 V. East Retford (Burgesses of) . 738, 765, 766, 834 V. East Retford G-ramraar School . . .759 V. Exeter (Corporation of) 466 467, 765 V. Exeter (Mayor of) 694, 704, 706, 713, 763, 764, 765 V. Flint . . . .718 V. Ployer . 231, 501, 550 V. Foley .... 76 V. Foord . . . 477, 480 V. Forster 20, 76, 77, 205, 756 V. Foundling Hospital (The) 30, 463, 464, 698 - V. Poyster - V. Gascoigne - V. Gaunt . ■ V. Geary . II. Gibson • V. Gleg ■ V. Glegg . • V. Goldsmiths' Company • V. Gore (Lord) V. Gould . ■ V. Gower (Lord) 472 . 471 . 463 . 487 . 476 19, 226, 230 . 230, 514 465 556 465 477 V. Green . 473, 478, 480, 760 ■ V. Greenhill . . .477 ■ V. Greenhouse . . . 742 . V. Griffith . . 478, 479 h 2 TABLE OF CASES. PAGE Attorney-General v. Haberdashers' Company . . 142, 471, 760 V. Hall . . 116, 118, 479 V. Harley . . .779 V. Harrow School (Governors of) 512, 514, 515 ■d) 20, 805 . 142 , 680 256, 279 . 830 242, 473 . 479 . 474 . 692 . 468 . 471 . 143 143, 144 141, 142 . 466 V. Heelis . V. Herrick ■ V. Hickman V. Higham V, Hobert V. Holland V. Hotham (Lor V. Hungerford V. Hurst . V. Hutton. V. Jackson V. Jesus College V. Johnson V. Johnstone V. Kell . V. Kerr V. Kbhler V. Ladyman V. Landerfield . V. Leeds (Duke of) V. Leicester (Corporation ot) 170, 531, 738, 807 • V. Lewin .... 467 V. Lichfield (Bishop of) 230, 501, 550 V. Lichfield (Corporation of) 31 V. Liverpool (Mayor of) . 698 V. Lock . .231, 463, 464 V. Lockley ... 46 V. Lomas . . . 777 V. London (City of) . . 828 0. London (Corporation of) 30 V. Magdalen College, Ox- ford . V. Magdalen College 473, 474, 479, 480 303 471 30 217, 218 ■ V. Magwood ■ V. Mansfield (Earl of) . 464 473, 719, 723 . 477 466, 471, 475 143 ■ V. Marchant • V. Market Bosworth School 470 ■ V. Mercers' Company 143, 473 - V. Merchant Venturers' So- ciety V. Middleton V. Milner V. Minshull V. Moor . V. Morgan V. Munby V. Munro V. Murdoch V. Newark (Mayor of) ■ 0. Newbury 143 464 135 142 711 477 85 253, 469 . 469 474, 766 764, 765 PAGE Attorney-General v. Newbury Corporation . 465, 694, 799 V. Newcombe 20, 76, 205, 756 ■ V. Norwich (Corporation of) 489 ■ V. Norwich (Mayor of) 525, 528 V. Owen 478, 479, 480, 496 u. Pargeter . . 473,479 V. Parker . 76, 77, 205, 756 V. Pamther . . - 636 V. Payne . . . 718, 723 V. Pearson 84, 467, 468, 469 470, 528, 546, 691, 807 V. Persse . . . 721 V. Poole (Borough of) . 31 V. Poulden . 80, 82, 128 V. Pretyman . . .765 V. Price .... 687 ■«. Kandall . . 234,261 ■«. Rigby . . . 765 V. Rochester (Corporation of) 465, 469 y. Rochester (Mayor of) 480 V. Rutter .... 77 V. Sands 2, 40, 74, 84, 250, 664, 665, 667, 668, 669, 672, 673 V. St. Cross Hospital . 464 V. St. John's Hospital 30, 477, 478 V. Scott 19, 46, 76, 186, 226, 227, 501, 606, 608, 753 V. Shearman . . . 228 V. Sherborne School . 465 V. Shore . . . .691 V. Shrewsbnry (Corporation of) _ 20 V. Sidney Sussex College . 143 V. Smythies . . .143 V. Solly . . . . 302 V. Southampton (Guardians of Poor of) . . . .489 v. South-moltou (Corpor- ation of) .... 143 V. South Sea Company . 474 V. Sparks . . . 142 V. Stafford (Mayor of) 30, 764 V. Stamford . 471, 691, 760 V. Stamford (Mayor of) 472, 476, 478 V. Stephens . . 678, 680 V. Thompson . . . 691 V. Trinity College . . 143 V. Vivian . . 466, 756 V. Warren . . 474, 479 y. Wax Chandlers' Company 143 V. Whiteley . . . 476 V. Whorwood . . 9, 30 V. Wilkinson . . 466, 467 V. WUson 22, 127, 143, 475, 743, 744, 799, 801, 830 V. Windsor (Dean of) 131, 143 TABLE OF CASES. XXI PAGE Attorney-Greneral v. Worcester (Bishop of) . . . .759 V. Wyville . . .812 V. York (Archbishop of) . 463 Atwell V. Atwell . . 776, 779 Auby V. Doyl . . . .123 Austen v. Taylor 96, 98, 109, 186 Austin V. Martin . . . 409 Australian, &c., Company v. Mounsey .... 497 Aveline v. Melhuish . . 755 Aveling v. Knipe . . 145, 146 Averall v. Wade . 43, 592, 593 Avery V. Griffin ■ . . 32 V. Osborne . . .833 Avison V. Holmes . . 90, 655 Awdley v. Awdley . 15, 792, 794 Ayles V. Cox . . 861, 867, 872 Ayliffe v. Murray . 424, 518, 522 Aylwin's Trust, re . . .90 V. Bray .... 754 Baber's Trust, re . Babington's case Bache's Trust, re Back V. Andrews V. Gooch . Backhouse v. Backhouse V. Middleton . Bacon v. Bacon V. Clerk . V. Proctor Badcock, in re , ex parte Baden v. Earl of Pembroke Bage, ex parte . Baggett*?). Meux . Bagot V. Bagot . 168, 169, 488 Bagshaw v. Spencer 97, 98, 105, 107, 108, 187, 190, 193 V. Winter . . 613, 614 Bagspoole v. Collins . . 67 Bagster v. Faokerel . . 133, 134 - ■■ ■ ~ 661, 664, 837 . 448 . 664 . 865 153, 158 447, 448 . 678 . 372, 700 . 224 . 367 . 79 792, 793, 849, 852 . 424, 427 . 770 426, 427 638 Bailey's Trust, re Bailey, ex parte V. Ekins . V. Gould V. Jackson V. Richardson . Baillie v. McKewan . Baily v. Ekins 446 403, 406, 459 256, 257, 261, 832 . 625, 627 . 600 38, 312, 701 . 183 Bain v. Lescher . . . 622 Bainbridge v. Lord Ashburton . 200 BainbriggetJ. Blair 249, 523, 691, 824, 825, 826 V. Burton . . 805, 806 Baines v. Dixon . . . 372 Baker, exparte . . . 790 V. Bradley . . . 639 Baker v. Carter PAGE 422, 427, 431, 750, 830 V. Hall . V. Martin . V. Peck . V. Read . Balchen v. Scott Baldock, ex parte Baldwin v. Baldwin V. Banister Bale V. Coleman Balfour v. Welland Balgney v. Hamilton . 139 . 522 . 432 . 433 179, 223 . 385 . 612 . 245 96, 98, 99, 193 396, 397, 399 150, 731 BaU V. Harris 377, 402, 403, 416 V. Montgomery . 834 Ballet V. Sprainger . . . 326 Balis V. Strutt . . . .698 Balsh V. Hyham . 496, 528, 531 u.Wastall ... 10 Bamford v. Baron . . . 448 Bampton v. Birchall . . .711 Banbury «. Briscoe . . . 1 70 Bangley's Tru.st . . .841 Bank of England v. Lunn . 31 V. Parsons ... 31 Bank of Turkey v. Ottoman Company .... Bankart v. Tennant . Bankes v. Le Despencer 109. Banks v. Cartwright 821 590 443, 512 571 V. Sutton 606, 609, 671, 769 ■ " - . 213 . 841 . 201 . 711 . 170 . 142 116, 118 . 746 . 459 of) . 398 187, 188 . 613 . 17 . 554 . 825 49,50 . 69 490, 491 . 223 . 611 . 327 576, 704 . 98 . 17 Bankhead's Trust, re Barber, re , exparte . ■ V. Barber Barclay v. Raine V. Russell Bardswell v. Bardswell Barif, ex parte . Barker v. Boucher . V. Devonshire (Duke ■ V. Greenwood . V. Lea V. May V. Peile . Barkley v. Reay (Lord) Barkworth v. Young Barling v. Bishopp . Barlow v. Grant Barnard v. Bagshaw u. Ford . V. Heaton V. Hunter V. Proby - Barnardiston v. Soame Barnes v. Addy V. Crow • V. Grant 297, 421, 547, 736, 737 . 559 116, 120 TABLE OF CASES. PAGE PAGE Barnes v. Eacster , . 593 Baugh V. Reed . 357 V. Robinson 614, 619 Baugham, ex parte . . 839 Bavnett v. Blake , 26,91 Baxter'?;. Gray . 494 V. Sheffield . . 576 V. Pritchard , . 447 Barnewall«. Barnewall 649, 650 Baxter's Will . 859, 868 , ex parte . 746, 750 Baycott, re . 864 Barnwall v. Baruwall 726 727, 729 Bayden v. Watson . 649, 777 Barnwell, ex parte . 420 Bayley v. Bouloott . 45, 48, 60 V. Barnwell . 663 V. Mansell . 692 Barrack v. M'Cullock 67, 6J , 70, 634, V. Powell 133, 834 637 , re . . 96 Barr's Trusts, re . 580 Bayley's Settlement, re , 341, 342 Barret v. Beckford . . 356 Baylies v. Baylies . 557 V. Glubb . . 205 Baylis v. Newton 127, 156 Barrett v. Buck 82, 126 Bayly v. Gumming . . 178, 506 V. Hartley 519, 522 Baynard v. Woolley . 313 , 744, 805 Barrington v. Hereford . 139 Beal V. Beal . . 363 V. Liddle 82,83 Beale v. Beale . . 342 Barrington's Settlement re 516, 517 V. Symonds 218 251, 670 Estate, re . 487 Beales v. Spencer . 622 Barrow v. Barrow . 614, 781 Bean v. Sykes . 615 V. Green . 56 Beanland v. Halliwell . 266 V. Wadkin '. 40, 41, 85, Beard v. Nutthall . . 70 250, 670 Beardmore v. Gregory . 813 Barrs v. Fewke . 131 Beasley v. Magrath 491 Barry, ex parte . 212 V. Wilkinson . . 201 V. Marriott 276, 277 Beatson v. Beatson . . 64 V. Woodham . 812, 813 Beattie v. Johnstone . . 801 Bartholomew's Trust, in re 643, 841 Beaty *. Curson 837, 841 Barthrop v. West . 672 Beauclerk v. Ashburnham 289, 513 Bartlett v. Bartlett 2i3 587, 819 Beaudry v Mayor,'&o. of Montreal 715 V. Green . . 102 Beaumont v. Beaumont . 824 V. Piokersgill 145 148, 149 V. Meredith . 820 Bartley v. Bartley . 412, 507 V. Salisbury (Marquis) . 193 Barton v. Briscoe . 623 Beanmoiit's Mortgage Trust ,, re 382 Barwell v. Barwell . 245, 432 Beaumont's Trusts, re . 779 V. Parker 460, 461 Beavan v. Lord Oxford 216 653,- 658 Basingstoke School, re . 870 Beckett v. Buckley . . 662 Baskerville v. Baskerville 98, 108 V. Cordley . 36 Basset's (Sir W.) case , . 133 Beckford v. Beckford 156, 157 Bastard v. Proby 107, 108 V. Close . . 711 Batchelor, re . . . 579 V. Tobin . 362 Bate V. Plooper 264, 295 312, 832 V. Wade . 705, 706 V. Scales . . 296 Beddoes v. Pugh 253, 305 Bateman v. Davis 281 750, 755 Bedford (Duke of), v. Marquis of V. Hotohkin 79, 82, 169 Abercorn . 112 V. Mai-gerison . 462, 806 Charity, in re 464, 758 Bateman's Trust, re 668 V. Leigh . . 649 Bates V. Dandy . 618 V. Woodham . . 418 V. Johnson . 701 Bedwell v. Froome . . 151 Bath (Earl of) v. Abney . 206 Beech v. Keep 60, 62 V. Bradford (Earl of) 374, 460, V. St. Vincent . . 83 461 485, 786 Beecher v. Major 145, 150 Batson v. Lindegreen . 459 Beeohing v. Morphew . 625 Batteley v. Windle . . 131 Beecroft v. Wilkin . 779 Battersby v. Farrington . 68 Beer, re Goods of . . 180 Battersby's Trust . . 865 Beere v. Head . 659 Battier, ex parte . 205 Befford's Will, re . . 839 Baud V. Fardell 278, 294 : Begbie v. Crook . 177 Baugh V. Price 428, 434 Beilby, ex parte 623, 749 TABLE OF CASES. XXlll PAGE Belaney «. Belaney . . . 602 Belch V. Harvey . . . 706 Belchier, ex parte 224, 225, 233, 237, 260, 261, 383 Belke's Charity . . .695 Bell V. Bell 578, 699, 700, 704, 705, 708 V. Coleman . . . 356 V. Hyde . • . . .32 V. London & North Western Railway Company . . 579 Bellamy v. Burrow ... 50 Bellasis v. Compton . . 45, 47, 48 V. Uthwatt . . 356, 359 Beloved Wilkes's Charity, in re 513, 514 Benbow v. Townsend Bence v. Gilpin Bendyshe, re . Benett v. Wyndham Bengough v. Walker Benham v. Keane Benn v. Dixon Benuet, ex parte V. Box V. Davis V, Going . V. Mayhew Bennett, ex parte 45,48,150 . 181, 208 . 840 . 528 . 356, 357 658, 663, 664 . 263 . 92 . 673 123, 196, 212, 215, 608, 621, 679 . 828 . 732 422, 423, 424, 425, ■ V. Attkins - V. Bennett - V. Burgis ■ V. Colley - 1;. Honywood - V. Lytton • V. Powell - u. Whitehead ■ V. Wyndham 427, 428, 429, 430, 449 827, 831 . 191 . 554 325, 327, 333, 696, 704, 712, 756 . 513, 687 315 '. 645, 663 . 727 371, 372, 503, 514, 528 . 50 . 839 Bennett's Settlement, re Bennett's Trust, re . Benson v. Benson 183, 623, 785, 787 V. Whittam . . .121 Bentham v. Haincourt . . 169 V. Wiltshire . . .407 Bentley v. Craven . 166, 244, 245 V. Mackay . . 50, 61 V. Robinson . . . 745 Beresford v. Beresford . . 739 Bergholt, re ... . 865 Berkhampstead Free School, ex parte . . . 464, 514, 759 Beriningham, re . . 722, 723 Bernard, ex parte . . . 839 V. MinshuU . . 115, 117 Berrington v. Evans . . 651 Berry v. Briant . . 121, 123 PAGE Berry v. Gibbons . . 392, 498 ». Usher . 132,140,141 Berwick (Mayor of) v. Murray 302 Bessey v. Windham Bestall V. Bunbury Bethell v. Abraham Betty V. Elliott Beulah Park Estate, Bevan's case . V. Habgood Bevant v. Pope Beynou v. GoUins Bibby v. Thompson Bick V. Motley Bickham v. Freeman Bicknell v. Gough Biddulph, ex parte V. Biddulph Bifield V. Taylor Biggleston v. Grubb Biggs, in re V. Andrews V. Penn . 447 638 279, 282, 284, 437, 498, 515 . 96 ! . .527 . 791 . 423 . 196 . 398 . 121 241, 301, 746 . 459 . 710 . 747 . 769 . 797, 799 . 356 . 836 . 777 . 807 Bignold's Settlement Trusts 543, 864 Bignold V. Springfield Bill V. Curetou Billingsley v. Mathew Billiiigsly V. Critchet Billson V. Crofts Bindley v. MuUoney Binford v. Baw.den . Bingham v. Clanmorris Bingley School, in re Binion v. Stone Binks V. Micklethwait V. Rokeby (Lord) Birch V. Blagrave V. Cropper V. Wade . Birch- Wolfe v. Birch Bird, re . . V. Harris . V. Johnson V. Lockey ■ V. Peagrum V. Maybury Birls V. Betty . Birmingham Bluecoat School, in re Biron v. Mount Biscoe V. Kennedy V. Perkins Bishop V. Bishop V. Church V. Colebrook ■ V. Talbot , ex parte . Bittlestone v. Cooke Black V. Creighton 759 . 67 . 230 . 491 . 90 . 73 . 782, 785 . 177 . 762 . 152 . 744, 832 390, 395, 398 . 128, 156 . 546 115, 684, 685 . 168 . 222, 224 . 129 . 87 . 300 . 635 . 121 743 275 463 , 457 626 , 187 , 273 , 578 , 615 54,59 . 746 . 447 . 820 School, re XXIV TABLE OF CASES. PAGE Blackburn v. Stables. 100, 105, 106 Blackbume, ex parte . . 509 Blackford v. Davis . . . 525 Blacklow V. Laws . . 380, 623 Blackwell v. England . . 691 Blaokston v. Hemsworth Hospital 473 Blackwood v. Borrowes 242, 270, 380, 749, 752, 754 Blagrave v. Blagrave Blair v. Bromley V. Ormond V. Nugent Blake v. Bunbury ■ V. Dove . V. Poster . • V. Peters . Blakely v. Brady Blanchard, re . Bland v. Bland V. Wilkins Blann v. Bell . Blatch V. Wilder Blatchford v. Woolley Bleazard v. Whalley Blencowe, ex parte . Blennerhassett v. Day Blewett V. Millett Blewitt V. Thomas Bligh V. Darnley Blinkhorne v. Feast Bliss V. Bridgwater Blithe's case Blithman, re Blogg V. Johnson Blomfield v. Eyre Bloomar, re Bloye's Trust, in re Blue V. Marshall Boardman v. Mosman Boddington v. Castelli Boddy V. Esdaile Boden's Trust, in re . Bodenham v. Hoskyns Bold 1}. Hutchinson . Bolland, exparte Bolton's Will, re V. Bolton . (Duke of) V. Deane V. Powell . V. Stannard V. Williams Bond V. Hopkins V. McWatty . V. Nurse . Bone V. Cook . V. Pollard Bonfield v. Hassell . Bonham v. Newcomb Bonifant v. Glreenfield 560, 194 710 715 718 557 197 707 . ■ 321 . 62 696, 863 116, 118 139 264, 265 123, 459 629, 751 . 487 . 741 384, 710 162, 165 . 711 . 677 . 36 . 179 32, 500 . 306 . 298 . 725 . 862 422, 423, 424, 840, 841 . 494 . 242 . 210,211 . 210, 211 . 855 170, 421, 531 100 747 . ' 839 71,72 726, 727 . 709 809 630 . ■ 707 . 740 . 16 . 234, 243 145, 146,158 . 91 . 71 . 177, 178 746, 409, 627, PAGE Bonithon v. Hockmore 518, 519, 523 Bonner v. Bonner . . . 614 Bonney v. Ridgard 415, 416, 417, 418,421,705,706 Bonser v. Kinnear . . 115, 685 Booker v. Allen . . 356, 358 Booth, exparte . . . 222 V. Booth 179, 181, 242, 744, 750 V. Warrington . . .710 Bootle V. Blundell . . .372 Boreham v. Bignall . . . 309 Boschetd v. Power . . . 826 Boson V. Statham 45, 48, 53, 54, 67, 59 Boss V. Godsall . 280, 513 Bostock V. Blakeney 285, 296,440, 486 V. Ployer 222 , 260, 310 Bosvil V. Brander . 612 Bosworth V. Porard . . 190 Boteler v. AUington , 15, 192 Bothomly v. Lord Fairfax . 460 Bott V. Smith . . 68 Bottomley v. Fairfax Lord) . 606 Boughton V. James . . 79 V. Langley . 187 Boulton, exparte . 585 V. Beard . . 306 Bourke, re . 867 Bourne v. Bourne . 779, 780 V. Buckton 82,83 V. Mole . . 821 Boursot V. Savage . 198, 700 Bovey v. Smith 700, 702 Bowden v. Bowden . . 265 V. Laing . . 122 V. Henderson . . 307 Bowes, ex parte 199, 201 Bowes V. East London Water- ' works' Company . 496 728, 756 V. Shaftesbury (Earl of) . 775 V. Strathmore (Earl of) . 487 V. Toronto (City of). . 247 Bowker v. Burdekin 446, 447 Bowles V. Bowles . 344 • ■ V. Rogers . 212 V. Stewart 165, 756 • V. Weeks . 693 Bowra v. Wright . 862 Bowyer v. GrifKn . 832 V. Woodman . 614, 783 Box, re . .517 V. Box . 615 V. Jackson 615, 616 Boyce, re . 865 V. Corbally . 507 Boyces Minors, re . 274, 275 Boycot v. Cotton . 353 Boycott, re . 545 Boyd V. Boyd . 114, 492 Boyd's Settled Estates re . 275 TABLE OF CASES. XXV PAGE PAGE Boyd's Trusts, re . . 840 Bridget v. Hames . 805 Boynton v. Richardson . 833 Bridgraan, re . 543 691 Boys V. Boys . . 264 V. Gill . 170 293 709 805 Brace v. Marlborough (Duchess Briggs V. Chamberlain 783 of) . . . . 216 V. Jones . , 590 Braclcenbury v. Brackenbury . 94 «. Oxford (Earl of) . , 79 Brackenbury's Trusts, re . 864 V. Penny . 53 116 117 Bradburne, in re . 868 V. Wilson , 493 Bradby v. Whitehurst . 485 Bright V. Legerton . 737 753 Brader v. Kerby . 850 V. North . 488 529 Bradford v. Belfield . 226, 227 V. Rowe . 350 ■ V. Brownjohn . . 328 Bright's Trust, inre . . . 586 Bradgate v. Ridlington . 458 Bristed v. Wilkins . 658 Bradish v. Gee 788, 789 Bristol (Countess of) t;. Hunger- Bradley v. Peixoto . . 87 ford . , 1.32 133 V. Powell . . 350 Bristow V. Booth . 206 861 Bradshaw, ex parte . . 858 ■ V. Pegge . 559 , re . 851 Britten v. Cole 644 V. Bradshaw . 230 Brittlebank v. Goodwin 737 738 V. Pane . . 378 Britton v. Twining . 97 Bradwell v. Catchpole 232, 702 Broadhurst v. Balguy 292 752 756 Brandlyn v. Ord . 702 Broadmead v. Wood 341 342 Brandon v. Aston . 91, 493 Broadwood's Trust, re 844 V. Robinson 87, 573 Brocklesby, re . 840 Brasier v. Hudson . . 395 Brocksopp V. Barnes 518 521 523 Brass's Trust, re . 858 Brodie v. Barry 635, 824 Brassey v. Chalmers 378, 504, 507 V. St. Paul . 827 Brathwaite v. Brathwaite . . 247 Bromfield, ex parte . 790, 791, 792, Braund v- Devon (Earl of) . 762 793, 794 Bray, ex parte . . 525 ■ I'. Wytherley . 299 V. Laycock . 614 Brome V. Berkley . 367, 368 V. West . . 176 Bromley v. Holland . 797 802 Braybroke (Lord) v. Inskip 199, 200, V. Lingard , 749 201, 411 V. Smith . 805 Brearcliff v. Dorrington . 587 Brook ■;;. Badley 779 Breary, re 536, 544, 545 ■ V. Brook '31, 34 119 Breedon v. Breedon . . 396 (Earl) V. Bulkeley 700 Brenan v. Boyne. . 96 Brooke v. Brooke . 634 V. Brenan . 105 V. Haynes 179, 180 Brent's Trusts, re . . 838 V. Pearson. , 92 Brentnall's Trust, re . 865 Brooker v. Brooker . , 740 Brereton v. Hutchinson 737, 738 Brookes v. Burt 802 Brest V. Offley . . 116 Brookman v. Hales . . 131, 161 Brett V. Greenwell . . 613 V. Rothschild . 166 Brettell, ex parte . 200 Brooksbank v. Smith 708 Brettle, re . 642 Broom v. Summers . . 469 Brewer v. Pocock . . 388 Brophy v. Bellamy . . 512 513 V. Swirles . 752 Brougham (Lord) v. Poulett Brewster v. Angell . 1] 1,112,113 (Lord) . • 533 Briee v. Stokes 233, 23 4, 238, 241, Broughton v. Broughton . 249 250 242, 24 13, 750, 752 V. James . . 632 Briokenden v. Williams . 135 V. Langley 186 Bridge v. Beadon . 585 Browell v. Reed 178, 386 824 825 V. Bridge 51, 60 61, 62, 64, 65,71 Brown, ex parte re . 758 527 V. Brown . 4 37, 490, 525 's Trust 84 586 Bridgenorth (Corporation of)«. 's Trust Estate, re . 382 Collins . 81 ■ V. Adams . 733 Bridger v. Rice . 375 . V. Bamford 640 641 Bridges v. Longman . 378 V. Bigg . 140 XXVI TABLE OF CASES. PAGE Brown v. Bradshaw . . 639 V. Brown . 284, 693, 788 V. Dawson . .469 V. De Tastet . 245, 246, 520 V. Gellatly . 268, 269 V. Groombridge . 532 • V. Higgs . 115, 142, 501, 679, 681, 684 685, 687, 689 V. How . . 556, 830 V. Jones . . 131, 136 V. Like . 639 V. Litton . 276 299, 300, 520 V. Maunsell . 745 V. Oakshott . 819 V. Pocook 640, 684, 685 V. Raindle . 196 V. Sansome . 300, 302 V. Stead . . 599 V. White way . . 192 Browne, re . 660 V. Blount . 804 V. Browne . 325 - V. Cavendish 451, 452, 453, 647 - V. Cross . . . 715, 753 - V. De Laet . . .134 - V. Elton . . . .612 ■ V. Lockhart . . .811 - V. Paull . . . .122 - V. Radford . . 718, 737 581, 583, 584, 585 299, 300 . 79 . 569 353, 354 . 299 . 39 ■ 243 Brunsden v. Woolredge 513, 682, 687 V. Southouse V. Stoughton Browne's Will, re Bruen v. Bruen Bruere v. Pemberton Bruramel v. Macpherson Brumridge v. Brumridge Brunskill v. Caird . . . 440 Bryan v. Collins . . .81 Bryant's Settlement, re . . 839 Brydges v. Brydges . . 96, 97 Buchanan v. Hamilton . 671, 690 V. Harrison . 15, 134, 671 Buck V. Shippara . . . 456 Buckeridge v. Glasse 178, 691, 731, 750, 755 V. Ingram . . . 326 Buckingham (Earl of) v. Drury 36, 767 • V. Hobart . . . 604 Buckle V. Mitchell ... 67 Buckley's Trust, in re . 835, 836 Buckley v. Howell . . 382 V. Lanauze . . . 161 Budge V. Gummow . 260, 286, 287 Bugden v. Bignold . . 582, 593 V. Tylee . . .818 Buggins V. Yates 116, 118, 130, 132 Bulkeley v. Eglinton (Earl) 176, 864 PAGE Bulkley v. Wilford , .169 Bull V. Birkbeck . . .334 V. Vardy . . .119 Buller V. Plunkett . . .584 Bullock V. Knight . . .616 V. Menzies . . . 614 V. Wheatley . . .256 Bullpin V. Clarke . . 626, 632 Bulraer v. Hunter . . 68 Bunbury v. Bunbury . . 44 Bunnett v. Foster . . 132, 805 Bunnett, re ... . 517 Bunting, in re . . . .170 Burbridge, ex parte . . . 214 Burohett v. Durdant . . 187 Burden v. Burden . . . 521 Burdett v. Eockey . . . 197 V. Willett . . .730 Burdick v. Garrick 301, 302, 737, 738 Burden v. Burdon . . . 635 V. Kennedy . . 646, 652 Burge V. Burton . . . 249 Burges v. Lamb . . 438, 778 Burgess «. Wheate . 9,11,12,13, 16, 29, 30, 40, 46, 74, 85, 142, 204, 205, 216, 217, 218, 243, 250, 252, 572. 594, 606, 608, 609, 616, 666, 669, 670, 699, 700, 767, 826 Burgh V. Burgh . . . 215 V. Francis . . . 215 Burke, re .... 836 V. Jones .... 454 V. Tuite . . . .629 Burmester v. Norris . . 497 Burn V. Carvalho . . 65, 579 Burney v. Davison . . . 447 V. Macdonald 40, 41, 56, 57, 85, 434 Bumham National Schools, re 695, 763 Burnie v. Getting . . . 284 Burntree Building Society. Burr V. Miller Burrell v. Egremont (Lord) re Bunidge v. Row Burrough v. Phileox Burroughs v. Elton V. M'Creight . Burrowes v. Gore V. Lock V. O'Brien Burrows v. Greenwood V. Walls Burt, re V. Dennet V. Sturt . V. Trueman Burling v. Stonard Burton, ex parte V. Hastings h re 868 . 56 603, 707 . 677 . 745 684, 685 . 650 . 721 720, 737 . 581 737, 807 . 831 570, 756 848, 873 . 800 . 83 . 399 . 421 170, 744, 747 . 100, 101 TABLE OF CASES. , re 202, 227, Burton v. Hodsoll V. Mount V. Pierpoint «. Wookey Burtt's Trust, Estate, re Bush V. Allen Bushnell v. Parsons Butcher r>. Easto Bute's Will, re Marquis of Butler and Baker's case Butler's Trust, re Butler's Will, re Butler, ex parte V. Bray V. Carter V. Cumpston V. Duncomb V. Kynnersley . V. Portarlington • V. Prendergast Buttanshaw v. Martin Buxton, ex parte V. Buxton Byam v. Byam 412, 507, Byde v. Byde Byne V. Blackburne Byrchall v. Bradford 182, 295, Byrne v. Frere . 708 • V. Norcott Bythesea v. Bythesea 719, 737, 531, 625, PAGE . 777 . 265 621, 679 166, 518 507, 508 . 202 189, 191 . 122 . 446 . 853 . 177 23, 841 . 788 . 210 230, 510 738, 750 630, 634 342, 368 . 167 . 50 797, 801 337, 566 . 385 256, 376 610, 514 354, 360 . 121 739, 750 710, 712 830 350 Cabel, re . . ■ .311 Cadogan v. Earl of Essex 289, 513 V. Kennet . . . 564 Cadwallader, ea: parte . . 205 Cafe V. Bent . 265, 498, 515, 551 Caffrey v. Darby 254, 525, 526, 742, 830 Caillaud v. Eastwick Caldecott v. Brown . V. Caldecott Caldwell, ex parte CaHsher v. Forbes Callendar v. Teasdale Callow V. Howie Calverley v. Phelp . Calvin's Case, re Cambridge v. Rous . Camden v. Anderson Cameron, re Camoys (Lord) v. Best Campbell, re ■ V. Campbell ■ V. Cooper ■ V. Perrall V. Graham X'. Home ■ V. Walker . 646 . 486, 487 267, 269, 278 . 214 . 584, 585 . 311 . 626, 626 . 797 . 40 . 140, 142 . 147 . 842 . 535, 548 . 849 355, 358, 359, 520 . 25 . 662 . 713 . 308, 566, 566 376, 422, 423, 424, 426, 427, 428, 429, 432, 433, 434, 435 PAGE Campbell's Trust, re . . .34 Candler v. Tillett 237, 240, 241, 257 Candy v. Candy Caney v. Bond Cann v. Cann . Canning v. Hicks Cant, ex parte Cantley, re Cape V. Cape . Capel V. Wood Caplin, re Car V. Burlington Carberry & Daly v. Cai-bis, ex parte Carew v. Johnston Carey v. Cuthbert . 131 . 256 . 434 15 . 872 . 201 . 122, 622 . 318 . 684, 685 460, 461, 462 Cody . 180 . 585, 586 519 . 724 Carleton v. Earl of Dorset . 624 Carlisle (Corporation of) D.Wilson 725 Carlon v. Farlar . . . 656 Carmicliael v. Wilson . 300, 490 Carpenter, in re . . . 848 V. Heriot . . . 434 ?;. Marnell . . 209,211 Carr's Trust, re . . 616, 617 Carr v. Bedford . 512, 687 V. Ellison . 206, 709, 781 V. Living . 121, 122, 123 Carrick v. Errington . . 131 Carroll v. Hargrave 724, 737, 738 Carsey v. Barsham . . . 233 Carson's Settlement Trusts . 864 Carter v. Barnardiston . 190, 391 V. Carter . . .701 V. Cropley ... 76 V. Green ... 56, 57 V. Home . .166, 245, 248 V. Sebright . . 334, 552 V. Taggart . . 613, 614 V. Warne . . . 445 Carteret (Lord) v. Paschal . 617 V. Petty ... 44 Cartwright's Trust, in re . 868 Carver v. Richards . . . 41 2 Carvill v. Carvill . . .123 Carwardine v. Carwardine . 186 Cary v. Askew . . 362 w. Cary . 115,116 Casamajori). Strode . . 777 Casborne v. Scarfs 199, 201, 696, 606, 607, 671 Casbume v. Casburne . 10, 609 Casey's Trust, in re . . 92 Castle V. Castle . . .122 V. Dod . . . .146 Cater's Trust, in re . 314, 315, 841 Cathorpe, ex parte . . . 276 Caton V. Eideout . . .636 Cator V. Croydon Railway Comp. 737 V. Earl of Pembroke . 732 Cave V. Roberts . . . 252 XXVlll TABLE OF CASES. Cavendish v. Mercer V. Geaves Cawkwell, ex parte . Cawthorne, in re Cazneau's Legacy Chadwick v. Doleman V. Heatley V. Holt Chaffers v. Baker Chaigneau v. Bryan Challen v. Shippam Challenger v. Sheppard PAGE . 493 . 576 . 448 . 841 . 838 341, 343, 344 . 314 . 654 . 809 . 179 . 297 . 96 Chalmer a. Bradley 221, 432, 433, 434 704, 712, 784 Chalon V. "Webster . . .197 Chaloner v. Butcher . . 789 Chamberlain v. Agar . . 56 V. Hutchinson . . 135 Chamberlaine v. Chamberlaine 56 Chambers, ex parte . . 490 V. Chambers . . 101, 265 V. Crabbe . . .755 V. Davidson . . . 519 V. Goldwin . 362, 519, 523 ■ V. Howell . . 246, 427 V. Minchin 222, 223, 224, 233, 238, 240, 241 V. Waters . . .423 Champion, ex parte • , . 278 w. Rigby . . .432 Chancellor v. Morecraft . . 807 Chancey v. May . . .805 Chandler, in re . . . 736 Chandos (Duke of) v. Talbot . 603 Chaplin, ex parte . . . 283 . V. Chaplin 46, 93, 128, 606, 608 ■W.Horner 771,775,785,787 V. Young . . . 247 Chapman v. Blissett 75, 186, 187 V. Derby . . .578 . V. Salt .... 356 Chapman & Barker's Case . 209 Charitable Donations v. Wybrants, see Commissioners of, &c. Charity Corporation v. Sutton 222, 518, 801 Charlton v. Durham (Earl of) . 420 V. Kendall . . .112 Chase V. Goble . . .446 Chawner's Will, re . . 378 Chedworth v. Edwards 263, 731, 732 Chelmsford (Poor of) v. Mildmay 464 Cherry v. Boultbee . . .578 Chertsey Market, in re 242, 376, 464, 698, 743, 750, 753, 758, 760, 799 Chester v. Piatt . . 626, 627 V. Rolfe . . .489 . V. Willes . . .602 Chesterfield (Earl of) v. Janssen 434. 756 PAGE Chetham v. Lord Audley . 520 Chichester v. Bickerstaff 773, 774 V. Coventry 354, 356, 359, 360 Child V. Gibson . . .300 V. Stephens . . . 459 Childers v. Childers 45, 48, 49, 50, 93, 94, 128 Chion, ex parte . . 210, 730 Chippendale, ex parte 497, 528, 531 Chipping-Sodbury School, in re 760 Chirton's case . . . 664 Chitty V. Parker . . 132, 134 Cholmeley v. Paxton . . 382 Cholmondeley v. Cholmondeley 115 (The Marquis of) v. Lord Clinton . 596, 705, 707, 708, 712 Chowne v. Bayles ... 27 Chrichton's Trusts . . .307 Christian v. Devereux . . 724 Christ's Hospital, ex parte, Gover- nors of . . . 437 , re 475 V. Budgin . . 127, 158 V. Grainger . . 20, 694 Christie v. Gosling . . 110, 111 Christophers v. White . . 249 Christy v. Courtenay 70, 152, 154, 156, 675 Chubb V. Stretch . . .631 Chumley, exparte . . . 790 Churchill v. Bank of England . 657 V. Dibben . . .638 V. Lady Hobson 180, 223, 237, 239 V. Marks. . . 90, 91 Churchman v. Harvey . . 368 Clack V. Carlon . . .249 V. Holland 257, 276, 704, 739 Clanricarde (Marquis of) v. Hen- ning .... 706, 753 Clapham (Inhabitants of) v. Hewer 756 Clare v. Earl of Bedford . 36 V. Wsod . . .655 Clarendon, (Earl of) v. Barham 600, 602, 603 Clark V. Burgh . 616 ■ V. Cook . . 617 V. Danvers 144, 147, 158 V. Fenwick . 312 V. Hoskins 551, 650, 737 V. Sewell . 359 V. Seymour . 380, 496 Clarke's Estate, re . 311 Charity, in re . 758 Clarke v. Chambers . 92 ■ V. Franklin 134, 610, 649, 777, 780 ■ V. Green ... 23 V. Hart . . . .715 ■ V. Ormonde (Earl of) 391, 571 TABLE OF CASES. XXIX Clarke v. Parker V. Pistor V. Reilly . V. Royal Panopticon ■ V. Swaile V. Turner Clay, ex parte Clay's Settlement, re V. Sharpe V. Willis Claypole, (Rector of), ex parte Clayton v. Glengall (Earl of) PAGE . 507 . 639 . 559 19, 378 426, 434 . 688 872 864 390 674 440 362 Clegg V. Edmondson 151, 161, 165, 166, 714- . 161 . 317 . 54 . 625 . 15 . 84 . 116 . 628 38, 865 . 776 . 440 • V. Fishwick V. Rowland Clennell v. Lewthwaite Clerk V. Miller Clerkson v. Bowyer Clifton V. Goodbun V. Lombe Clinton v. Willes Clissold, re V. Cook . Clitheroe's Trust, re Clive V. Carew 625, 631, 642, 751, 755 V. Clive . . . .108 Cloud, re ... 33, 34 Clough V. Bond 222, 224, 256, 270, 278, 742 V. Clough . . .595 V. Dixon 240, 262, 297 Clowdsley v. Pelham . .115 Clowes, ex parte . . . 747 V. Waters . . 461, 462 Clulow's Trust, in re . 81, 82 Glutton, ex parte . 38, 549, 865 Coape V. Arnold . 97, 99, 107 Cobbe, re . . . .836 Cochrane v. Chambers . . 70 ■ V. Robinson . . . 388 Cock V. Goodfellow . 282, 448 Cockburn v. Peel . . .274 V. Thompson - . . . 805 Cock ell w. Pugh . . .859 D.Taylor . . 576,704 Cocker v. Quayle 568, 742, 750, 751 Cockerell v. Cholmeley 382, 434, 756 Codrington v. Foley . 365, 366 Coe's Trust, inre . . 512, 837 Cogan V. Stephens . . . 134 Cohen v. Waley . . .273 Coke's case (Sir E.) . 644, 664 Colchester v. Lowten . . 22 Cole V. Gibson . . .434 V. Moore . . 699, 700 V. Muddle . - 576, 745 V. Wade 19, 227, 500, 502, 504, 507, 508, 550 Colebrooke's (Sir George) case 426, 435 Colegrave v. Manby Coleman's Trust, re V. Turner Colemere, re Coles V. Forrest PAGE 325 836 810 447 797 — V. Trecothick 422, 424, 425, 426 Collard v. Hare . . .705 V. Roe . . 567, 568, 869 Collett V. Morrison ... 93 CoUier v. McBean . 97, 188, 701 Collingwood's Trusts, in re . 848 V. Row . . . .780 V. Stanhope 341, 342, 343, 346 Collins V. Carey V. Collins ■ V. Reece V. Viuing 249 265 456 512, 513 V. Wakemau 131, 132, 133, 140, 141 Colhnson v. CoUinson 152, 156, 873 V. Lister . . 417, 532 V. Patrick . . 60, 65 CoUis V. Collis . . 270, 821 Colman v. Sarell . . .829 — - V. Sarrel . . 62, 70, 71 Colmore v. Tyndall . . 193 Colne Valley Railway, in re . 272 and Halstead Railway Com- pany 273 Colombine v. Penhall . . 68 Colson's Trust, re . . . 836 Colston v. Lilley . . .390 Colt V. Colt ... 11, 606 Colwal V. lihadwell . . . 785 Colyer v. Finch 399, 402, 403, 406, 408 Combe v. Hughes ... 82 Combe's Will, re Mary . . 580 Commissioners of Charitable Do- nations u. Archbold . 690,691 V. Wybrants 403, 406, 701, 719, 720, 721, 723 Compton V. Bedford . 446, 448 V. CoUinson. . 32, 34 V. Compton . . . 650 V. (Lord) V. Oxenden 599, 602, 603, 771 Congregational Church; Smeth- wick, re . . . 227, 228 Coningham v. Mellish . 129, 131 V. Plunkett ... 62 Conolly V. ConoUy ... 14 V. Parsons . . 376, 385 Conry v. Caulfield . . 253, 799 Consett V. Bell . .168, 530, 800 Consolidated Investment Com- pany (The) V. Riley . . 582 Constantinople & Alexandra Hotel Co., re, Ebbett's case . 36 TABLE OF CASES. PAGE Consterdine v. Consterdine 261 , 283, 297, 515 Convfuyv. Couway . . . 367 Conybeare's Settlement, ex parte 38, 549, 865 Conyngham v. Couyngham . 181 Good V. Good . . . .43 Gook's Settled Estates, re . 275 Cook's Trusts, re . . ■ 516 V. Addison . . . 263 V. Arnham . . 711, 728 V. Dawson 378, 404, 407, 408 V. Duokenfleld . . 1 29 V. Fountain . . . 123 V. Fryer .... 182 V. Gregson . . 674, 675 V. Gwavas . . . 129 V. Hutchinson 127, 129, 130, 131 V. Parsons . . . 485 Cooke, ex parte ... 92 V. Blake . . . .192 V. Cholmondeley . . 244 V. Crawford 178, 201, 202, 502, 50"6 V. Dealy . . .127 V. Stationers' Company 131, 135, 139, 140, 142 Cookney v. Anderson Cookson V. Cookson 0. Reay . Coombes v. Brookes Coope V. Carter 44 . 788, 789 . 776, 781 . 693, 863 . 740 . 585 . 600 345, 353, 356 . 489 Cooper, ex parte — — V. Gartwright V. Cooper V. Douglas V. Fynmore V. Gordon V. Jarman V. .Jones . V. Kynock V. Macdonald V. Thornton V. Wells . V. Wyatt Cooper's Legacy, re Cooper's Trust, in re 136, 138, 401, 780 Cooth V. Jackson . . .149 Cope B. Parry . . . 797 Coperaan v. Gallant 210, 211, 212, 213 Copley V. Copley . . 354, 360 Coppard v. Allen . 166, 744, 807 Copper Mining Company «. Beach 386 Copperthwaite v. Tuite . . 624 Coppin v. Pernyhough 160, 163, 165, 319, 327, 328, 704 . V. Gray . . . .626 Coppring v. Cooke . . . ] 69 Corbally v. Grainger . 635, 636 Corbett v. Barker . . 707 . 579 . 470 . 494 . 861 97, 193 . 507 121, 568 . 622 . 90 835 PAGE Corbett v. Maidwell . . .367 Cordal's case . . . .190 Corder v. Morgan . . . 390 Cordwell v. MackriU . 702, 703 Cornbury (Lord) v. Middleton 10, 572, 593 Cornforth v. Pointon Cornish v. Mew V. Clarke . Cornthwaite v. Frith Corrie v. Byrom Corser v, Cartwiight Cory V. Eyre . V. Gertcken Coryton v. Helyar . Cosser v. Radford Costeker v. Horrox Costello V. O'Rorke 590 326 68 451 545 406 590 36 7 457 821 280, 281, 513, 514, 777 . 490 . 304, 579 589, 452, 367, Gotham v. West Cothay V. Sydenham Cottam V. Eastern Counties Rail- way Company . . . 562 Cotteen v. Missing . . 60, 65 Cotterell v. Cotterell . . 390 V. Purchase . . . 710 Cotterill's Trust, re . , . 865 Cottingham v, Shrewsbury . 800 Cottington v. Fletcher 49, 50, 93, 128, 129 Cotton V. Clark ■ V. Cotton Cottrell's Estate, re Couch V. Stratton Coulson's Settlement, V. Trust, in re Course V. Humphrey Court V. Jeffery Courtenay v. Courtenay Courthorpe v. Heyman Courtney v. Taylor Courts of Justice Concentration Act ... . Coventry v. Chichester Coventry (Mayor of) v. Coventry 832 368 491 354 229 837 812 420, 803 553, 554 10, 572 183 V. Atty.-Gen. . V. Hall .... Covington's Trust, re Cowbridge Railway Company, re 312 359 532, 555 691 727 840 661, 662 625 222 379 Cowderey v. Way Cowel V. Gatcombe . Cowgill V. Oxmanton (Lord) Cowley V. Hartstonge 512, 776, 779 (Earl) B.Wellesley 325, 488, 563, 564 Cowman u. Harrison . .118 Cowper V. Earl Cowper . . 671 V. Mantell . . 92, 500 TABLE OF CASES. Cowper V. Scott Cowstad V. Cely Cox V. Barnard V. Bateman V. Beckett V. Cox. V. Dolman V. Parker . V. Paxtou Cox's case (Sir Charles) Coysegame, ex parte . Crabb v. Crabb Crabtree, re PAGE . 353 . 801 71, 806 , 148, 182, 731 . 91 397, 402, 835 721 723 12, 142, 250^ 670 . 735 . 674 . 212 45,48 872 ■ V. Bramble 767, 769, 775, 788, 789 Crakelt v. Bethune296, 298, 301, 830 Craddock v. Owen V. Piper . Cragg V. Taylor Craig V, Wheeler Craigdallie v. Aikman Crallan v. Oulton Cramer v. Cramer Crarapton v. Varna Raihyay Company Cranch v. Cranch Crane v. Drake Cranley v. Dixon Cranstoun v. Johnston Craven v. Brady V. Craddock Crawford, ex parte . V. Crawford Crawley v. Crawley Crawsliay v. Collins Creagh v. Blood Creaton v. Creaton Creed v. Colvile V. Creed . • • V. Perry .. Cresswell v. Cresswell V. Dewell 304, 737, 750, 754 Creuze v. Hunter . . . 460 Crewe v. Dicken 175, 178, 226, 227, 411, 505, 506; 507, 508 142, 252 249, 649 . 657 264, 265 . 469 454, 455 857, 876 591 . 263 417, 421 . 267 . 44 . 91 263, 436 448, 839 . 705 80, 82, 263, 266 245, 520 14, 175 188, 194 10, 673 . 801 . 615 . 244 Crickett v. Dolby Cripps V. Jee . Crisp V. Heath 0. Spranger Crockett v. Crockett Croft V. Adam . V. Slee Crofton V. Ormsby Crofts V. Feuge V. Middleton Crook V. Hill . V. Ingoldsby Crooke v. Brooking Crop «. Norton Cropper v. Mellersh . 362 . 128 . 647 170, 224, 421 . 121, 122 . 680 . 132, 135 700 450 625 84 541 50,58 50, 144, 145, 161 809 PAGE Crosby v. Church . 627, 631, 638 Crosley u. Sudbury (Ai-chdeacon of) 197 Cross's Estate, re . . . 127 Crosse v. Smith . . . 226 Crosskill v. Bower . 249, 287 Crossley v. Crowther . . 696 v. Elworthy . . 68, 830 Crouch V. Citizens of Worcester 477, 479 Crowe V. Ballard 422, 431, 434, 435 ■ V. Crisford . . .264 Crowe's Mortgage, re . . 875 Crowther v. Braduey . . 127 V. Crowther . .710, 725 Croxton«. May . . .613 Croyden's Trust . . .840 Crozier v. Crozier . . , 107 Cruikshank v. Dufiin . . 378 Crump, re .... 625 Cruse V. Barley 131, 132, 135, 140 Cruwys v. Colman 115, 117, 685, 687 Cuddy V. Waldron . . .811 Cuff «. Hall . . . 376,501 Cullen V. Attorney-General . 56 CuUingworth v. Loyd . . 456 Culpepper v. Aston . 129, 374, 391, 392, 393, 398 Cuming, re ... . 848 Cummins v. Bromfield . . 812 V. Cummins . 180, 183, 245 Cunliffe v. Cunliffe . . .115 Cunningham v. Moody 606, 671, 768, 769, 785 Cunynghame's Settlement Curling v. May Currant v. Jago Curre v. Bowyer Currer v. Walkley Curteis v. Candler 's Trust, re Curtis V. Curtis V. Lukin . V. Price . V. Rippoa Curtois, re Curton V. Jelliooe Curzon's Trust, re Cusack V. Cusack Cust V. Middleton Custance v. Bradshaw V. Cunningham Cuthbert v. Baker . V. Purrier Cutterback v. Smith . 87, 641 776 158 649 398 308 48, 128 606, 725, 729 79, 569 192, 193 116, 118 838 395 440 100 848 777 128 396 307 459 Dack's case (Sir John) 40, 667, 668 D'Adhemar (Viscountess) v. Ber- trand , . . 536, 541 Dakiug V. Whimper . 67, 830 XXXll TABLE OF CASES. Dakins v. Berisford . Dalbiac v. Dalbiao . Dale, ex parte . D'Almaine v. Anderson Dance v. Goldingham Daniel v. Ubley V. Warren Daniels v. Davison . Darby «. 'Smith D'Arcy v. Blake Darcy v. Croft . ■ V. Hall . Darke v. Martyn V. Williamson . Darley v. Darley Darlington, ex parte . D'Arnay v. Chesneau Darwell v. Darwell . Daubeny v. Cockbiirn Daugars v. Ri\az PAGE . 622 . 635 . 214 . 544, 545 . 384, 698 33 '. 265, 309 . 700 . 214 606, 609, 729 . 489, 622 . 244, 247 . 262, 270 . 485, 529 71, 621, 622, 623 490 211 237 576 464 Davall V. New River Company, 142, 250, 670 Davenport v. Coltman 131, 132, 134 V. Davenport . . 108, 443 ■ V. Stafford Davenport's Charity, Davers v. Dewes Davey v. Durrant V. Miller . David V. Frowd Davidson, re V. Chalmers V. Foley . V. Gardner Davles, ex parte u. Ashford V Austen V. Davies . V. Goodhew V. Hodgson V. Huguenin . 296 . 695, 870 . 141, 142 383, 390, 428 . 851 . 315 . 850, 864 . 213 129, 136, 647 . 625 . 872 . 873 . 788 . 491 . 100, 194, 703 . 776, 777 36, 313, 642, 750, 755 340, 341, 342, 353 V. Otty 48, 49, 72, 93, 127, 128, 307 V. Thorny croft . . 640 • V. Westcombe . . .382 J)a.^is, ex parte . . . . 544 Davis's Trusts, re . 38, 849, 863 V. Angel . . . .697 V. Barrett 247, 248, 600, 602, 603 V. Chanter . . 863, 877 ■ V. Combermere . . 440 V. Dendy . . . .523 V. Dysart . . 170, 561 V. Jenldns . . 469, 756 V. Kirk . . . .670 V. Prout . . . .621 V. Spurling 170, 222, 224, 420 V. Strathmore (Earl of) . 664 Davy V. Hooper V. Pepys . V. Seys Dawson, re V. Clarke V. Dawson V. Hearn V. Kearton V. Massey Day V. Croft . V. Day Dean v. Allen . V. Bennett Dearie v. Hall . Deeth v. Hale . Deg V. Deg Degg's case De Laneey, re . Delane v. Delane Delapole v. Delapole PAGE . 683 . 644 . 827 . 527, 531 129,130, 131,142, 243, 525 354, 356, 357, 359 . 569 . 71 . 299 . 524, 825 . 214 . 388 . 470 579 .' 569, 784 50, 148, 150, 183, 731 . 792 . 770 . 151 . 168 De la Salle v. Moorat . 376, 810 Delauney v. Barker . . 210, 211 Delevante, re . . . . 740 Deloraine (Lord) v. Browne 706, 711, 713 De Manneville v. Crompton . 514 Dening v. Ware . . 62, 71 Dennis, re . . . 516, 865 V. Badd . . . .794 Dennis's Trusts, re . . . 650 Denny v. Denny . . .361 Dent V. Dent . . . 486, 487 Denton v. Davies . 51, 734, 738 V. Denton . . 557, 561 V. Donner . . 423, 425 V. Davis .... 51 Deptford (Churchwardens of) v. Sketchley . . . .467 Derbishire v. Home 642, 740, 751, 755 Desborough v. Harris . . 395 Devaynes v. Robinson 377, 399, 739, 802,807,818,819 Devenish v. Baines Devey v. Peace V. Thornton De Visme, re . Devon v. Watts Devoy v. Devoy Dewar v. Maitland . Dewdney, ex parte . De Witte v. Palin . Dibbs V. Goren Dicconson v. Talbot . Dickenson v. Dickenson V. Teasdale Dickinson v. Shaw . re . Dickinson's Trusts, re Dickonson v. Player . 47,56 . 545 306, 565, 831 . 158 . 446, 448 . 156, 158 . 849 . 493, 706 490 312 423 369 720 153 848 864 282 312, TABLE OF CASES. XXXIU Dickson, re Dickson's estate, re Settlement, re Digby V. Howard V. Irvine . V. Legard Dike «. Ricks . Dilkes V. Broadmead Dillon V. Bone . V. Coppin V. Flasket Dillwyn v. Llewellyn Dimes v. Scott Dines v. Scott . Dingwell v. Askew Dinwiddle v. Bailey Dipple V. Corles Disher v. Disher Dix V. Burford . Dixon V. Dawson V. Gayfere v. Morley V. Muckleston V. Olmius V. Saville . Dobson's case . Dobson V. Carpenter V. Land . Docker v. Somes 243, Doeksey v. Docksey Dod V. Dod Dodds V. Hills . Dodkin v. Brunt Dodson V. Hay 106, V. Sammell D'Oechsner v. Scott Doe V. Amey . V. Ball . V. Barrell — — V. Barthrop V. Bennett V. Biggs . V. Bolton . V. Cadogan V. Cafe V. Claridge V. Cookell V. Danvers V. Edlin . - — — V. Ewart . V. Field . V. Godwin V. Greenhill V. Harris 131, 175 V. Hawkins V. Hawthorn V. Hicks . V. Hiley . V. Homfray PAGE 183, 527, 531 38, 312 . 857 . 636 627, 653, 660 . 131, 132 . 393 . 218, 316 . 62 . 60, 62, 70 . 662 . 66 268, 295, 743 . 222, 240 . 595 , 726 . 60 . 771 . 182, 243 . 133 718, 781, 788 . 838 . 590 56, 622 . 606, 609 . 209 . 388 245, 261, 489 245, 246, 247, 300, 301 . 130 . 100 . 701 . 690, 877 107, 606, 768 . 271 . 639 . 654 . 447 . 654 . 192 . 201 . 188 192 . 194 96, 192, 195 . 187 . 467 47, 594 . 187 . 191 . 186, 187 . 231 . 652 , 177, 178,181 . 475 . 85 . 192, 193 . 467 . 187, 189 Doe V. Hughes PAGE 402, 403, 406, 407, 408, 410 V. Ironmonger V. Jones . V. Keen . V. Lea V. Lightfoot V. M'Kaeg 0. Munro . ■ V. NIoholls V. Norton V. Passingham V. Phillips 0. Pott . V. Pratt . V. Price . V. Eoe V. Rusham V. Scott . V. Shotter V. Simpson V. Smyth . V. Sotheron V. Stace . V. Staple . V. Sybourn V. Terry . ■ V. Thompson V. Underdown V. Willan . V. Woodhouse V. Wroot Dolan V. Maodermot Dolder v. Bank of England Dollond V. Johnson Dolman v. Pritman Dolton V. Hewen V. Young . Dommett v. Bedford Donaldson v. Donaldson 60, Doncaster v. Doncaster Donisthorpe «. Porter Donne v. Hart . Donohoe v. Conrahy Doody V. Higgins Doolan v. Blake Doran v. Wiltshire 192 469, 558 . 726 . 190 . 201 469, 558 . 85 188, 192 . 694 . 186 558, 722 559, 595 . 191 . 220 501, 550 . 67 . 187 . 191 189, 190, 192, 195 . 177 . 191 . 415 . 559 . 559 . 467 . 594 . 140 . 193 . 189 . 659 . 20 . 820 675, 677 . 460 . 398 . 406 . 90 64, 65, 579 109, 110 602, 603 23, 616 . 51 . 810 . 639 397, 398 Dorchester (Lord) v. Earl of Effingham . . . .261 Dormer's case . . . 790, 792 V. Fortescue 725, 726, 727, 728, 729 730 Dornford v. Domford 298, 302,' 742, 746 Douglas V. Allen . . . 454 V. Andrews . . . 492 V. Archbutt . 248, 249, 622 V. Browne . . . 222 V, Congreve . . • 268 V. Horsfall . . .799 XXXIV TABLE OF CASES. PAGE Dove V. Everard . . 176, 181 Dovenby Hospital, inre . . 760 Dover, ex parte . . . 182 Dowley v. Winfield . . .307 Dowling V. Belton . . . 794 V. Hudson . . . 398 V. Maguire . 624, 626, 627 Down '«. Worrall . . .682 Downam v. Matthews . . 578 Downe (Viscount) c. Morris 217,218, 219 251 Downes v. Bullock . 312, 737,' 756 V. Grazebrook 375, 423, 425, 426 V. Thomas . . .804 Downing v. Townsend . . 71 Dowtie's case .... 666 Doyle V. Blake 174, 180, 221, 2,23, 237, 238, 239, 240, 305 Doyley v. Attorney-General . 227, 507, 508, 680, 682, 685 Doyly V. Sherratt Drake, re. V. Pywall V. Whitraore . Drakeford v. Wilks . Drakeley's Trust, in re Drant u.Vause Draper's Settlement, re Drayson v. Pocock . Drew V. Harman • V. Martin . Drewery's Trust, re . Drever v. Mawdesley Dring v. Greetham . Drinkwater v. Combe Drohan v. Drohan . Drosier v. Brereton 61, 243, 287, 291 Drummond v. Drummoud . . 43 V. St. Alban's (Duke of) . 728 «. Tracy . .32,33,655 Drury v. Scott . Duberly v. Day Dubless V. Flint Dubois, ex parte Dubost, ex parte Dudgeon v. Cormley 227 527, 531 . 16 . 378 . 56 81,82 . 780 846, 865 374, 412 . 797 . 158 . 836 . 458 . 493 . 604 417, 496 635 . 23, 616 819, 820, 821 . 205 . 61 . 812 Dudley (Lord) v. Lady Dudley 769 V. Tanner . . 616, 637 Dues V. Smith . . . .307 Dufaur v. Professional Life As- surance Company . . . 579 Duffy's Trust, re . . 614, 615 Dugdale v. Meadows . . 385 Du Hourmelin v. Sheldon . 41, 778 Duke V. Doidge . 340, 341, 345 Dumas, ex parte . 210, 211, 212 Dummer's Will, re . . . 440 Dummer v. Corporation of Chip- penham .... 30 V. Pitcher . . 153, 158 PAGE Dumoncel ii. Dumoncel 40, 85, 606 Dunbar v. Tredennick 428, 431, 434, 435, 700 Duncan v. Bluett . . . 106 V. Chamberlayne . . 585 Dunch V. Kent 245, 391, 398, 456, 457 Duncombe v. Greenacre 612, 614, 618 (No. 2) . 614 V. Mayer .... 561 V. Nelson .... 489 Dundas v. Blake . . .720 V. Dutens . . 70, 646 Dundee (The Magistrates of) v. Morris 137 Dunkley v. Dunkley . 613, 614 Duuman, ex parte . . . 383 Dunn V. Snowden . . . 307 Dunnage v. White . . • 131 Dunne (Assignees of) v. Hiber- nian Joint Stock Company . 586 Dunne v. Doran . . 737, 738 440, 487 . 640 . 838 . 582 585 620 358 141 V. Dunne . Dunnell's Trusts, re . Dunster's Trust, re . Dunster v. Gleugall . Durand's Trusts, re . Durham v. Crackles . Durham (Earl of) v. Wharton Durour v. Motteux . Dutton V. Morrison . 445, 446, 447 Dyer v. Dyer 145, 151, 153, 154, 155, 157, 794, 795 583, 619, Bade v. Eade . . 115, 116, 118 Eager v. Barnes . . . 738 Eales 4). England . . 115,116 Earlom v. Saunders . 767, 769, 776, 781 East, re . . . 543, 544, 868 V. Ryal . . . 477, 831 East Greenstead's case . . 701 East India Company v. Hench- man 166 Eastern Counties Railway Com- pany V. Hawkes . . . 437 Eaton V. Smith . . . 505 V. Watts . . . .119 Eaves v. Hickson 222, 310, 313, 756 Ebrand v. Dancer . . 145, 158 Ecclesall, re Overseers of . 759 Eocleston v. Skelmersdale . 800 Eokhardt v. Wilson . . 446, 448 Eddleston v. Collins ... 34 Eddowes, re . . 500, 512, 684 V. Eddowes . . . 834 Ede V. Knowles ... 69 Eden v. Foster . . 463, 464, 470 TABLE OF CASES. XXXV PAGE Edenborougli v. Archbishop of Canterbury 76, 77, 78, 753, 828 Edge-worth v. Edgeworth 353 Edmonds v. Dennington . 624 V. Peake . 391 Edmunds v. Low 359 Edward's Estate, re . 837 Edwards v. Champion 575 V. Fashion 146 V. Freeman 17 V. Graves 16 V. Grove . 490, 680 V. Harvey 381, 826 ■ V. Jones . 60, 62, 65 V. Lewis . . 162 V. Lowndes . 16 V. Morgan 728, 730 V. Pike . . 59 V. Tuck . . 81, 82, 83, 779 ■ V. Warwick (Countess of) 771, 775, 776, 787, 789 Egbert v. Butter . 241, 251, 745 Egerton v. Brownlow (Lord) . 98 Eglin V. Sanderson . . . 833 Eidsforth v. Armstead 402, 408, 409 Eisdell V. Hammersley . . 550 Eland v. Eland . 398, 399, 406, 417, 419 Blborne v. Goode . . 81, 82 Elder v. Maclean . . . 586 Eldridge u. Knott . . . 712 Elgar, re 840 Elibank (Lady) v. Montolieu . 612 Ellerthorpe, in re . .851 EUice, ex parte .... 276 Elliot V. Brown . . .146 V. Edwards . . .700 V. Elliot 127, 151, 153, 154, 155, 156 ■ V. Merriman . . . 713 V. Merryman 398, 403, 406, 417 Elliott's Trusts, re Elliott V. Ince . Ellis, ex parte . Ellis's Trust, re V. Atkinson V. Barker V. Eden . V. Maxwell ?;. Nimmo v. Selby . Ellis's Settlement, re Ellison V. Airey V. Cookson V. Ellison V. Elwin . V. Thomas Ellison's Trust, in re Elliston, ex parte 841 25 210 641 639 506 284 83 71,72 131 859 522 . 356, 357 60, 62, 63. 66 . 612 . .342 176, 177, 546, 864 213 PAGE 264 688 525 830 826 Elmore's Trusts Elmsley v. Young Elsee, ex parte . Elsey V. Cox . «. Lutyens Eltham (Inhabitants of) Warreyn Elton V. Elton (No. 2) V. Harrison Emblyn v. Freeman Emelie o. Emelie Emery v. England Emmet v. Clarke Emperor v. Rolfe Emuss V. Smith England (Mary), in re England v. Downs V. Tredegar (Lord) Entwistle v. Markland Equitable Reversiionary Interest Society v. Fuller . . 272, 273 Ernest v. Croysdill 704, 709, 732, 734, 737 Erskine's Trust, in re . . 840 Estwiok V. Caillaud . 445, 446, 448, 453, 645 Etchells V. Williamson . 557, 565 Etty V. Bridges 582, 583, 588, 817 Evan V. Corporation of Avon 22, 31 143, 477 . 114 . 406 . 131 . 271 . 342 864 350 780 490 624 837 266 545, 184, 315, Evans' Trusts, re Evans, re . V. Bioknell V. Brown . V. Coventry V. Hellier V. Jackson V. John . V. Stokes . V. Tweedy V. Williams Evelyn y. Evelyn V. Templar Everett, in re . V. Prythergch 847 . 517 . 451, 453 . 561, 750 217,218,219 . 824 80,81,83 . 377, 496 . 181 . 806 . 455 . 677 353, 361, 362, 372 . 67, 70, 71, 72 . 837 . 698, 824 Everingham v. Ivatt . . 207 Evroy v. Nicholas ... 36 Ewer V. Corbet 416, 417, 419, 420 Exel V. Wallace ... 98 Exhall Coal Company, re . 528, 529, 531 Eyre's case .... 785 V. Dolphin . 161, 162, 165 V. Marsden . 81, 82, 83, 132 V. Shaftesbury (Countess of) 230, 510 Fagg's Trust, in re Fain V. Ayers 547, 840 170 c 2 TABLE OP CASES. PAGE Falkland (Lord) v. Bertie . . 725 Palkner v. Equitable Society . 384 ■ V. Lord Wynford . . 683 Fane v. Fane .... 48 Farhall v. Farball . . 208, 209 Farington v. Parker . . . 625 Farley v. Bonham . . . 610 Farmer v. Dean . . . 427 Farquharson v. Seton . . 799 Farr v. Newman 197, 198, 210, 213 V. Sheriffe . .811, 812 Farrant v. Blanohford 752, 753, 756, 756 Farrant's Trust, re . . . 866 Farrar v. Barraolough . . 292 V. Winterton . . . 649 Farrell v. Smith . . .315 Farrer v. Barker . . 345, 350 Farrington v. Knightly . . 16 Faulder, re . . . .848 Faulkner v. Blger ... 78 V. Daniel . . . .603 Fausset v. Carpenter . 198, 212 Fawcet v. Lowther . . . '671 Fawcett v. Whitehouse . . 166 Fazakerly v. Culshaw . . 488 Fearns v. Young . . 263, 526 Fearnside's case . . . 209 Pearon v. Webb . 20, 75, 76, 77 Peatherstonhaugh u. Fenwick 161, 162 Fell V. Brown . . . .804 V. Lutwidge . . .830 Fellows D. Mitchell 232, 233, 263, 415, 750 Fellows's Settlement, in re 868, 872 Feltham's Trusts, in re . . 841 Fenwick v. Greenwell 179, 243, 683, 739 Feoffees of Heriot's Hospital V. Ross .... 525, 530 Fergus (Executor^of ) v. Gore 454, 455 Ferguson v. Livingston . 711 V. Tadman , 124 Fernie v. Maguire 258 259 Ferraby v. Hobson . 476 477 Ferrars v. Cherry . 700 701 Festing v. Taylor 93 Fetherstone ». West 745 Fettiplace v. Gorges 634 Fidgeon v. Sharp . 448 Field's Trust, in re . 841 Mortgage . 201 Field, ex parte . . 815 V. Brown . 795 V. Donoiighmore 306 457 565 ■ V. Evans . . 639 V. Lonsdale 72 V. Peckett (No. 1) . 133 (No. 2) . , 255 (No. 3) . 489 PAGE Field V. Sowle . . 626, 627, 632 Finch's case (Sir Moyle) 8, 14, 15, 45, Finch V. Finch 144, 151, 152, 156, 157 354 V. Hollingsworth . 684, 685 V. Pescott . . .527 V. Winchelsea (Earl of) 71, 124, 215 Finden v. Stephens . . . 530 Finlay v. Howard . . . 690 Finney's Estate, in re . 200, 201 Pirmin v. Pulham . . 565, 566 Fish V. Klein ... 36, 37 Fishbourne, in re . . .413 Fisher's Will, re , . . 866 V. Brierley ... 85 Fisk V. Attorney-General 94, 137, 143 Fitch V. Weber . . 131, 133 Fitzgerald, in re . . . 553 V. Field . . . 350, 351 V. Fitzgerald 281, 288, 617, 830 V. Jervoise . 376, 767, 778 V. O'Flaherty . . .831 V. Pringle . 282, 290, 832 Pitzgibbon v. Blake . . 626, 642 Pitzroy v. Howard . . . 319 Flack's Will, re . . .838 Flanagan i;. Flanagan . . 127 V. Nolan . . 303, 831, 883 Flanders v. Clark . . 510, 680 Fleeming v. Howden . . 212 Fleming v. Armstrong . . 641 Flemming v. Page . . . 700 Fletcher, ex parte . . . 841 V. Ashburner 127, 133, 768, 784 V. Chapman . . . 134 ■ V. Fletcher 60, 66, 70. 71, 696 Green 287, 300, 743, 744, 751 V. Robinson , 769 V. Stevenson . 267, 315, 388 V. Walker . 261 Flint V. V^'arren . 133 Flitcroft, in re . . 207, 861 Flockton V. Bunning . 245, 246 Floyer v. Banks . 86, 486 Fluid V. Fluid . . 275 Poden V. Finney . 613 Foley, ex parte . . 856 ■ V Burnell 103, 110, 197, 216, 696 (Lord) V. Commissioners of Inland Revenue . . 539 V. Hill . . 706, 707 ■ V. Parry . . . 115 V. Wontner 231, 381, 469, 501, 550 Poligno's Mortgage, re 305, 314, 841 Follett V. Tyrer • 607 Poly'a case 458, 459, 677 Poone V. Blount 767, 770 TABLE OF CASES. XXXVU Foord, ex parte Pootner v. Sturgis Forbes v. Adams V. Ball . V. Moffatt V. Peacock V. Ross V. Steven Ford V. Hopkins V. Eyan . V. White . Ford's Charity, in re Forder v. Wade Fordham v. Wallis Fordyoe v. Bridges V. Willis . Forrest v. Elwes Forshaw v. Higginson PAGE . 446 . 656 . 782 . 115, 687 599, 600, 602, 603 394, 398, 399, 401, 402, 403, 407, 415, 420 . 279, 298, 300, 303 . 777 732 258, 397, 415 . 576 . 762 . 606 313 ". 507, 682 23, 45, 46, 48 519 385, 485, 494, 496, 553, 554 . 72 . 373 . 547, 549 . 692 47, 49, 50, 51 . 520 . 62 V. Welsby Porster's Estate, re V. Abraham V. Davies . ■ 0. Hale • «. Eidley . Fortescue v. Barnett Forth V. Norfolk (Duke of) 647, 648, 652 Fortune's Trust, re 314, 835, 837, 841 Fosbrooke v. Balguy 160, 166, 245 Foss V. Foss . , Foster v. Blackstone V. Cockerell V. Crabb . V. Dawber V. Deacon V. Foster . V. Handley ■ V. Hodgson Fothergill v. Fothergill V. Kendrick Fountaine v. Pellet . Fourdin v. Gowdey . Fowler v. Bayldon . • V. Churchill ■ V. Fowler . ■ V. Garlike V. Reynall V. Wyatt . Fowlser, ex parte Fox V. Chester (Bishop of) V. Fisher 636 160, 580, 582, 585, 647 . 582 . 561 . 176, 177 ... 124 . 299 . 677 . 711 . 71 . 647 . 527, 564 . 40 . 809 . 667 94, 137, 635, 637 . 131 . 287 . 314 . 766 92 213 - V. Fox - V. Mackreth Foxley, ex parte Pozard's 'J'rust, in re Pozier v. Andrews Prance v. Woods 118, 121, 154, 158 . 422, 430, 435 . 446 . 840 . 833 261 Francis v. Francis Francis v. Grover V. Wigzell Franco v. Fi-anco . 242, Franklin v. Frith 278, 298, V. Green . Franklyn, ex parte . Pranks v. Bollaus V. Price . Fraser, M., goods of, re V. Palmer Frazer v. Moor Preake v. Cranefeldt Frederick v. Aynscombe . Preeland v. Pearson . Freeman v. Pairlie 520, 571, V. Lomas . V. Pope V. Tatham V. Taylor . V. Whitbread Freemantle v. Bankes Preke v. Lord Carbery Freme v. Woods Premington School, in re Fremoult v. Dedire French, m parte 's Trust . V. Baron . V. Davidson V. French . V. Hobson Friendly Society, ex parte . Frith V. Cartland 212, 253, Fromow's Estate, re . Frost's Settlement, in re . Fry V. Pry . . 261, V. Noble . Fryer, re 225, 233, 234, 238, Fulham, in re . V. Jones . FuUarton v. Watts . Puller V. Knight . 289, V. Lance . u. Redman Fulton V. Gilmour Furaaker v. Robinson Pussell V. Dowding . V. Elwin . Fust, ex parte . Putter V. Jackson Putvoye V. Kennard . Fyler v. Pyler 170, 297, 531, Pyson V. Pole . Gabb v. Prendergast Gaffee, in re Gale V. Pitt . PAGE 287, 530 . 720 627, 632 616, 804 299, 830, 834 . 493 276, 277 . 783 . 109 . 634 . 249 . 711 . 455 . 770 390, 685 819, 822 . 578 69,70 50 647 285 357 83 261 759 124, 459 289, 290 . 516 . 519 512, 514 . 68 . 754 . 760 731, 732 . 273 . 864 376, 489 • 610 391, 740 . 872 . 770 . 595 375, 745 . 449 493, 677 . 314 . 70 . 611 . 807 . 276 . 821 . 868 742, 750 . 711 84 2G4 296 XXXVlll TABLE or PAGE CASES. PAGE Gale V. Williamson . . 68 Gibbons v. Baddall . . 700 Galliers v. Moss . 201 Gibbs V. Glamis . 451 Galway v. Butler . 811 V. Herring . 239 Gannon v. White . 64 V. Ougier . . 132 Gardiner v. Downes . 308, 653, 664 V. Rumsey . 131, 132, 140 V. Fell . . 49, 725, 726 Gibson v. Bott . 267, 269 Gardiner's Trust, in re 783, 784 V. Gibson . . 609 Gardner v. Barber . . 122 V. Jeyes . . 422, 423, 425 V. Gardner . 637 V. Montford (Lord) . . 190 11. London, Chatham and V. Overbury . 213 Dover Railway Company . 661 V. Rogers . . 594 V. Marshall . 614 V. Winter . . 205 V. Rowe . 50 Giddings v. Giddings 161, 162, 163, Garey v. Whittingham . 813 164, 165, 166, 328 Garfoot V. Garfoot . . 123 Gifford V. Hort . . 707 Garland, ex parte . 208 V. Manley. . 183 V. Mead . . 208 Gilbert v. Bennett . . 121 Garmstone v. Gaunt . 372 V. Lewis . . 621 Garner v. Moore . 498 V. Overton 64,65 V. Hannyngton . 560, 561 Gilbertson v. Gilbertsen . 532, 533 Garnett v. Armstrong 599 Gilchrist v. Cator . 614 Gamier, re . 838 Giles V. Dyson . . 524 Garrard v. Dinorben . . 71 Gill, ex parte . 34 V. Lauderdale 60, 62 ,71,461, V. Attorney-General . . 240 452, 453 Gillespie v. Alexander . 315 V. Tuck . 558, 722 Gillett V. Peppercorn . 166 Garratt «. Gullum . . 211 Gillibrand v. Goold . . 370 V. Lancefield . . 388 Gillies V. Longlands . 784, 788 Garrett v. Noble . 376 Gilliland v. Crawford 485 486, 487 V. Wilkinson . . 159 Gillman's Trust, re . . 839 Garrick v. Taylor 145, 160 Giraud, re . . . . 865 Garth V. Baldwin '96,97, 187 Girling v. Lee . . 459 V. Cotton 108, 167, 1 68 338, 725 Gladding v. Yapp . 132 Garthshore v. Chalie . 489 Gladdon v. Stoneman 698, 824 Gartside's Estate, re . . 863 Gladstone v. Hadwen . 209 Garty's Settlement, re 696, 863 Glaister v. Hewer . 158 Gascoigne v. Thwing . 148 Glass V. Oxenham . . 801 Gaskell v. Gaskell . . 71 Gleaves^. Paine 619, 620 V. Harman . 767 Glegg V. Rees . 809 V. Holmes . 309 Glendenning. re . 841 Gass, ex parte . 446, 448 Glenorchy (Lord) v. Bosville 96, 98, Gaston v. Frankum . . 626 106 Gaunt V. Taylor 677, 812 Gloucester (Corporation of) v. Gayner's case . . 446 Wood .... 117, 131 Geary v. Bearcroft . 46 196, 558 Glover v. Monckton . 190, 193 Geaves, ex parte 184, 2 13 214, 747 V. Strothoff . 44 V. Strahan . 185 Glynn v. Locke 268, 397 Gee V. Liddell . . 61 Gobe V. The Earl of Carlisle . 15 Gennys, ex parte 209, 212 Goddard v. Macaulay . 847 Gent V. Harris . 613, 614 Godden v. Crowhurst . 90 V. Harrison . 1 67 , 168, 488 Godfrey 3). Godfray . . 44 Geo.IIL 52,c.l01,Inthe ma tier Godfrey's Trust, re . . 837 of . . . . 692 V. Dixon . . 86 George v. Bank of Engla ad . 48 V. Furzo . . 210 V. George . 486 V. Tucker. 662, 663 V. Howard . 128 V. Watson 523, 525 ■ V. Milbanke . 67 and Dixon's case . 40 Ghost V. Waller 222, 414 Godolphin v. Godolphin . Godsall V. Webb 32, 500 Giacometti v. Prodgers . 614 . 65 Gibbins v. Taylor . . 262, 742 Godwin V. Winsmore . 606 TABLE OF CASES. Goffe V. Whalley Golding V. Yapp Goldney v. Bower Goldsmid v. Stonehewer . Goldsmith v. Russell Gomley V. Wood Gompertz v. Kensit Goode V. West . . . , Goodenough v. Goodenough V. Tremamondo Goodere v. Lloyd Good Intent Benefit Society, re. Goodriohe v. Taylor . Goodriok v. Brown . Goodright v. Hodges PAGE 673 54 562 809 830 521 812 837 729 264 131 864 455 . 574 47, 144, 147, 149, 150, 151 . 140 14, 559 . 843 V. Opie V. Wells . Goodman's Will, re Goodson V. EUisson 308, 565, 572, 804 Goodtitle V. Jones . . . 559 V. Layman . . . 191 1). Whitby . . .190 Goodwin v. Gosnell . . . 736 Gordon v. Gordon V. Trail . 's Trust, re Gore V. Bowser. V. Knight . Gorge's (Lady) case . ■ V. Chansey . 71 . 527 . 842 179, 645, 662, 663 . 634 152, 154, 158 . 494 Goring V. Biokerstaff ■ V. Nash . Gorst V. Lowndes Gosling V. Carter 10, 572 . 70, 71, 72 . 80 398, 402, 403, 404, 407, 409 . 45^ . 87, 569 . 445 . 862, 869, 874 . 420 V. Dorney V. Gosling Goss V. Neale Gough V. Bage V. Birch V. Bult V. Davies V. Offley V. Smith Gould V. Fleetwood . Goulder v. Camm Gouldsworth v. Knight Gover, ex parte Governesses Institution v. Rus- bridger ..... Governors for Relief of Widows, &c. V. Sutton . . .482 Gower V. Eyre . . . 486 ■ V. Grosvenor . . 98, 102 V. Mainwaring 19, 509, 681, 682 Gowland v. De Paria . . 712 Grabowski's Settlement, re . 748 Qr&a, ex parte . . . . 161 Grady, re 593 705, 722 . 668 . 818 229, 242 518, 523 . 622 229, 467 . 385 823 PAGE Graham v. Birkenhead Railway Company .... 716 V. Pitch .... 625 V. Lee .... 91 V. Lord Londonderry 320, 326 V. G'Keefe ... 69 Grange v. Tiving . .34, 35, 36 Grant v. Ellis . . , .728 V. Grant ... 48, 61 u. Lynam. . . 117,687 V. Mills . . . 212, 700 Grant's Trusts, re . . . 872 GranviUe (Earl) v. McNeile 506, 542 Grave V. Salisbury (Earl of) 355, 356 Gravenor v. Hallum . . . 139 Graves v. Dolphin . 87, 88, 573 K.Graves. . . . 116 V. Strahan . . .270 Gray, ex parte .... 205 V. Chaplin . . .805 V. Gray 56, 61, 115, 514, 515, 682 V. Haig . . . 263, 570 V. Lewis . • V. Limerick (Earl of) V. Johnston Grayburn v. Clarkson Great Eastern Railway v. Turner Greatley v. Noble Greaves v. Powell V. Mattison V. Simpson Greedy v. Lavender Green, ex parte. V. Angell . V. Belcher V. Ekins . V. Gascoyne V. Howard V. Ingham V. Jackson V. Lyon . V. Marsden V. Pledger V. Rutherforth V. Spicer . 0. Stephens Green's Trust . Greene v. Greene 627, 205, 704 342 421 256 214 731 458 357 97 612 490 . 272 . 372 . 101 . 81 682, 688 . 214 . 141 . 750 117, 118 . 820 9, 30, 463, 464 87, 88, 573 110, 769 . 516 116, 119, 120, 121, 416 Greenham v. Gibbeson Greenhill v. Greenhill Greenhouse, ex parte Greening v. Beckford Greenland's Trust, re Greenslade v. Dare Greenwell v. Greenwell Greenwood v. Churchill . V. Evans . V. Taylor . V. Wakeford 281, 282 593, 594 466, 691 587 841 25 493 447 322, 323, 324 . 456 . 554, 744 xl TABLE OF CASES. PAGE Greetham v. Colton 392, 402, 407, 408, 409, 420 Gregg V. Coates . . 123, 486 Gregory v. Gregory 233, 234, 237, 424, 431, 432, 433 V. Henderson . . 186, 187 V. Lockyer . . 633, 634 Greisley v. Chesterfield (Earl of) 266 Grenfell v. Girdlestone . . 712 Greuville (Lord) v. BIyth . .215 Grenville Murray v. Clarendon (Earl of ) . . . 531 Gresham v. Price . . . 833 Gresley v. Mousley . . 714, 715 Greswold v. Marsham 599, 601, 647 Grey v. Colville . 10, 673, 675 V. Grey 127, 144, 151, 153, 154, 155, 156 Grice v. Shaw . Grier v. Grier . Grierson v. Eyre Griesbaoh v. Freemantle Grievesou v. Kirsopp Griffin, exports V. Griffin . Griffith V. Buckle V. Morrison V. Eicketts Griffiths V. Evans V. Porter V. Vere . Grigby v. Cox . Griggs V. Gibson 602, 603 . 100 . 725 788, 789 680, 684, 686, 777, 779 225, 227, 260, 297 . 160, 162 . 100 , 266 . 777 . 115, 117 222, 313, 750, 752 80, 81 . 624 781 Grimstone, exparteldO, 792, 793, 794 Grogan v. Cooke . . 70, 646 Groom, re V. Booth - Grosvenor v. Cartwright Grove V. Price Grove's Trusts, re Groves v. Groves 848, 873 . 805 . 299 . 255 . 613, 614 93, 94, 144, 148, 149, 150, 151 Grundy v. Buckeridge . 865 Gubbins v. Creed . . 243, 244 Gude V. Worthington . 514, 680 Guibert's Trust . 37, 546, 865 Guidot V. Guidot 767, 769, 770, 776 Guiinell V. Whitear . . . 840 Gunson v. Simpson . . . 874 Gunter v. Gunter . . . 603 Gurner, ex parte . . 297, 746 Gurney v. Oraumore . . 452 Guthrie v. Crossley . 448 GwilliamS'W. Rowel . 123,230 Gwyther v. Alien . . 441 Gyles V. Gyles . . . 722 Haberdashers' Compant v. At- torney-General . . 830 Habergham v. Vincent Hackett v. M'Namara ■ Hackney Charities, re Haddelsey v. Adams Hadland's Settlement, i PAGE 15, 52, 130 . 377 . 763 . 107, 192 6 . 841 Hadley, in re Hadow V. Hadow Hagell 1). Currie Haigh, re V. Kaye Halcott V. Markant Haldenby v. Spoffi)rth Hale V. Allnutt V. Acton V. Lamb Hales V. Cox . Haley v. Banister Halford v. Stains Hall, in re V. Austin V. Carter V. Coventry • V. Dewes . V. Franck ■ V. Hallet 542, 548, 696, 863 V. Hewer V. Hugonin V. Jones V. Laver V. Luckup V. May V. Noyes V. Waterhouse Hall's Charity, in re Halliburton v. Leslie Halliday v. Hudson Haly V. Barry . Ham's Trust Hamer v. Tilsley Hamer's Devisees Hamersley's Settlements, Hamilton v. Ball V. Buckmaster V. Fry V. Grant . v. Houghton V. Mainwaring V. Mills . V. Royse . V, Wright Hammond v. Messenger V. Neame Hammonds v. Barrett Hamond v. Hicks ■ V. Walker Hampshire v. Bradley Hampton v. Spencer Planbury v. Haubury V. Kirklaud 122 . 820, 821 33,34 48, 93, 94 148, 149, 150 . 377 . 448 . 356 70, 71 . 71 80,82 82, 83, 126 . 736 . 807 361, 371, 372 . 729 . 231, 502, 503 . 228 298, 300, 422, 427, 428, 430, 431, 828 343, 344, 367 615 . 230 . 530 . 342 204, 511 423, 433 129, 638 . 758 . 35 129, 130 . 657 . 841 . 486 . 218 ! re 841 . 93 . 407 552, 554 . 706 459, 460 . 84 . 612 . 591 . 244 . 709 . 122 . 90 . 704 819, 820 . 831 . 50 . 359 234, 243, 292 TABLE OF CASES. xli PAGE Hanbury v. Spooner . . . 522 Hanchett v. Briscoe 631, 637, 638, 753 Hancock «. Hancock . 591,592 Hancom v. Allen . . 271, 278 Hancox v. Spittle . . . 874 Handick v. Wilkes . . .100 Handley v. Davis . . 836, 840 Hands v. Hands . . 683, 686 Hankey v. Gari-et . . 298, 300 V. Hammond . . . 208 V. Morley . . .840 Hanman v. Riley . . 456, 809 Hannah v. Hodgson . . 566 Hanne v. Stevens . . . 803 Hansford, re . . . .836 Hansom, ex parte . . . 212 Hanson v. Beverley . 401, 412 V. Keating . . 23, 616 Harbert's case . . . 644 Harbin v. Darby . • .249 Harcourt v. Seymour 781, 783, 789 V. White . . . 454, 715 Harden v. Parsons 233, 237, 239, 260, 270, 757 Hardey v. Hawkshaw . . 777 Harding v. Glyn 115, 683, 684, 685, 687 V. Harding . . . 385 V. Hardrett . . 218, 700 Hardman v. Johnson . .166 Hardwick v. Mynd 222, 383, 398, 409, 411, 433, 503, 507, 713 Hardwicke (Lord) v. Vernon 428, 430, 571 Hardy v. Caley . . 170, 531 - V. Metropolitan Railway Company V. Reeves Harford v. Lloyd V. Furrier V. Rees Hargrave v. Tindal . Hargreaves v. Michell V. Wright Hargthorpe v. Milforth Harland v. Binks V. Trigg Hargrove's Trusts, re Harley v. Harley Harman v. Fisher V- Richards Harmood v. Oglander Harnard v. Webster Harnett v. Macdougall V. Maitland Harper v. Hayes Harrington v. Harrington Harris's Trust, in re V. Booker V. Davison 261 703, 711 . 731 124, 125 . 808 . 459 454, 705 . 869 . 236 452, 453 115, 116, 117 680 612 448 68 14, 712. 728 . '743 . 641 . 486 375, 383 110, 111 . 840 . 652 655, 656 -PAGE Harris v. Harris (No. 1) 282, 288, 691 ■ V. Harris (No (No. 3) V. Horwell V. Mott V. Poyner V. Pugh V. Rickett Harrison, in re V. Asher V. Borwell V. Cage . V. Coppard V. Duignan V. Forth V. Graham 2) 313, 737 332, 333 . 55 625, 638 . 264, 265 . 187, 652 . 447 190, 847, 866 . 311 . 711 . 391 . 170 . 720 . 702 176, 180, 222, 223, 233, 237 55, 296 . 707 . 105, 108 . 310, 801 . 485 . 798, 806 . 258, 281 37, 543, 863 . 641 668, 779, 781 . 825 . 115 . 101 V. Harrison V. Hollins V. Naylor V. Pryse V. Randall V. Stewardson V. Thexton Harrison's Trust, re Harrop v. Howard . Harrop's Estate, re . Hart V. Denham . V. Tribe Harte v. Middlehurst Hartford v. Power 622, 630, 700, 724, 737 Hartga v. Bank of England . 31 Hartley v. Burton . . 566 V. Hurle . . .623 V. O'Flaherty . . .592 Hartnall, re . . . 858, 859 Harton v. Harton . . 187, 192 Hartop «. Hoare . .216 V. Whitmore . . . 357 Hartopp V. Hartopp 356, 358, 359 Hartshorn v. Slodden . . 448 Hartwell «. Chitters . . 674 Harvey, re ... . 854 V. Bradley . . . 741 «.Harvey 265, 320, 363, 490, 621, 679, 805 Harwood v. Wrayman . . 674 Hasell, ex parte . . . 705 Hassell«. Simpson . . 446 Hatfield v. Pryme . . .133 Hattatt's Trust, re . . 38, 865 Hatton V. Haywood 647, 661, 662 Hathornthwaithte v. Russell 698, 825 Havelock's Trust, re . . 866 Havers v. Havers Hawke's Trust, re Hawken v. Bourne Hawker, exparte V. Hawker 824, 825 . 839 . 497 . 446 190, 193 xlii TABLE OF CASES. PAGE PAGE Hawkes v. liubback . 624 Henriques v. Bensusan . 451 Hawkins v. Chappel 244, 376 Hensley v. Wills . 213, 214 V. Gardner . 48 Hepworth v. Hepworth . . 158 V. Hawkins 737 V. Hill . . 391 ■ v. Kemp 178, 411, 506 Herbert's Will, re . . 866 V. Lawse . 674 , ex parte . 212 V. Luscombe . 187, 192 Hercy v. Dinwoody . 433, 713 • V. Williams . . 420 Hereford v. Eavenhill 134, 776 Hawkins' Trusts, re . 522 Heron v. Heron 148, 150 Hawksbee v. Hawksbee . 722 Herrick v. Attwood . , . 590 Hawtayne v. Bourne . . 497 Herring v. Clark . 850, 874 Hay V. Bowen . 309 Hertford (Borough of) v Poor of Hayden v. Kirkpatrick . . 601 same Borough . 834 Hayes v. Kingdome 127, 145, 153 ■ (Marquis of), in re 815 817, 818 V. Oatley . 568 Hervey v. Audland . 70 Hayford v. Benlows . 134 Hethersell v. Hales . . 528 Hayhow v. George . . 831 Hewett V. Poster 241, 832 Hayle's Estate , . 76 V. Hewett 503, 680, 681 Haymes v. Coope , . 639 Hewitt, re . . 855 Haynes v. Porshaw . . 418 's Estate, re . , 873 V. Mica . 354 V. Morris , 266, 267 Hays, ex parte , . 490 V. Wright . 133 Hayton v. Wolfe , . 180 Key's Will, in re . 861 Haytor v. Rod , . 775 V. Astley . 49 Haytor Granite Company . 389 Heywood v. Heywood . . 83 Hayward v. Pile . 321 Hibbard v. Lambe 19, 505, 507, 509, Haywood v. Ovey . 802 690 Hazeldine, re . 864 Hibbert v. Cooke . 486 Heak v. Lord Teynham 568, 802 V. Hibbert . 530 V. Godlee . 134 Hichens v. Congreve 166, 805 Headington's Trust, re . 840 V. Kelly . . 797 Heardson v. Williamson . 193 Hickey v. Hayter . 677 Hearle v. Greenbank 32, 34 , 35, 500, Hickling v. Boyer . 388 607, 608 Hicks V. Hicks 299 300, 755 Heath v. Henly , . 704 V. Sallitt 725 727 728, 763 V. Crealock . 700 Hiokson v. Pitzgerald , 176, 830 V. Lewis . 611 Hide V. Haywood 525, 830 V. Peroival . 802 Higginson v. Barneby . . 112 Heathcote v. Hulme 298 300, 302 ^y. KeUy . 92 Heatley v. Thomas . 626, 632 Higginbotham v. Hawkins 167, 725 Heaton, ex parte . 746 Highway v. Banner 101, 574 V. Marriot . 233 Higinbotham v. Holme . 92 Hebblethwaite v. Cartw ■ight . 367 Hill, ex parte . 92 Hedges, Harriet, re , 33,34 V. Boyle 572, 737 Heenan v. Berry . 718 V. Browne . 248 Heighinton v. Grant . 302, 832 V. Buckley . 375 Hellier v. Jones . 367 V. Challinor 532 Hellman's Will, re . . . 306 V. Cock . 132 Heming's Trust, re. . 840 V. Edmonds . 617 Hemming v. Griffiths , . 361 V. Gomme . 741 V. Maddook . 531 V. Hill . 112 113, 362 Henchman v. Attorney-General 139, V. London (Bishop of) 119, 129, 142, 769 131, 205 Henderson v. Dodds 829 V. Magau 528, 826 V. M'lver . 524 V. Simpson 417 418, 421 Henley v. Philips . 833 V. Trenery . . 739 V. Stone . 797 V. Walker , . 493 V. Webb 782 786, 787 V. Wilson , . 71 Hennessey v. Bray 186, 740 Hillary v. Waller . . 712 , ex parte 582 583, 585 Hilliard, in re 298, 299, 300 TABLE OF CASES. xliii Hillman v. Westwood Hinchcliffe v. liinchcliffe . Hinchinbroke v. Seymour Hinckley v. Maclaerns PAGE 545 354 353 Hind V. Poole V. Selby Hinde v. Blake Hindle v. Taylor Hindmarsh, re V. Southgate Hinings v. Hinings Hinton, ex parte V. Hinton Hiuves V. Hinves Hitch V. Leworthy Hitchens v. Hitchens Hixon V. Wytham Hoare's Case V. Osborne ■ V. Parker V. Peck Hobart v. Suffolk (Countess of) Hobby V. Collins Hobday v. Peters 221, 381, 504 . 265 . 821, 823 . 114 . 737 . 36 . 311 . 90 196, 212, 215 . 265 . 226 . 190 . 458 497 . 94 . 564 . 711 129 783 257, 739, 745, 751, 752 384 584 385 797 727 296 683 30 720 840 839 Hobson V. Bell V. Neale V. Staneer V. Trevor Hockley v. Bantock V. Mawbey Hodge V. Attorney- General V. Churchward Hodge's Settlement, re in re . . . 838, V. Blagrave . . . 386 Hodgeson v. Bussey . . 102 Hodgkinson v. Cooper . .165 Hodgson, eso parte ... 92 in re . . . . 841 V. Bibby . . .753 V. Hodgson . . 581, 857 Hodkinson v. Quinn 402, 404, 407 Hodle «. Healey . . .711 Hodsden v. Lloyd . . .198 Hodson's Settlement . . 863 's Trust, re . . 864 's Will, re . . . 839 V. Ball .... 96 Hogarth v. Phillips . . 67 Hogg V. Jones . . . 567 Hoghton V. Money . . 67 Holbrook's Will, re . . 876 Holden, re . . . .788 Holder v. Durbin . . . 693 Holderness v. Lamport . 147, 148 Holdernesse v. Carmarthen 785, 786 Holdsworth v. Goose . . 550 Holford V. Phipps . . 565 Holgate V. Haworth . 298, 834 PAGE Holgate V. Jennings . 265, 266, 268 Holl, re ... 836 Hollamby v. Oldrieve . . 68 Holland, ex parte . . . 643 Holland's case 16, 17, 616, 667, 668 V. Baker . . 798, 799, 805 V. Holland . . .183 V. Hughes . 278, 295, 767 HoUiday v. Overton . . 96 HoUier v. Burne . . . 321 Hollingsworth v. Shakeshaft . 298 HoUis's case (Lord) . . 705 Holloway's case . . 26, 219 HoUoway v. Headington 71, 72 • V. Millard ... 68 V. Radcliffe . . .784 Holmes v. Bell . . .804 V. Bring . . 270, 271 V. Holmes . . . 356 V. Moore V. Penney Holt, ex parte V. Holt . 1 V. Sindrey Homan v. Hague Home V. Patrick (No. 1) Homier v. Morton Honnor's Trust Honor v. Honor Honywood v. Foster Hood V. Clapham . 264, V. Oglander V. PhiUips Hook V. Kinnear Hooper v. Eyles V. Goodwin V. Smith V. Strutton Hooper's Will, re Hope V. Carnegie V. Clifden (Lord) V. Fox V. Gloucester (Corporation of) . . V. Harman V. Liddell Hopgood V. Parkin Hopkins v. Gowan V. Hopkins 7 68, 89. 60, 163. 100, 280 513 748 600 84 811 625 611 475 101 . 574 295, 313 87, 116 . 603 . 799 . 148 132 446, 448 . 409 . 517 . 44 . 350 . 813 477, V. Myall Hopkinson v. Eoe Hopper V. Conyers Hora V. Hora Horde V. Suffolk (Earl of) Hore V. Becher 715 66 200, 413, 740, 752 286, 310 . 576 75, 98, 108, 130, 186, 597 . 568 . 524 732, 733, 734 122 513 618 Horn V. Horn 398, 399, 645, 646 Home V. Barton . 107, 113, 114 Horner v. Wheelwright . . 558 Horrocks v. Ledsam 802, 827 xliv TABLE OF CASES. Horsfall, in re, Horsley v. Chaloner V. Cox V. Fawcett Horton v. Brooklehurst V. Smith Horwood, ex parte . ■ «. West Hosking v. Nicholls Hoskins, re V. Campbell V. Hoskins Hotohkin v. Humfrey Hotham's (Lord) Trust, re Houell V. Barnes Hough's Will, in re Hougham v. Sandys Houghton's Chapel, re Houghton, eaj^arfe . — V. Koenig House V. Way PAGE . 201 . 261 . 645 . 805 256, 571 599, 604 213, 214 115, 118 . 811 . 868 557, 558 . 356 . 351 . 440 . 504 . 191 . 671 . 696 144, 145, 147 . 209 263 Hovendeu i Hovey v. Blakeman How V. Godfrey V. Kennett V. Whitfield Howard's Estate, in re re . V. Chaffers V. Digby V. Ducane V. Hooker V. Jemmett V. Papera V. Rhodes Howarth, re ■ V. Mills . Annesley (Lord) 30, 706, 707, 708, 709, 710, 711 238, 240, 639 518, 519, 525 . 445 . 503 . 851 . 861 . 391, 410 . 636 . 423, 439 . 624 . 210,732 698, 824, 825 . 554 . 490 . 84 Howe V. Dartmouth (Earl of) 257, 263, 265, 269, 271, 278, 294, 295, 744 V, Howe . W.Lichfield (Earl of) Howel V. Howel Howell V. Howell Howgrave v. Cartier Howorth V. Dewell Howse V. Chapman Hoy V. Master Hubbard v. Young Hubert v. Parsons Huddlestone v. Whelpdale Hudson's Settlement, re Hudson V. Hudson . V. Temple Hue's Trusts, in re Huet V. Fletcher Hughes, ex parte V. Empson V. Evans 144, 147 . 385 . 101 . 729 . 348 . 119 . 132 118, 119 . 264 . 353 . 332 . 696 230, 242 . 66 841 . 713 423, 424, 426, 427, 428, 430, 435 255, 303 . 131 PAGE Hughes «. Kelly . . . 720 u.Key . 805,811,812 V. Lumley . . . 664 u. Stubbs ... 72 J.. Wells . . 751,869 V. Williams . . 169, 592 V. Wynne . 454, 455, 462 Hughes's Settlement, re . 853, 866 Trust, re ... 582 Hughson V. Cookson . . 804 Huguenin v. Baseley . . 72 Hulkes V. Barrow . .319 V. Day . . .657 Hull V. Christian . . .522 Hulland Hornsea Railway Comp. 661 Hulme V. Hulme . . 544 V. Tenant 624, 626, 628, 632, 639 Humberstone v. Chase . 31, 799 Humble v. Bill 398, 416, 417, 421 V. Humble . . 391 Hume V. Edwards . . . 770 V. Richardson . 268, 274 Humphery v. Richards . . 634 Humplireston's case . 35, 36 Humphrey v. Morse 174, 827, 828 Humphreys v. HoUis . . 798 Humphry s Estate, in re . 864 Hungate v. Hungate . . 144 Hungerford v. Earle . 69, 444 Hunt V. Baker ... 84 V. Bateman . . . 720 V. Coles . . .652 V. Peacock . . . 804 V. Scott . . .264 Hunter v. Baxter . . . 493 V. Bullock ... 94 Huntingdon (Earl of) v. The Countess . . . .710 Hunton «. Davies . .713 Hurd V. Hurd . . .275 Hurly, ex parte . . . 383 Hurst, re . . . .861 Husband v. Pollard . . 70 Huskisson v. Bridge . 118, 119 Hussey v. Grills . . 594, 595 V. Markham . . . 175 Hutcheson v. Hammond 131, 132, 140, 141, 485, 489 Hutchin v. Mannington . . 777 Hutchins v. Lee . 47, 127, 128 Hutchinson v. Hutchinson 500, 685 V. Massareene V. Morritt V. Stephens V. Townsend Hutchinson's Trust Hutton V. Cruttwell V. Sandys V. Simpson Hylton V. Hylton 391 244 852 804 838 447 580 726 755 TABLE OF CASES. xlv PAGE Hynes V. Redington . 218, 271 Hyushaw v. Morpeth Corporation 143 Ibbitson's estate, re . . 779 Ilminster School, in re . 467, 468 Imperial Mercantile Credit Asso- tion V. Coleman . . 247 V. Newry and Armagh Rail- way Company . . . 662 Inchiquin v. French . 53, 59 Incledon v. Northcote . 616, 618 Incorporated Society v. Richards 723, 762 Inge, ex parte . . . 464, 465 Ingle V. Partridge 222, 261, 262, 286, 436, 821 V. Richards (No. 1) Inglefield v. Coghlan Ingliss V. Grant Ingram, in re 's Trusts, re Inman v. Inman Insole, re . Innes v. Mitchell Inwood V. Twyne Irby, re . V. Irby Irvine v. Sullivan Irwin V. Rogers Isaac V. Defriez Isaacs V. Weatherstone Isaacson v. Harwood Isald V. Fitzgerald . Ithell V. Beane Ivy V. Gilbert . Izod V. Izod Jackson's case , re 's Trusts, re V. Haworth V. Hobhouse V. Hurlock v. Jackson V. Kelly . . V. Milfield V. Welsh V. WooUey Jacob V. Lucas V. Shepperd. Jacobs V. Amyatt Jacomb v. Harwood Jacquet v. Jacquet Jaoubs V. Rylance . James, ex parte 422 426, 427, 428, 429, V. Dean 161, 424 . 622 . 445, 448 . 841 . 275, 285 . 35 . 611 , 748 485, 788, 793 . 850 . 498, 676 56, 115, 120, 132 834 165, 362 68o: 687 823 183 714 398 372 682 700 212 536 624 639 . 135, 139 . 146, 278 . 142 . 848, 862 161, 165, 714 - 498 231, 254, 744 448 622 242 720 745 423, 424, 425, 430, 432, 528 162, 163, 165 PAGE James v. Frearson 175, 180, 182, 184 V. May . . . 528, 531 V. Holmes . . . 144 Jarman v. Woolloton . . 213 Jarvis's Charity, in re . . 762 Jeacock v. Falkener . • 355 Jeans v. Cooke 153, 156, 157 Jebb V. Abbott . . .398 Jeffereys v. Small . . . 146 Jefferies v. Harrison . . 827 Jeffery v. Jeffery . . . 350 Jefferys v. Jefferys . 70, 72 V. Marshall . . .571 Jeffryes v. Drysdale 850, 864, 869 Jeflfs V. Wood . . .578 Jenkins, ex parte V. Hiles . V, Jenkins V. Jones . V. Milford V. Perry . V. Robertson Jenkyn v. Vaughan Jenner v. Morris V. Tracey Jennings v, Rigby V. Looks V. Selleck Jephson, in re Jepsoii, re Jerrayn v. Fellows Jerdein v. Bright Jervoise, in re . 17 . 403 . 189 . 384, 698 . 567, 559 . 460 182, 183, 743 69, 70 . 561 . 711 . 677 . 353 . 127, 158 836, 837, 838, 840 841 341 696 837 Northumberland (The Duke of) V. Silk . Jesse V. Bennett Jesson V. Jesson Jessopp V. Watson Jesus College v, Bloome Jevon V. Bush Jewson V. Moulson Jodrell V. Jodrell Joel V. Mills . Johnes v. Lockhart Johnson's case 's Trust, re ex parte . V. Arnold V. Ball . V. Fesenmeyer V. Freeth V. Gallagher V. Holdsworth V. Johnson V. Kennett V. Kershaw V. Lauder V. Legard ■ ■ V, Newton 96, 99, 106, 110 . 491 744, 805, 807 . 354 . 132, 133 . 725 16, 494 . 616 . 122 . 90 . 622 8 . 440 . 276 . 776 . 54 . 446, 448 . 640 629, 630, 633 . 43 . 133, 263 398, 399, 406 . 456 . 305, 611 . 67 261, 262, 303 xlvi TABLE OF CASES. PAGE PAGE Johnson v. Prendergast 300, 303 Josling V. Karr . 803 V. Smith , . 706 Josselyn v. Josselyn . 569 V Swire . , . 739 Joy V. Campbell 94, 213, 224, 233, V. Telford . 525, 527 238, 239 700 732, 749 ■ V. Webster . 604 Joyce's Estate, re 849, 863 Johnston v. Lloyd . 288 V. De Moleeyns . 704 V. Rowlands . . 119 V. Hutton . 72 Johnstone v. Baber . 244, 380 — '■ — V. Joyce . 692 V. Lumb . . 635 V. Rawlins . 701 V. Moore . . 269 Juler V. Juler . . 54 Joliffe, ex parte . 310 Juniper v. Batchelor 53 Jolland ( V.) . 248 Justice V. Wynne 579 585, 701 Jollands v. Burdetf . 642 Juxon V. Brian . 391 Jolly V. Wallis . 456, 457 Jones's Trust, m re . . 311 Jones's Will, in re . 87 in re 3'U, 841 849, 872 Kamp v. Jones . 812 V. Ashurst . 27 Kator V. Pembroke . . 700 V. Badley . 57 Kay V. Smith . . 755 V. Bailey . . . 656 Kaye, re . 32 V. Croucher . . 67 Kaye v. Powel , . 556 V. Davies . . 618 Keane, re . 641 V. Del Rio . 805 Keane v. Robarts 170, 224, 302, 416, V. Badley . 57 417 419 421, 530 V. Parrell . 572 Kearnan v. Pitzsimon . 182 V. Foxall 245, 297 301, 302 Kearsley v. Woodcock . 90 ■ V. Gibbons . 618 Keating v. Keating . . 377 V. Goodchild 147, 250 Keays v. Lane 280, 638 751, 800 V. Harris . 630, 632 Keble v. Thompson 270 746, 749 V. Hiffgins 255, 755 Keech v. Sandford 162 164, 165 V. ±iow . . 807 Keeler, re . 855 V. James . , . 808 Keeling v. Child , . 697 ■ V. Jones 322, 323, 331, 332, Keer v. Brown . 639 334 799, 800 Keir v. Leeman . 735 V, Kearney 161 164, 750 Kekewich v. Manning 63,64 V. Langton . 100 V. Marker . 512 V. Lewis 226, 260, 261, 287, 565, Kellaway v. Johnson 294. 742, 751, 807 830 Kellett V. Kellett . 130 V. Lock . 48,60 Kellock's Case . 456 V. Maggs . 82,83 Kelsey, re 33,34 V. Matthie , . 384 Kemp V. Burn . 571, 833 V. Mitchell 131, 132 140, 141 V. Kemp . 8 ■ V. Morgan 97 193, 604 V. Waddinghara . 677 V. Mossop 212, 578 Kempton v. Packman 161, 163 V. Nabbe . 59 Kendal v. Mickfield . 15 V. Phipps , . 560 Kendall v. Granger . 131 V. Powell , . 498 Kenge v. Belavall . . 632 V. Powles , . 700 Kennard v. Kennard . 72 V. Price 398, 502 503, 510 Kennedy v. Daly 124, 215, 253, 700, V. Eeasbie . 671 702 V. Salter , 624, 640 V. Turnley 515, 551 V. Say and Seal (L ord) 187, 188, Kennell v. Abbott . 138, 141 192 Kenney v. Browne . , . 429 V. Scott 454, 455, Kenrick v. Beauclerk (Lord) 187, 188 V. Smith . 293 Kensey v. Langham . 205 V. Torin . . 683 Kensington Hastings's < ;ase . 143 V. Tuberville , . 712 V, Dollond 621, 623 Jones V. Williams 293, 654 Kent V. Jackson . 716 Jorden v. Money . 716 V. Riley . 68, 69 Joseph's Will, in rt . 837 Kentish V. Newman . 105 TABLE OF CASES. xlvii PAGE Keogh V. Cathcart . . . 625 - V. Keogh 600, 603, 604, 744 Keon V. Magawly Ker V. Ker Kernaghan v. M'Nally Kerrison's Trusts, rti Kershaw's Trust, re Kettle V. Hammond Kettleby v. Atwood Kiddill V. I'arnell Kidney v. Coussmaker 798 . 592 . 722 . 491 . 517 . 446 . 771 63, 311 69, 141,433, 458, 713, 727, 728 Kilbee v. Sneyd 222, 223, 225, 240, 241, 262, 423, 425, 427, 755 Kildare (Earl of) v. Eustace 9, 29, 668 Killett V. Killett . . .129 Killick, ex parte . . . 621 V. Flexney 160, 162, 422, 427 Kilpin V. Kilpin . 45, 48, 157 Kilvington v. Gray . . . 266 Kilworth v. Mountcashel . . 745 Kincaid, in re ... 614 Kinder v. Miller . . 148, 150 Kinderley v. Jervis 216, 218, 658, 676 King, ex parte . . 745, 749 re . . . 832,833 V. Ayloff . . 26, 219 V. Ballett . . .675 «. Bellord . . 19, 35 V. Boston . . ■ . 149 V. Canterbury (Archbishop of; 514 V. Denisou . 36, 129, 130 V. Isaacson . . .311 V. King . . 566, 832 V. Malcott . . 389 V. Marissal V. Mildmay V. MuUins V. Roe .... King's Mortgage, in re King (The) v. St. Catherine's Hall V. Dacoombe V. De la Motte V. Egginton V. Holland V. Jenkins V. Lambe V. Portington II. Smith V. Trussel Kingdome v. Bridges Kingham v. Lee 646 196 314 498 201 465 . 666, 667 646. 647, 665 . ■ . 732 . 10,40,85 . 16 . 664 48, 56 . 664 92 153, 157, 158 32, 123, 169, 227 Kingsman v. Kingsman . 55, 57 Kingston, ea; parte . . 261,733 Kingston v. Lorton . . 115, 706 (Earl of) V. Lady Piere- point ..... 84 Kinnersley v. Williamson 123 Kirby v. Mash Kiricke v. Bransbey Kirk V. Clark V. Eddowes V. Paulin V. Webb Kirkby v. Dillon Kirkham v. Smith Kirkman v. Booth i). Miles . Kirkpatrick's Trust Kirwan, re Kirwan v. Daniel Kitchen v. Calvert Knapping v. Toralinson PAGE . 696, 830 , 129 . 799, 803 356, 357, 358 , 622 . 148, 150 645, 647 . 604 . 249 . 772, 788 . 290 . 635 . 451, 453 . 92 . 311 KnatchbuU v. Fearnhead 315, 741, 744 Knight's Trust, re 306, 308, 841 V. Boughton . . .116 II. Bowyer . 42, 722, 753 V. Browne . . .92 V. Knight 24, 116, 118, 119, 120,623,624,875 V. Majoribanks . 422, 427 V. Martin . . . 308 • V. Pechey . . . 148 V. Plymouth (Earl of) 225, 276, 278 V. Eobinson . . . 201 V. Selby .... 96 Knights V. Atkyns . . . 771 Knott V. Cottee 119, 120, 303, 530, 832 Knowles' Settlement Trust, re . 517 V. Spence Knox V. Gye V. Kelly Knye v. Moore Koeber v. Sturgis 706 246, 707, 725, 729 . 720 . 801, 802 . 614 Lacey, ex parte 244, 425, 426, 427, Lachton v. Adams . Laoon v. Lacon V. Liffen Lad V. London City Ladbroke, ex parte Ladbrook v. Bleaden Lade v. Holford V. Lade Lake v. Craddock V. De Lambert V. Gibson Lamas v. Bayly Lamb ■;;. Orton Lambe v. Eames V. Orton . Lambert v. Lambert V. Thwaites 422, 423, 424, 428, 430, 435 615 711 446 143 383 176 559 144 146 32, 690 145, 146 . 149 . 307 117, 119,120 . 64 . 267 683, 685 xlviii TABLE OF CASES. PAGE PAGE Lamplugh v. Lamplugh 36 151, 152, Leahy v. Dancer . 651 153, 154 Leake's Trust, re . 840, 841 Lanauze v. Malone . . 328 V. Leake . . 341 Lancashire v. Lancashire 504, 505, 551 V. Young . 446 Lancaster v. Elce , . 457 Lear v. Leggett . 90 V. Bvors . , . 247 Lechmere v. Brotheridge . . 638 V. Charities 38, 692 V. Carlisle (Ear of) 708, 767, Lanoy v. Fairechild . . 771 768, 771, 774, 777, 789 Landen v. Green . 828 V. Clamp 852, 862, 869 Lander v. Weston . 288 ,297,412 V. Lavie . . 116, 118 Landon v. Ferguson . 677 V. Lechmere 771, 772, 774, 775 Landon's Will, in re 90, 454 Ledwich, in re . 690 Lane's Trust . 840 Lee V. Alston . . 167, 725 Lane v. Debenham 231 381, 504, V. Brown 485, 490, 492 509, 510 V. Delane . 309 V. Dighton 148, 149, 150, 731, V. Hart . . 447 732 , 733, 734 V. Howlett . 582 D. Wroth . 222 V. Lee . 300 Langdale v. Briggs . . 561 V. Prieaux . 622 's Settlement Trust ,re . 284 V. Sankey 227, 228, 531 Langford v. Auger . . 199 V. Young 512, 514, 692 V. Gascoyne 222 224 , 238, 760 Leech v. Leech . 71 V. Mahony 525, 530 Leedham v. Chawner 527, 529, 532, Langham v. Sandford 54, 132 751 Langhorn v. Langhorn . 866- Leeds Banking Company, re 625, 630 Langley v. Fisher . . 253 Leeds (Duke of J v. Amherst 167, 263, V. Hawk , . 824 716, 716 V. Sneyd . . 670 V. Munday . 199, 200 Langstaffe v. Fenwick . 519 Deeming, re . 791, 793 Langston v. Ollivant , . 280 Lees V. Sanderson . . 240 Langton v. Astrey . ' , 699, 701 Lefroy v. Flood 115, 119, 120 V. Horton . 215 Legard v. Hodges . . 124 V. Tracy . 452 Legatt V. Sewell . 106 Lansdowne v. Lansdowne 725, 726, Legg V. Goldwire . 100 727 V. Mackrell 176, 564, 865 Lantsbery v. Collier . 506 Le Hunt v. Webster . 551 L'Apostre v. Le Plaistrier 210, 211, Leigh's Estate, re . . 440, 486 213 Leigh (Lord) v. Ashburton . 550 Large's case . 90 V. Barry 231, 233, 237, 449 Larken's Trust, re . . 517 V. Lloyd . 378 La Terriere v. Bulmer . 267 Leister v. Poxcroft . . 56 Latouche v. Dunsany . 799 Leith V. Irvine . 519, 523 Lavender v. Stanton . 396 Lemaitre v. Bannistei . 116, 118 Law, re . . 836 Leman v. Whitley . . 128 V. Bagwell . 722 Lenaghan v. Smith . . 804 V. Skinner 444, 446 Lench v. Lench 148, 149, 150, 731, Lawder's Estate, re . . 593 733, 750 Lawes v. Bennett 431, 780 Lennard v. Curzon . 800 Lawless v. Shaw . 120 Leonard v. Baker . 445 Lawrence ■;;. Beverley . 770 V. Sussex (Lord . 106, 443 V. Bowie . 743 Lesley's case . 166 V. Maggs 163, 164, 320, 326 Leslie v. Baillie 304, 306, 679 Lawton v. Ford . 723 V. Birnie . 469 Layard v. Maud . 590 V. Devonshire (Duke of) 131, 134 Layton's Policy, re . 528, 739 V. Guthrie . 211 Lazarus, in re . 841 Lethbridge v. Thurlow . . 359 Lea V. Grundy . 635 LethieuUier v. Tracy . 190, 669 Lea's Trust, re . 855 Lever v. Andrews . 144 Leach v. Dean . 67 Levet V. Needhara . 126, 129 -. V. Leach 121, 122 Levett's Trust, in re . 838 TABLE OF OASES. xlix PAGE Lewellin v. Cobbold . . 820 V. Mackworth . 704, 708 Lewes, in re ... 872 V. Lewes ... 90 Lewin v. Allen . . . 459 V. Okeley . . . .807 Lewis, ex parte . . 384, 385 V. Allenby ... 94 V. DuQoombe (No. 2) . 723 V. Hillman . . .839 V. Lane .... 594 V. Lewis . . 45, 779 V. Madocks . 124. 732, 734 V. Mathews 175, 200, 621, 623 V. Rees ... 67, 193 V. Wallis . . .198 V. Zouche (Lord) . . 647 Lichfield v. Baker . 263, 265 Liddard v. Liddard . . 115, 116 Life Association of Scotland v. Siddal 185, 200, 485, 715, 719, 740, 750, 753, 754, 756 Liley v. Hey . . . 117, 681 Lillia V. Airey . . 626 Limbrey v. Gurr ... 85 Limbroso v. Francia . . 326 Linch V. Cappy . . • 299 Lincoln Primitive Methodist Chapel, in re . . 696, 863 Lincoln's (Earl of) case . . 595 (Countess of) v. Duke of Newcastle ■ V. Allen . - V. Pelham ■ V. Windsor ■ V. Wright Lindon v. Sharp Lindow v. Fleetwood Lindsell v. Thacker Lingard v. Bromley Lingen v. Foley V. Sowray Linley v. Taylor Linton v. Bartlett Lismore (Lord) in re Lister's Hospital, in re V. Hodgson V. Lister 423, 424, 429, 430, 433, 713 V. Pickford . . 722 99, 103 . 298 . 344 249 234, 241, 744, 745,- 746, 752 . 446 . 112, 113 . 200, 621 . 744, 801 372 770, 783, 789 . 532 . 448 . 769 . 762 . 60 V. Tidd Little, ex parte . 587 390, 559 Littlehales v. Gascoyne . 298, 830 Livesay v. O'Hara . . . 305 Livesey v. Livesey . . 312, 347 ■ V. Harding 512, 513, 587 Ijlevellyn v. Mackworth . 704, 708 Llewellyn's Trust , 264, 268, 269 Lloyd's Trust, re Lloyd V. Attwood V. Baldwin V. Banks V. Gregory V. Harvey u. Lloyd V. Loaring V. Pughe V. Read V. Smith V. Spillet V. Wentworth V. Williams Loch V. Bagley Look V. Foote . V. Lock . Locke V. Lomas Lookey v. Lockey Lockhart v. Reilly Looking v. Parker Lookwood V. Abdy Lockyer v. Savage Locton V. Locton Loddington v. Kime Lodge V. Lyseley Lofts, ex parte . Lomax v. Ripley . Londesborough (Lord) v. Foster V. Soraerville PAGE 835, 837 765, 756 398, 399 . 586 35, 36 356, 368 91, 94 . 805 . 32, 158 153, 154, 155, 166 . 806 13, 46, 127, 128, 129, 130, 172 129 458, 460, 613 . Ill, 443 . 595 319, 326, 333 397, 401, 413 . 725; 729 182, 291, 744 . 721, 722 . 170, 530 . 90 . 123 . 454 . 647, 649 . 448 56, 57 206 285 390 London Bridge Acts, in re London, Brighton, &c. Railway Company, in re . . 695, 762 London Chartered Bank of Aus- tralia V. Lempriere 421, 581, 631, 634, 751, 752 London Gas Light Company v. Spottiswoode . . 803, 807 London (City of) v. Garway 131, 132 V. Richmond . . 806 Lonergan v. Stourtou . . 308 Long V. Clopton . . . 247 V. Hay . . . .738 V. Long .... 362 V. Yonge . . . .805 Longdon v. Simson ... 80 Longford's Trust, re . . 275 Longmore v. Broom 298, 682, 686 V. Elcura . . . 121, 122 Longuet v. Hockley Lonsdale (Earl of) v. Beckett Lonsdale's Trust, re Lord V. Buim . V. Godfrey Lorenz's Settlement, re Lorimer, in re . Louch, ex parte . Louis V. Rumney Lovat V. Fraser d 89, 209 547 868 412 . ■ 264 . 617 197, 841 447, 448 . 493 . 526 TABLE OF CASES. PAGE Lovat (Lord) v. Leeds (Duchess of) 93 Love V. Bade V. Gaze . Lovegrove, ex parte . V. Cooper Loveridge v. Cooper . Lovett's Exhibition, in re Low, ex parte . V. Carter Lowe V. Morgan Lowe's Settlement, re l^owes V. Backward . Lowndes u. Lowndes Lownds V. Williams . Lowry v. Fulton ] .owry's Will, re Lowson V. Copeland 763 . 54 . 525 . 675 305, 579 . 692 . 448 . 741 . 797 . 579 . 141 . 362 . 315 174, 176, 181, 221 . 848 266, 257, 303, 308, 834 Lowther v. Carlton Loy V. Diickett Loyd V. Griffith V. Read . V. Spillet . Lucas V. Brandreth V. Jones . V. Williams , ex parte . Luckin v. Kushworth Ludlow, ex parte Ludlow (Corporation of) v, house 698, 753, 757, 758, 759, 760 Luff V. Lord Lumb V. Milnes Lumsden v. Buchanan Lunliam v. Blundell . Liinn's Charity, re . Lupton V. White Lushington, ex parte V. Boldero Lush's Estate, in re . 's Trust, re V. Wilkinson . Luther v. Bianconi . 702 . 420 . 390 145, 158 48, 834 96, 779 . 779 208, 209 . 841 160, 165 . 792 Greeu- 425 . 622 . 209 . 262 . 859 . 263 . 476 . 167 . 851 611, 750 68, 69, 70 257, 280, 320, 638, 740 Luxembourg Railway Company (Great) v. Magnay . . 247 Lyddon v. Ellison . . . 346 V. Moss .... 714 Lydiatt v. Foach . . 473, 477 Lyford's Charity, re . . 759 Lynch's Estate, re . . . 593 Lyne, exparte . . . 230 ( v.). . . .621 Lymi V. Beaver ... 54 Lyon V. Baker . . . 250 Lyse V. Kingdom . 276, 743, 830 Lyster v. Burroughs . . 124 V. DoUand . .146, 652 Maberly v. Turton 490, 680, 681, PAGE Macartney v. Blackwood 428, 729 Macaulay v. Philips . .616 Macbryde v. Eykyn . 624, 700 Macdonald v. Richardson . 246 V. Walker . . .202 Macdonnell v. Harding 261, 752 Mace V. Caddell . . .213 Macey v. Shurmer . . . 115 Mackay v. Douglas . . 69 Macken v. Hogan . . . 255 Mackey v. Maturin . . . 635 Mackenzie v. Mackenzie 449, 859, 876 Mackett v. Mackett . . 121 Mackie v. Mackie . . . 269 Mackinnon v. Stewart 450, 453, 656 Mackreth v. Symmons . 590, 700 Maclaren v. Stainton 267, 275, 487 Maoleod u. Annesley Macnab v. Whitbread Macnamara v. Carey V. Jones . Macoubrey v. Jones Maopherson v. Macpherson Maddison v. Andrew Maddocks v. Wren . Madoc V. Jackson . Madox V. Jackson . Magdalen College v. Attorney General Maggeridge v. Grey Magrath v. Morehead Maguire v. Scully . . 100, 101 Mahon v. Savage 513, 682, 687 (Lord) V. Stanhope (Earl) Main's Settlement, re Mainwariug, re Mais, re . Maitland v. Bateman Major V. Lansley Malcolm t). O'Callaghan . •. 525 Malim v. Barker . . . 115 1). Keighley . 115,116,118 Mallabar v. Mallabar 130, 140, 141 Mallins, re . . . .382 Malone v. Geraghty . 696, 802 1'. O'Connor . . 115,117 Malzy V. Edge . . 180, 184 Manby v. Bewicke . . . 717 Manchester (Mayor of) v. Man Chester (Overseers of) . Manchester New College, 286, 287, 288 115, 118 938, 739 524, 525 343, 353 . 266 . 514 . 169 . 683 . 802 712 690 569 379 122 858 863 . 257 638, 679 696, Mangles V. Dixon Manners v. Furze Manning v. Gill V. Thesiger Manning's Trust Mansell v. Mansell v. Price . V. Vaughan 699, 230, 206 re 758, 759, 760 590, 704 . 824 94, 128 803, 805 . 866 700, 738 . 135 502, 510 TABLE OF CASES. PAGE PAGE Mansei' v. Dix . 378 Massey, ex parte . . 213 Mansfield (Earl of) v. Og le . 723 , re . . 391 «. Shaw , 698, 824 V. Banner 226, 260, 261 Manson v . Baillie . 221, 250 V. Lloyd . . 369 Maiit V. Leith . 288 V. Massey . 122 Maplett V. Pocock . . 828 V. Parker 621, 640 Mapp V. Elcock . 129 Massy v. O'Dell 87, 705, 718 Mara v. Manning . . 638 — ■ — V. Hayes . 622 March v. Russell . 741, 755 V. Eowen 621, 622 Marcon's Estate, re . 261 Master v. De Croismar 41, 105, 383 Mare v. Lewis . 73 V. Puller . 627 V. Sandford . 458 Masters v. Masters . . 356 Margetts v. Barringer . 622 Mather v. Norton . , . 400 Marker v. Marker . . 756 V. Priestman . 383 Markwell v. Markwell . 66 V. Thomas . 201 Markwell's Legacy, in re . 762 Mathew v. Brise . 725 Marlborough (Duke of) v. Lord Mathews !'. Keble . 82 Godolphin . . 684 Mathiasw. Mathias . , 441. 734 V. St. John . 486 Mathison v. Clarke . 245 249, 519 Marlow v. Pitfield . 35, 455 Matson v. Swift . 777 V. Smith 199, 215 Matthew v. Hanbury . 93 Marner's Trusts, re . . 842 Matthews, re . 863, 864 Marriot v. Marriot . 56 V. Bagshaw . 520 Marriott's Trusts, re . 864 V. Brise 261 278, 283 V. Kinnersley 223, 739 y. Gabb . . 587 V. Turner . 132 V. Paul . 344 346, 347 Marryat v. Marryat 183, 820 Matthews's Settlement, re 854, 856 V. Townley 98 101 , 104, Matthie v. Edwards . , 375, 384 lOi ), 108, 111 Maugham v. Mason 132, 140, 141 Marsh ( v.) . 787 Maunder v. Lloyd . 44 , ex parte . . 213 Maundrell v. Maundrell . 136 V. Attorney-General . 779 Maunsell, ex parte . ■ 788 V. Hunter . 296 Mavor v. Davenport . 183 Marshall, ex parte . 200, 639 Maw V. Pearson . 15 170, 530 V. Blew . . 564 Maxwell v. Ashe . 164 V. Bousfield 105, 106 V. Wettenhall . . 460, 461 V. Bremner . 264 May V. Armstrong . . 830 V. Gibbings . 613 V. May . 93 V. HoUoway 79, 13 6, 521, 523 V. Eoper . . 782 V. Sladden . 379 V. Selby . , 804 Martin, ex parte . 213 V. Taylor . 189, 205 V. Hooper 458 Mayhew v. Middleditch . 353 V. Laverton . 200, 201 Mayn v. Mayn . 104, 112 V. Marghara . 91 Maynard's Settlement, in re 858, V. Martin 43, 44 , 105, 244 864, 868 V. Persse 176, 830 Maynwaring v. Maynwaring . 787 V. Sedgwick . 585 M'Carogher v. Whieldon 358, 380, 413 Martinez's Trust, re 175, 21 7,219,866 1 M'Carthy v. Daunt . . 721 Martyn v. Macnamara 68 V. Decaix . 756 Marwood v. Turner 574 M'Cleland v. Shaw . 132, 141 Mary England, in re 490 McClintock v. Irvine . 96 Masham v. Harding 459 McCorraick v. Grogan 'bt , 56, 119 Maskelyne v. Russell 255 McHenry v. Davies . , . 626 Mason's Trusts, re . 842 McMurray v. Spicer . 852 Mason v. Bogg 456 McNeiUie v. Acton 399 417, 749 V. Day . 795 M'Creight v. Poster . . 125 V. Limbury 115 M'Donald v. Bryce 80,82 V. Mason 794 V. Hanson . 381 V. Morley 263 M'Donnel v. Hesilrige . 67 Masseliu's Will, in re 838 Meacher v. Young . 491 d2 lii TABLE OF CASES. Mead v. Orrery (Lord) Header v. M'Cready Meaghan, in re Medley v. Horton V. Martin Bledlioott v. Bower . V. O'Donel Medow's Trust Medworth v. Pope PAGE . 416, 417, 418, 421, 700 . 301 . 92 599, 641 . 215 . 578 707, 710 . 838 . 84 Meeki!. Kettlewell 60, 62,63, 65, 67, 70 Meggison v. Moore . . 115, 119 Meggot V. Meggot . . . 729 Megod's Case . 7, 16 Melirtens v. Andrews . 295, 715 Meinertzhagen v. Davis 37, 545, 546, 547 V. Walters Melland v. Gray Melling v. Leak Mendes v. Gruedalla . 360 . 302 . 558, 722 234, 260, 261, 283, 297 . 543 Mennard v. Welford Merchant Taylors' Company v. Attorney-General Meredith v. Heneage Merest v. James Merlin v. Blagrave . Merriman's Trust, re Mertins v. Joliflfe Messeenac. Carr Messenger v. Clarke Mestaer v. Gillespie Metoalf ?;. Soholey . Metham v. Devon . 143 115, 116, 117, 118, 119, 120 . 15 . 308, 309 . 613 . 701, 702 227, 486, 506 . 634 . 212 . 652 53, 59 Metropolitan Eailway Company, ex parte Meure v. Meure Meux V. Bell . V. Howell V. Maltby Mews V. Mews . Meyer v. Simonsen . • V. Montriou Meynell v. Massey . Meyrick's Estate, in re M'Fadden v. Jenkins M'Gachen v. Dew 827 105, 107, 108 582, 583, 584 . 445 . 805 . 634 . 269 . 821 . 371 . 855 48, 61, 64 255, 745, 803 M'Hardy v. Hitchcock 819, 820, 821 Michell V. Michell . . .364 Michells v. Corbett . . .496 Middlecome v. Marlow . . 68 Middleton, ex parte . . . 456 V. Barker ... 96 V. Chichester . . .737 V. Dodswell . 496, 824, 825 V. Losh .... 83 V. Pryor . . . 438 V. Reay . .515, 551 PAGE Middleton ». Spicer 39, 142, 243, 252 Midland Great Western Railway of Ireland Company v. John- son 435 Milbank v. Collier . . .805 Mildmay v. Mildmay . . 168 Mildred v. Robinson . . 677 Miles V. Durnford 94, 416, 417, 419 Miles's Will, re . 271, 277, 290 Milfield, re . . . .848 Millard's case . . . .700 V. Eyre , Miller's case . Miller v. Campbell V. Huddlestone V. Miller V. Priddon V. Race . Milles V. Milles Milligan v. Mitchell Mills V. Banks . 264, ■ V. Dugmore V. Mills V. Osborne Milne v. Wood Milnes v. Busk V. Cowley Milroy v. Lord Milsington v. Mulgrave Milsintown v. Earl of Portmore Miltown V. Trimbleston Minohin v. Nance Minchin's Estate, re Minton v. Kirwood Mirfin, re Mitchell V. Bower V. Cobb . V. Nixon . Mitchelson v. Piper Mitford, ex parte V. Mitford M'Key, ex parte M'Kenna, re M'Leod V. Drummond M'Mullen v. O'Reilly Mocatta v. Murgatroyd Mockett's Will, re . Mogg V. Plodges Moggridge v. Thackwell Moiiun V. Mohun Mole V. Mole . Molony V. Kennedy V. L'Estrange . Molton V. Camroux . Molyneux, re . Molyneux's Estate, re Monahan, re Monck V. Monck 355, 356, 357, 358 Money, in re . . . . 839 691 16 611 807 779 . 547, 551 210, 731, 732 322, 325, 563 . 469, 698 . 372 . 380 271, 294 255, 279 . 84 . 625 . 737 62, 65 . 320 322 872 . 124 . 855 . 497 . 34 . 362 . 837 . 541 . 497, 498 . 745 212, 616, 618 . 492 . 124, 753 416, 417, 418, 419, 421 . 417, 419 . 599, 601 . 516, 517 132, 134 . 678 827, 828, 830 . 362 634, 635 . 434 . 25 . 862 622, 624 . 837 TABLE OF CASES. liii Money's Trust, re . Monill V. Lawson Montague v. Sandwich Montefiore, in re V. Brown . • V. Behrens • V. Enthoven V. Guedalla PAGE . 325 801, 803 . 69 . 747 . 450 90, 91, 611 . 90 274, 356, 357. 358 Montford (Lord) v. Cadogan(Lord) 180, 182, 320, 321, 325, 333, 742, 744, 750 Montgomerie «. Bath (Marquis of) 797 Montgomery v. Jolmson . 176, 181 Montmorency v. Devereux Monypenny«. Bristow Moody, ex parte V. Matthews Moon V. Blake Moons V. De Bernales Moor V. Black . Moorcroft v. Dowding Moore, ex parte 300, 742, 434 726 746 164 801 746 . ■ .729 50, 222 . 213 . 96 249, 522, 828 . 624 32 636, 641, 642 634, 638, 802 . 455 ■ V. Cleghorn V. Frowd V. Harris . • V. Hussey V. Moore 313, ■ V. Morri.s 621, V. Petchell V. Scarborough (Earl of) 636 V. Vinten . . .802 ■ V. Walter . . .438 V. Webster . . 607 Morant, Goods of . . . 197 Moravian Society, re . . 544 Morden College Case . . 473 Moi-gan, ex parte 199, 200, 427, 716 re 875 V. Hoi'seman . . . 448 V. Malleson ... 61 V. Morgan 80, 83, 264, 265, 268, 607, 608, 725, 728 V. Sherrard . . . 675 ■ V. Stephens . . . 531 Moriarty v. Martin . . .115 Morice v. Durham (Bishop of) 116, 130, 131 Morison v. Morison 248, 523, 525, 529 Morley's Trust, in re . . 200 Morley v. Bird . . .146 V. Hawke (Lord) . . 750 ■ V. Morley . . 260, 809 Mornington, ex parte . . 862 • (Countess of) v. Keane . 124 Morony v. Vincent . . 827 Morres v. Hodges . . ; 325 Morret v. Paske . . 244, 247 Morrice v. Bank of England . 675 Morris v. Preston . . . 542 V. Livie . . 576, 745 PAGE Morris v. Venables . . 450 Morse v. Faulkner . . 43 • V. Langham . . . 454 V. Royal 423, 425, 426, 432, 434, 435, 710 Mortimer v. Davies . . . 145 V. Ireland V. Pieton V. Watts Mortimore v. Mortimore Mortlock 0. Buller Morton v. Tewart Moseley v. Moseley Moses V. Levi . Mosley v. Hide V. Ward 296, Moss V. Cooper Mott V. Buxton Mountain v. Young . Mousley v. Carr Mower's Trust, re . Moyle V. Moyle 202, 203 . 275 320, 514 . 288 375, 379, 506 . 50, 51 . 680, 688 . 240 . 380 830, 834 . 56 187, 205 . 836 302, 831 . 593 300, 301, 174, 243, 262, 278, 303 Moyse v. Gyles . . . 145 M'Queen v. Farquhar . 702 Mucholland v. Belfast . 375 Muckleston v. Brown 54, 56, 57, 58, 59, 93, 128, 131, 749 Mucklow V. Puller . . 181, 243 Muggeridge's Trust, re . 90, 516 Mulcahy v. Kennedy . .711 Mulvany v. Dillon 160, 162, 165, 423, 427 Mumma v. Mumma 36, 152, 154 Munch?;. Cockerell 224,301,742, 756, 799, 802 Mundel's Trust, re . . 854, 864 Mundy v. Howe (Lord) . .491 V. Mundy . . 729 Murless v. Franklin 144, 151, 152, 155, 156, 157 Murphy, in re . . 92, 723 u. Abraham . 92 V. Donnelly . 189 Murray's Trust, re . . 617 V. Barlee 626, 627, 632, 633 V. Glasse . 269 — ^ V. Palmer . 434 V. Pinkett . 731 V. Stair . . 66 Murrell v. Cox . 237. 240 Mutlow V. Mutlow . ■ 675 i>- Bigg . 719, 737 Myler v. Fitzpatrick 170, 530, 531 Nab v. Nab . 48, 50, 56 Nail V. Punter . 750 Nairn v. Majoribanks . 486 Nanney v. Williams . 73, 169 liv TABLE OF CASES. PAGE Nansoii v. Barnes . . . 670 Nantes v. Corrock . 632, 633 Napier ». Napier . • .613 Nash D.Allen . . 187 V. Coates . . .192 V. Dillon . . 828 V. Flyn . . . 66 V. Preston . . 8, 196 u. Smith . . .129 Natal Investment Company, re 576 Nayler v. Wetherall . . 124 Naylorti. Arnitt . . . 496 —^«. Winch . . 423,427 Neale v. Davies . . . 253 o. Day .... 68 Neate v. Marlborough (Duke of) 647, Neave v. Avery Needham, inre . Needler's case V. Winchester (Bishop of) Neeves v. Burrage Nelson v. Bridport . V. Seaman . . 550. ■ V. Stocker Nepean v. Doe Nesbitt V. Tredennick 160, 161. Nettleton v. Stephenson . Nevarre v. Rutton Neve V. Flood . Nevil V. Saunders Neville v. Fortescue New V. Bonaker V. Jones . 649, 662, 663 559 179 750 32 498 44 802 312 307 163 81 705 664 187 264 143 249, 518, 521, 524 Newborough v. Schroder . . 551 Newburgh v. Bickerstaffe . 725, 729 V. Newburgh . . 56, 58 Newcastle (Duke of) v. Lincoln (Countess of) . . .102 re 662 Newcomen v. Hassard . 629, 638 Newlands v. Paynter 621, 623, 624 Newman v. Hatch . . . 829 V Jones . • . . 750 o. Warner . . .507 V Wilson . . . 614 Newport's ease . . . 792 V. Bryan .... 183 V. Bury . . . .523 Newsome v. Flowers . . 253 Newton v. Askew . 66, 70, 570 . V. Bennet 298, 300, 459, 832 V. Chantler . . 446, 448 u. Curzon . . .491 V. Egmont (Earl of) . . 806 V. Metropolitan Railway . 421 V. Newton . . . 704 V. Pelham ... 57 V. Preston . . .148 Newton's Charity, in re . . 759 PAGE NichoUs t. Crisp . . . 132 Nicholson v. Falkiner . . 812 V. Mulligan . 130, 150, 158 1.. Smith . . . 542, 547 V. Tutin . . . 452, 523 1). Wright . . 542,547 V. Cockell . . .512 Nickolson v. Knowles . . 170 Nicloson V. Wordsworth 175, 177, 178 Niel V. Morley . . Nightingale's Charity ■ V. Ferrers (Earl) V. Lawson Noad V. Backhouse . Noble V. Brett . V. Meymott V. Willock Noel V. Henley (Lord) V. Jevon Noke V. Awder Nokes V. Seppings . Norbury v. Calbeek . V. Norbury Norcutt V. Dodd Norden v. James Norfolk's case (Duke of) 25 . 695 . 35 318, 319, 327 . 825 . 312, 313 ■ 175, 537, 542, 805 . 634 136, 266 9, 196, 215 560 821 833 276 70 448 74, 75, 84, 86, 672 Norfolk (Duke of) v. Browne . 127 Norris,ea;_23arte306,740,743, 746, 807 V. Chambres . . 43, 44 V. Frazer .... 56 I'. Le Neve . 165, 166, 714 V. Norris . . . 828, 829 V. Wright 281, 286, 287, 290, 291, Norrish v. Marshall . North V. Crompton . V. Williams Northen v. Carnegie Norton v. Frecker V. Pritchard 296, 807, 813 576 130 574 129 726 551 V. Turvill 35, 626, 633, 634, 704 Norton Folgate, re . . . 870 Norway v. Norway . . 176, 830 Norwich Yarn Company . . 528 Nottley V. Palmer . " . . 788 Nowlan v. Nelligan . . .116 Nugent 5;.Gifford416, 417, 418,419,421 Nunn V. Wilsmore . 445, 446, 457 Nurton v. Nurton . . 416, 417 Oakes v. Strachey . Oakley v. Young Gates V. Cooke Ohee V. Bishop O'Brien v. O'Brien . O'Callagan v. Cooper Occleston !i. Fullalove Ockleston v. Heap . OlConnell v. O'Callagan . 263 . 191 189, 191 . 738 296, 297 . 831 . 84 . 203 . 741 TABLE OF CASES. Iv PAGE PAGE O'Connor v. Haslam 454, 455 Owen V. Body . . 453 O'Connor «. Spaight . 725 V. Delamere . 209 Oddie V. Brown 79,80 V. Poulkes . 423 O'Dowda V. O'Dowda . 650 V. AVilliams 160, 161, 162, 165 O'Fallon v. Dillon . 649, 650 Owen, re . 865, 878 O'Pen-all v. O'Ferrall . 319 Owens ». Dickenson . 627, 628, 633 Offen V. Harman . 281 Oxenden v. Compton (L 3rd) 771,790, Offley V. Offley . 372 791, 792 793,794 Ogden V. Lowry . 806 Oxford (University of) V. Rich- Oglander v. Oglander . 693 ardson . . 725 Ogle, ex parte 255, 301 , 302, 307, 494 Oxley, ex parte ■ , 90 Ogle V. Cook , 133 O'Gorman v. Comyn 649, 650 O'Hara v. O'Neil . 50 Packer v. Wyndham 616, 618 O'Herlihy v. Hedges . 243 Padbury v. Clark . 788 Oke V. Heath . 140, 142 Paddington Charities, in re . 467 Okeden v. Okeden . 371, 372 Paddon v- Richardson 175, 256, 279 O'Keefe v. Calthorpe . 692 Page V. Adam 398, 399, 402, 406 O'Kelly V. Glenny . . 711 ■ V. Bennett , . 272 Oldham v. Hughes . 771,782 V. Broom . . 386 V. Litchford . 56 ■ V. Cooper . 377 «. Oldham . 90 V. Leapingwell . 131, 132, 140 Oliver v. Court 242 37 5, 376, 386, V. Way . 89 428, 433 Paget V. Greenfell . . 359 V. Osborn . 528 Paine v. Meller 124, 125 Oraerod v. Hardman . . 391 Palairet v. Carew 375, 551, 565, 566 Ommaney, ex parte . . 872 Palmer's Settlement, re .552 O'Neill V. Lucas . 82 's Will, re . . 382 Onslow's (Speaker) case . 785 V. Carlisle (Lord) . 797 Onslow V. Londesborough (Lord) V. Jones . ^ . 743 386, 387 V. Newell . . 514 V. Wallis . 2£ 0, 252, 568 V. Simmonds , 115, 118 O'Reilly v. Aldevson . 543, 690 V. Young . , . 161 V. Walsh 718,724 Palmes v. Danby . 794 Ord V. Noel 3' li, 384, 385 Pannell v. Hurley . 170 421, 531 V. White . 576, 704 Pant on v. Panton . 263 Ord's Trust, re ■ . 850 Papillon V. Papillon . . 354 Ormerod, re 8; )0, 857, 864 V. Voice . 98, 106 Ormonde (Marquis of) i>. Ky nersley 167 Paramore v. Greenslade . 125 Ormsby, in re . 51 8, 519, 525 Parby, re . 863 Orr V. Newton . 180, 257 Parke's Charity 474 758, 759 Orrett v. Corser . 749 Trust, re . . 865 Orrok V. Binney . 420 Parker, re , . 836 Osborn v. Morgan . 612, 615 V. Bloxam . . 245 's Mortgage, re . . 853 V. Brooke 621, 636 , 679, 702, 703 Osborne (■ v.) 314, 554 V. Carter . 558 596 606, 607 V. Foreman 806, 807 V. Caloroft . 169 Osbourn v. Fallow . . 797 V. Clarke . . 576 Osmond v. Fitzroy . . 755 V. Manning . 560 Oswald V. Thompson . 447 V. Williams . 788 Otte V. Castle . . 838 Parker's Trust, re . 864 Otter V. Vaux (Lord) . 600 Parkes v. White 423, 424, 432, 620, Ottley V. Browne 93, 749 635 639 649, 750 !;. Gilby . 571, 828 Parkinson's Trust, inre . 117 ■ V. Gray . . 395 Parnell v. Kingston . 62, 810 Otway V. Hudson . 769 Parnham's Trust, re . . 91 V. Wing . . 625 V. Hurst . . 211 Ouseley v. Anstruther . 296 Parr v. Attorney-General . . 31 Overton v. Banister . . 36, 312 Parrot v. Treby , . 833 Owen V. Aprice . 729 Parrott v. Palmer . 725 Ivi TABLE OK CASES. PAGE PAGE Parry's Trust, in re . . 842 Pedder's Settlement, re 784, 788 in re , . 837 Peele, ex pa/rte . 747 V. Warrington . . 266 Peers v. Ceeley . 306, 527 V. Wright . 599 Peillon V. Brooking . 275 Parsons v. Baker . 115 Pell V. De Winton 286, 395, 413, V. Freeman . 595 486, 547 V. Hayward . 245 Pelly V. Maddin . 144 V. Potter . . 176 Pemberton v. M'Gill 631, 642, 751 Partington v. Reynolds . 740 Penfold V. Bouch 131, 565, 831 Partridge v. Foster . 645 , 656, 663 V. Mould . 63, 65, 612 V. Pawlet . . . 146 Penn v. Baltimore (Lor d) 9, 30, 43, 44 Pascoe V. Swan 725, 727 Penne v. Peacock . . 500 Passinghara v. Selby . , . 459 Pennell v. Deffell 261, 732, 733 V. Sherborn 38 , 476, 549 V. Dysart . 561 Patch V. Shore . . 71 V. Home . 714 Paterson v. Murphy . , 61, 66 Penny v. Allen 146, 574, 596, 715, 728 V. Paterson 207, 861 V. Avison . 301 Pattenden v. Hobson 376, 741 V. Turner 682, 684, 685 Patterson's Estate, re . 72 Pentland v. Stokes . 709 Pattinson, in re 850, 878 Peploe V. Swinburn . 677 Pattison v. Hawkesworth . . 711 Pepper v. Tuckey . 692 Paul V. Birch . . 210 Peppercorn v. Wayman . 178 V. Children . 85 Perens v. Johnson . 427 V. Compton 115, 119 Perfect v. Curzon . 350 Paull V. Mortimer . 744 Perkins v. Baynton . 298, 300 Pawlett, ex parte . 290 — — V. Bradley . 27 V. Attorney-General 9, 10, 29, Perrot v. Perrot . 338 75,196,215,216,318 667, 700 Perry (in the goods of) . 180 Payne, ex parte 115, 116 V. Knott 744, 799, 800, 804, 807 V. Barker . . 565 V. Phelips . 734 V. Compton . 700 V. Shipway 228, 469, 558 V. Evens . 724, 753 Peter v. Bruen . 458 V. Little . 635, 828 V. Nicolls . 67 V. Mortimer . 71 Petit V. Smith . 17 V. Parker . . 810 Peterson v. Peterson . 313, 494 Peacham v. Daw . 822 Petre v. Petre 716 717,718,719 Peachy v. Duke of Somerset . 217 Pettiward v. Prescott . 728 Peacock v. Monk 625, 626 635, 638 Petty V. Styward . 146 Peacocke v. Pares . . 343 Peyton v. Bury . 230, 510 Peake v. Ledger . 805 Peyton's Settlement 438, 44u, 858 ■ V. Penlington . . 112 Phayree v. Peree . 700 Pearce v. Gardner . 376, 501 Phelps, ex parte . 691 V. Newlyn , . 700 Phen^ V. Gillan . 532 V. Pearce . 185 540, 740 's Trust, re . 307 V. Slocombe 460, 461 Philbrick's Trust, re . 568 Pearse v. Baron . 113 Philips V. Brydges . 6 , 14, 572, 574, V. Green . . 571 593, 767 V. Hewitt . . 800 V. Bury . . 463 Pearson v. Amicable Office . 63 V. PhiKps . 312, 455 V. Belchier . 713 Phillipott's Charity . . 758 V. Lane . 570, 786 Phillipo V. Munnings 182, 296, 705, V. Pearson . 489 724, 737, 821 V. Pulley 706, 711 Phillips, ex parte 790, 791, 793, 794 Peart, ex parte 839, 841 Phillips, re . 872 Pease, ex parte . 213 V. Barlow . 168 V. Jackson 20, 582, 590 V. Buckingham (Duke of) 804 Peat V. Crane . 278 V. Daycock . 795 Peatfield v. Benn . 551 V. Eastwood . 489 Pechel V. Fowler 375, 384, 698 V. Edwards . 380 Peckham v. Taylor . 48 V. Everard . 387 TABLE OF CASES. Ivii PAGE Phillips V. Garth . . 683, 688 V. James . . 100, 101 V. Phillips . 130, 133, 141 Phillips's Charity, in re . . 759 PhiUipson V. Gatty 287, 296, 716, 803 Phillpotts V. Phillpotts . . 94 Philpot, ex parte . , . 448 Phipps V. Ennismore (Lord) . 92 V. Kelynge ... 79 V. Lovegrove 304, 562, 581, 582, 583 Phcenix Life Assurance Co. in re 208, 209 Picard v. Hine . . 625, 630 Piokard v. Anderson . . 280 Pickering v. Pickering . 264, 294 ■ V. Stamford (Lord) 710, 712, 713 ■ V. Vowles 160, 161, 163, 199, 320 Pickett V. Loggon Pickstock V. Lyster Pickup V. Atkinson Pierce v. Scott Piercy v. Roberts Pierson v. Garnet 115, V. Shore 116. 10, 123, Piety V. Staee 296, 297, 298, 300, 830 Pike V. White . . .594 Pilkington v. Bayley . . 46 V. Boughey . . 115, 131 Pimm V. Insall . . .218 Pine, Goods of, re . Pink V. De Thuisey Pilcher v. Rawlins Pit V. Hunt Pitt V. Bonner V. Hunt V. Pelham — V. Pitt . Pitts I'. Edelph Plasket V. Dillon (Lord) Platel V. Craddock Piatt V. Piatt Playfair v. Cooper Playters v. Abbott Plenty v. West Plucknet v. Kirk Plunket V. Penson Plyer's Trust, in n Plymouth v. Archer V. Hickman Poad V. Watson Pocock V. Reddington 445, 728 453 . ■ 264 393, 420 118, 160, 680 795 323, Podraore v. Gunning Poland V. Glyn Pole V. Pole V. Somers Pollard, eoo parte V. Downes 634 512 701 645 744 624 679 . 603 . 701 646, 647 . 255 357, 358 . 722 328, 334 . 546 647, 674 459, 674, 675, 676 853, 866 . 778 . 50 . 194 270, 276, 279, 296, 831 . 58 . 448 151, 152, 153, 154, 157, 169 . 356 . 43 . 531 PAGE Pollard V. Doyle . . 249 Pollexfen v. Moore . . 175 Policy •«. Polley (No. 2) . 671 V. Seymour . . 776, 779 Pomfret (Earl of) v. Lord Windsor 253, 361, 705, 713 Ponsford v. Widnell . . 830 Pool Bathurst's Estate, in re . 547 Poole V. Pass 526, 565, 568. - — V. Franks . . . 826 Pooley V. Quilter 245, 423, 427 Poor V. Mial . .138 Pope V. Gwyn . . . 459 V. Pope . . .118 V. Whitcombe 683, 685, 687, 688 Pope's Trust, ?-e . . . 614 Porey v. Juxon ... 7 Porter's Trust, in re 546, 863, 864 Will, J-e . . .850 V. Walker '. . . 446 V. Watts . . .554 Portland (Duke of) v. Hill . 218 Portlock V. Gardner 170, 531, 705 Portsmouth (Earl of) v. Fellows 691 Potter V. Chapman 19, 510, 512, 514 Potts V. Britton . . .279 Poulett (Earl) v. Hood 387, 517 Poulson, ex parte Powdrell v. Jones Powel V. Cleaver Powell's case in re — — V. Cleaver V. Evans V. Glover — — ■ V. Hankey ■ V. Matthews V. Merrett V. Morgan ■ V. Price V. Wright Powerscourt v. Powerscourt Fowls V. Burdett Powles V. Page Powlett (Earl) v. Herbert V. Bolton V. Hood Powys V. Blagrave V. Mansfield Poyser v. Harrison Prance v. Sympson Prankerd v. Prankerd Pratt V. Colt V. Jenner V. Matthew V. Sladden Prendergast v. Prendergast Prentice v. Prentice Prescott's Trust, re Press, re ... . 746, 749 . 6in 353, 354, 355 . 458 . 852 . 263, 294 . 256, 278 . 247 . 635 . 847, 852 . 142, 252 . 602, 603 . 101, 700 805 513 350 585 830 167 496 486 358 525 . 711 144, 156 647, 673 . 641 84 . 131 . 514 . 810 . 868 . 527 242, 158, 355, 356, 10, Ivi TABLE OF CASES. PAGE PAGE Preston v. G-rand Collier Dock QuARRELL V. Beckford . 528 Company . 805 Queen (The) u. Abrahams 16 Prevost V. Clarke . 115 V. Carnatic Railway 643 Price's Estate, re . 272 V. Garland 208 Price's Trust Deed . . 865 V. HaiTOwgate Commis- Price V. Berrington . 26 sioners . . 206 V. Blakemore 441 732, 734 V. Norfolk Commissioners ■ V. Byrn 422, 432 of Sewers 488 ■ V. Gibson 602, 603 V. Shropshire Union Canal ■ V. Loaden . 531 Co 590 V. Price . 60,62 V. Stapleton 206 Prichard v. Ames 621 622, 679 V. Trustees of Orton Vi- Priddy v. Rose 576, 746 carage .... 16 Pride V. Bubb 626 634, 638 Queen's College, Cambridge, in V. Fooks 82, 243, 276, 303, 739, re 466 832 Quick V. Staines 213 Priestman v. Tindall . 744 Quinlan's Trust, re 855 Prime v. Savell 745, 746 Quinton v. Frith 710, 719 725 Primrose, re 308, 873 • V. Bromley . 183 Prince v. Heylin . 711 V. Hine 490, 491 Rabt v. Ridehalgh 276, 281, 294, 745, Pring, ex parte . 132 800 V. Pring 67,68 Rachfield v. Careless 54, 132 198 Prior's (Lady) Charity, in re . 476 Rackham v. Siddall 185, 187, 194, 200, V. Horniblow . . 724 740 ■ V. Penpraze . 215 Radoliffe, re ... 169 Pritchard v. Langher . 258 Radnor (Lady) v. Rotherham . 606 Projected Railway, ex parte . 278 Raffety v. King 707 Prole V. Soady . 611 Rainy v. Ellis 128 Propert's purchase, in re . 848 Raikes v. Raikes . 551 Prosser v. Rice 582, 701 V. Ward 121 122 Proud V. Proud . 720 Ramsden v. Langley 526 Proudfoot V. Hume 821, 822 Randal v. Hearle , 115 Proudley v. Fielder . 636 V. Randal , 70 Prowse V. Abingdon . 469 Randall's Will, in re 868 V. Spurgin . 313 Randall v. Bookey 130 132 Pryse's Estate, re . 382 V. Errington 422, 423, 425, 430, Pugh, ex parte . 614 432, 433, 712 755 ■ in re . 626 V. Russell . . . 166 V. Vaughan . 657 Ransome v. Burgess 491 Puleston V. Puleston . 53 Raphael v. Bank of England 732 PuUen V. Middleton . 42 V. Boehm 296, 298, 302, 303, Pulling V. Tucker . 448 742 832 Pulteney v. Darlington 732, 767, Rashley v. Masters 769, 827 828 770, 773, 774, 775, 777, Rastel V. Hutchinson 149 786, 788, 789 RatcliflF V. Graves 299 V. Warren 726, 726, 727, 728, Ratcliffe v. Barnard 690 729 V. Winch 494 Pulvertoft V. Pulvertoft 60, 62, 66, 67 Raven v. Waite 362 Purcell V. Puroell . 361 Ravenhill v. Dansey . 362 367 Purdew v. Jackson 611 616, 617 Ravenscroft v. Fi-isby 718 Purefoy v. Purefoy . 454 Ravenshaw v. Hollier 124 Pushman v. Filliter 116 116, 118 Rawbone's Trust, re . 213 214 Pybus V. Smith 639, 743 Rawe V. Chichester 161, 162, 163 166 Pye, ex parte 51, 61 356, 357 Rawleigh's case 156 V. George . 699 Raworth v. Parker 456, 467 458 Pyncent v. Pyncent . 803 'Ra.y, ex parte . . 621 622 Pym V. Lockyer 91, 363, 366, 366, 357 V. Adams . . 115 680 Raymond v. Webb . 374 TABLE OF CASES. lix PAGE Page Raytiei- v. Mowbray , 683, 688 Richards, re . 680 Rea V. Williams , . 145 V. Perkins . 824 Read V. Shaw . 438 V. Richards , 602, 603 V. Snell 98 102, 107 Richardson, ex parte 214, 585 V. Stedman 54, 55 129, 253 V. Bank of England 820, 822 V. Truelove • 221 V. Chapman 116 514, 689 Reade v. Prest , , 810 V. Elphinstone . 354 V. Reade 728, 730 V. liorton . 218 V. Sparkes 559 811, 812 V. Hulbert , 175, 801 Reading Dispensary, in re . 759 V. Jenkins 183 677, 743 V. Hamilton . 275 v. Larpent , 805, 806 Rede v. Oakes 380, 384, 496 V. Moore . . 325 Kedington v. Redington 144, 148, 150, ■ V. Morton . 391 151, 153, 154, 155, 156, 157, V. Richardson , . 63 158, 603 V. Smallwood . 68, 69, 70 Reece v. Tyrye . 253 V. Younge . 228 Reach v. Kennegal , . 833 Rickard v. Robson . . . 94 V. Kennigate . 56 Rickards v. Gledstanes 213, 585 Reed v. O'Brien , 64, 802 Ricketts v. Bennett . 497 Rees, ex parte , 758, 759 Rickman v. Morgan . . 358 V. Keith . . 618 Riddle v. Emerson . 47 V. Williams . 296 Rider v. Kidder 70, 144, 145, 149, Reese River Company i ;. At ivell 68 150, 158 Reeve v. Attorney-General 30, 667 V. Rider • 646 V. Parkins . . 698 Ridgway, ex parte . 276 Reeves v. Creswick 322 323, 330 V. Newstead 313, 741 Regina v. Day . , 205, 563 0. Wharton , . 49 V. Shee . , . 206 V. Woodhouse . 139 V. Bterry , . 206 Ridout V. Lewis , . 636 V. Wellesley . 206 Rigby, ex parte . 227 Rehden v. Wesley . 243, 263, 743 Rigden v. Vallier 104 145, 146 Reid V. Reid 547, 549 Right V. Smith , . 187 V. Thompson , . 568 Rigley's Trust, re , . 94 Reilly v. Reilly . 388, 389 Ripley v. Waterworth . 780 Reilly, ex parte . 747 Rippen v. Priest . 201 Remnant v. Hood 307 340, 350, 351 Rippon V. Norton . 90 Rendlesham v. Meux . 377 Rittson V. Stordy . 40,41 Rennie v. Young . 716 Rivers V. Fox , . 487 Renshaw's Trusts . . 863 Rivers's Settlement, re . 346 Renvoize v. Cooper . 201 Rivers (Earl of) v. Derby (Earl Retford, West, (Church lands) of) . . . 352 353, 372 in re , . 758 Rives V. Rives . 875 Revell V. Hussey . 125 Rivet's case . 208 Rex V. Blunt 664, 665 Robarts ( v.) 515, 554 V. Bridger . . 26 Roberdeau v. Rous . 43, 725 ■ V. Bulkeley . . 664 Roberts, re 312, 546 V. Plockwood . . 231 's Trust, re 611, 612 840, 841 ■ V. Lexdale , . 544 V. Ball . , . 842 ■ V. Tippin . 219 V. Dixwell 97 ,98, 107, 109, V. Williams . 127 190 607, 672 Reynault, re . 864 V. Kingsley . 100 Reynolds, ex parte 427, 430, 691 V. Lloyd 62, 581 V. Jones 220, 730 V. Roberts . 63 V. Messing , . 606 V. Spicer 622, 679 — , — V. Meyrick , . 368 V. Tunstall432,433,435,714,715 , V. Wright . 147 V. Walker . 668 Rice V. Rice 450, 588, 589, 590 Robertson's Trust . 121, 840 Rich V. Cockell 634, 637, 679 V. Armstrong . 390 Rich's Trusts, re , . 271 V. Norris . 618, 710 Richards' Trust . 868 V. Scott . 823 Ix TABLE OF CASES. Robertson v. Skelton Robinson's Will, re 's Trust , ex parte V. Comyns, or Cuming PAGE 125 854 . 837 . 33 14, 186 574 V. Grey . 186, 187, 192 V. Hedger . . . 655 V. Killey . . . .491 V. Knight . . .781 V. London Hospital . 133 • V. Lowater 398, 402, 407, 408, 409 V. Pett 174, 244, 24.5, 518, 521, 523 V. Preston 145, 146 V. Ridley 428, 430 V. Robinson 268, 288, 291, 295, 296 300, 302 V. Smith . 116 V. Taylor 129, 132 V. Tickell . 121 V. Wheelwright . 641 V. Whitley 356, 367 Robson V. Plight 19, 407 Rooh V. Callen . 711 Rochard v. Pulton . . 582 Rochdale Canal Co. v. King . 715 Roche, in re 541 543, 691 V. Hart . 828 V. O'Brien 433, 434, 435, 710, 712, 756 Rochford v. Pitzmaurice 100,101,106, 107 109 111, 193 V. Hackman 90, 573 Rocke V. Hart 298 299 300, 302 ■ V. Rocke . 569 V. Williams . 286 Roddy's Estate, re . 591, 592 Rodgers v. Marshall 71,72 Roe V. Pludd . . 140 V. Reade 199, 559 Rogers, ex parte . 582 V. Holloway . 657 V. Linton . 803 V. Rogers 130 132 133, 820 V. Skillicorne . 398, 399 Rolfe V. Gregory 700, 705, 710, 734, 737 RoUe's Charity, in re . 695 Rolleston v. Morton , . 662 Rollfe V. Budder 621, 679 Rolt V. Somerville . . 167 V. White . 576 Rome V. Young . 456 Rook V. Worth 788 793, 794 Roome v. Roome 355, 358 Rooper v. Harrison . . . 582 Roper V. Holland . 16 V. Radcliffe . 129 639 Life PAGE Roper-Curzon v. Roper-Curzon 492 Rose, ex parte V. Haycock Rosewell v. Bennet Ross's Trust, in re Ross V, Ross . Rossiter v. Trafalgar surance Company Rosslyn's Trust, re Lady Rothwell V. Rothwell Round V. Byde Roupe V. Atkinson Routh V. Howell V. Kinder Row, re . Rowan v. Chute Rowe V. Almsmen of Tavistock 477, 478, 479 V. Bant V. Rowe Rowel V. Walley Rowland v. Morgan V. Witherden Rowley v. Adams 255, 848, 856, 867, 875 V. Unwin . . 642, 755 Rowley's Lunacy, re . . 872 Roy V. Gibbon . 821, 822, 823 Royds V. Royds . . 287, 831 Royston Pree Grammar School, in re ... . 759, 760 Rumball v. Munt . . . 467 Rumboll V. RumboU 147, 152, 153 Rumford Market case . . 160 Bundle v. Rundle Rushworth's case Russell's case 's Estate, re Policy Trusts, re Road Purchase-moneys, re ex parte 585 . 447 . 356 640, 841 819, 823 As- . 384 . 80 821, 822 . 448 . 616 225, 261 . 801 . 788 . 124 650 265 326 308 292, 296, 807 146, 147, 586, V. Clowes V. Dickson V. Hammond . V. Jackson 56, 57 V. M'CuUoch V. Plaice Rust V. Cooper Rutherfoord o. Maziere Ryal V. Ryal Ryall V. Rolle 210, 211, 647, 730^ 732 V. Ryall . 50, 148, 149, 150 Ryan's Settlement, re . . 858 V. Keogh . . 96, 121 Rycroft V. Christy . 64, 66, 622 Ryder v. Bickerton . 270, 750 150 . 161 36,36 849 587 590 859 2.52 . 623 . 68 58, 116 . 655 378, 416 446, 448 . 752 731, 733 Sabin v. Heape 399, 400, 402, 407, 409 TABLE OF CASES. Ixi PAGE PAGE Sackville-West v. Holmesdale Saxon Life Assurance Co. re 435, (Viscount) 100, 101, 103, 104, 106, 756 110, 112, 443 Say V. Creed . . 309 Sadd, re . . 530 Sayers, ex parte 211, 730, 732 Sadler v. Hobbs 232, 233, 238, 239, Sayre v. Hughes . 158 240, 243 Scales V. Maude " 48, 60, 63 V. Lee . 565 V. Baker . 734 Saint Giles and St. George, Scammell v. Wilkinson . . 198 Bloomsbury, re . 762 Scarborough v. Borman . 623 Saint John's Col., Cambridge, v. (Earl of) V. Parker . . 830 Todington . 463 Scarisbriok v. Skelmersdale 79, 100, Saint John (Lord) v. Boughton 455, 344 719 Scarsdale v. Curzon 102, 110, HI V. Turner . . 713 Scattergood v. Harrison . 248, 519 Saint Paul v. Dudley . 604 V. Sylvester . 735 Saint Wenn's Charity, in re . 759 Scawin v. Scawin 155, 156, 157 Sale V. Kitson . 809 Schofield, re . . 873 V. Moore 115, 116, 118, 120 Scholefield v. Redfern . . 285 Saloway v. Strawbridge 203, 381, 504 Schroder v. Schroder r27, 728 Salsbury v. Bagott . 701, 702 Score V. Ford 820, 824 Salt V. Chattaway . 133, 141 Scott, in re . . 719 Salter v. Cavanagh 130, 706, 718, 719 V. Becher 698, 821, 824 Saltmarah v. Barrett (No. 2) 132, 301, V. Davis 434, 435, 639 303, 307 V. Hastings 216 579, 658 Saltoun V. Houston . 183 V. Izon . 749 Salusbury v. Denton 682, 684, 685, V. Key 121 122, 123 687 V. Nesbitt 43, 433 Salvin V. Thornton . 574 V. NicoU . 797 Salway v. Salway . 262, 297 V. Scholey 645, 652 Sammes v. Rickman . 828 V. Spashett 612, 614 Sampayo v. Gould . 112, 277 V. Steward . 112 Sandeman v. Mackenzie . 343, 344 V. Surman 209 210, 211 Sanders v. Homer . 876 V. Tyler 415 416, 417, 421 V. Miller . 533 Scounden v. Hawley 30, 196 V. Page . 616, 624 Scroope V. Scroope , . 153 V. Richards . 416 Scudamore, ex parte . 448 Sanderson v. Walker 425, 431, 831 V. Scudamore 768, 770, 775 Sanderson's Trust, re 88, 89, 514 Scully V. Delany 179, 241, 257 Sandford v. Irby . 193 V. Scully . . 802 V. Keech . 160 Sc ilthorp V. Burgess . 127 Sandon v. Hooper . 528 Sculthorpe v. Tipper 256 497, 739 Sands v. I^ugee . 506 Scurfield v. Howes 233, 238, 240, Sandys v. Sandys . 367 241 376, 742 ■ ■ V. Watson . 827, 833 Seagram v. Knight . 167, 485 Sanger v. Sanger . 24, 631, 640 Seagrave v. Kirwan . 56 Saumarez, re . . 868 Seilet). Seale . 105 Saunders v. Dehew 67, 699, 701 Sealy v. Stawell . 734 V. Mackeson . 375 Sear v. Ashwell . 71 V. Neville . 565 Searle v. Lane . 677 V. Saunders . 827, 828 V. Law 61, 62 V. Vautier . 569 Seddon v. Connell . 801, 802 Savage v. Carroll . 341, 734 Seeley v. Jago 781, 784 V. Poster 36, 750 Seers v. Hind 298 830, 834 V. Robertson . 84 Segrave v. Kirwan . . 169 V. Taylor . 480 Selby V. Alston 14, 767 Saville v. Tancred 170, 420 V. Bowie . 375 Savory v. Barber . 806 V Cooling . 378 Sawley v. Gower . 674 Sellack V. Harris . 55 Sawyer v. Birchmore . 315 Selsey v. Lake . 600 V. Goodwin . 738 Selyard v. Harris •. 801 Ixii TABLE OF CASES. PAGE Senhouse v. Earle . . 702, 703 Sercombe v. Sanders . . 755 Sergeson v. Sealey . . 792, 793 Sergison, ex parte . . .199 Sewell V. Denny . . 81, 126 V. Moxsy ... 63 V. Musson . . 449 Sewell's Trusts, re . . 263, 269 Seys V. Price . . . .794 Shadbolt V. Thornton . .779 V. Woodfall . . .388 Shaftesbury v. Marlborough (Duke of) 321, 322, 323, 324, 326, 327, 328, 329 Shakeshaft, ex parte 296, 297, 743, 744, 746, 749 156, 156 133, 494 . 142 . 559 . 187 . 90 Shales v. Shales Shallcross v. Wright Shanley v. Baker Shannon v. Bradstreet Shapland v. Smith . Sharp V. Cosserat V. Sharp 175, 540, 541, 548 V. St. Sauveur 26, 40, 41, 778, 789 «. Wright . . .715 Sharpe v. Foy . . 624, 750 V. Scarborough (Earl of) 647, 651, 675, 676 V. Sharpe . . .200 Sharpe's Trust, in re . 838, 841 Sharpies v. Adams . . . 701 Shattock v. Shattock 629, 630, 633, 752 Shaw, ex parte . . 200, 448 's Settled Estates, re . 275 's Trust, re . . 263, 496 V. Borrer 392, 402, 403, 485 V. Bran ... 27 . V. Hardingham . 806, 809 V. Keighron . . .719 • V. Lawless . 115, 119, 530 V. Neale . 658 V. Rhodes 80, 81, 82, 83 V. Turbett^ . 303, 740 V. Weigh ° . 189, 190 Shee V. French . 675 V. Hale 90, 91 Sheffield v. Coventry . 358 Sheldon v. Dormer . . 372 Shelley's case 96, 107, 791 Shelley v. Shelley . . 104 Shelraerdine, re . 863 Shepherd v. Mouls . . 295, 296 (;. Nottige . 115,119 V. Shepherd . 606 Sheppard v. Smith . . 830, 833 V. Woodford . . 207 Sheppard's Trust, re . 697, 867 Slieridan v. Joyce . 304, 731 PAGE Sheriff v. Axe . . 249, 519 Sheriff V. Butler . . . 642 Sherrardi). Lord Harborough 129, 244 Sherratt v. Bentley . . 176, 830 Sherwin v. Kenny . . . 187 Sherwood, in re . 248, 249, 522 Shewell v. Dwarris . . . 622 V. Shewell . . .309 Shewen v. Vanderhorst . 493, 497 Shields V. Atkins . . 253, 705 Shine V. Gough . . 480, 559 Shipbrook (Lord) v. Lord Hin- chinbrook . 233, 238, 240, 241 Shiphard v. Lutwidge Sliipperdson v. Tower Shipton V. Rawlins Shirley v. Ferrers V. Watts Shore V. CoUett V. Shore Shovelton v. Shovelton Shrewsbury School, in re 459 . 779 800, 807 . 460 645, 646 . 170 . 826 115,812 205, 244, 759 Shrewsbury v. Shrewsbury 372, 604 Shudal V. Jekyll . 355, 356, 357 Shuttleworth, ex parte . . 33 Sidebotham v. Barrington . 383 Sidmouth v. Sidmouth 145, 151, 154, 155, 156, 157, 158 Sidney v. Miller . 136 V. Shelley . 131, 136 Siebert v. Spooner . . 446 Siggers v. Evans 176, 450, 451, 452 Silk V. Prime 459 Sillar, re . 838 Sillibourne v. Newport . 512 Sillick V. Booth . 307 Simmonds v. Palles . . 451, 453 Simmons v. Pitt . 82 Simes V. Eyre . 803 Simpson v. Bathurst . 818 V. Chapman . 246 V. Frew . 341 V. Morley . 658 V. Sikes . 446, 447 ■ V. Taylor . 645 Sims V. Marryatt . 189 V. Thomas . 70 Simson's Trusts . 272, 288 Sing V. Leslie . 343, 603 Sish V. Hopkins . 650 Sisson V. Giles . . 784 V. Shaw . . 490 Sitwell V. Bernard . . 266 Skarff V. Soulby . 68, 69, 70 Skeats v. Skeats 151, 153, 156 Skeetes, in re . . 762 Skeggs, re . 783, 784 Skett p. Whitmore . . 47, 148 Skingley, re . 123, 486 TABLE OF CASISS. Ixiii PAGE Skinner, ex parte 476, 478, 758, 759, 760 V. McDouall ... 49 Skipper v. King . . . 350 Skirving v. Williams . . 265 Skitter's Mortgage, re . . 852 Trust, i-e . . .855 Skynner v. Pelichet . . 876 Slade V. Rigg . . .802 Sladen v. Sladen . . .672 Slaney v. Witney . . 175, 522 Slater v. Wheeler . . 230, 801 Slattery v. Axton . . .700 Sleemanu. Wilson . . 247,752 Sleight V. Johnson . . 740 V. Lawson . . . 711 Slewringe's Charity, in re . 758, 760 Slim V. Croucher . . . 581 Sloane v. Cadogan 60, 63, 64, 65, 67 Sloman v. Bank of England . 310 Sloper, in re . V. Cottrell Small V. Attwood • V. Marwood V. Dudley Smallraan, re . Smart v. Bradstock , ex parte . Smedley v. Varley . Smirthwaite's Trusts Smith, ew parte 's Trusts, re -, re . - V. Acton - V. Adams - V. Adkins - V. Andrews - V. AttersoU - V. Baker - V. Barnes - V. B olden - V. Boucher - V. Cam el ford - V. Cannan - V. Cherill - V. Clay - V. Claxton - V. Dresser - V. Evans - V. Everett - V. French - V. Garland - V. Grant - V. Guyon - V. Hayes — V. Jameson — V. Keating — V. King . — V. Lomas V. Hurst 447, 453, 645, 656, 663 16, 65 750, 754, 799 . 178 . 448 . 638 . 806 . 586 . 431 . 863 228, 433, 586, 745 637, 842, 866 . 842 . 705 . 610 . 467 . 809 . 58 . 144 . 819 305, 830 . 862 144, 635 . 446 . 68 . 706 133, 134, 784 529, 830 . 367 . 415 750, 755 . 67 . 572 . 398 . 559 PAGE Smith V. Lyne .... 66 V. Matthews 49, 50, 51, 619, 620 V. Parkes . . . 576 — — ■ V. PaVier . . . 561 V. Phillips . . . 599 V. Smith 32, 315, 388, 389, 579, 580, 582, 585, 614, 745, 825, 853, 866 «. Snow . . . 565,804 V. Spencer . . . 610 • V. Strong . . 355, 357 V. Warde ... 72 V. Wheeler . 177, 411, 556 V. Wilkinson ... 50 Smyth's Settlement . 866, 868, 876 ■ V. Foley . . .366 Sneesby v. Thome . . 375, 41 6 Snow V. Booth . . . 723 V. Hole . . .830 V. Teed . . .687 Snowdon v. Dales . 87, 88, 573 Soady v. Turnbull . . .198 Soar V. Foster . . 157, 158 Sockett V. Wray ... 34 SoUey W.Wood . . 323,372 Somerset's (Earl of) case . 667 Somerset v. Cox . . . 584 Sonley v. Clockmakers pany . South, re Southampton Imperial Company, re Southampton (Lord) v. Marquis of Hertford . . 79, Southcomb v. Bishop of Exeter South Eastern Railway Com- pany, ex parte re .... . Southouse V. Bate South Sea Company v. Wy- Com- Hotel . 531, 678 662 532 136 715 284 788 130 16, 746 . 451 36, 129 . 81 mondsell Southwell V. Ward . Southwill V. Martin SowarsbyiJ. Lacy Sowerby's Charity, in re Trust, re Sowry V. Sowry Spackman v. Timbrell Spalding v. Shalmer Sparkes v. Cator Sparling u. Parker . Sparrow, re Spawforth's Settlement, re Spence v. Spence Spencer v. Spencer Spicer v. Spicer Spickernell v. Hotham Spiller, re Spink V. Lewis 710,711 693 831 396 759 455 788 218 232, 393, 398 . 354, 359 . 269 864 858 97 343 614 709 517 131, 132 Spirettu. Willows 68, 69,613, 614, 623 Ixiv TABLE OF CASES. PAGE Spottiswoode v. Stockdale 448, 456, 457 Sprange v. Barnard . 116, 118 Sprigg V. Sprigg . . 136, 140 Spring V. Biles . . . 687 V. Pride . . 422, 425, 639 Springett v. Dashwood 570, 571, 830 V. Jenings ... 56 Spurgeon v. Collier . . 218, 699 Spurrier v. Hancock . . 125 - Squire v. Dean . . . 635' V. Ford . . . .456 Squires v. Ashford . . . 614 Stacey v. Elph 175, 176, 181, 423 Stackhouse v. Barnston . 728, 754 Stackpole v. Davoren . . 728 Stackpoole v. Stackpoole 298, 830 Stafford V. Fiddon . . .298 V. Stafford . 435, 716, 756 • Charities, in re . 465, 468 Stahlschmidt v. Lett . . 493 Staines v. Morris . . . 387 Stair V. Macgill . . .266 Stamford, Spalding, & Boston Bank v. Ball . . .637 Stamford (Earl of) v. Sir John Hobart ... 98, 108 Stammers v. Elliott . . 578 Stamp V. Cooke . . . 688 Stamper v. Millar . . . 231 Standford v. Marshall . 626, 632 Stanes v. Parker . . . 521 Stanford v. Roberts . . 560 Stanhope v. CoUingwood 341, 343, 346 Staniforth v. Staniforth . 363, 367 Staniland v. Staniland . . 122 Stanley v. Bond . . .657 V. Coulthurst . . 108, 443 V. Darington . . . 222 V. Leigh . . . .102 V. Lennard . . 98, 187 V. Stanley . . 366, 367 Stanstield v. Hobson . . 809 Stanton v. Hall 90, 619, 621, 622 Staples' Settlement, in re . 841 Stapleton v. Stapletou . . 61 Starkey v. Brooks . 129, 130, 132 Stasby v. Powell . . .677 Stead V. Nelson 625, 627, 637, 638 ■ V. Newdigate Steel, re . Steele v. Philips ■ V. Waller Stent V. Bailis Stephens v. Hotham V. James V. Olive . V. Trueraan V. Venables (No. 1) Stevens' Trusts, re . 767, 777, 784 801, 802 . 647 61, 848 . 124 386, 387 . 90 . 69 . 70 . 576 201 PAGE Stevens v. Austen . . 202, 376 V. Dethick . . .368 V. Mid Hants Railway Com- pany ..... 601 V. Robertson . . 282, 752 V. South Devon Railway Company .... 489 Stevenson v. Masson . 357, 358 Steward v. Blakeway . . 635 Stewart, re . . . 784, 851 V. Hoare .... 523 V. Noble . . . 460, 461 V. Sanderson . . . 283 Stickland v. Aldridge . 53, 55, 56 Stickney v. Sewell . 279, 286, 287 Stiffe V. Everitt . . .612 Stikeman v. Dawson . . 36 Stile V. Tomson . . .504 Stileman v. Ashdown 152, 154, 647, 649, 650 Stock, ex parte . . . 838 V. M'Avoy . . 156, 157 V. Moyse . . 124 Stocken v. Dawson . . . 521 V. Stocken . . .491 Stocks V. Dobsou . . 576, ^84 Stokes' Trust, re . . 553, 865 V. Holden . . .668 Stokoe V. Cowan . . . 646 Stone, ex parte . . . 746 V. Godfrey . 253, 435, 712 V. Grantham . . . 444 V. Stone . . 255, 709, 737 V. Theed 318, 319, 320, 323, 326 V. Van Heythuysen 451, 461 V. Wythipole ... 35 Stone's Settlement, re . . 517 Stones V. Rowton . . 548 Stonehewer v. Thompson . 650 Stonehouse v. Evelyn . . 132 Stonor V. Curwen . . 100, 107 Storie's University Gift, re . 470 Storry v. Walsh 402, 407, 408, 410, 418 Story V. Gape . . 179, 715, 737 V. Tonge . . 615 Stott V. Hollingworth . . 266 Stow V. Drinkwater . . 198 Strange v. Fooks . . 756 Stratford v. Powell . 99, 110 V. Twynam . . . 428 Stratton v. Murphy 161, 163, 165, 429 Streatfield v. Streattield . . 100 Stretton v. Ashmall . 287, 288 Stright, ex parte. . . . 585 Stringer v. Harper . . . 532 Strode v. Russel . . . 199 V. Winchester . 56 Strong V. Hawkes . . . 593 V. Strong . . . 807 Stroud V. Gwyer 246, 268, 641, 747 TABLE OF CASES. Ixv PAGE PAGE Stroughill V. Anstey 377, 398, 399, Synge v. Synge . 92 40C ,401 , 419, 420 Synnot v. Simpson . 451 , 452, 453 Stuart, ex parte . . 387 , re , . 872 V. Bruere , . 266 V. Cockerell . . 587 Taboe v. Grover . 15 V. Kii'kwall 626 , 627, 632 Taddy's Settled Estates, re . 275 «. Stuart . . 281, 290 Taggart v. Taggart . 104 Stubbs V. Eoth 161, 164 Tait V. Jenkins . 825 V. Sargon , . 131 V. Lathbury . 383 Stucley's SetUement, re . . 777 V. Northwick . 460, 461 Stulz's Ti-usts, in re , . 91 Taite v. Swinstead . . 505 Sturge's Trust, re , . 836 Taitt's Trusts, re . 873 Sturgis V. Champneys 616, 617, 618, Talbot V. Marshfield 512, 514, 515, 619 815 ,819 , 823, 833 V. Corp . . 637, 639 41. Radnor (Earl o f) 175, 308 V. Morse 705 ,718 , 722, 727 V. Scott . . 824 Sturt & Co., ex parte , . 741 V. Whitfield . . 785 Sturt V. Mellish , 16. 17 Tatier v. Ivie . . 417 Stutely, ex parte , 746, 840 Tanner v. Dancey . 828 Styan, in re • 585 V. El worthy . 161 Styles V. Guy 179, 241, 257, 271, Tappenden v. Burgess 446 447, 448 279, 716 V. Walsh . 679 Sugden V. Crossland , 245, 550 Tarback v. Marbury 69, 444 Suggitt's Trusts, re . 613, 614 Tarboton, re . 33 Suir Island Female Charity TardiiGF v. Robinson . 325 School, in re 474, 759 Tardrew v. Howell . 829 Supple V. Lowson 513, 687 Targus v. Puget . 105 Sutcliffe u. Cole . 135 Tarleton v. Hornby 744, 799 Sutherland v. Cooke 263 264, 269 Tarj'agona . 22 Sutton V. Jones . 248, 423 Tarsly's Trust, re . . 621 V. Sharp . , 299, 300 Tasker v. Small 125 371, 798 V. Wilders . 310 Taster v. Marriott . . 161 Sutton Colefield case . 143, 701 Tatam v. Williams . . 715 Swale V. Swale . . 825 Tatliam v. Drummond . 635 Swallow V. Biuns 345 348, 351 V. Vernon ' 62, 96, 98 Swan, re 611, 612, 840 Taylar v. Millington . 184 V. Swan . . 480 Taylei-, re . 866 Swayne v. Swayne . . . 587 Taylor's Trust, in re . 777 Sweet V. Southcote . 702 , ex parte . 446, 447 Sweetapple v. Bindon 105, 606, 768 , re . 849 Sweeting V. Sweeting . 59 V. Allen . 698, 825 Swift, ex parte . 490 V. Alston . 156 's Trusts, re . 307 V. Cart Wright . 354, 754, 755 V. Davis , 153, 156 V. Clark . . 268 V. Gregson 683, 687 V. Crompton . . 725 v. Wenman . 611 -u. Dowlen . 831 Swinfen v. Swinfen (No. 3) 602, 603 V. George . . 115 V. Swinfen (No. 5) 261, 263 V. Glanville 308, 828, 830 Swinnock v. Crisp . . . 492 v. Hawkins . 418 Sykes v. Hastings . . 248 V. Haygarth 142 250, 252, 670 V. Sheard 380, 505, 777 V. Hibbert . 266 V. Sykes . 86 V. Jones . 69, 646 Sykes's Trust, re 48, 626, 629 V. Meads . 634 638, 639 Sylvester v. Jarraan . 200 V. Plumer 210, 211, 730, 731, V. Wilson , . 187 732, 734 Symes v. Hughes . 94 V. Salmon . 805 Symons v. Rutter . 777 V. Sparrow . 561 Symson v. Turner . . 187 V. Stibbert . 700 Synge v. Hales ■gf ), 99, 111 — — V. Tabrum 385 743, 831 Ixvi TABLE OF CASES. PAGE PAGE Taylor v. Taylor 36 133 ,150,154, 156, 625 Thornton v. Hawley 772, 776, 777, 781 V. Wheeler . 212 V. Howe . . 93 Tchitchagoff's Will, re , . 841 V. Ramsden . 590 Teague's Settlement . , 87, 641 Thornton's Trust, re . . 839, 863 Tebbs V. Carpenter 255, 256 298, 300, Thorold's Settled Estates, re . ' 275 301 303 , 832, 834 Thorp V. Owen 121, 122, 123 Tee V. Ferris . . 56 V. Thorp . . 837 Tegg's Trust, re . 837 Thorpe v. Jackson . . 802 Tempest, re . 693 V. Owen . 48, 61, 672 V. Camoys 512, 678 Thrupp V. Harman . . 635, 636 Templer's Trust, re . , . 853 Thrustout V. Coppin . 198 Tenant v. Brown . 123 Thruxton v Attorney- Greneral . 45 Tench v. Cheese 80,81 Thynn v. Thynn . 56 Teunant v. Trenchard , 253, 427 Thynne v. Glengall . . 357, 359 Terrell v. Matthews . . 240 Tibbits V. Tibbits 115, 116, 118 Terry v. Terry . Teynham v. Webb . 270, 485 Tichener, re 213, 585, 586 341 , 345, 353 Tickner v. Smith . 298 Thacker v. Key . 514 Tidd«. Lister 557,614,615,619,825 Theebridge v. Kilburne . . 102 Tierney v. Wood . 51 Thellusson v. Woodford . . 356 Tiffin V. Longman . 687 Thetford School case 143, 144 Tillet V. Pearson . 656 Thicknesse v. Vernon . 145 Tillstone's Trust, in re . 837 Thirtle v. Vaughan . 200, 201 Tilly V. Bridges . 729 Thomas's Trust, re . . 868 Timson v. Eamsbottom 582, 583, 587 Thomas, ex parte 33, 213 Tipping V. Power . 828 V. Bennet . . 636 Titley V. Wolsteuholme 202, 203, 204 V. Burne . , . 164 Todd V. Wilson . 521 V. Cross . 587 656, 660 Toft V. Stephenson . . 720 V. Bering . . 512 Toller V. Attwood . . 192 V. Dunning . 797, 798 V. Carteret . 43 V. Hole , . 688 Tolson V Collins . 359 V. Jones . , . 829 Tomkins, ex parte . 385 V. Kemeys 354, 359 Tomlinson, ex parte . . 830 V. Kemish 602, 603 Tooke V. Hollingworth . 210 V. Oakley . 726 Tooker v. Annesley . . 168 V. Thomas 7io 728, 730 Torres v. Franco . 360 V. Townsend . 393 Tottenham, re . . 161 • V. Walker . 865 Toulmin v. Steere . 599, 601 Thomason v. Mackworth . . 190 Tournay, inre . . 836 Thompson's Trust, re 668, 778 Towneud v. Townend 245, 246, 289, V. Beaseley . . 624 300, 302 V. Blackstone . . 375 V. Toker . . 67 V. Finch 222, 234, 236, 749, Townley v. Bedwell . . 780 752, 753 V Bond . 184, 323, 325 V. Fisher . . 106 V. Sherborne 198 228, 231, 232 V. Grant . . 201 Townsend, ex parte . ' . 222, 225 V. Griffin . . . 491 , in re . 872 V. Harrison . 754 ■ V. Ash . 730 V. Leach . . 35 V. Barber . . 240 V. Shakespeare . . . 94 V. Early . . 91 V. Simpson 703, 719 V. Westacott . . 68, 69, 70 V. Speirs . . 585 V. Wilson . 231, 503 V. Tomkins . 587 Townshend (Marquis ( 3f) V. V. Webster , . 68 Bishop of Norwich . 129 Thorby v. Yeats 565, 813, 831 V. Townshend . 704, 706, 706 Thorndike v. Hunt . 587, 700 V. Windham 68, 636 Thornley v. Aspland , . 93 Townson v. Tickell . . 177, 178 Thornton v. El is . 265 Tracey's Trust, re . . 838, 839 V. Finch . 646, 665 Trafford «. Ashton . . 364, 372 TABLE OF CASES. Ixvii PAGE Trafford v. Boehm 271, 277, 744, 767, 785, 786, 788 Trappes v. Meredith . . .91 Trash v. Wood . . . .671 Travell v. Danvers . . . 690 Travers v. Townsend . . 831 V. Travers ... 54 Travis v. lUiugworth 525, 541, 548, 830 Tregonwell v. Sydenham 130, 131, 134 135 139 Trench v. St. George . ' 319^ 320 V. Harrison 144, 150, 439, 731, 734 Trent v. Banning . . . 191 Treeves v. Townshend 298, 299, 300, 302 Trevor v. Perryor . . . 673 V. Trevor 100, 107, 108, 604, 700, 702 Trick's Trust, re . . . 841 Trickey v. Trickey ... 81 Trimmer v. Bayne . 354, 356, 358 Trinity College v. Browne . 206 Triquet v. Thornton Trot V. Vernon Trott V. Dawson Troughton v. Gritley . Troup's case Troutbeck v. Boughey Trower v. Knightley . Trower's Trust, re . Trumper v. Trumper Trutch V. Lamprell . Tryon, in re Tuck's Trust, re Tucker v. Boswell ■ V, Burrows V. Horneman V. Kayess V. Thurstan Tuckley v. Thompson Tudor V. Samyne Tuer V. Turner Tuffnell V. Page TuUet V. Tullet TuUett V. Armstrong Tulloch V. Hartley Tunstall v. Bracken V. Trappes 's Will Turner, ex parte ■ , re . ■ (Sir Edward's) case V. Buck . V. Corney V. Prampton V. Harvey • V. Hill . 776 115 . 529 . 590 . 497 . 639 . 505, 784 . 838 . 166 . 222 . 176 . 516,517 . 266 156, 157, 158 . 308 82, 135, 138 . 218 . 656 . 624 . 783 . 594 . 794 621, 623, 626, 627, 640 . 43 . 350, 353 647, 651, 662, 664 . 546, 864, 865 . 398, 403, 746 34, 191 . 624 . 220 222, 571 . 309 . 375 . 160 Turner v. Hind V. Martin . ■ V. Maule . V. Newport V. Sargent V. Turner . V. Wardle Turnley, in re . V. Kelly . Turpin, ex parte Turquand v. Knight V. Marshall Turvin v. Newcomhe Tutin's Trust, re Tweedy, re Twisden v. Twisden Twisleton v. Thelwel Twopeny v. Peyton Twyne's case . Tylden v. Hyde Tylee v. Tylee . Tyler v. Lake . Tyler's Estate, re Trust, in re Tyrrell v. Hope V. Tyrrell . Tyrrell's (Lady) case Tyrwhitt v. Tyrwhitt Tyson v. Jackson Underwood, re V. Hatton . V. Stevens V. Trower Ungless V. Tuff Uniacke, in re PAGE . 807 . 455 299, 306, 543 . 748 99, 112 298, 515 . 183 . 841 . 621 . 745 . 830 . 807 . 79 . 614 . 851 . 358 . 827 . 89 68, 444 . 407 . 824 604, 623 . 788 . 864 212, 622 . 362 . 127 602, 603 . 737 . 649, 780 315, 458, 741 . 241, 750 . 571, 833 . 274, 277 . 178 United Kingdom Life Assurance Company .... Universal Banking Corporation, 836 531 465 725 University College, Oxford, in re of Oxford V. Richardson . Upton Warren, in re . . 758, 759 Upfull's Trust, in re . . . 836 Urch V. Walker 175, 180, 181, 306 Uvedale v. Ettrick . . .692 V. Evedale . . 827, 828 Vachell v. Roberts . . . 264 Van V. Barnett . . 776, 781, 788 Van Sandau M. Moore . .811 Vance v. East Lancashire Rail- way Company . . . 489 V. Vance .... 311 Vandebende v. Levingstou 729, 750 Vandenberg v. Palmer . . 61 Ixviii TABLE OF CASES. PAGE Vanderstegen v. Withain . . 16 Vane v. Vane . . . .717 ■ (Earl) V. Rigden . 378, 417 Vann v. Earnett . . . 698 Vansittart v. Vansittart . . 625 Varlo V. Faden ... 82 Vaughan v. Buck . 265, 613, 614 V. Buvslem . . 103, 1 10 V. Farrer .... 475 ■ V. Vanderstegen 629, 745, 751 V. Walker . . . 633 Vaughton v. Noble . . 245, 745 Veuables u. East India Company 196 V. Foyle . . . 169, 222 V. Morris . . . . 1 93 Ventnor Harbour Company, re . 661 Verner, ex parte Verney v. Carding V. Verney . Vernon, ex parte V. Blaokerby V. Vawdrey V. Vernon 92 . 700, 732 319, 320, 326 . 144 . 799 . 182, 738 70, 115, 794 Verulam (Earl of) v. Batburst . 107 Vez V. Emery . Vezey v. Jamson Viall, re . Vicki;. Edwards Vickers v. Cowell V. Scott . Vickery v. Evans Vidler v. Parrott Vigor V. Harwood Vigrass v. Binfield ViUiers v. Villiers Vincent v. Godson V. Newoombe Viner v. Caddell Viney v. Chaplin Voyle V. Hughes Vyse V. Foster 71, 306 131 . 872 . 191 . 146 . 266, 376 . 281, 287, 292 . 275 . 266 . 270, 821, 823 . 190 . 183 . 264 . 210, 214 . 391 . 64 245,246,247,301, 302, 488 Yyvyan v. Vyvyan . . . 756 Wace v. Mallard . 120 Wackerbath, ex parte . . 233 V. Powell . . . .225 Wade V. Hopkinson . . . 857 V. Paget .... 14 Wadham v. Rigg . . . 735 Wadley v. Wadley . . .325 Wagstaflf v. Smith . 187,622,639 V. Wagstaff . . 594 Wain V. Egmont (Earl of) 458, 512 Wainwright u. Bagshaw . . 75 V. Elwell .... 14 V. Hardisty . . .638 V. Waterman . . . C80 Waite V. Littlewood V. Whorwood Waithman, ex parte Wake V. Wake Wakeford, in re Wakeman v. Rutland (Duchess of) Walburn v. Ingilby Waldo V. Caley • V. Waldo . Waldron v. Sloper Waley's Trust, re Walford ( v.) Walker's Trust, re Walker ( v.) , in re V. Burrows PAGE 271, 274 730, 731 . 585 861, 874 . 849 390, 798 . 801 . 513 168, 488 . 590 . 91 . 568 . 839 . 287 519, 849 . 68 ■ V. Denne 767, 769, 771, 772, 776, 780, 784 - V. Maunde - V. Meager - V. Preswick ■ V. Richardson ■ V. Shore . . 688 . 458 700, 799 20, 189 376,751,777 . V. Smalwood 374, 392, 398, 498 V. Symonds 222, 228, 232, 234 235. 236, 238, 242, 257, 270, 297, 570, 702, 743, 750, 752, 755, 799 V. Walker . . .512 V. Wetherell . . 491, 492 V. Woodward . . .302 Wall V. Bright . . 125, 200, 204 — ^^^ V. Rogers .... 755 Wallace v. Anderson . . 90 V. Auldjo . . . .612 ■ V. Pomfret . . . 356 Waller v. Barrett . . 315, 741 Walley v. Walley 160, 163, 165, 700, 801, 802 Wallgrave v. Tebbs ... 57 Wallis V. Birks . . .563 V. Morris .... 660 Wallwyn v. Coutts . . 451, 453 Walmseley v. Butterworth . 550 Walrond v. Walrond 71, 302, 751 Walsh c. Dillon . . .812 V. Gladstone . . 541 , 542 V. AVallinger . . 684, 685 V. Wason .... 613 Walsham v. Stainton . . 745 Walter v. Maunde . . 570, 779 V. Saunders . . . 618 Walton V. Walton . 54, 129, 132 Walworth v. Holt . . .805 Wankford v. Wankford . .180 Want V. Stallibrass . . .380 Warburton v. Hill . 582, 587, 588 V. Cicognara . . . 835 V. Farn .... 550 TABLE OF CASES. Ixix Warburton v. Sandys V. Warbuvton Ward V. Aixh . V. Audland V. Basselt V. Burbury V. Butler . V. Hipwell V. Lant V. Ward . V. Yates . Ward's Estate, re 's Settlement, re 's Will, re Wardle v. Claxton Ware v. Cann . V. Gardner V. Pol hill . Waring, in re . V. Coventry V. Waring PAGE 230,231,511, 537, 551 . 372 705, 721 62, 70 806, 807 . 192 179. 228; 181 465 . ' 127 . 485 . 614 . 836 . 271 . 839 622, 623 . 87 . 69 793 836, 840 . 212 255, 264, 276, 286, 291, 297 Warman v. Seaman . . .127 Warmstrey v. Tanfield . 10, 472 Warr v. Warr . . . 353, 362 Warren v. Eudall . . 175, 561 ■ V. Warren . . . 354 Warrender v. Foster . . . 849 Warrick v. Warrick . . 100, 703 Warriner v. Rogers . . 61, 62 Warter v. Anderson . . 314, 552 V. Hutchinson 187, 190, 192, 193, 371 Warwick Charities, in re . , . 694 (Countess of) v. Edwards . 635 V. Richardson . • 36, 551 Waterhouse v. Stansfield . . 44 Waters v. Bailey . • .161 Watkins, ex parte . . . 585 V. Cheek . 398, 399, 417, 419 . 194 V. Frederick V. Weston Watson, ex parte , re . V. Hayes . V. Hinsworth Hospital V. Lincoln (Earl of) V. Marshall V. Parker . V. Pearson V. Saul V. Toone . Watters v. Jones Watt V. Wood . Watts, ex parte 's Settlement, in re V. Ball . V. Bulks . V. Creswell 140, . 96 246, 300, 746 . 788 132 477 353 614 . 71 . 194,230 719, 720, 722, 737 422, 427, 428, 433 . 810 . 83 . 531 543, 853, 866 . 606, 609 71, 72 . 36 Watts V. Girdlestone V. Hyde . V. Jefferyes V. Kanoie V. Porter . V. Symes . V. Turner . Waugh's Trust, in re Way V. East Way's Settlement ■ Trust, re . Weale v. OUive Weall V. Rice . Wearing v. Wearing Weatherby v. St. Giorgio Weaver v. Maule Webb's Policy, re 270, PAGE 296, 379 . .434 . 658 . 416,417 . 216.658 599, 600, 601 . 565 850, 864, 878 . 85 . 839 . 64, 65, 66 . 62 354, 356, 358 . 264 . 394 . 217 579, 836 Webb V. De Beauvoisin . . 532 V. Lugar .... 161 V. Rorke . . . .432 V. Shaftesbury (Earl of) 97, 244, 515, 521, 527, 551, 698 V. Webb . . 82, 561, 812 V. Wools . . 115, 119, 121 Webster v. Webster . . . 584 Wedderburn v. Wedderburn 245, 520, 704, 705, 755, 756 Wedgwood v. Adams Weeding's Estate, re V. Weeding Weiss V. Dill . Welchman, re . Weld V. Bonham V. Tew Welford V. Liddel . V. Stokoe . Weller v. Ker . V. Fitzhugh Wellesley v. Mornington V. Wellesley V. Withers Wells V. Gibbs V. Kilpin V. Malbon Welstead v. Colvile West V. Errissey 181, Holmesdale (Viscount) . 391, Jones V. Steward West Ham Charities, i Westbrook v. Blythe Westbrooke, re Westby v. Westby . Westcott V CuUiford Western v. Cartwright Westhead v. Sale Westley v. Clarke 233, 237, 238, 242 Westmoreland v. Plolland . 179, 255 Westoby v. Day . . 198, 210 Weston V. Clowes. . . .829 386 848 780 524 614 805 793 711 131 514 840 308 124 207 . 657 593, 662 305, 308, 840 537 100, 101, 702 104 590 . 445 . 759 659, 663 519, 523 . 667 . 309 710, 711 871 Ixj TABLE OF CASES. Weston V. Filer V. Tunnicliffe . Westover v. Chapman Westwood, re . Wetherby v. Dixon . Wetherell v. Collins . V. Hall . V. Langston V. Wilson Wettenhall «. Davis PAGE 861, 862, 874 . 183 . 279, 302 . 875 . 355 . 797 . 563 . 178 . 568 . 829 Whale V. Booth 213, 417, 418, 419 Whalley ». Whalley . . . 710 Whateley v. Kemp . . . 101 Whatford v. Moore . . .350 Whatton v. Toone . . 422, 710 Wheate v. Hall . . Ill, 506 Wheatley v. Purr ... 60 , ex parte . . . .747 Wheeler, inre . . . . 872 Wheelwright v. Jackson . . 448 Wheldale v. Partridge 768, 772, 775, 776. 789 Whelpdale v. Cookson 422, 426, 428, 429, 435 Whetstone (Lady) v. Bury . 669 Whichoote V. Lawrence 423, 425, 430, 431, 433, 713 Whinohcombe v. Pulleston . 92 Whistler «. Newman 627, 751, 830 V. Webb . . .797 Whiston V. Dean and Chapter of Rochester Whitaore, ex parte Whitaker v. Rush V. Wisbey Whitcomb v. Minchin White, re AVhite's Trust, re V. Barker . V. Barton . V. Baylor . V. Briggs . V. Carter . ■ V. Chitty. . V. Cuddon V. Evans . V. Ewer . V. Foljambe V. Grrane . V. Hunt . V. Lincoln V. Nutts . V. Parker . V. Sanson . V. Spettigue V. Tommy V. White 464 . 200 . 578 . 27 . 424 851, 859 684, 686 . 187 180, 823 217, 678 115, 117, 118, 443 107 . 91 . 375 54, 132 . 706 381, 386 . 491 . 208 263, 571 . 125 . 188 . 69 . 735 . 427 318, 319, 326, 327, 328, 329, 330, 333, 687, 692 693, 750 V. Williams ... 54 Whitecorab v. Jacob Whitehead v. Bennett Whitfield (Incumbent of) re V. Bewit . V. Brand . V. Prickett Whitham, re Whitling's Settlement, re Whitmarsh v. Robertson Whitmore v. Douglas V. Dowling V. Turquand V. Weld . Whitney v. Smith 249, 286, PAGE 731 132 440 167 213 90 197 841 . 819 . 780 . 447 457, 820 . 36 495, 741, 839, Whittem V. Sawyer . . . 613 Whittingham's case . . 35, 36 Whittington v. Jennings . 68, 69 Whittle V. Halliday . . .802 V. Henning . . . 615 Whitton V. Lloyd . . .458 's Trust, re . . . 842 Whitwick V. Jermin . . . 770 Whitworth v. Gaugain . 215, 216 Wickham v. Wickham . 168, 574 Widdowson v Duck . 276, 498 Widmore v. Woodroffe . . 682 Wigg V. Wigg . . . 123, 700 Wightman v. Townroe . 208 Wightwick V. Lord . . 265, 269 Wiglesworth v. Wiglesworth 296, 821 Wigsell V. Wigsell . . . 604 Wikes's case . 29,616,667,668 Wilcocks-y. Hannyngton , 61, 63, 65 Wild V. Banning — —V. Wells . Wilday v. Sandys Wildes V. Da vies V. Dudlow Wilding V. Bolder V. Richards Wiles V. Cooper V. Gresham Wilkes V. Collin V. Steward Wilkes's case . Wilkins V. Pry . V. Hogg . V. Hunt . V. Reeves V. Sibley . V. Stevens Wilkinson, es^arte . 's Mortgaged Estates, re 's Ti'usts, re 's Settled Estates, re . V. Bewick V. Brayfield V. Charlesworth V. Duncan 460 . 729 . 264 . 83 . 740 37, 549 450, 451, 452, 454 . 812 255, 281, 494, 742 . 605 270, 196, 384, 279 216 388 243 827 809 576 149 182 382 848 275 262 128 614 270 TABLE OF CASES. Ixxi PAGE Wilkinsou v. Gibson. . . 305 V. Malin . . . 228, 472 . V. Parry 534, 546, 750, 754, 801 . V. Wilkinson 84, 90, 93, 523, 624 527 Wilks V. Groom . 261, 852 Willan, re . . . .851 V. Lancaster . . . 595 Willand v. Fenn . . .242 Willats V. Busby . 67, 803, 804 Willenhall Chapel, re . . 472 Willes V. Greenliill (No. 1) 576, 583 (No. 2) 582, 583, 585 Willett V. Saudford ... 7 V. Blaudibrd . . 245, 246 Williams' Estate, in re 390, 677, 847 Settlement, ire re , 641, 837 Trust, re . . . .840 Williams, ex parte . . . 490 V. Allen . . . 800, 807 V. Allen (No. 2) . . 745 V. Bolton . . . .167 V. Carter . . . 112, 114 V. Coade . . . 131, 132 V. Corbet . . . .530 V. Headland . . .315 V. Higgins . . . 241 V. Kershaw . . .131 V. Lewis .... 79 V. Lomas .... 751 V. Lonsdale (Lord) . . 252 V. Massy .... 420 V. Mayne .... 615 V. Nixon 181, 228, 236, 241, 242, 243 ■ V. Powell . - V. Salmond • V. Waters V. Williams . 302 . 805 186, 187 117, 120, 155, 156 Williamson v. Codrington 66, 67, 70,71 V. Curtis . . . .398 V. Park . . . .650 V. Taylor .... 454 Willis V. Childe . . .514 ■ V. Hiscox . . . 565, 834 V. Kibble . . . 521, 522 . V. Willis . . 144, 148, 149 Willmott v. Jenkins . . .182 Willoughby v. Willoughhy 84, 700 Wills V. Sayers Wilmot V. Pike Wilson V. Atkinson V. Beddard V. Bell . J;. Bennett V. Broughton V. Clapham V. Coles 621, 622, 679 . 582 • 84 . 775 • 122 202, 507, 508 . 799 124 133 Wilson V. Day . V. Dennison V. Dent . V. Fielding V. Foreman V. Goodman . — - V. Halliley — — V. Heaton V. Hoare . V. Keating V. Knuhley V. Major . V. Moore . V. Oldham V. Peake . V. Round . V. Wilson . PAGE 444, 446, 448 . 226 50, 594 . 675 . 731 . 744 . 272 532 . 207 . 233 183 lie, 118, 132 . 704, 743 . 615 . 303 . 639 80, 830 Wilton V. Hill 625, 641, 751, 755, 819 V. Jones . . . 797, 807 Wiltshire v. Rabbits . . .582 Winch V. Brutton . . . 118 V. Keeley . . . 209, 211 Winohelsea v. Norcliffe . 793, 794 Winchester (Bishop of) v. Knight 725 Winged v. Lefebury . . . 700 Winkworth v. Winkworth . 839 Winn V. Fenwick . . . 687 Winnall, ex parte . . . 222 Winslow V. Tighe . . 161, 164 Winter v. Rudge . . . 542 Winteringham's Trust, re . . 868 Wise, in re . . 407, 540, 848 's Trust, re . . . 841 V. Wise . . . 179, 582 Wiseman v. Roper ... 70 Witham's case . . . 4, 8, 10 Withers v. Allgood ... 97 V. Withers . 47, 144, 147 Withington v. Withington . 543 Withy V. Mangles . . . 688 Witter V. Witter . . 16, 793 Witts V. Dawkins . . . 639 Wivdlesoom case . . . 465 Wolestoncroft v. Long . 458, 459 Wollaston's Settlement, re . 350 Wolley V. Jenkins . . . 506 Wood, re . 449, 849, 851, 858, 868 V. Beetlestone . . 862, 869 V. Cox . . . 115, 120 V. Dixie .... 445 V. Downes . . 435, 822 V. Hardisty . . . 183 V. Harman . . 397, 401 V. Midgley ... 49 «. Nosworthy ... 15 V. Ord . . . .547 V. Patteson . . 496 V. Richardson . . . 375 V. Skelton . . .134 Wood V. Stane . . . .690 Ixxii TABLE OF CASES. PAGE Wood V. white. . 403, 506, 798 V. Weightman . 222, 317, 414 V. Williams . . .797 Wood's Trusts, in re . 838, 842 's Estate, re . . . 325 Woodall, re . . . .33 Woodburn v. Grrant . . . 586 • 's Will, re . . . 841,873 Woodcock, re . . • .33 V. Dor.set .... 350 V. Eenneck . . 683, 685 Woodfall V. Arbuthnot . . 867 Woodford V. Clmrnley . 63, 64 Woodgate's Settlement, re 541, 863 Woodhead v. Marriott . 298, 834 Woodhouse v. Hoskins . . 98 — V. Woodhouse . 737, 738, 749 Woodliouselee v. Dalrymple . 307 Woodin, ex parte . 170, 531, 747 Woodman v. Horslev . . 622 V. Morrel 128, 144, 151, 155, 156, 157 Woodmeston v. Walker . . 640 Woodroffe v. Johnston . . 450 Woods V. Axton . . . 529 V. Woods 117, 121, 568, 81 1 Woodward v. Woodward . . 625 Woodyat v. Gresley . . 745 Woollard's Trust, re. . . 839 WooUett ». Harris . . . 131 Woolmore v. Burrows 106, 108, 112, 443 Worcester Corn Exchange Com- pany ..... 497 Worley v. Frampton . . 386 Worrall v. Harford . 243, 525, 530 Worsley v. Demattos 444, 446, 448 . V. Granville . . 350, 367 Worthamu. Pemberton 616, 619,. 620 Worthington w. Evans . . 507 V. M'Craer . . .493 Wragg, re .... 867 Wrangham, ex parte . . 465 Wray v. Steele . . . 144, 145 Wren v. Kirton . 225, 226, 261 Wrey v. Smith . . . .269 Wrigley v. Sykes 402, 407, 408, 409 Wright V. Atkyns 115, 117, 118, 120 . V. Chard 629, 630, 722, 727, 729 V. Hall . . . .140 . V. Maunder . . .383 V. Newport Pond School 477, 479 . V. Pearson 96, 97, 98, 187, 190, 193 V. Rose . . 649, 780 PAGE Wright V. Row . . .139 V. Snowe . . . 36, 312 V. Wilkin . . . .123 „. Wright . . 132, 133, 623 Wright's Settlement, m re . 835 's Trust, re . 314, 315, 837, 840 's Will, m re . . . 837 Wroe V. Seed . . .571, 833 Wyatt V. Sharratt . 289, 821, 824 Wych u. East India Company 709, 710, 711 ^ ». Packington . 126,129,130 Wyche, in re . . . . 521 Wykhara v. Wykham . . 192 Wylly's Trust, re . . 308, 840 Wyman v. Carter . . 182, 390 Wynch v. Grant . . .183 V. Wynch . . .362 Wyndham v. Egremont (Earl of) 604 Wynne v. Hawkins . . 116, 118 ■«. Humberston . . 562,818 w. Styan . . . .708 Wynter v. Bold . . .369 Wyse, re 723 Yallop, ex parte . 147 )!. Holworthy . . 725 Yarnold v. Moorhouse . 90 Yates V. Cox. . . 584 V. Hambly . 797 V. Yates . . 268, 779 Yem' V. Edwards . 161 Yervel (Poor of) v. Sutton 477, 478, 479 Yescombe v. Landor . 656 York V. Brown . 249, 829 V. Eaton . 145, 146 Buildings Company V. Mackenzie 428. 429, 433 Youde V. Cloud . 740 Young, re . 839 V. Dennet . 459 V. Grove . . 131 V. Martin . . 119 V. Peachy 127, 128 V. Scott . . 812 V. Waterpark . 36 1, 705, 721 Younge v. Combe 2c 8, 299, 300 Younger v. Welham , . 228 Younghusband v. Gisbo me 87,569,655 Zambaco v. Cassavetti 287, 753 Zinck V. Walker . . 211 Zoach V. Lloyd . 794 Zouch V. Parsons 35,36 INTRODUCTORY VIEW RISE AND PROGRESS OE TRUSTS. The origin of trusts, or rather the adaptation of them to origin of trusts. the Enghsh law, may be traced in part at least 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 mort- main. Another inducement to the adoption of the new device was the natural anxiety 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 tlie 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, who was Lord Keeper in the reign of Richard the Second, originated the writ of subpcena, by which the trustee was liable to be summoned into Chancery, and compellable to answer upon oath the allegations of his cestui que trust. No sooner was this pro- tection extended, than half the lands in the kingdom became vested in feoffees to uses. Thus, in the words of INTRODUCTION. an old counsellor, the parents of the trust were Fraud and Fear, and a Court of Conscience was the Nurse {a). Trusts simple or Of trusts there were two kinds : the simple trust, and the special trust. The simple trust, which also passed by Simple trust i p i i defined. 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 tech- nical description, we shall briefly consider the principles that were recognised by Courts of Equity (for these had the exclusive jurisdiction of trusts), first, with reference to the terre-tenant or feoffee to uses, and secondly, with reference to the beneficial proprietor, or cestui que use. Confidence in the With respect to the feoffee to uses, it was at first held to person. -^^ absolutely indispensable that there should be confidence in the person, and privity of estate. For want of the requisite oi personal confidence it was ruled that a corporation could not stand seized 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. 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 (c). 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 {d). An exception however was still ia) Attorney- Gemraly.SandSj'&axA. (d) The law as to the heir was 491. altered by Portescue Ch. J. Bac. Ab. (6) Co. Lit. 272, b. Uses and Trusts B. (c) 8 E. 4. 6 ; 22 E. 4. C. INTRODUCTION. 6 made in favour of a purchaser for valuable consideration not affected by notice (a). The meaning of privity of estate may be best illustrated Privity 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 0. 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 prineiple upon Privity as regards which his whole estate depended was also what in legal ti'e cestui que use. language was denominated privity. 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 hceres 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. The special trust (for hitherto we have spoken of the simple trust or use only) was where the conveyance to the special trust trustee was to answer some particular and specific purpose, '^^^'^'^'i- as upon trust to reconvey in order to change the line of descent, upon trust to sell for payment of debts, &c. In (a) Bao. Ab. Uses and Trusts B ; and see 14 H. 8. 4, 7, 8. b2 to chattels. INTRODUCTION, the special trust the duty of the trustee was not, as in the use, of a mere passive description, but imposed upon him the obhgation 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 office (a). . Trusts applicable 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 employed. 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- 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 {b). But to the extent, whatever it was, to which trusts of chattels were adopted, they were administered upon the same principles, mutatis mutandis, as were trusts of freeholds ; the right to sue a subpoena turned equally on pi-ivity (c), and the interest of the cestui que trust was held not to be assignable (d). statutes afiecting Such was the nature of trusts as they stood at common laxo ; but the manifold frauds and mischiefs to which the new system gave occasion, particularly "the great unsurety 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 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 feoflfees in trust," in other words, that all deahngs 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 (a) See the case in the reign of Hen. 7. (c) Withani's case, 4 Inst. 87. Append, to Sugden on Powers, No. 1. (d) .Tenk. 244, c. 30. (6) 5 H. 5. .3, 6. trusts. INTEODUCTION. legislature intended this statute to apply has not on all hands been agreed. A feoffment in fee to uses was clearly the case primarily intended. Upon a feoffment in tail, it Sfcems no use'could have been declared, for a tenant in tail was incapacitated by the statute de donis from executing estates (a). 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 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 (&). 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- (a) Co. Lit. 19, b. (6) Sand, on Uses, c. 1, s. 6, div. 2. (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 mentioned on the face ^^ what case a of the instrument, the tenant for life had held for his own benefit in compensa- "^^ might have tion for his services ; Perk, s. 535 ; B. N. C. 60 ; Br. Feff. al.^ Uses, 10 ; and no ^^^^ an estate use could have been averred in contradiction to the nse implied. See Gilb. on ^^ jjjg Uses, 57. 2. Had a use been expressly declared by the deed, the tenant liad 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 tlie 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. O INTRODUCTION. 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 his heirs, and to feoffees in trust. 27 H. 8. c. 10. The mischiefs of the system increasing more and more, (the statute of Richard occasioning still greater evils than it remedied, from the facility it gave to the cestui que use and his feoffee, who had now each the power of passing the legal estate, of defrauding by collusion the bond fide purchaser,) the legislature again interposed its authority by 27 Hen. 8. c. 10, and thereby annihilated uses as re- garded 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). Special trusts and Uses by the Operation of this statute became merged in excepted from the the legal estate ; but special trusts and trusts of chattels statute. were not within the purview of the act: the former, because 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 Introduction of In the room of uses which were thus destroyed as they the modern trust. Obiections to the ^^^ ^^ '^'^ statute does operate on the use of a life estate, but does not apply doctrine that no *° ^ seisin in tail, the doctrine of Mr. Sanders, that prior to 27 Hen. 8. there use could have '^^^ "^o '^^6 of ^ seisin either in tail or for life, seems open to the following objec- been declared tions: — 1. That the statute in executing the use of a life estate operates on an upon an estate in interest which at the time of the enactment had no existence ; and, 2ndly, That tail or for life. in not executing a use declared on a seisin in tail, it operates differently on two estates falling, according to his view, within 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 Eichard, 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 Eichard does not contain the word trust, the preamble does, and that the distinction contended for between use and trust had no existence until a comparatively late period. See Altham v. Anglesey, GUb. 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. Co. Lit. 19, b. ; Shep. Touch. 509; Gilb. on Uses, 11, and Lord St. Leonards' note, ibid. INTRODUCTION. 7 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 on 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 possess ;on 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 (b). "Interests inland," said Lord Hardwicke, "thus be- Land, use, and came of three kinds : first, the estate in the land itself, ed'by Lord Hard'- 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 ti'ust, of which the common-law takes no notice, but which carries the beneficial interest and profits in a court of equity, and is still a creature of that court, as the use was before the statute " (c). This newly-created interest was held to be so perfectly Trusts not within distinct from the ancient use, that the statutory provisions to^Sef ^'^'''*™^ by which many of the mischiefs of uses had been remedied, as the 19 Hen. 7. c. 15, by which uses had been made liable to writs of execution, and the 26 Hen. 8. c. 13, by which they had become forfeitable to the Crown for treason, (a) Lit. s. 462, 463 ; Co. Lit. 272, (&) See Hopkins v. Hopldns, 1 Atk. b; and see Carter, 197; Porey v. 59i. Juxon, Nels. 135 ; Megod's case, Godb. (c) Willelt v. Samlford, 1 Ves. 186 ; 64. Coryton v. Helyar, 2 Cox', 342. INTRODUCTION. Trusts at first modelled after the pattern of uses. Improvements inta'oduoed by- Lord Notting- ham. were decided to have no application. 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 statute of Hen. 8., it was held in the reign of Elizabeth (a), 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 the nature of an action, and there was no remedy for it but by writ of subpoena. 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 the nature of a chose in action, and therefore was not assign- able (6), 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 juris- diction where there was not fraud or covin, the widow of a trustee was not bound by the trust, but was entitled beneficially to her dower out of the trust estate (c). But during the reign of Charles the First and Charles the Second, and particularly during the Chancellorship of Lord Nottingham, who, from the sound and comprehen- sive principles upon which he administered trusts, has been styled the father of equity {d), 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 till 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 (ffl) Witham's case, 4 Inst. 87 ; S. C. (c) Nash v. Preston, Cro. Car. 190. Popham,106, sub namineJohnsorCs case. {d) Philips v. Brydges, 3 Ves. 127 ; (5) Sir Moijle Finch's case, ilait.SG. Kemp v. Kemp, 5 Ves. 858. INTKODUCTION. "^ purposes, without producing one inconvenience, fraud, or private mischief, which the statute of Hen. 8. meant to avoid " (a). As to the changes that were successively introduced, it Alterations made was held with reference to the trustee, that actual conjiaence m gards the trustee. the person was no longer to be looked upon as essential. A body corporate therefore was not exempted from the writ of suhposna on the ground of incapacity (b) : and even the king, notwithstanding his high prerogative, was in- vested with the character of a Eoyal Trustee (c), 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 " (d). The subtle distinctions which had 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 per by the assignment of the heir {e) ; and so it was afterwards determined by Lord Nottingham (/) : 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 constant practice of the Court (g). A tenant by statute merchant 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 (h). 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 by the party who created it ; and therefore tenant by the curtesy should not be bound (i) : but his Lordship's (a) Burgess v. Wheate, 1 Ed. 223. (/) Noel v. Jevon, Freem. 43. (6) See Green v. Rutherforth, 1 Ves. {g) MS. note by an old hand in the 468 ; Attorney- General v. Wlwrwood, copy of Croke's Reports in Lincoln's 1 Ves. 536. Inn Library, Cro. Car. 191. (c) See Penn v. Lord Baltimore, 1 (A) Pawlett v. Attorney- General, Ves. 453; Earl of Kildare v. Eustace, Hard. 467, per Lord Hale. 1 Vern. 439. {%) Pawlett v. Attorney -General, (d) Burgess v. Wheate, 1 Ed. 256. Hard. 469. (e) Pawlett v. Attorney- General, Hard. 469. cestui que trusts. 10 INTEODUCTION. authority on this point was subsequently over-ruled, and curtesy as well as dower was made to follow the general principle. As regards the With rospoct to the cestui que trust, or the person entitled to the subpoena, the narrow doctrine contained under the technical expression of privity began equally to be waived, or rather to be applied with considerable latitude of con- struction. " The equitable interest," said Justice RoUe, " is not a thiiig in action, but an inheritance or chattel, as the case may fall out " [a] ; 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 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 (b), was admitted to be assignable (c) ; and Witham's case, that a husband who survived his wife could not, for want of privity, claim her equitable chattel, was declared by the Court to be no longer an authority (d). So a judgment creditor, it was held by Lord Nottingham, might prosecute an equitable /en /acws (e) ; and though Lord Keeper Bridgman refused to allow an equitable elegit (/), 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 (g). Again, a trust was decided by Lord Nottingham to be assets in the hands of the heir (h) : and though Lord Guildford afterwards held the other way (i), yet Lord Notting- ham's view of the subject appears to have been eventually established (j). Curtesy was also permitted of a trust (a) King v. Holland, Styl. 21 ; see (d) King v. Holland, Al. 15, Cashurne v. Casburne, 2 J. & W. (e) Anon, case, cited Balsh v. 196. Wastall, 1 P. W. 445; Pit v. Hunt, (J) Warmslrey v. Tanfield, 1 Ch. 2 Ch. Ca. 73. Re. 29 ; Lord Cornbury v. Middleton, (/) Pratt v. Colt, Freem. 139. 1 Ch. Ca. 208 ; Goring v. BicJcerstaff, (g) See infra. 1 Ch. Ca. 8. (7j) Grey v. Cohille, 2 Ch. Re. 143. (c) Courthorpe v. Heyman, Cart. 25, (i) Creed v. Colvile, 1 Vern. 172. per Lord Bridgman. [j) See infra. INTEODUCTION. 11 estate, though the widow of a cestui que trust could never make good her title to dower (a) ; " not," said Lord Mans- field, " on reason or principle, but because wrong deter- minations had misled in too many instances to be then set right " (b) ; or rather, as Lord Redesdale thought, because the admission of dower would have occasioned great inconvenience to purchasers — a mischief that in the case of curtesy was not to be equally apprehended (c). Lord Mansfield was for carrying the analogy of trusts to ^ovd Mansfield's 1 T , 1 1 1 1 • • , T . doctrines. 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" {d). 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 bound by the trust. But to these propositions the Courts of Equity have principles go- never yet assented. The hmit to which the analogy of l^T^gl^tj^ trusts to legal estates ought properly to be allowed was well enunciated by Lord Northington in the case of Burgess v. Wheate. " 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 I hnow no instance where this Court has 'permitted the creation of a trust to affect the right of a (a) Colt V. Colt, 1 Ch. Re. 254. (c) See infra. (6) Burgess v. Wheate, 1 Ed. 224. {d) Burgess v. Wheate, 1 Ed. 226. 12 INTKODUGTION. 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 the doctrine laid down by 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 tlie trustee (b). (a) Burgess v. Wheats, 1 Ed. 250, but whether a lord taking the legal 251. estate by escheat should or not be (6) It is clear that the lord cannot bound by the trust, was never decided, acquire an equitable interest by and has now become unimportant, escheat; Burgess v. Wheate, 1 Ed. See post. c. xii. s. 3. 177; Cox V. Parker, 22 Beav, 168; 13 PART I. DEFIKITION, CLASSIFICATION, AND CEEATION OF TEUSTS. CHAPTER I. DEFINITION OF A TRUST. As the doctrines of trusts are equally applicable to real and Definition of a personal estate, and the principles that govern the one wiU 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 (1) of lands was designated (a). A trust, in the words applied to the use, may be said to" be " A confidence reposed in some other, not issuing out of the land, hut 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 but by subpoena in Chancery " (b). 1. It is a confidence; not necessarily a confidence expressly a confidence, reposed by one party in another, for it may be raised by impli- (a) Burgess V. Wheate, 1 Ed. 24=8,per (b) Co. Lit. 272, b. Lord Keeper Henley ; Lloyd v. Spillet, 2 Atk. lbQl,per Lord Hardwicke. (1) That a trust was anciently known as a use, appears from the Merchant of Venice. Thus, when Shylock had forfeited one half of his goods to the State to be commuted for a fine, and the other half of his goods to Antonio, the latter offered, that if the Court, as representing the State, would forego the forfeiture of the one half, he (Antonio) would be content himself to hold the other half in use, that is, in trust for Shylock for life, with remainder, after Shylock's death, for Jessica's husband. " So please my lord the duke, and all the court. To quit the fine for one half of his goods ; I am content so he- will let me have The other half in use, — to render it, Upon his death, unto the gentleman That lately stole his daughter." Merchant of Venice, Act IV, Scene 1. This interpretation clears Antonio's character from the charge of selfishness to which it would be exposed if he were to keep the half for his own use during his life. 14 MERGER. [CH. I. Reposed in some other. How far the equitable merges in the legal estate. In what sense cation 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 confidence, as distinguished from jits in re and jus ad rem, for it is neither a legal property, nor a legal right to property (a). 2. It is a confidence reposed in some other ; not in some other 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 (6). If the legal and ecLuitable interests happen to meet in the same person, the equitable is for ever absorbed in the legal. — Thus, 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 (c). And the same rule prevails as to leaseholds for lives (d) ; as if 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, wiU, 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. But this rule holds only where the legal and equitable 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 dis- turbance of rights. Thus before the Fines and Eecoveries Act (e), if, where lands had been conveyed unto and to the use of A. and his heirs, in trust for B. in tail, with remainder in trust for A. in fee, the equitable remainder limited to A. had been converted into a legal estate, it would not have been barrable by B.'s equitable recovery (/). In the case of a mortgage in fee it is said, a man and his heirs (a) Bacon on Uses, 5. See Waine- wright v. Elwell, 1 Mad. 634. (i) Goodriglit v. Welh, Dougl. 747, per Lord Mansfield; ConoUyy. Conolly, 1 Ir. Eep. (Eq.) 383 per Christian L. J. (c) Selhy'i v. Alston, 3 Ves. 339 ; Goodright v. Wells, Dougl. 747, per Lord Mansfield ; Wade v. Paget, 1 B. C. C. 363; S. C. 1 Cox, 76; Philips V. Brydges, 3 Ves. 126, per Lord Alvanley ; Finch's case, 4 Inst. 85, 3rd resolution ; Harmood v. Og- lander, 8 Ves. 127, per Lord Eldon ; Conolly V. Conolly, 1 Iv. Hep. (Eq.) 376. These cases, except the last, were all before the Inheritance Act, 3 & 4 W. 4. c 106 ; but which will probably be held not to vary the law. {d) Creagh v. Blood, 3 Jones & Lat. 133. (e) 3 & 4. W. 4. c. 74. (/) Philips V. Brydges, 3 Ves. 120, CH. I.] PEIVITY. 15 are trustees for himself and his executors (a). The meaning is mortgagee in fee that, until a release, or foreclosure of the equity of redemption, Mmself and his the interest of the mortgagee is of the nature of personalty, and executors, passes on his death to his personal representative ; the heir, there- fore, 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 (b) (1). 3. A trust is not issuing out of the land, hut as a thing collateral Trust not issuing . , , , ^ "^ . ' 1 J ^ ^, 1 1 out of the land, to %t. A legal charge, as a rent, issues directly out oi tne land but collateral to itself, and therefore binds every person, vi^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 in- separably, but during the continuance only of certain indispen- sable adjuncts ; for — 4. A trust is annexed in privity to the estate, that is, must stand Annexed in or fall with the interest of the person by whom the trust is created; '^^^^^^J *° *^^ as, if the trustee be disseised, the tortious fee is adverse to that impressed with the trust, and therefore the equitable owner cannot sue the disseisor in Chancery, but must bring an action against him at law in the name of the trustee (c). During the system of uses, and also while tru^sts were in their Extent of the infancy, the notion of privity of estate was not extended to tenant the™s?'^(7^''''' *° by the curtesy, or in dower, or by elegit, or in fact to any person claiming by operation of law, though through the trustee ; but in this respect the landmarks have since been 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. It was the opinion of Sir T. Clarke and Lord ISTorthington that a lord taking by escheat, as claiming by title paramount, and not see the judgment, p. 125 — 127; Robin- S. C. 1 Vern. 412 ; Tabor v. Grove; son V. Cuming, Rep. t. Talb. 164; 2 Vern. 367; 8. C. 1 Eq. Ca. Ab. 8. C. 1 Atk. 473 ; and see Boteler v. 328 ; Clerhson v. Bowyer, 2 Vern. 66 ; Allingtan, 1 B. C. C. 72 ; Merest v. Oobe v. Earl of Carlisle, cited ib. ; James, 6 Mad. 118 ; Habergham v. Wood v. Nosworthy, cited Awdley v. Vincent, 2 Ves. jun. 204; BuchaTian Awdley, 2 Vern. 193. V. Harrison, 1 Johns & Hem. 662. (c) Finch's case, 4 Inst. 85, 1st reso- (a) Kendal v. Mickfield, Barn. 50, lution ; and see Gilbert on Uses, edited per Lord Hardwicke. by Lord St. Leonards, p. 429, note 6. (J) Canning v. Hicks, 2 Ch. Ca. 187; See now 36 & 37 V. c. 66, s. .24. (1) But if the heir foreclose, or obtain a release of the equity of redemption, it is said he may keep the estate, and pay the executor the debt only. Clerhson V. Boivyer, 2 Vern. 67, per Cur. Sed quaere. 16 COURTS OF EQUITY. [CH. I. Trust annexed in privity to the person. No remedy of the cestui que trust but in Chancery. either in the per or post, was not affected by any privity, and therefore could not be compelled to execute the trust (a). But this question was never actually decided, and has become imma- terial, see post c. xii. s. 3. 5. A trust is annexed in privity to the person. To entitle the cestui que trust to relief in equity it is not only necessary that he should prove the creation of the trust, and the continuance of the estate supporting it, but should also establish that the assign is personally privy to the equity, and therefore amenable to the suhpmna. 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 wlU stUl affect him with notice by presumption of law, but if he be a pur- chaser for value, the Court must believe, until proved to the con- trary, that, having paid for the estate, he was ignorant, at the time he purchased, of another's equitable title. A purchaser for valuable consideration without notice therefore is 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 hy stobpcena in Chan- cery. And by Chancery must be understood, not exclusively the court of the Lord Chancellor, but any court invested with an equitable jurisdiction, as opposed to common-law courts (6), and spiritual courts (c), neither of which have any 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 contract (d) -. an exercise of (a) Buryess v. Wheate, 1 Eden, 203, 246. (6) Sturty. Mellish, 2 Atk. 612, per Lord Hardwioke ; Allen v. Imlett, F. L. Holt's Rep. 641 ; Holland's case, Styl. 4:l,per RoUe, J. ; Queen v. Trustees of Orion Vicarage, 14 Q. B. Re. 139 ; Vanderstegen v. Witham, fi M. & W. 457 ; Bond v. Nurse, 10 Q. B. Re. 244 ; Edwards v. Lowndes, 1 Ell. & Bl. 81. Drake v. Pywall, 4 Hurlst. & Colt. 78. In Tlie Queen y. Abrahams, 4 Q. B. Re. 157, the Court professed to proceed upon the legal right, so that the principle was not disturbed, though there may be a question how far the facts justified the assumption upon which the Court acted. In Roper v. Holland, 3 Ad. & Ell. 99, a cestui que trust recovered upon an action of debt for money had and received on proof of the admission by. the trustee that he had a balance in hand for the plaintiff; and see Sloper V. Cottrell, 2 Jur. N. S. 1046. (c) Miller's case, 1 Freem. 283 ; King v. Jenkins. 3 Dowl. & Ryl. 41 ; Farrington v. Knightly, 1 P. W. 549, per Lord Parker ; Edwards v. Graves, Hob. 265 ; Witter v. Witter, 3 P. W. 102, per Lord King. {d) Megod's case, Godb. 64 ; Jevon V. Bush, 1 Vern. 344, per Lord Jeffries ; Smith V. Jameson, 5 T. R 603, pe>- Buller, J. ; and see 1 Eq. Ca. Ab. 384, U. (a) CH. I.J COURTS OF EQUITY. 17 authority, however, clearly extra-provincial, and long since aban- doned (a). Should a Spiritual court attempt to meddle with a trust, the Court of Queen's Bench might be moved to issue a pro- hibition (&). Now, by 36 & 37 Vict., c. 66, it is enacted that as from 2nd 36 & 37 V. c 66. November, 1874 (inclusive), there shall be " One Supreme Court of Judicature " consisting of " Her Majesty's High Court of Justice " and " Her Majesty's Court of Appeal," and the High Court of Justice is made to comprise five divisions, viz. : the Chancery Division, the Queen's Bench Division, the Common Pleas Division, the Exchequer Division, and the Probate, Divorce, and Admiralty Division. Equitable estates and rights are to be noticed and acted upon in all the courts, and where there is any conflict between the rules of eqiiity and the rules of common law, the rules of equity are to prevail. See sections 24 & 25. Subject to any rules to be made in pursuance of the Act, all • causes and matters pending in the Court of Chancery at the com- mencement of the Act are transferred to the Chancery division of the High Court of Justice, and subject as aforesaid, all causes and matters for the execution of trusts, charitable or private, are to be assigned to the same division, and for that purpose every document by which the cause or matter is commenced is to be marked for that division, or with the name of the judge to whom the cause , or matter is to be assigned. See sections 33 & 34. (a) Barnadiston v. Soame, 7 State (6) Petit v. Smith, 1 P. W. 7 ; Trials, 443, Harg. ed.^cj- Chief Justice Edwards v. Freeman, 2 P. W. 441 ; North ; Sturt v. Mellish, 2 Atk. 612, per Sir J. Jekyll ; Barker v. May, 4 per Lord Hardwicke ; Holland's case, M. & E. 386 ; Ex parte Jenhins, 1 B. Styl. 41,^erRolle, J. ; Allen y.Imlett, & C. 655. F. L. Holt's Eep. 14. 18 CHAPTER II. CLASSIFICATION OF TRUSTS. Trusts simple or special. Simple trust. Special trust. Special trusts either instru- mental or discre- tionary. Trust to sell held Ijy Mr. Fearne to be instrumental. 1. The first and natural division of trusts is into simple and special. The simple trust is where property is vested in one person upon trust for another, and the nature of the trust, not being prescribed by the settlor, is left to the construction of law. In this case the cestui que trust has jus habendi, 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- 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. 2. Special trusts have again been subdivided into ministerial (or instrumental) and discretionary. The former, such as demand no further exercise of reason or understanding than every intelligent agent must necessarily employ ; the latter such as cannot be duly administered without the application of a certain degree of pru- dence and judgment. A trust to convey an estate must be regarded as ministerial; for, provided the estate be vested in the cestui que trust, it is per- fectly immaterial to him by whom the conveyance is executed. A trust for sale was considered by Mr. Fearne as also ministerial ; " for the price," he said, " is not arbitrary, or at the trustee's dis- cretion, but to be the best that can be gotten for the estate, which is a fact to be ascertained independently of any discretion in the trustee" («) But there is much room for judgment in the time (a) Fearne's P. W. 313. CH. II.] THE DIFFERENT KINDS OF TRUSTS. 19 and manner of proceeding to a sale, and the precautions that are taken will have a material influence upon the price; and Mr. Fearne's opinion cannot at the present day be maintained (a). A fund vested in trustees upon trust to distribute among such charitable objects as the trustees shall think fit (b), 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 caUing 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. 3. There is frequent mention in the books of a mixture of trust Mixture of trust aiid power {d), by which is meant, a trust of which the outline only power. is sketched by the settlor, while the details are to be filled up by the good sense of the trustees. The exercise of such a power is imperative, 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 Distinguished , , , -I ■ -I ■ 7 J? ■ ii £■ from trust with common trust to ivfiim a power is annexed ; tor, m the former case, y^^yy^gj. annexed as in a trust " to distribute at the discretion of the trustees," they are bound at all events to distribute, and the manner only is left open ; but 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 col- lateral and subsidiary, and the execution of it, in the absence of fraud, cannot be compelled by application to the Court. 4. Again, trusts may be divided, with reference to the object in Trusts lawful view, into lawful and unlawful. The former, such as are directed ^'^'■^ unlawful, to some honest purpose, as a trust to pay debts, &c., which are called by Lord Bacon Intents or Confidences, and will be adminis- tered by the Court. The latter are trusts created for the attain- ment of some end contravening the policy of the law, and therefore not to be sanctioned in a forum professing not only justice but equity, as a trust to defraud creditors or to defeat a statute. (a) See King v. Bellord, 1 Hem. & Cole v. Wade, 16 Ves. 27 ; Gower v. Mil. 343 ; Rohson v. Flight, 5 N. E. Mainwaring, 2 Ves. 87, 344 ; .'>. THE SOVEREIGN. COEPOEATIONS. — FEME COVERT. [CH. III. S. 1. Prizes. MTiU of the soYereign. Corporations. Feme covert. 20 & 21 Vict. c. 67. 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 remainder wiU 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 (&). AU prizes taken in war vest in the sovereign, and are commonly by the royal warrant granted to trustees upon trust to distribute in a prescribed mode 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 it may at any time be revoked or varied at the pleasure of the sovereign before the general distribution (c). The Crown may also by will bequeath its private personal pro- perty to one person in trust for another, but the will must be in writing and under the sign manual (c[), though the Ecclesiastical Court has no jurisdiction to admit it to probate (e). 3. As to the power of Corporate Bodies to create a trust, it was competent to municipal corporations, before the late Municipal Corporations Act (/), to alienate their property, and as a conse- quence to vest it in a trustee (g). But now municipal corporations are themselves trustees of their property, for the, public purposes prescribed by the Municipal Corporations • Act, and are debarred from alienating their real (A) or personal estate (i) without the consent • of the Lords of the Treasury. A corporation, however, not included in the schedules to the Act still retains its power of alienation (k). 4. A Feme Covert may create a trust of real estate, but, unless it be property settled to her separate use, it must be done with the consent of her husband, and there must be all the attendant for- malities required by the Fines and Eecoveries Act, 3 & 4 W. 4. c. 74. As to her cJioses en action, by a recent statute (Z), (commonly called Malins's Act), a feme covert is enabled with the concurrence of her husband, and on being separately examined in the manner prescribed by the Fines and Eecoveries Act, to dispose by deed of any future or reversionary interest created by an instrument made Willis, 3 B. C. C. (a) Fordyee v. 577. (J) Bac. on Uses, 66. (o) Alexander v. Duke of Welling- ton, 2 R. & M. 35. As to the execu- tion of the trust by the agency of persons deputed by the principals, see Tarragona, 2 Dods. Adm. Rep. 487. (d) 39 & 40 G. 3. i,. 88, s. 10. (e) Williams on Executors, 13,6th ed. (/) 5 & 6 W. 4. c. 76. (g) Colchester v. Lowton, IV. & B. 226. {h) 5 & 6 W. 4. c. 76, s. 94. (i) Attorney -General v. Asjnnal, 2 M. & Cr. 613; Attorney- General v. Wilson, Cr. & Ph. 1. {h) Evan v. The Corporation of Avon, 29 Beav. 144. {I) 20 & 21 Vict. c. 57. CH. III. S. l.J FEMES COVERT. 23 after the Z\st Deo. 1857; and as to which interest her power of anticipation is not specially restricted, and is also authorized to release or extinguish her right or equity to a settlement out of personal estate to which she is entitled in possession, under such instrument as aforesaid. But any personal estate settled for her benefit upon the occasion of her marriage is excepted from the foregoing powers (a) ; and an appointment after the date of the Act, but in execution of a power created by a settlement of a pre- vious date, is not within the Act (h). It will be observed that the statutory power of disposition thus whether the act given to a feme covert extends in terms no further than to her applies to cAi^s^s ° . . en action in future or reversionary interests not limited to her by her marriage possession, settlement ; and as to clioses en action in possession, the feme covert, though enabled to waive her equity to a settlement, has no express power of absolute disposition given her. If therefore a feme covert be entitled to a chose en action in possession, and join with her husband in assigning it to a trustee, then if it be not reduced into possession during the coverture, and the wife sur- vives, the question will arise whether though the formalities pre- scribed in the Act were complied with, she may not claim the fund by survivorship. The husband alone, however, may create a trust of the wife's Chosp.s en action, choses en action sub modo ; that is, if they be reduced into pos- of^the^acT"*^^^ ^ session 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. As to the wife's equitable chattels real, the husband may. Chattels real, subject to the wife's equity to a settlement (c), create a trust of them jure mariti (d), unless the chattel be of such a nature that it cannot possibly fall into possession during the coverture (e). As regards property settled to the separate use of a feme covert, Separate use. 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 assigned to 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 (a) See a case with reference to this (c) Hanson v. Keating, 4 Hare, 1. section, Clarke Y. Green, 2 Hem. &'M.. (d) Donne v. Hart, 2 E. & My. 474. 360. (5) Be Butler's Trusts, 3 Ir. Kep. (e) Duherly v. Day, 16 Beav. 33. Eq. 138. INFANTS. [CH. III. S. 1. even beyond the coverture. So if the feme covert be tenant for life only to her separate use, she has full power to make a settlement of her whole life estate, and not during the coverture only. But in all cases 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. And if a settlement be fraudulently procured from the wife by a husband, it may be' set aside (a). 33&34V. c. 90. By "The Married Women's Property Act, 1870" (&), it is en- acted, by sect. 1, that wages and earnings made separately from her husband after the date of the Act (9 Aug. 1870) are to be deemed settled to her separate use ; and. By sect. 7, that where a woman married after the date of the Act is entitled to any personal property as next of kin, or to any sum not exceeding 200^. under any deed or will, it shall belong to her for her separate use ; and, by the next section, that " rents and profits " of any real estate descending upon such married woman as heiress, shall also belong to her for her separate use. A married woman is also now em- powered to hold, for her separate use, stock in the funds (sect. 3), or property in a joint-stock company (sect. 4), or a society (sect. 5), or a policy of insurance on her own or her husband's life (sect. 10). A husband marrying after the date of the Act is not to be liable for his wife's debts contracted before marriage, but pro- perty settled to her separate use is to be liable for them (sect. 12), even though her anticipation be restrained (c). Infants. 5 jf a,n Infant before the Fines and Eecoveries Act had levied a fine or suffered a recovery he might also have declared the uses (d), and unless the fine or recovery had been reversed by him during his nonage he had been bound by the declaration (e), 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. FeofEment. An infant at the present day may make a Feoffment and at the same time declare a use upon it, and both feoffment and use are voidable only and not void (/), and by analogy the infant can also ingraft a trust upon the legal estate, but a court of equity would never allow any equitable interest to be enforced against the infant himself to his prejudice, but would give him the same (a) Knight v. Knight, 11 Jur. N. S. 617. (b) 33 & 34 Vict. c. 93. (c) Sanger v. Sanger, 11 L. R. Eq. 470. {d) Gilb. on Uses, 41, 245, 250. (e) Gilb. on Uses, 246. (/) Bao. on Uses, 67 ; Bao. Ab. Uses, E. See now 8 & 9 Vict., c. 106, s. 4. CH. III. S. 1.] LUNATICS. — ALIENS. 25 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 conceived that the court would still investigate the trans- action, and see that no unfair advantage was taken (a). An infant may by the custom of Kent for valuable considera- Custom of Kent, tion certainly, and, according to the better opinion, even without value (&), make a feoffment at the age of fifteen, and upon such feoffment he may declare uses (c). But a court of equity would no doubt confine such a custom within its narrowest bounds, and 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 WiUs Act {d) an infant of the age of fourteen Wills Act. years might have bequeathed his personal estate and therefore might have created a trust of it by will, but now, as regards personal as well as real estate, every testator must be of the age of twenty-one years. 6. Lunatics or Idiots might, before the Fines and Eecoveries Act, Lnj^^tics have levied a fine or suffered a recovery, and the uses declared would have been valid until the fine or recovery was reversed. The deed of a lunatic or idiot may be void or not according to circum- stances (e). The, feoffment of a lunatic or idiot, while the feoffment operated tortiously, was voidable by the heir only (/). How- ever, should a lunatic or idiot have engrafted a declaration of trust upon any legal estate passed by him, a court of eqiiity would have had jurisdiction to set it aside {g) ; though generally it declined to interfere even in this case as against a purchaser for valuable consideration without notice of the lunacy or idiocy Qi). 7. An Alien might always have acquired real estate, whether ^lien as to real freeholds or chattels real, by purchase, though he could not take it estate. by operation of law, as by descent ot jure mariti; and if he pur- chased it he might have held it until office found, but could not give an alienee a better title than he had himself {i). An alien, (a) See Cr. Dig. Vol. iv. p. 130. {h) See Price v. Berrington, 3 Mac. lb) Robinson on Gavelkind. & Gord. 486; Greenslade v. Dare, (c) Gilb. on Uses, 250. 20 Beav. 285. (d) 7 W. 4 & 1 "Vict. c. 26. (i) An alien friend residing in the (e) See Moltony. Camrortx, 2 Exch. United Kingdom might by 7 & 8 Vict., Eep. 487, 4 Exch. Rep. 17; Elliott v. c. 66, s. 5., take and hold lands or Ince, 7 De G. M. & G. 488 ; Campbell houses for residence or occupation by V. Hooper, 3 Sra. & Giff. 153. him or his servants, or for the purpose (/) Co. Lit. 247, b. of any business, trade or manufacture (g) See Cruise, vol. iv. p. 130, vol. for any term not exceeding 21 years. V. p. 253 ; Mel v. Morley, 9 Ves. 478. 26 TEAITOES, FELONS, OUTLAWS. [CH. III. S. 1. As to personal estate. " Naturalization Act, 1870." Traitors, felons and outlaws. therefore, could only create a trust of real estate until tlie Crown stepped in. As to personal estate an alien friend might, although an alien enemy could not, be the lawful owner of chattels personal, and might exercise the ordinary rights of proprietorship over them, and consequently might create a trust. Now by "the Naturalization Act, 1870 " (a), which came into operation on the 12th May, 1870, real and personal property of every description may be taken, acquired, held, and disposed of by an alien in the same manner in all respects as by a natural born British subject, and a title to real and personal property of every description may be derived through, from, or in succession to an alien in the same manner in all respects as through, from, or in succession to a natural born subject, but this is not to " qualify an alien for any ofiBlce or any municipal, parliamentary, or other fran- chise," and the enactment is not to affect any disposition or devolution before the date of the Act (6). 8. With regard to Traitors, Felons, and Outlaivs, a distinction by the old law was taken between real and personal estate. In Jiigh treason, lands, whether held in fee simple, fee tail (c), or for life, were upon attainder forfeited absolutely to the Crown — and in all other felonies the profits of the land were upo7i attainder forfeited to the Crown during the life of the offender. Subject to these superior rights of the Crown by forfeiture, and to the year, day, and waste of the Crown (d), land, in cases oi petit treason and murder, (and until the statute of 54 G. 3, c. 145, in all cases of felony), escheated upon the death of the offender, by reason of the corruption of blood caused by attainder pro defectu tenentis, to the lord of the fee, if it was held in fee ; but if he held in tail, the land upon the death of the offender devolved upon the issue in tail. Attainder related back to the time of the offence, and consequently from that time no valid trust could be created by the offender as against the Crown or the lord in cases of treason, petit treason, or murder, nor in cases of other felonies, except subject to the right of the Crown during the offender's life. As respects the large number oi felonies in which no attainder took place, the offender, though convicted, might convey (e), and therefore might create a valid trust of his (a) 33 v., c. 14. (i) See as to this Sharp v. St. Sauvenr, 7 L. K. Ch. App. 351. (c) 26 Hen. 8. c. 13. See 2 Bac. Ab. 576, 580. {d) Attainder is also necessary to entitle the crown to the year, day and waste, Rex v. Bridget; 1 M. & W. 145. (e) Rex V. Bridger, 1 M. & W. 145. CH. III. S. l.J TRAITORS, FELONS, OUTLAWS. 27 real estate. Outlawry upon felony was equivalent to attainder, and drew with it the same consequences (a). As to the goods and chattels of traitors, felons, and outlaws, they were forfeited absolutely, but only from the time of conviction, or the declaration of outlawry, and therefore up to that period the traitor, felon, or outlaw, might vest his goods and chattels in a trustee upon trusts ; but the law would not allow this power of disposition to be exercised collusively for the purpose of defeating the just rights of the Crown (h). The traitor, felon, or outlaw might sell the goods for valuable consideration (c) ; and so he might assign the property upon trust to secure the lond fide debt of a creditor (cQ ; but the existence of the debt must have been actually proved, and the mere recital of it in the security was not sufficient (e). An assignment upon a meritorious consideration, as a bargain and sale to a trustee for the purpose of making provi- sion for a son, would not support the deed (/). Outlawry in mis- demeanours and civil actions was a contempt of Court, and worked a forfeiture of the profits of the offender's lands for his hfe, and of his goods and chattels, absolutely. The person so outlawed, there- fore, could not from that time affect the pernancy of the profits of his real estate, nor make any settlement of his personal estate. Now, by 33 & 34 Vict. c. 23, it is enacted by sect. 1 that "from 33 & 34 v. c. 23. and after the passing of the Act (4th July, 1870), no confession, verdict, inquest, conviction or judgment of or for any treason or felony, or felo de se, shall cause any attainder or corruption of blood, or any forfeiture or escheat, provided that nothing in the Act shall affect the law of forfeiture consequent upon outlawry." After defining by sect. 6, a convict to be " any person against whom, after the passing of the Act, judgment of death or of penal servitude, shall have been pronounced upon a charge of treason or felony," the Act proceeds by sect. 8 to declare that a convict, while he is such, shall not bring any action or suit for recovery of any property, debt, or damage, and shall be incapable of alienation, and then sect. 9 empowers the Crown to appoint " an adminis- trator of the convict's property, in whom, upon appointment, all the real and personal estate of the convict is made by sect. 10 to vest, and such administrator is enabled by sect. 12 to let, mort- (a) See Co. Lit. 390, b ; Holloway's (c) Hawk. PI. of Cr., book 2, c. 49. case, 3 Mod. 42 ; King v. Ayhff, 3 [d) Perkins v. Bradley, 1 Hare, 219 ; Mod. 72. Whitaker v. W'tsley, 12 C. B. R. 44; (b) See Saunders's estate, 4 Giff. Chcrwney. Bayles, 31 Beav. 351. 179 ; and 1 N. R. 256 ; Barnett v. («) Shaw v. Bran, 1 Stark. 320. Blake, 2 Dr. & Sm. 117 ; and see Anon. (/) Jones v. Ashurst, Skinn. 357. 2 Sim. N.S. 71. 28 BANKRUPTS. [CH. III. S. 1. gage, sell, convey and transfer any part of the convict's property, and by subsequent sections to pay debts and liabilities, &c., and to make allowances for the support of any wife or child or reputed child, or other relative or reputed relative of such convict de- pendent upon him for support, or for the benefit of the convict himself while at large upon license. Subject as above, the property is, by sect. 18, to be held in trust for the convict, his heirs, or legal personal representatives, or other persons entitled ; and on his ceasing to be subject to the operation of the Act (see sect. 7) is to revest in the convict or the persons claiming under him. In the absence of an administrator appointed by the Crown, an " interim curator " may, by sect. 21, be appointed by Justices of the Peace in Petty Sessions, and by sect. 24 such curator is to sue or defend suits, sign discharges for income or debts, and generally manage the convict's property, make allowances for the mainte- nance of a wife or child, &c., and by sect. 25, may sell any personal property of the convict, but not without the sanction of a Justice or a Court of competent jurisdiction. Bankruptcy. 9. If a man be declared a bankrupt, all the real and personal estate to which he is or may become entitled at the commence- ment or during the continuance of his bankruptcy, vests in his trustee {a) ; but the surplus after payment of his debts still belongs to him (5), and of this interest he may create a trust. (a) 32 & 33 V. c. 71, ss. 15, 17. (6) Sect. 45. CH. III. S. 2.] TRUSTEES. — THE CEOWN. 29 SECTION II. "WHO MAY BE A TETJSTEE. The question wlio may be a trustee involves a variety of conside- Who may be a rations. Thus, a person to be a trustee must be capable of taking and also of holding (for the expressions are not convertible) the property of which the trust is declared. Again, the trustee should be competent to deal with the estate in pursuance of the trust or by the direction of the beneficiaries, whereas certain classes labour by nature or by the rules of law under disability. Again, the execution of the trust may require the application of judgment and a knowledge of business. And again, the trustee ought also to be amenable to the jurisdiction of the court which administers trusts. In general terms, therefore, a trustee should be a person capable of taking and holding the legal estate, and possessed of natural capacity and legal ability to execute the trust, and domi- ciled within the jurisdiction of a Court of Equity. With this outline we proceed to consider certain exceptional cases where the fitness for the trusteeship may more or less be called into question. 1. The Sovereign may sustain the character of a trustee, so far The Crown, 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). A Court of Equity 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 may indirectly obtain the relief to which, on the general principles of equity, he is confessedly entitled. No such jurisdiction, however, appears to have been known when Lord Hale was Chief Baron (c). Lord Hardwicke once observed (ffl) Pauletl V. Attorney- General, (b) Said by counsel in Paulett v. Hard. 467, 469; Burgess v. Wheate, Attorney GmeraZ, Hard. 468. 1 Ed. 255 ; Kitdare v. Eustace, 1 (c) See Paulett v. Attorney- General, Vern. 439. Hard. 467, 469 ; and see Wilces' Case, Lane, 54. CORPORATIONS. [CH. III. S. 2. 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 " (a) ; but the doc- trine was still unsettled in the time of Lord Northington (6) ; and in a more recent case (c), 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 petition of right (d), and it cannot be supposed that the fountain of justice would not do justice (e). 2. A cor]}oration could not have been seised to a use, for, as was gravely observed, it had no soul, and how then could any confi- dence 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, whether civil or ecclesiastical (/), is compellable in equity to carry the intention into execution {g). " A trust," said Lord Eomiliy, " may be of two characters, it may be of a general character or of a private and individual character. A person might leave a sum of money to a Corporation in trust to support the children of A. B., and pay them the principal at 21. That would be a private and particular trast which the children could enforce against the corporation [by hiir] if the corporation applied the property to its own benefit. On the other hand, a person might leave money to a corporation in trust for the benefit of the inhabitants of a particular place, or for paving or lighting the town. That would be a public trust for the benefit of all the inhabitants, and the proper form of suit in the event of any breach of trust would be an information by the Attorney-General at the instance of aU or some of the persons interested in the matter. If there was a particular trust in favour of particular (a) Penm V. Lord Baltimore, 1 Ves. General, cA^A. PermY. Lord Baltimore, 453; and see Reeve v. Attorney- Gene- 1 Ves. 446. ral, 2 Atk. 224; Hovenden v. Lord (/) Attorney- General v. St. John's Annesley, 2 Soh. & Lef. 617. Hosp. 2 De Gex, Jon. & Sm. 621. (b) See Burgess v. Wheate, 1 Ed. 255. (g) See Attorney- General v. Lander- (c) Hodge v. Attorney-General, 3 field, 9 Mod. 2SQ; Dummer v. Corpo- Y. & C. 342. ration of Chippenham, 14 Ves. 252 ; {d) As to the transfer of the equity Green v. Ruiherforth, 1 Ves. 468 ; jurisiiiotion of the Court of Exchequer Attorney-General y. Whorwood, 1 Ves. to the Court of Chancery, see 5 Vict. 536 ; Attorney- General v. Mayor of c. 5, s. 1 ; and Attorney- General v. Stafford, Barn. 33; Attorney- General Corporation of London, 8 Beav. 270, v. Foundling Hospital, 2 Ves. jun. 46 ; 1 H. of L. Ca. 440. As to the peti- Attorney- General v. Earl of Clarendon, tions of right, see 23 & 24 Vict. o. 34. 17 Ves. 4,99; Attorney- Generals. Caius (e) Scounden v. flcMoZej/, Comb. 172, College, 2 Keen, 165. per Dolben, J.; Reeve v. Attorney- CH. III. S. 2.] BANK OF ENGLAND. 31 persons, and they were too numerous for all to be made parties, one or two might then sue on behalf of themselves, and the other cestuis que trust for the performance of the trust (a)." Since the Municipal Corporations Act every municipal corpora- 5 & 6 w. 4, c. 76. tion named in the schedules to the Act (&), has become a trustee, and has now no longer the power to aliene and dispose of its property, 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, there lies a remedy in Chancery by information (c). But although the Court has ample jurisdiction to oblige a License of the corporation to observe good faith, and the property already vested Crown, in a corporate body will be administered upon the trust attached to it, yet no real estate can be conveyed to a corporation upon any trust without the licence of the crown. But there is no objection to an assignment or bequest of pure personal estate to a corpora- tion upon trust. - 3. 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 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 Bank of England upon their books ; and though they were formerly obliged by 1^^^°^ ^^ ^ 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 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 (d). Had the construc- tion been otherwise, the Bank of England would have been trustee for half the families in the kingdom. Now by 8 & 9 Vict. cap. 97, executors and administrators of a deceased holder of stock are enabled to transfer on producing probate or letters of administra- (a) Evany. The Corporation of Avon, Goneral v. Borough of Poole, i M. & 29 Beav. 149. C. 17; Parr v. Attorney- General, 8 (b) B&6W. 4. c. 76. Corporations CI. & Finn, 409 ; Attorney- General y. not named in the schedules to the Corporation of Ijitchfield,'\.'\.'Be,!\,\. 110. Act may still dispose of their estates. {d) Hartga v. Bank of England, 3 Evan V. The Corpwation of Avon, ubi Ves. 55 ; Bank of EnglandY. Parsons, supra. 5 Ves. 665 ; Bank of England, v. Lunn, (c) Attorney- General v. Aspinal, 1 15 Ves. 553, ^er Lord Bldon ; Hum- Keen, 513, 2 M. & C. 613; Attorney- herstone v. Chase, 2 Y. & C. 209. 32 CH. III. s. 2.] FEME COVERT. Feme covert ougbt not to be ap- pointed trustee. Has sufficient discretion. Her inability to pass the legal estate. tion, and the acts requiring an entry or registration by the Bank of any will or codicil are repealed (a). 4. A feme covert may be a trustee, but it would not be advisal:)le to select a fame covert (b). There is here no absolute want of discretion, for a woman lias no less judgment after marriage than before (c) ; nay, as was quaintly added by Sir John Trevor, she rather improves it by her husband's teaching {d). The reasons upon wliich her disabilities are founded, are her own interest or her husband's, or both («). Where these are not concerned, she possesses as much legal capa- city as if she were perfectly sui juris. Thus, she may execute ■ powers simply collateral (/), and (somewhat contrary to principle) even powers appendant, or in gross {g). Now 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 q%m 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 Qi). 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 a woman's will is not always her own, and if a trust were confided to a feme covert, the husband who is answerable for her acts would, in fact, exercise no little influence ; and, indeed, as the husband is liable for her breaches of trust, he must, for his ovsm. protection, look to the manner in which she dis- charges the oflS.ce, and therefore she cannot be allowed to execute the trust without his concurrence (^). But further, the appointment of a /erne covert is attended with inconvenience from her inability (except with the concurrence of her husband and through expensive forms) to join in the requisite (a) As to the state of the law be- fore this Act, see 3rd Edit. p. 32, note (1). (6) Lalce v. De Lambert, 4 Ves. 595, per Lord Loughborough ; and see -Re Kaye, 1 Law Rep. (Ch. App.) 387. (o) Compton V. ColKnson,2 B. C. C. 387, per Duller, J. ; Hearle v. Green- bank, 1 Ves. BQ5,per Lord Hardwioke ; Bell V. Hyde, Fr. 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. {d) Bell V. Htjde, Pr. Ch. 330. (e) Compton v. Collinson, 2 B. C. C. 387i)crBuller.J. (/) Co. Lit. 112, a; ib. 187, b; Lord Antrim v. Duke of Buckingham, 2 Preem. 168, per Lord Keeper Bridg- man ; Blithers Case, ib. 91, vid. 2nd resolution ; Godolpin v. Godolphin, 1 Ves. 23, per Lord Hardwicke. {g) See Sugden on Powers, c. 5, sect. 1, 8th Ed. {h) See infra. {i) See Smith v. Smith, 21 Beav.385 ; Drummond v. Tracy, 1 Johns. 608 ; Kingham v. Lee, 15 Sim. 401 ; Avery V. Gi-iifin, 6 L. R. Eq. 606 ; Lloyd " he, 8 L. R. Ch. Ann. 88. CH. III. S. 2.] FEME COVERT. 33 assurances. At common law, if land be vested in a fmu cov&rt 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 (6). 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 circumstance of the trust, which a court of law cannot notice, acquire a validity (c). Should a feme covert be a trustee for sale, it would seem, if these views be correct, that she can exercise the discretion, and with the aid of the Fines and Eecoveries Act, can pass the estate. But then remains the consideration to whom is the purchase- money to be paid, and who is to sign the receipt ? If it be paid to the husband it passes into the hands of a stranger, and if it be paid to the wife, the law immediately transfers it to the hus- band who is a stranger. If any receipt be taken it should be the joint receipt of the husband and wife (rf). But the safest course would be to pay the money to the account of the wife at some responsible bank, upon the joint receipt of the husband and wife, to remain there until required for the purposes of the trust, and if the husband took it out of the bank :^or any other purpose he would be liable as for a breach of trust. When the husband is a lunatic or idiot, or living apart from the wife, or otherwise incapable (as from infancy (e), or from being abroad and not heard of for years (/) ) of joining in the execution of a deed, the Court of Common Pleas has, by the Fines and Eecoveries Act (3 & 4 W. IV., c. 74, s. 91), power to dispense with the husband's concurrence. The Court has frequently exer- cised this jurisdiction by enabling a feme covert entitled to free- holds or copyholds (jf), in fee simple (Ji), in fee tail (i), or for life, (a) Daniel v. Uhley, Sir W. Jones, (/) Re Harriet Hedges, W. N. 1867, 137. p. 19; Re Tarboton,W. N. 1867, p. 276; (6) Daniel y. Ubley, Sir W. Jones, Ex parte RoWnson, 4: L. H. {C.V .) 205. 138, per Wliitlock, and Dodridge, J. (g) Ex parte Shuitleworth, 4 Moore (c) See Mr. Hargrave's Observations, and Scott, 332, note. Co. Lit. 112, a, note (6) ; and Mr. {h) Re Kelsey, Ifi C. B. 197 ; Re Fonblanque's Treat, on Equity, vol. i. Cloud, 15 0. B (N. S.) 833; Re p. 92 ; McNeilley. Acton, 2 Eq. Re. 25. Woodall, 3 C. B. 639 ; Re Woodcock, (d) &ee Drummond V. Tracy, Johns. 1 C. B. 437. 6li. (i) Ex parte Thomas, 4 Moore and (e) Re Haigh, 2 C. B. (N.S.) 198. Scott, 331. u 34 FEME SOLE. — INFANTS. [CH. III. S. 2. Feme sole. Infant ought not to be appointed trustee. Has no legal discretion. either in possession or reversion (a), or to dower (b), or to lease- holds (c), " by deed or surrender, to dispose of, release, or surrender all her estate and interest " (The words of the order on one occasion) (d), in the premises. The order thereWe will not affect the hus- band's curtesy, if any. The court will, not direct the form of conveyance (e), but it looks to the propriety of the order with reference to each particular estate, and it will not give the feme covert a roving power of disposition over anj/ property which she may happen to have (/). In most cases the Court has made the order to enable the wife to deal with her own property for her maintenance, but in other cases the Court has enabled the feme covert to execute a trust (g) : and it would seem therefore that where there is an incapacity of the husband to join in a deed, the feme covert (who has no want of discretion) can execute the trust by the aid of the Court of Common Pleas. It is almost equally undesirable to appoint a fe^ne who is single a trustee, for should she marry, the character of the trust is altered^ and the husband has, and being liable for her breaches of trust ought to have, a control over her acts. On these grounds the Court at one time refused to appoint a feme sole a trustee, as, in the event of her marriage, the inconveniences before suggested arose (h). But in a more recent case the M. E., after consulting with the other judges, appointed a feme sole a trustee (i). 5. An infant labours under still greater disability than a feme covert ; for, first, as regards judgment and discretion, a feme is admitted to have capacity, though she cannot in all cases freely exercise it ; but an infant is said altogether to ivant capacity Qc). An infant cannot be steward of the court of a manor (l), or attorney for a person in a suit (vi), or guardian to a minor (n), or be a bailiff or receiver (o) ; but can only discharge such acts as are merely (a) Exparte Gill, 1 Bing. N. S. 168. lb) He Turner, 3 C. B. 639. (c) Re Harriet Hedges, W. N. 1867, p. 19. (d) Me Kelsey, 16 C. B. 197. (e) Re Turner, 3 C. B. 166. (/) Re Cloud, 15 C. B, (N.S.) 833. (g) Re Mirfin, 4 M. & Gr. 635 ; Re Haigli, 2 C. B. (N.S.) 198. [h) Brook v. Brook, 1 Beav. 531. (i) Re Campbell's Trusts, 31 Beav. 176. (k) Hearle v. Greenbank, 3 Atk. 712, and 1 Ves. 305, per Lord Hardwieke ; Grange v. Tiving, O. Bridg. 108, per Sir 0. Bridgman ; Conipton v. Collin- son, 2 B. C. C. 387, per Buller, J. ; and see Sockett v. Wi-ay, 4 B. C. C. 486. (l) Co. Lit. 3, b ; and see Mr. Hargrave's note (4), ib. But acts done by an infant in the character of steward cannot be avoided by reason of his disability. Eddleston v. Collins, 3De Gex, Mac. & Gord. 1. (m) Co. Lit. 128, a; Br. Ab. "Covert, and Infant," pi. 55, and see Hearle v. Greenbank, 3 Atk. 710. {n) Co. Lit. 88 b. (o) Co. Lit. 172, a CH. III. S. 2.] INFANTS. 35 ministerial, as to be an attorney to deliver seisin (a), or as a lord of a manor to give effect to a custom (&), or to appoint a seneschal (c). So he might, until an act to the contrary (d), have been, as executor, the channel or conduit pipe through which the assets found their way to the hands of creditors in a due course of administration ( "°* . . . ° ■' declared m, be mamjested and proved oy writing; for, if there be written writing. evidence of the existence of such a trust, the danger of parol declarations, against which the statute was directed, is effectually removed (/). It may be questioned whether the act did not intend that the declaration itself should be in writing ; for the ninth section enacts, that " all grants and assignments of any trust or confidence shall likeivisc he in writing, signed by the party granting (o) Adlington v. Cann, 3 Atk. 154. M'Douall, 2 De Gex & Sm. 265 ; (5) See 2 P. W. 75 ; Gardiner v. Heys v. Astley, 4 De G. Jon. & Smith, Fell, IJ. & W. 22. 34; and see the oases on the Statute (c) See Cottington v. Fletcher, 2 of Limitations, post. Atk. 155 ; Childers v. Childers, 3 Kay (e) Davies v. Otty, 33 Beav. 540. & J. 310 ; 1 De Gex & Jon. 485. (/) Forstery. Hale, 3 Ves. 707, per [d) Ridgwayy. Wharton, 3 De G. Lord Alvanley ; S. C. 5 Ves. 315, M. & G. 677 ; Barkworth v. Young, per Lord Loughborough ; Smith v. 4 Dre. 1 ; Wood v. Midgley, 5 De G. Matthews, 3 De Gex F. & Jo. 139. M, & G. 41. But see Skinner v. E 50 STATUTE OF FRAUDS. — FORMALITIES. [CH. V. S. 2 As by a letter, recital, &c. Eelation to sub . iect-matter, and nature of trust must be clear. 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. 2. The statute will be satisfied, if the trust can be manifested and proved by any subsequent acknowledgment by the trustee as by an express declaration by him (h), or any memorandum to that effect (c), or by a letter under his hand ((f), by his answer in Chancery (e), or by an affidavit (/), or by a recital in a bond {g)^ or deed Qi), &c. ; and the trust, however late the proof, operates retrospectively from the time of its creation. Even where a lease was granted to A., who afterwards 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 fde used in the lease in trust for B., it was held that the assignees of A. had no title to the property {%). 3. But with regard to letters and loose acknowledgments of that kind, the Court expects demonstration that they relate to the subject matter (k) ; nor will the trust be executed if the precise nature of the trust cannot be ascertained (/) ; 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 (m) ; 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 (ii). When (a) i. e. A will executed in con- formity with section 5. Note that Crooke V. Brooking, 2 Vern. 50, 106, was before the Statute of Frauds. (b) Ambrose v. Ambrose, 1 P. W. 321 ; Crop v. Norton, 9 Mod. 233. (c) Bellamys. Burrow, Rep. t. Talb. 98 ; and see Re Bennett's Settlement Trust, W. N., 1867, p. 229. {d) Forster v. Hale, 3 Ves. 696; S. C. 5 Ves. 308 ; Morton v. Tewart, 2 Y. & C. Ch. Ca. 67 ; Bentley v. Maclcay, 15 Beav. 12 ; Childers v. CUlders, 1 De G. & J., 482 ; Smith v. Wilkinson, cited 3 Ves. 705 ; O'Hara V. O'Neill, 1 B. P. C. 227 ; and see Gardner v. Rome, 2 S. & S. 354. (e) Hampton v. Spencer 2 Vern. 288; Nab.Y. Nab, 10 Mod. 404; Cot- tivgton v. Fletcher, 2 Atk. 155; Ryall V. Ryall, 1 Atk. 59, per I^ord Hard- wicke ; Wilson v. Dent, 3 Sim. 385. A bill differs from an answer, as it is not signed by the party. See, however, Butler V. Portarlington, ] Conn. & Laws. 1. (/) Barkworth v. Young, 4 Drew. 1 . {g) Moorcroft v. Dowding, 2 P. W. 314. (/») Deg V. Deg, 2 P. W. 412. (i) Gardner v. Roioe, 2 S. & S. 346 ; S. C. affirmed, 5 Euss. 258 : and see Plymouth y. Hickman, 2 \'ern. 167. {k) Forster v. Hale, 3 Ves. 708, pm- Lord Alvaiiley ; Smith v. Matthews, 3 De Gex, P. & Jo. 139. {I) Forster v. HaU, 3 Ves. 707, per Lord Alvanley ; Morton v. Tervart, 2 Y. & C. Ch. Ca. 80, per Sir J. L. K. Bruce ; Smith v. Matthews, 3 De Gex, F. & Jo. 139. (m) Hamptons. Spencer, 2 Vern . 288 ; Nab V. Nab, 10 Mod. 404. (n) Freeman V. Tatkam, 5 Hare 329. CH. V. S. 3.] STATUTES OF WILLS. 51 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 (a). 4. It win be observed, that the words of the statute require the The writing must writing to be signed (5) ; and not only the fact of the trust, but also ^ ^'^"^ the terms of it, must be supported by evidence under signature (c) ; but, as in the analogous case of agreements under the fourth section of the act (d), the terms of the trust may be collected from a paper not signed, provided such paper can be clearly connected with, and is referred to by, the writing that is signed (e). 5. The ' signature must be by the party " who is by law enabled Who is the party to declare such trust." It has been occasionally contended, that by cia^ the^trust/' this description was meant the person seized or possessed of the legal estate ; but it has been decided that whether the property be real (/), or personal {g), the party 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. SECTION III. OF THE STATUTES OP WILLS. 1. By the fifth section of the Statute of Frauds (A), aU devises statutes of of lands are required to be in writing and signed by the testator, or Frauds. by some person in his presence and by his direction, and to be attested or subscribed in his presence by three witnesses ; and by the nineteenth section, all bequests oi personal estate are required to be in writing, with the exception of certain specified cases in which nuncupative wills were allowed {i). And by the 1 Vict. c. 26, s. 9, wiUs made on or after Jan. 1, 1838, whether of real or personal estate, must be executed and attested with the special solemnities there mentioned. (a) Morion v. Tewart, 2 Y. & C. Ch. (e) FarsUr v. Hale, 3 Ves. 696. Ca. 67, see 77. (/) Tiemey v. Wood, 19 Beav. 330, (6) See£)ento»iv. Z)aTO, 18Ves.503. see Donohoe v. Conrahy, 2 Jones & (c) Forster v. Hale, 3 Ves. 707, per Lat. 688. Lord Alvanley ; Smith v. Matthews, 3 [g) Bridge v. Bridge, 16 Beav. 315 ; De Gex F. & Jo. 139. Ex parte Pye, 18 Ves. 140, &c. {d) See Sug. Vend. & Purch. 14th [h) 29 Car. 2. c. 3. Ed. oh. 4., s. 3. {{] BeeAdlingtony. Carera.S Atk. 151. E 2 52 STATUTES OF WILLS. [CH. V. S. 3 Principle of 2. To trace the operation of these enactments we must bear in tions*™o^ tes^ta'^^" ^^^'^ that the absolute owner of property combines in himself- both mentary in re- the legal and equitable interest, and when the legislature enacts speot of wills. j.j^j^^ j^g 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 con- stituent part of the ownership as much as the other. Thus if a testator by will duly signed and attested give lands to A. and his heirs " upo7i trust," but without specifying the particular trust intended, 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 wiU is a part of the original ownershipi, and cannot be passed by the informal paper, but will descend to the heir-at-law, or if the wUl be made since 1837, and contain a residuaiy de\'ise, wlU pass to the residuary devisee. So if a legacy be bequeathed by a will, duly executed, to A. " upon 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 requires a wiU. duly executed. If it be said that such ex- pression of intention, though void as a devise or bequest, may yet be good as a declaration of trust, and therefore that where the legal estate of a freehold is well devised, a t7'ust may be engTafted 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. " A deed," observed Mr. Justice Buller, in a similar case, "must take place upon its execution, or not at all ; 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 " («). We may therefore safely assume, as an established rule, that if the intended disposition be of a testa- mentary character, and not to take effect in the testator's lifetime, but to be ambulatory until his death, such disposition is inoperative unless it be declared in writing in conformity with the statutory enactments regulating devises and bequests (&). [a) Hahergham \. Vincent, 2 Yea. 3 Cent. Cas. 26, is founded on mistake, jun. 230. as from the report of the case in Fitz- (b) The law laid down by Jenkins, herb. Ab. Devise, 22, it appears that CH. V. s. 3.] STATUTES OF WILLS. 53 3. 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 benefi- cial interest, and the testator leaves 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 well-known rule, that a testator may, by Ms will, refer to and incorporate therein, any document which at the date of the will has an actual existence, and is thus made part of the will. 4. Should the testator devise the estate in such language that the will passes the legal estate only to the devisee, and manifests an intention of not conferring the equitable, in short, stamps the devisee with the character of trustee, and yet does not define the par- ticular trusts upon which he is to hold ; in this case, no paper not Where no trust appears on the will and no fraud. Where thedevisee is made by the will a trustee, and the testator leaves an informal de- claration of trust. the beneficial interest was decreed to the heir, not, as Jenkins supposed, of the devisee, but of the testator. In Melham v. Devon, 1 P. W. 529, a testator by his will directed his execu- tors to pay 3000Z. as he should by deed appoint, and subsequently by deed appointed the 3000Z. to certain children, and the Court established the gift to the children on the ground that the deed referred to the will, and was part thereof, and in the nature of a codicil. It does not appear whether the deed had been proved with the will, but it might have been, as, though a deed in form, it was of a testamen- tary character. If the deed was not proved, or assumed to have been proved, it is difficult to find any principle upon which the case can be supported from the brief state- ment of it in the report. In Inchiquin v. French, 1 Cox, 1, a testator devised all his real estate, charged with debts and legacies, in strict settlement, and gave a legacy of 20,000Z. to Sir Wm. Wyndham ; by a deed poll of even date with his will, the testator declared that the 20,000Z. was given to Sir Wra. Wyndham upon trust for Lord Clare. "The deed poll," adds Mr. Cox, the reporter, " does not appear to have been proved as a testa- mentary 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 state- ment, that Ijord 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, p. 33, we learn the facts, viz., that Lord Clare was out of the jurisdiction, and 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 the real or personal estate, his Lordship held, that as the will contained a general charge of legacies and the gift by the codicil, though not attested according to the Statute of Frauds, was a legacy, it was raisable primarily out of the personal estate, and then out of the real estate. This was the only point determined by him. The dictum of Lord Northington, in Boson V. Statham, 1 Ed. 514, is clearly not law ; see Adlington v. Cann, 3 Atk. 151 ; MucMeston v. Brovm, 6. Ves. 67 ; Stickland v. Aldridge, 9 Ves. 519 ; and see Pulestony. Puleston, Finch, 312. (a) Adlington v. Cann, 3 Atk. 141 Juniper v. Batchehr, W. N . 1868, p. 197; and see Stickland v. Aldridge, 9 Ves. 519 ; and the observations of Sir J. L. K. Bruce ui Briggs v. Penny, 3 Da Gex and Sm. 547. 54 STATUTES OF WILLS. [CH. V. S. 3. 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 wUl the devisee be allowed to retain the beneficial interest himself; but while the legal estate passes to him, the equitable will, according to the date and terms of the will, result to the testator's heir-at-law or general residuary devisee (a). Personal estate. 5. So if by will, personal estate be given upon trusts to be after- wards delared, the testator cannot by any instrument not duly ex- ecuted as a will, and a fortiori he cannot by parol declare a valid trust, but the equitable interest will result to the next of Idn, or pass to the residuary legatee (b). Admission and 6. So if a person before the Act of 11 G-. 4. & 1 W. 4. c. 40, had e^dence as ^'^'^° ^^een simply appointed executor, which conferred upon him a title against the title to the surplus beneficially, averment was not admissible to make him a trustee for the next of kin (c). But apparently, the authorities established that if from any circumstance appearing on the face of the will, as the gift of a legacy to the executor, the law presumed only that he was not intended to take the surplus beneficially, the executor might rebut that presumption by the production of parol evidence {d), when of course the next of kin might fortify the pre- sumption by opposing parol evidence in contradiction. Where, however, the wiU itself invested the executor with the character of trustee, as by giving him a legacy " for his trouble," or by styling him a "■ trustee " expressly, the primd facie title to the surplus was then in the next of kin, and parol evidence was not admissible to disprove the express intention (e). By the act referred to, an executor is made primd facie a trustee for the next of kin (/). But where there are no next of kin the title of the executor, as against the Crown, is not affected by the statute^ and the old law {a) Muckleston v. Brown, 6 Ves. 52. Bishop V. Talbot, as cited ib. 60, was a devise to trustees in trust, but on con- sulting the Reg. Lib. it appears there was no notice of the trust upon the will Reg. Lib. 1772, A. fol. 137. In Boson V. Statham, 1 Ed. 508, the devi- sees were described as trustees, but this circumstance was not adverted to by the counsel or the Com-t. (b) Johnson v. Ball, 5 De Gex & Sm. 85. (c) Langham v. Sandford, 19 Ves. 644, per Lord Eldon ; White v. Williams, 3 V. & B. 72 ; S. C. Coop. 58. (c?) Walton V. Walton, 14 Ves. 322, per Sir W. Grant ; Clennell v. Lewth- waite, 2 Ves. Jun. 474; Langham v. Sandford, 17 Ves. 442, 443; Lynn V. Beaver, 1 T. & R. 66. (e) Rachjkld v. Careless, 2 P. W. 158 ; Langham v. Sandford, 17 Ves. 453; S. C. 19 Ves. 641; Gelding y. Yapp, 5 Mad. 59 ; White v. Evans, 4 Ves. 21 ; Walton v. Walton, 14 Ves. 322, per Sir W. Grant ; and see Bead v. Stedman, 26 Beav. 495. (/) Love V. Case, 8 Beav. 472 ; Jider V. Juler, 29 Beav. 34 ; Travers v. Travers, 14 L. R. Eq. 275. GH. V. S. 3.] STATUTES OF WILLS. 55 applies. But if the executor be stamped by the will with the character of trustee and there are no next of kin, the Crown will take (a). And of course, whether there be next of kin or not, if it appear from the whole will that the executors were intended to take beneficially, the statute is excluded (&). 7. An exception to the rule, that parol trusts cannot be declared Fraud, upon an estate devised by a wUl, exists in the case of fraud. The Court wiU never allow a man to take advantage of his own wrong, and therefore if an heir, or devisee, or legatee, or next of kin, contrive to secure to himself the succession of the property through fraud, the Court affects the conscience of the legal holder, and con- verts him into a trustee, and compels him to execute the dis- appointed intention. Thus if the owner of an estate hold a conversation with the heir, p^e of fraud in Jusir. 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, notwithstanding the Statute of Wills, will oblige the heir to make a provision in conformity with the express or implied engagement ; 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 (c). So if a father devise to his youngest son, who promises that if In devisee, the estate be given to him he will pay 10,000/. 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 10,000/. {d). And so, generally, if a testator devise real estate or bequeath^l ^ l^g^t^^- personal estate to A., the beneficial owner upon the face of the will, but upon the understanding between the testator and A. that the devisee or legatee wiU 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 con- science of A., and decree him to execute the testator's intention (e). (a) Read v. Stedman, 26 Beav. 495. Harwell, Gilb. Eq. Rep. 11 ; McCor- (b) Harrison v. Harrison, 2 Hem. & mick v. Grogan, 4 L. R. (Eng. & Ir. Mill. 237. Ap.) 88, per L. C. (c) Sellack v. Harris, 5 Vin. Ab. [d) Stickland v. Aldridge, 9 Ves. 521 ; Stkkland v. Aldridge, 9 Ves. 519. 219, per Lord Eldon ; Harris v. (e) Kingsman v. Kingsman, 2 Vern. 56 STATUTES OF WILLS. [CH. V. S. 3. Engagement to execute an unlawful trust. Devise may be good as to one and Toid as to another. But in this as in other cases, if it appear that A. was not meant to be a trustee, but to have a mere discretion, the Court cannot con- vert the arbitrary power into a trust (a). 8. It often happens that a proposed devisee enters into an en- gagement 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 will. 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 either expressed or tacitly implied 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 understanding 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 (&). 9. Where a devise is to several persons, as tenants in common, it may be void as to one to whom the testator's unlawful intention was communicated in his lifetime, and good as to the others who were not privies to his intention (c). But if there be a joint 559 ; Drahefordv. WUTcs, 3 Atk. 539; Attorney- General v. Dillon, 13 Ir. Ch. Re 127 ; Gray v. Gray, 11 Ir. Ch. Re, 218; Barrow v. Green, 3 Ves. 152; Harriot Y. Harriot, 1 Strange, 672, per Cur. ; Seagrave v. Kirwan, 1 Beatt. 164, per Sir A. Hart ; Leister v. Fox- croft, cited ib. ; Charnherlaine v. Cham- herlaine, 2 Eq. Ca. Ab. 43; ib. 465 Irvine V. Sullivan, 8 L. R. Eq. 673 Norris v. Frazer, 15 L. E. Eq. 318 Thynny. Thynn,lYera. 296; Devenish V. Baines, Free, in Ch. p. 3; Oldham V. Litchford, 2 Vern. 506 ; same case, Freem. 284; Reech-v. Kennigate, Amh. 67 ; S. C. I Ves. 123 ; Newhurgh v. Newburgh, 5 Madd. 366, per Sir John Leach ; Chamberlain v. Agar, 2 Ves. & B. 259 ; Nab v. Nab, 10 Mod. Bep. 404 ; Strode v. Winchester, 1 Dick 397 ; S. C. stated from Reg. Lib. App. No. 1 to 3rd Edition of the present work ; and see AUson^s case, 9 Mod. Rep. 62 ; Dixon v. Olmius, 1 Cox, 414. But in the case put, B. takes by the rules of equity, and not by testamen- tary disposition, and therefore, where A. had undertaken, at the request of a testatrix in Ireland, to hold for a charity, he paid legacy duty as bene • ficial owner, though by the Irish Stamp Acts a legacy to a charity was exempt- ed ; Cullen v. Attorney- General, 1 L. R. (Eng. & Ir. App.) 190. (a) M'Cormick v. Grogan, 1 I. R. Eq. 313; 4 L.'R. (Eng. & Ir. App.) 82. (6) AdliTigton v. Cann, Barn. 130 Springett v. Jenings, 10 L. R. Eq. 488 Burr V. Miller, W. N. 1872, p. 63 King V. Lady Portington, 1 Salk. 162 Muckleston v. Brown, 6 Ves. 52 Stickland v. Aldridge, 9 Ves. 516 M'Cormick v. Grogan, 1 R. Eq. 313 4 L, R. (Eng. & Ir. App.) 82; and see Attorney-General v. Duplessis, Park. 144 ; Russell v. Jackson, 10 Hare, 204 ; Tee v. Ferris, 2 Kay & J. 357 ; Lomax v. Ripley, 3 Sm. & Gif. Green, 3 Kay & J. 591 ; Bumey v. 48 ; Carter v. Macdonald, 15 Sim. 6 ; Moss V. Cooper, 1 Johns. & Hem. 352. (c) Tee V. Ferris, 2 Kay & J. 357 ; and see Blimey v. Macdonald, 15 Sim. 6 ; Moss V. Cooper, 1 Johns. & Hem. 352. CH. V. S. 3. ] STATUTES OF WILLS. ^ ' devise to two, one of whom has by active fraud procured the devise, the other cannot claim under the fraud, but the devise will be void as to both (a). 10. Where no trust is imposed by the will, and no communica- Devise not void tion was made in the testator's lifetime, the devise will be good, ^^eans to execute although the devisee may, notwithstanding the absence of legal the^unlawfui obligation, be disposed from the bent and impulse of his own mind, to carry out what he beUeves to have been the testator's wishes (6). 11. A devise may be a beneficial one upon the face of a will, but An engagement there may have existed an understanding between the testator in nrte part of the his lifetime and the devisee, that, without any particular part of estate upon an the estate being specified, such portions of it as the devisee, in the exercise of his discretion, might think proper, should be applied 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). 12. In the above cases it is not a sufficient answer to a bill by Defendant must the heir for the defendant to say that the secret trust is not for the gecret trust was. plaintiff, 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 interest might, on some other ground, enure to the heir as undisposed of {d). 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 parol evidence («). 13. It is clear that if the devisee enters into an engagement with Engagement to the testator to execute an unlawful trust, the heir may file a bill, and claim the beneficial interest; but suppose the devise is a declared, beneficial one upon the face of it, and the testator communicates his will to the deviseCj and requests him to be a trustee for such purposes as the testator shall declare, which the devisee under- takes to do, but the testator afterwards dies without having expressed any trust, it seems that in this case also the devisee will not be (a) Russell V. Jackson, 10 Hare, 204 ; see Carter v. Green, 3 Kay & J. 591. and see Carter v. Green, 3 Kay & J. (e) MucUeston v. Brown, 6 Ves. 69. 603; Burneyv.Macdonald, 15 Sim. 6. {d) Newton v. Pelham, cited Boson (b) Wallgrave v. Tebbs, 2 Kay & J. v. Statham, 1 Eden, 514, 313 ; Lomax v. Ripley, 3 Sm. & Gif. (e) Kingsman v. Kingsman, 2 Vern. 48 ; Jones v. Badley, 3 L. R. Eq. 635, 599 ; Bring v. Bring, 2 Vern. 99. reversed, 3 L. R. (Ch. App,) 362 ; and execute a trust and no trust 58 STATUTES OF WILLS. [CH. V. S. 3. allowed to take the beneficial interest, but the heir-at-law wiU be entitled (a). Case of devisee 14. Another case, distinct from all the preceding, is where a fe.ce'of^the w1u°'^ testator devises an estate to persons as trustees, but no trusts are and parol declara- declared by the will, so that the equitable interest would, upon the stranger. face of the instrument, result to the heir-at-law, and the testator informs the devisees that his intention in making the devise is, that they shall hold the estate in trust for certain persons, which the devisees undertake to do. Will the Court, under such circum- stances, compel the devisees to eocscute the parol intention, or will the equitable interest result to the heir 1 In favour of the parol trust, it wUl 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 there- fore be supported, on the ground of mistake in himself, or fraud in the devisees 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 (&) : 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 compels the devisee to execute the intention fraudulently intercepted : but in the case supposed, the legal estate only is in the devisees, while the beneficial interest is in the heir-at-law, who is wholly disconnected from the fraud. What jurisdiction, there- fore, 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 will, the circum- stance of an express or implied promise on the part of the devisee to execute a certain trust is not a sufficient gTound for authorising the Court to execute the trust as against the heir-at-law (c). (a) Muchleston v. Brown, 6 Ves. 52. (c) The cases upon the subject are See also the observations of V. C. Priiig v. JPring, 2 Vern. 99 ; Crooke v. (now L. J.) Turner, in Russell v. Brooking, 2 Vern. 50, 107 ; Smith v. Jackson, 10 Hare, p. 214. AttersoU, 1 Russ. 266; Poc?more v. Oun- (6) Newhurgh v. Newburgh, 5 Madd. ning, 7 Sim. 644. Other cases are not 364. uncommonly referred to, but which CH. V. S. 3.} STATUTES OF WILLS. 59 15. We have stated the rule that if a testator make a devise Effect of the carrying the beneficial interest on the face of the will, but it Mortmain, appears from the admission of the 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 will give the estate to the heir-at-law. The question here suggests itself, whether the Statute of Mortmain (a), which declares a devise " in trust or for the benefit of " a charity to be absolutely 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 established, the devisee takes no interest either at law or in equity. After some conflict of authority (&), it has now been decided that the devise of the legal estate is good, but that equity will set it aside on the ground of fraud, upon public policy (c). The provisions of the Statute of Frauds relating to wlUs have now been repealed, but the principles established by the foregoing cases with reference to the Statute of Frauds will apply, miotatis mutandis, to the enactments of the Statute of WUls at present in force. really have no application, — as Jones (6) See Adlington v. Cann, 3 Atk. V. Nahhe, Gilb. Eq. Rep. 146 (but 141, 150, & 153 ; Edwards v. Pike, 1 there the money passed, and the parol Eden. 267 ; Boson v. StatJiam, 1 Eden, trust was declared in the life-time of 508 ; Bishop v. Talbot, cited Muckle- the testator); Inchiquin v. French, 1 stony. Srotcm, 6 Ves. 60, 67, Reg. Lib. Cox, 1 ; Metham v. Devon, 1 P. W. A. 1772, fol. 137, A. 1773, fol. 686. 529 ; as to which two last cases, see (c) Sweeting v. Sweeting, 3 N. Rep. the observations at page 53. 240. (a) 9 a. 2. c. 36. 60 CHAPTER VI. OF TRANSMUTATION OP POSSESSION. Where some further act is intended. Where the settlor declares himself a trustee. Where there, is valuable consideration, and a trust is intended to be created, formalities are of minor importance, since if the trans- action cannot take effect by way of trust executed, it may be enforced by a Court of Equity as a contract. But where there is no valuable consideration, and a trust is intended, 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). The cases upon this subject may be marshalled under the following heads. 1. It is evident that a trust is not perfectly created where there is a mere intention of creating a trust, or a vohmtary agreement to do so, and the settlor himself contemplates some further act for the purpose of giving it completion (b). 2. If the settlor proposes to convert himself into a trustee, then the trust is perfectly created, and will be enforced so soon as the settlor has executed an express declaration of trust, intended to {a) See Ellison v. Ellison, 6 Ves. 662 ; Pulvertoft v. Pulvertojt, 18 Ves. 99; Sloanev. Cadogan,Sag.YenA. &P. Append. ; Edwards v. Jones, 1 W. & Cr. 226 ; Wheateley v. Purr, 1 Keen, 551 ; Garrard v. Lauderdale, 2 R. & M. 453 ; Collimon v. Patrick, 2 Keen, 123; Dillon v. Coppin, 4 M. & Cr. 647; Meek v. Kettleioell, 1 Hare, 469; Fletcher v. Fletcher, 4 Hare, 74 ; Price V. Pncc, 14 Beav. 598 ; Bridge V. Bridge, 16 Beav. 315; Beech v. Keep, 18 Beav. 285; Donaldson v. Donaldson, 1 Kay, 711 ; Scales v. Maude, 6 De Gex, 51. & G. 43 ; Airey V. Hall, 3 Sm. & Giff. 315. (6) Cotteen v. Missing, 1 Mad. 176 ; Bayley v. Boulcott, 4 Russ. 345 ; Dipple V. Corles, 11 Hare, 183; Jones v. Loch, 1 L. R. (Ch. App.) 25; Lister v. Hodgson, 4 L. R. Eq. 30. CH. VI.] WHEN A THUST IS PERFECTLY CREATED. 61 be final and bhiding upon him, and in this case it is immaterial whether the nature of the property be legal or equitable — whether it be capable or incapable of transfer (a). A husband is incapable of making a gift of chattels at law to Gitt of lusband ^ o o ., . „ to Ms wife, his wife, and, therefore, if he purport to make such a gift, a court of Equity considers it tantamount to a declaration that the husband will hold in trust for the wife for her separate use. And the words of gift need not be in writing, or of a technical description, but must be clear, irrevocable, and complete ; the unsupported testi- mony of the wife on her own behalf will not be sufficient, but the gift may be proved not only by witnesses at the time, but also by the husband's subsequent declaration. " If," observed the Master of the Eolls, " A. (who has £1,000 Consols standing in his name) says to B., ' I give you the £1,000 Consols standing in my name,' that in my opinion would make A. a trustee for B. It would be a valid declaration of trust for B., though the stock remained in the name of A." (h). 3. If it be proposed to make a stranger the trustee, and the Where the subject of the trust is a legal interest, and one capable of legal legal interest. trans7nutation, 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 (a) Geey.LiddeU,Z^'E>eay.&2\;Mor- the establishment of such a trust. "If gan v. Malleson, 10 L. E. Eq. 475 Armstrong v. Timperon, W. N. 1871 p. 4; Ex parte Pye, ov Ex parte Dubost. 18 Ves. 140 ; Thorpe v. Owen, 5 Beav, 224 ; StapletouY. Stapleton, 14 Sim. 186 Vandenherg v. Palmer, 4 Kay & J 204: Senrle v. Law, 15 Sim. 99 he said, " 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 be suffi- Steele v. Waller, 28 Beav. 466 ; Pater- cient; or a Court of equity, adverting son V. Murphy, 11 Hare, 88; Drosier to what Lord Eldon said in Ex parte V. Brereton, 15 Beav. 221; Bentley Dm6os<, might not be bound to inquii-e V. Mackay, 15 Beav. 12; Bridge v. further into an equitable title so es- i?»-zrf^e, 16 Beav. 315; Qrayy. Oray, tablished in evidence." 2 Sim. N. S. 273 ; Wilcocks v. Han- [h) Grant v. Grant, 34 Beav. 623. nyngton, 6 Ir. Ch. Re. 38. In the case As to the general dictum of J\I. R. see of Mc.Fadden v. Jenhyns, 1 Hare, also Moi-gam v. Malleson, 10 L. R. Eq. 471 ; Sir J. Wigrara expressed himself 475 ; but see contra Warriner v. more cautiou.'-ly than was necessary, Rogers, 16 L. R. Eq. 349. As to the as to the jurisdiction of the Court in incapacity of the wife to hold pro- enforcing a trust against the settlor perty s'eparately from her husband, himself, and suggested several accom- see now 33 and 34 V. c. 93. panying circumstances as material to 62 WHEN A TRUST IS [CH. VI. executed, or the Court will not recognise the trust {a). "1 take the distinction," said Lord Eldon, " to be, that if you want the assistance of the Court to constitute a cestui que trust, and the instrument is voluntary, you shall not have that assistance for the purpose of constituting a cestui que trust, as upon a covenant to transfer stock, &c. ; 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 C&). 4. If the subject of the trust be a legal interest, but one not Where the pro- capable of legal transfer, as a bond or other chose en action, which mterest incapable cannot be assigned at law (c), then whether we look to principle or of legal transfer, authority, there is considerable difficulty. On the one 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 in the settlor (who therefore 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. On the other hand, 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 to debar him from the creation of a trust in the hands of another at all, and the rule therefore should be that if the settlor make all the assignment of the pro- perty 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 validity of the trust. Some Judges have adopted the one view of the question, and some the other (d). But in the leading case of Kehewich v. (a) See Garrard v. Lauderdale, 2 but see Airey v. Hall, 3 Sm. & Gif. Russ. & M. 452 ; Meek v. Kettlewell, 315; Kiddill v. Farnell, 3 Sm. & Grif. 1 Hare, 469 ; Dillon v Coppin, 4 M. 428 ; and see Pulvertoft v. Pulvertoft, & Cr. 647 ; Coningham v. Plunhett, 2 18 Ves. 89. Y. & C. Ch. Ca. 245 ; Searle v. Law, (c) But see now 36 and 37 V.C. 66, 15 Sim. 95 ; Price v. Price, 14 Beav. s. 25, rule 6. 598 ; Bridge v. Bridge, 16 Beav. 315 ; {d) The authorities for the validity Weale v. Ollive, 17 Beav. 252 ; Beech of the trust are, Fortescue v. Barnett, V. Keep, 18 Beav. 285 ; Tatham v. 3 M. & K. 36 ; Roberts v. Lloyd, 2 Vernon, 29 Beav. 604 ; Dillon v. Bone, Beav. 376 ; Blakeley v. Brady, 2 Drur. 3 Giff. 238 ; Milroy v. Lord, 8 Jur. & Walsh, 311 ; Airey v. Hall, 3 Sm. N. S. 806; 4 De G. P. & J. 264; &cG\t Sib; PamallY.Hingston,i^m. Warriner v. Rogers, 16 L. R. Eq. 340 & Gif. 337 ; Pearsony. Amicable Office, (&) Ellison V. Ellison, 6 Ves. 662; 27 Beav. 229. In favour of the opposite Antrobusv. Smith,12Yes.B9; Cohnan view, see Edwards v. Jones, 1 M. & V. Sarel, 1 Ves. jun. 50; S. C.3 B. C. Cr. 226 ; Ward v. Audland, 8 Sim. C. 12 ; Dening v. Ware, 22 Beav. 184 ; 571 , C. f. Cooper's Cases, 1837-1838, CH. VI.] PEEFECTLY CREATED. 63 Manning (a), Lord Justice K. Bruce observed, " It is upon legal and equitable principle, we apprehend, clear that a person sui juris acting freely, fairly, and 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 prin- ciple will for the future prevail (&). If the subject be incapable of transfer as a debt, and a parol declaration of trust is made to the debtor, who undertakes to hold it upon those trusts, it is a valid settlement without any transfer or attempt at transfer (c). If a settlor assign all his personal estate with a power of attor- ney, the deed, being perfect and all that was intended, will pass a promissory note, notwithstanding the want of indorsement, which is required for giving it currency (d). 5. If the subject of the settlement be partly incapable of legal transfer, and partly capable, and that part which is capable of transfer is not transferred (as if there be a mortgage in fee and the mortgagee assigns the debt with a power of attorney, but does not convey the mortgaged lands though they are legally transferable), in this case all has not been done that might have been done, and no trust is created (e ). By a recent Act, 36 & 37 Vict. c. 66, s. 25, rule 6, " any absolute 36 & 37 v., c. 66. assignment by writing under the hand of the assignor (not pur- porting to be by way of charge only), of any debt or other legal chose in action, of which express notice in writing shall have been given to the debtor, trustee, or other person, from whom the assignor would have been entitled to receive or claim such debt or chose in action, shall be and be deemed to have been effectual in law (subject to aU equities which would have been entitled to priority over the right of the assignee if that Act had not passed) to pass, and transfer the legal right to such debt or chose in action from the date of such notice." 6. If the subject of the trust be an equitable interest, then on -where the pro- the authority of Sloanc v. Cadogan (/) a vaM trust is created when P^"^*? i^ ^'^ s. Lonsdale. Thus where a person, having deposited in a savings' bank 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 {g). So if a person indorse and hand over promissory notes with the intention of making a testamentary disposition, the transaction does not create a trust inter vivos (h). Fraud. 26. And voluntary settlements may be set aside in equity, where obtained by undue influence ({), or where they were not intended to take effect in the events which have actually hap- pened, and therefore executed under a mistake (k). (a) Bolton v. Bolton, ubi supra. Sugd. 333, must be considered as over- (6) lb. ruled. (c) Watts y. Bullae, 1 P. W. 60; (/) Se6GaskeUv.Gaskell,2Y. Si.T. Goring v. NasJi, 3 Atk. 180 ; Rodgers 502 ; Hughes v. Stuhbs, 1 Hare, 476 ; V. Marshall, 17 Ves. 294. Smith v. Warde, 15 Sim. 66. id) f's P. W. 404 ; but see Fox v. Bishop of Chester, 6 Bing. 1 ; Cowper v. Man- tell, 22 Beav. 231 ; Id. qu. CH. VII. s. 2.] UNLAWFUL TKUSTS. 93 lives does not prohibit an insurance on the life of A. in the name of B. upon trust for A. when both names appear upon the policy (a). But an insurance on the life of A. by B. a creditor, not on his own account, but as a trustee for C, who has no interest in the life, would, it is considered, be void. 11. The income tax act (h) avoids all contracts or agreements by which one person undertakes to pay the income tax of another, but this does not prevent a settloi from vesting an estate in trustees upon trust to pay " all taxes affecting the lease " (mean- ing inclusively the income tax), and subject thereto for A. for life (c). 12. Fictitious, fraudulent, or collusive conveyances for the pur- pose of creating votes for members of parliament, 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., hond fide and without any secret understanding in dero- gation of the deed, though for the purpose of multiplying votes, convey to B. in trust for a number of persons as tenants in com- mon, that they may thereby acquire a qualification, the deed is unimpeachable {d). 13. Trusts adverse to the foundation of all religion and sub- versive of all morality are, of course, void, and not enforceable by the Court (e). 14. Where a trust is created for an unlawful and fraudulent purpose, the Court will neither enforce the trust in favour of the parties intended to be benefited, nor will assist the settlor to recover the estate (/). 15. But a distinction was taken by Lord Eldon between a bill filed by the author of the fraud himself, and by a person taking through him but not a party to the fraud {g), and this distinction is supported by other authority (h). And the settlor himself may 7 Income tax. (a) Collett V. Morrison, 9 Hare, 162 [h) 5 & 6 V. c. 35 s. 73. (c) Lord Lovat v. Duchess of Leeds (No. 1), 2 Drew & Sm. 62 ; Festing v. Taylor, 32 L. J. 41 ; 3 Best & Sm. 217. (d) Thornley v. Aspland, 2 Com. B. Hep. 160; Alexander v. Newman, 2 Com. B. Kep. 122; Mayy. May, 33 Beav. 81 ; and see Childers v. Childers, 3 Kay & John. 310 ; 1 De Gex & Jon. 482. («) SeeThorntonv.Howe,3l'BeiiY.14:. (/) Cottington v. Fletcher, 2 Atk. 555 ; see Lord Eldon's remarks in Muchleston v. Brown, 6 Ves. 68 ; and see Chaplin v. Chaplin, 3 P. W- 233 ; Hamilton v. Ball, 2 Ir. Eq. Rep. 191 Groves V. Groves, 3 Y. & Jer. 163 Ottley V. Browne. 1 B. & B. 360 Dames v. Otty (No. 2), 35 Beav. 208 , Haigh v. Kaye, 7 L. R. Ch. App. 473. In Wilhinson v. WilMnson, 1 Y. & C. Ch. Ca. 657, the words " all other the children he might there- after have hy her," -were probably held to mean legitimate children in case the settlor married the person named, who, it is presumed had died before the suit. {g) Muchleston v. Brown, 6 Ves. 68. (A) Matthew v. Hanhury, 2 Verii. Splitting votes. Immoral trusts. Consequences to the settlor of creating a trust with an unlawful purpose. Property settled with an unlawful purpose may be recovered by per- sons claiming under the settlor. 94 UNLAWFUL TRUSTS. [CH. VIL S. 2. file a bill for recovering the property, where the illegal trust failed to take eftect, so that no trust arose, and, the trustees having paid no consideration, the equitable interest resulted (a). There must be a 16. A trust to be lawful must be for the benefit of sor/ie person or persons, and if this ingredient be wanting, as in a trust for keeping up family tombs, the trust is void (&). But a trust for keeping in repair a painted window or monument in a church is valid as a charitable gift, for it is for the interest of the public that the ornaments of the church should not be allowed to fall into decay (c). If a testator bequeath his personalty generally to such charitable purposes as the trustees should think proper, the trustees can exercise the power as to the pure personalty (d). 187 ; BracJcenbury v. Brachenhury, 2 485 ; Haigh v. Kaye, 7 L. R. Ch. App. J. & W. 391 ; Joy v. Campbell, 1 Sch. 409. & Lef. 328, see 335, 339 ; Miles v. (&) Richard v. Bobson, 31 Beav. Durnford, 2 McN. & G. 643; and 244; i^c^v. i%^, 2 Sim. N. S. 255; see Phillpotts v. Phillpotts, 10 Cora. B. Thompson v. Shakespeare, Johns. 612, Kep. 85; Groves v. Groves, 3 Y. & 1 De Gex, F. & J. .399; Fowler v. Jer. 163; Childers v. Childers, 3 K. Fowler, 33 Bear. 616; Fisk v. Atty, & J. 310, 1 De G. & Jon. 482. See a Gen. 4 L. R. Bq. 521 ; Huraer v. classification of the cases in reference Bullock, 14 L. R. Eq. 45. to cohabitation bonds, 3 MoN. & G. (c) Hoare y. Osborne, 1 L. R. Eq. note (o) page 100. 585; Re Rigley's Trust, 1 W. R. 342. (a) Byrnes v. Hughes, 9 L. R. Eq. id,) Lewis v. Allenby, 10 li. R. Eq. 475 ; Manning v. Gill, 13 L. R. Eq. 668. 95 CHAPTER VIIL IN WHAT LANGUAGE A TEUST MAY BE DBCLAEED. A PEESON may declare a trust either directly or iadirectly : 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. OF DIEECT OE BXPBBSS DEOLAEATIONS OF TEUST. 1. In creating a trust, a person need only make his meaning General rale: clear as to the interest he intends to give, without regarding the technical terins of the common law in the limitation of legal estates. An equitable fee may be created without the word " heirs," and an equitable entail without the words " heirs of the body " (a) ; provided words be used which though not technical (a) See Shep. Touch, by Preston, 106. (1) The terms Implied Trusts, Trusts by Operation of Law, and Constructive Trusts, appear from the books to be almost synonyraus expressions ; but for the purposes of the present work the following distinctions, as considered the most accurate, will be observed : — An implied trust is one declared bj' a party not directly, but only by implication ; as where a testator devises an estate to A. and his heirs, not doubting that he will thereout pay an annuity of £20Z. per annum to B. for his life, in which case A. is a trustee for B. to the extent of the annuity. Trusts by 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, and are either, 1. Resulting trusts ; as where an estate is devised to A. and his heirs, upon trust to sell and pay the testator's debls, in.which case the surplus of the beneficial interest is a resulting trust in favour of the testator's heir; or, 2. Constructive trusts which the Court elicits by a construction put upon certain acts of parties, as when a tenant for life of leaseholds renews the lease on his own account, in which case the law gives the benefit of the renew^3d lease to those who were interested in the old lease. Distinction be- tween Implied trusts, Trusts by operation of law, and Constructive trusts. 96 EXPRESS TEUSTS. [CH. VIII. S. 1. Equitable fee may be devised without the word heirs applied to it. Case of a deed. Force of techni- cal terms. Eule in Shelley's case applicable to trusts. ave yet popularly equivalent, or the intention otherwise sufficiently appears upon the face of the instrument. 2. If an estate be devised unto and to the use of A. and his heirs, upon trust for B., without any words of limitation, B. takes the equitable fee ; for the whole estate passed to the trustees, and whatever interest they took was given in trust for B (a). 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 word heirs, the children by analogy to legal limitations take an estate for life only (&). Should renewable leaseholds for lives be conveyed by deed to trustees and their heirs upon trust for A., it has been held that from the nature of an estate pur autre vie, A. takes the absolute interest (c). 3. But though technical terms be hot absolutely necessary, yet where technical terms are employed they shall be taken in their legal and technical sense {d). Lord Hardwicke indeed once added the qualification, " 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 overruled, and at the present day it must be considered a clear and settled canon that a limitation in a trust, perfected and declared by the settlor, must have the same construction as in the case of a legal estate executed (/). 4. As the rule in Shelley's case is not one of construction, that is, of intention, but of law, and was established to remedy cer- tain mischiefs, which, if heirs were allowed to take as purchasers, would be introduced into feudal tenures ; it might 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 {a) Moore v. Cleghorn, 10 Beav. 423 ; affirmed on appeal, 12 Jurist, 591 ; Knight v. Selby, 3 Man. & Gr. 92 ; Challenger v. Sheppard, 8 T. R. 597 ; and see Doe v. Cafe, 7 Exch. Rep. 675; WatUns v. Weston, 32 Beav. 238 ; Ryan v. Keogh,^ 4 1. R. Eq. 357 ; Hodson v. Ball, 14 Sim. 558. (h) Holliday v. Overton, 14 Beav. 467; 15 Beav. 480; 16 Jur. 751; Lums V. Brandreth (No. 2), 28 Beav. 274 ; Tatham v. Vernon, 29 Beav. 604 ; Middleton v. Barker, W. N. 1873, p. 231. (c) McClintock v. Irvine, 10 Ir. Ch. Re. 481 ; Brenan v. Boyne, 16 Ir. Ch. Rep. 87 ; Betty v. Elliott, ib. 110, note ; Re Bayley, 16 Ir. Ch. Re. 215 ; and see post c. 24 s. 1. (d) Wright v. Pearson, 1 Eden, 125, per Lord Henley ; Avsten v. Taylor, 1 Ed. i61,per eundem ; Synge v. Hales, 2 B. & B. 507, per Lord Manners ; Jervoise v. Duke of Northumberland, 1 J. & W. 571, per Lord Eldoii ; Lord Glenorchy v. Bosville, Cas. t. Talb. 19, per Lord Talbot ; Bale v. Coleman, 8 Vin. 2G8, per Lord Harcourt. (e) Garth v. Baldwin, 2 Ves. 655. (/) Wright v. Pearson, 1 Eden, 125; Austen v. Taylor, lb. 367 ; and sea Brydges v. Brydges, 3 Ves. jun. 125; Jervoise v. Duke of Northumberland, IJ. & W. 571. CH. VIII. S. 1.] EXECUTOKY TRUSTS. 97 Withers v. Allgood (a), and Bagshaw v. Spencer (h), seem to lend some countenance to the doctrine. But not to mention that Lord Hardwiclce himself appears in Garth v. Baldwin (c) to have doubted the position advanced by him in Bagshaw v. Spencer, other subsequent authorities have now established the principle, that although the rule may not be equally applicable to trusts, it shall be equally applied (d). But in order to vest the fee in the ancestor under this rule, the vi^ord " heir '' must be used, not in the sense of persona designata, i. e. a particular individual, but as a term of succession so as to transmit the estate to the heir for the time being for ever. If therefore, land be devised to a trustee in trust for A. for life, and after his decease in trust for the person who shall then be his heir or heiress and his or her heirs, in this case A. takes a life estate only, and the heir or heiress takes the fee simple by pur- chase («) ; and of course the rule does not apply if the legal estate be vested in trustees for the life of A. in trust for him, and the legal remainder after the death of A. be limited to the heirs of A.'s body, for here, as the life estate and the remainder are of different qualities (viz. one equitable and the other legal), they cannot unite (/). 5. We have said, that if technical words be employed, they Trusts executed must be taken in their legal and technical sense ; but as to this, ^ ti'usts ° ' ' executory distin- a distinction must be drawn between trusts execiotecl, and trusts guished. 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) Cited in Bagshaw v. Spencer, should convey the estate to the uses 1 Ves. sen. 150 ; 1 Coll. Jur. 403. declared by the will. It was, therefore, (&) 1 Ves. sen. 142; 1 Coll. Jur. 378. an executory trust, and the question (c) 2 Ves. 646. was not whether in mere equitable {d) Wrights. Pearson, 1 Eden, 128; estates a life interest resulting to the Brydges v. Brydges, 3 Ves. 120 ; Jones heir-at-law would unite with a limita- V. Morgan, 1 B. C. C. 206 ; Well v. tion to the heirs of his body, but Earl of SJmfleshury, 3 M. & K. 599 ; whether according to the true con- Roberts Y.DixweJl, 1 Atk. 610 ; West struction of the will the settlement 536 ; Briiton v. Twining, 3 Mer. 176 ; was not meant to be executed in such Spencev. Spenoe, 12 C. B. R., N. S. a form as to make the heirs of the body 199. Cooper v. KynocJc, 7 L. R., Ch. purchasers. In this light the question App. 398. Coapev. Arnold, 2 Sm. & was one of intention, and not of legal Gif. 31 1, may appear to militate against operation. The case was subsequently the general rule, but the true ground affirmed on appeal by Lord Cranworth, of the decision was this : The codicil and it is conceived substantially, was made for a particular purpose, though not in terms, upon the ground viz., for securing the jointure, and as above indicated as the true principle ; it confirmed the wiil in all other see 4 De Gr. M. & G. 574. respects, the testator's intention (e) Greaves v. Simpson, 10 Jur. N. evidently was, that after securing the S. 609. jointure, the trustees of the codicil (/) Collier \.McBean,3iTieav. 426. H EXECUTORY TRUSTS. [CH. VIII. S. 1. The two con- founded by Lord Hardwicke in Bagshaw v. Spencer. The distinction now established. 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 (a). The distinction we are considering was very early established, and was recognised successively by Lord Cowper (&), Lord King (c). Lord Talbot {d), and by no one more frequently than by Lord Hardwicke himself («) : yet in Bagshaw v. Spencer (/ ) Lord Hardwicke almost denied that any such distinction existed. But in a subsequent case [g) his Lordship felt himself called upon to offer some explanation. " He did not mean," he said, " in Bag- shaw 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 subject, they have long since been dispelled by the authority of succeeding judges. "The words executory trust," said Lord seem to me to have no fixed signification. Lord 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. 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 sufficient evidence of the testator's intention that the Court should model the limitations ; but where the trusts and limitations are already expressly declared, the Court has no authority to inter- fere, and make them different from what they would be at law " (li). And Lord Eldon observed, " Where there is an executory trust, that is, where the testator has directed something to be done, and has ISTorthington, King (ffl) See Egerton v. Earl Brmonlow, 4 H. L. Cases, 210 ; Taiham v. Vernon, 29 Beav. 604. (6) Bale v. Coleman, 8 Vin. 267; Earl of Stamford v. Sir John Hobart, 3 B P C 33 (c) PapiUon v. Voice, 2 P. W. 471. (d) Lord Glenorchy v. Bosville, Cas. t. Talb. 3. (e) Gower v. Grosvenor, Barnard, 62 ; Roberts v. Dixwell, 1 Atk. 607 ; Bashervilley. Baskermlle, 2 Atk. 279 ; Marryai v. ToiunUy, 1 Ves. 102 ; Read V. Snell, 2 Atk. 648; Woodhouse v. Hosldns, 3 Atk. 24. (/) 1 Ves. 252 : and see i?qpK?w V. Hopkins, 1 Atk. 594. {g) Exel V. Wallace, 2 Ves. 323. And Lord Henley once said, he be- lieved Lord Hardwicke had at last renounced his opinion, Barnard v. Prohy, 2 Cox, 8. Qi) Austen v. Taylor, 1 Eden, 366, 368 ; and see Stanley v. Lennard, lb. 95 ; Wright v. Pearson, lb. 125. CII. Vni. S. 1.] EXECUTORY TRUSTS. 99 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 execution of that intention, the Court inquires what it is itself to do, and it will mould what remains to be done, so as to carry that intention into execution (a). 6. We proceed to the inquiry to what extent in executory trusts Executory trusts, a latitude of construction is admissible; and to draw the line articfes^distin- correctly, we must again distinguish between executory trusts in guished from marriage articles, where the Court has a clue to the intention from wills, 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 understood. Occasionally 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 wills did not admit an equal latitude of construction, it was held by others that 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 wiU, 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). The distinction we are considering has been put in a very clear Distinction light by Sir W. Grant. " I know of no difference," he said, " be- ^rant ^^ ^''" ^' tween 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 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 appro- priate the estate to himself. If, therefore, the agreerrtent be to limit an estate for life, with remainder to the heirs of the body, (ffl) Jervoise w . Duhe of Northumher- Newcastle, \i Ves 227, 230; and see land, 1 J. & W. 570 ; and see Coape Turner v. Sargent, 17 Beav. 519. V. Arnold, 4 De G. M. & G. 585. {d) Stratford v. Powell, 1 B. & B. (.6) See Bale v. Coleman, 8 Vin. 25; Synge v. Hales, 2 B. & B, 508. 267. (e) Jervoise v. Duke of Northumher- (c) Countess of Lincoln v. Dulce of land, 1 J. & W. 574. h2 100 EXECUTORY TEUSTS. [CH. VIII. S. 1. " Heirs of the body " in articles construed first and other sons. Distinction where the settle- ment was after the marriage, and where before it. Limitation of the husband's property to the heirs of the body of the wife. the Court decrees a strict settlement in conformity to the pre- sumable intention. But if a will directs a limitation for life, with remainder to the heirs of the body,, the Court has no such ground for decreeing a stiict settlement " (a), 7. To apply the foregoing distinction to the eases that liave occurred : if in marriage articles the real estate of the husband or wife be limited to the heirs of the lody^ or the issue (b) of the con- tracting parties, or either of them, or to the heirs of the body, or issue and their heirs (c), so 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 will then be construed in equity to mean first and other sons ; and the settlement will be made upon them suc- cessively in tail, as purchasers (d). If the aefeJiement has been already made, then, provided the execution of it was after the marriage, it will be rectified by the articles (e) ; but if the execution of it was prior to the marriage, the Court will presume the parties to have entered into a diffe- rent agreement (J), unless the settlement expressly state itself to be made in pursuance of the articles, when that presumption will be rebutted, and the settlement wiH be rectified {g), or unless it .can be otherwise shown that the settlement was intended to be in conformity with the articles, and there is clear and satisfactory evidencti- that the discrepancy has arisen from mistake Qi). Under the law as it stood prior to the Fines and Eecoveries Act (i) 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 [a) Blackburn v. Stables, 2 V. & B. 369 ; and see Magidre v. Sculhj, 2 Hog. 113; Eochford Y. Fitzmaurlce, 1 Conn, and Laws. 173 ; 2 Drur. & War. 18; 4 Jr. Eq. Rep. 375,; Sackville- West T. Viset. Huliaesdah, -1 L. R. Eng. & Ir. App. 543 ; Searisbrick y, Lord Skelmersdale, 4 Y. & C. Eq. Excheq. 117. [b) Dod V. Dod, Arab. 274 ; Orier V. Grier, 5 L. E. Eng. & Ir. App. 688. [c) Phillips V. James, 2 Drew & Sm. 404. {d) Handich v. Wilkes, 1 Eq. Ca. Ab. 393 ; Trevor v. Trevor, 1 P. W. 622 ; Jones v. Langton, 1 Eq. Ca. Ab. 392 ; Cusack v. Cusack, 5 B. P. C. 116; Griffith v. Buckle, 2 Vera. 13; Stoimr V. Cur wen, 5 Sim. 269, per Sir L. Shadwell; Davies v. Davies, 4 Beav. 54 ; Rochford v. Fitzmaurice, ubi supra. (e) Streatfield v. Streatfield, Cas. t. Talb. 176; Warrick v. Warrick, 3 Atk. 293, per Lord Hardwicke; Legg V. Goldwire, Cas. t. Talb. 20, pei- Lord Talbot ; Burton y. Hastings, (Jilb. Eq. Rep. 113; S. C. 1 Eq. Ca. Ab. 393, overruled. ,( /) Legg v. Goldwire, Cas. t. Talbot, 20 ; and see Warrick v. Warrick, 3 Atk. 291. (g) Honor v. Honor, 1 P. W. 123 ; Roberts v. Kingsley, 1 Ves. 238 ; West V. Errissey, 2 P. W. 349 ; but not it seems against a purchaser, Warrick V. Warrick, 2 Atk. 291. (Ji) Bold V. Hutchinson, 5 T>e G. M. & G. 565. (a) See 3 & 4 W. 4. c. 74, s. 16, 17. CH. VIII. S. l.j EXECUTOEY TEUSTS. 101, 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 (a) ; but it is conceived, that as to articles executed subsequently to the Act referred to, the case would be otherwise (&). Nor wiU the Court read heirs &f the body as first and other -wiiere the settle- sons, where such a construction is negatived by any thing in the "P^' ^l^o con- i-, 1 n -f f , -, T ■. T , .^ ^'^^^^ ^ limitation articles themselves : as ii one part oi an estate be limited to the to the parent for husband for hfe, remainder to the wife for life, remainder to the ^^\^^i^ remam- ' ' der to first and first and other sons in tail, and another part be given to the other sons in tail, husband for life, remainder to the heirs male of his body ; for, as it appears the parties knew how a strict settlement should be framed, the limitation of part of the estate in a different mode could only have proceeded from a different intention (c). 8. It was formerly argued, that daughters in marriage articles Heirs female, were not entitled to tlie 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 (d) ; and unless the articles themselves make an express provision for them by way of portion, &c. (e), will hold daughters, as well as sons, to be included under the general term of heirs of the body (/), or issue (g). And tlie settlement will be executed on the daugliters, in default of sons, as tenants in common in tail general, with cross remainders between them (Ii). 9. If cliattels 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 the chattels to heirs 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 (ffl) Howel V. Howel, 2 Ves. 358 ; (d) West v. Errissey, 2 P. W. 349. Whateley v. Kemp, cited ib. ; Honor v. (e) Powell v. Price, 2 P. W. 53.5 ; Honor, 1 P. W. 123 ; Green v. Elc'ins, and see Mr. Fearne's observations, 2 Atk. 477, per Lord Hardwicke ; Conting. Rem. 103. Highway v. Banner, 1 B. C. C. 587, (/) Burton v. Hastings, Gilb. Eq. per Sir L. Kenyon ; Sackville-Westv. Rep. 113; 8. C. 1 Eq. Ca. Ab. 393, Viset. Holmesdale, 4 L. R. Eng. & per Lord Cowper. Ir. App. 555, per Lord Hatherley. [g] Hart v. Mid.dlehurst,3 Atk. 371 ; (6) Rochfort v. Fitzmaurice, 2 l)rm\ and see Maguire v. Scully, 2 Hog. & War. 19. 113; 8. C. 1 Beat. 370. (o) Howel V. Howel, 2 Ves. 359 ; {h) See Marryat v. Townley, 1 Ves. and see Powell v. Price, 2 P. W. 535 ; 105 ; Phillips \. James, 4 Drew. & Sra. Chambers v. Chambers, Fitzgib. Rep. 404. 127; S.C. 2Eq, Ca. Ab. 35; Rochford V. FitznwMrice, 1 Conn. & Laws. 174. 102 EXECUTORY TEUSTS. [cH. vm. S. 1. Articles to settle chattels on same trusts as real estate. Limitations over on dying under 21, or under 21 without issue. son, in the daughters as co-heiresses (a) ; and for the son or daughters to take, it is not necessary that they should survive the parents and become the actual heir (&), 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" (c). 10. Again, if in marriage articles a party covenant to settle personal estate upon the trusts, and for the intents and purposes, upon and for which the freeholds are settled, the Court wiU 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 wiU insert a proviso that wiU 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" (d) : hut Lord Rard- wicJce conceived the common limitation over to be on " dying under 21 without issue" (e). In The Duke of Newcastle v. The Countess of Lincoln (/), the chattels were articled to be settled to the same uses as the realty, viz. to A. for life, 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 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 {g) ; 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 limitation 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 Ellenborough and Lord Erskine (who took part in the debate), and also of Lord {a) Hodgeson v. Bussey, 2 Atk. 89; S. C. Barn. 195. See Bartlett v. Green, 1.3 Sim. 218. {b) Theehridge v. Kilhurne, 2 Ves. 233. (c) Read v. Snell, 2 Atk. 642. {d) Stanley v. Leigh, 2 P. W. 690. (e) Oower v, Grosvenor, Barn. 63 ; S. C. 5 Mad. 348. (/) 3 Ves. 387, see the observations pp. 394, 397 ; and see Scarsdah v. Curzon, 1 Johns. & Hem. 51, 54. {g) 12 Ves. 218. CH. Vin, S, I.] IK MAKKIAGB AKTICLES, 103 Thurlow (a). But Lord Eldon denied before the House that there was any distinction between articles and wills, and therefore rely- ing upon Fole^ v. Burnell, and Vauglmn 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 assignments had been made of leasehold property under a 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 very large property (h). However, his Lordship conceived that Lord Hardwicke's doctrine was originally the best, and therefore, recol- lecting the opinion of that great Judge, the opinion of Sir Joseph Jeykll, and the decision of the Court below, and knowing the con- current opinions of Lord Ellenborough 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) (c), he bowed to all these authorities ; and, though he was in some degree dissatisfied with the determination, he nevertheless would not move an amendment {d). It must be observed that a settlement of the personalty cannot Personalty can- be made exactly analogous to a settlement of the realty, whether "°\?^g^Ji^ *° 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 personal estate to the freehold, if the son die under age leaving issue who will succeed to the free- hold, 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 personalty will go to the son's personal representative, while the freeholds will devolve on the second son (e). In one case, a testator gave certain jewels to his nephew John, " to be held as heirlooms, and on his decease by his eldest son, and so on to the eldest son of his descendants, as far as the rules of law and equity would permit." John died in 1866, leaving an eldest son, the plaintiff (born in testator's life-time), and the Court (a) 12 Ves. 237. {d) The Countess of Lincoln v. The \h) 12 Ves. 236, 237. Duke of Newcastle, 12 Ves. 237, and (c) Lord Eldon could not reconcile see Sackville- West v. Visct. Holmesdale, Lord Thurlow's opinion with these 4 L. E. Eng. & Ir. App. 543. cases, because his Lordship refused to (e) Countess of Lincoln v. Duke of admit the distinction between articles Newcastle, 12 Ves. 228, 229. and wills. 104 IN MARRIAGE ARTICLES. [CH. VIII. S. 1. declared that the jewels were in trust for John for life, and on his death for plaintiff for his life, and on his death for his eldest son, to be vested at 21, and if he died in the life-time of plaintiff, or after his death but under 21, leaving an eldest son born before the death of plaintiff, then in trust for such eldest son, to be vested at 21 (a), with an ultimate trust in favour of John (b). In another case (c) a testatrix devised real and personal estate to trustees in trust for A. for Life, with remainders over in tail. A peerage was afterwards granted to A. for life with remainder to B., her second son, in tad male ; and then the testatrix, by a codicU, directed the trustees to settle the real and personal estate " in a course of entail to correspond as nearly as might be with the limitations of the barony, in such manner and form and with such powers as the trustees should consider proper or their counsel should advise," and it was held that the object of making provision for the holders of a peerage, and the object of making provision for the children of a marriage, appeared so analogous that it was the duty of the Court, in the former as well as the latter case, to prevent, as far as possible, the defeat of the object; and accordingly the real estate was directed to be settled on A.'s second son for life, without impeachment of waste, with remainders to his first and other sons in tail male, &c., with poVer to the tenant for life of jointuring and charging portions ; and the personal estate was directed to be settled so as to go along with the real estate in the nature of heirlooms, so far as the rules of law and equity would allow, but so as not to vest in any tenant in tail by purchase who died under 21 without leaving issue inheritable under the entail. Joint-tenancy in 11. Again, in marriage articles, as joint tenancy is an incon- tenan"'*™^^ venient mode of settlement on the children of the marriage (for, common. during their minorities no use can be made of their portions, as the joint tenancy cannot be severed) (cZ), the Court will rectify the articles by the presumed intent of the contract, and will permit words that would be construed a joint tenancy at law to create in equity a tenancy in common (e). Words supplied 1 2. In other cases the Court has varied the literal construction by supplying words, as where the agreement was to lay out 200^. (a) Shelleyv. SheUey, ail. 'R.'Eiq. 54:0. Lef. 88, ^er Lord Redesdale ; and see (6) S. C. 6 L. R. Eq. 550. Higden v. Vallier, 3 Atk. 734, and (c) Sackville-West v. Visct. Holmes- Marryat v. Townley, 1 Ves. 103. dale, 4 L. R. Eng. & Ir. App. 543 ; re- (e) Taggart v. Taggart, 1 Sch. & versing West v. Visct. Holmesdale, 3 Lef. 84 ; Mayn v. Mayn, 5 L. R. Eq. L. R. Eq. 474. 150. (d) Taggart v. Taggart, I Sch. & in articles. OH. VIII. S. 1.] IN WILLS. 105 in the purchase of 30^. a-year, to be settled on the husband and ■wife for their lives, remainder to the heirs of their bodies, re- mainder to the husband in fee, and, until the settlement should be made, the 2Q01. was to be applied to the separate use of the ■wife; and, if no settlement were executed during tJjeir joint lives, the 200/. -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 " (a). 13. It has been held in marriage articles that a trust to provide Vague provision, suitably for the settlor's younger children is not too vague to be executed, but the Court will direct an enquiry ■what the ^jrovision should be (5). 14. Next as to wills; and here, as no presumption arises How "heirs of d priori, that "heirs of tlie locly" were intended as words of pur- strued in execu- chase, if the executory trust of real estate be to "A. and the heirs tory trusts in of his body" (c), or to "A. and the heirs of his body and their heirs " ((f), 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 tenant in tail. So, where tlie estate was directed to be settled on the testator's " daughter and her children, and, if she died without issue," the remainder over, the Court said, that, by an immediate devise of the laod in the words of the will, the daughter would have been tenant in tail, and in the case of a voluntary devise the Court must take it as thej'' found it, though upon the like words in marriage articles it migh't have been otherwise (/). And where a testator directed lands to be settled on his "A. for life, and " nephew for life, remainder to the heirs male of his body, and and'their he^rs'^' the heirs male of the body of every such heir male, severally and male succes- successively one after another as they should be in seniority of ^^^^ ^' age and priority of birth, every elder and the heirs male of his body to be preferred before every younger," Lord Cowper said, (ffl) Kentish v. Newman, 1 P. W. {d) Marryat v. Townley, 1 Ves. 104, 234 ; and see Targus v. Puget, 2 Ves. per Lord Hardwicke. 194; Master v. De Croismar, 11 Beav. (c) Blackburn, v. Stables, 2 V. & B. 184; Martin v. Martin, 2 R. & M. 507. 370, per Sir W. Grant ; Seale v. Seale, (S) Brenan v. Brenan, 2 1. R. Eq. 266. 1 P. W. 290 ; Meure v. Meure, 2 Atk. (c) Harrison v. Naylor, 2 Cox, 247; 266, ^er Sir J. Jekyll. Bagshaw v. Spencer, 1 "Ves. 151, per (f) Sweetapple v. Bindon, 2 Vern. Lord Hard-wicke; Marshall v. Bous- 536. fieU, 2 Mad. 166. 106 EXECUTORY TRUSTS [CH. VIII. S. 1. " Proper entail on the heir male." Heirs of the body construed to mean sons, even in wills, where any expression of intention to that efiect. 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 convey- ance (a). The decision that the nephew was tenant in tail went apparently 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, qua 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 him," it was determined that A. took an estate tail (6). However, 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). 15. 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 settlement that the tenant for life shall not bar the entail " (/), or otherwise show that the direction to settle on A. and the heirs of his body, was not meant to give him a power of disposition over the estate [g) ; and in one case " heirs of the body " was so construed, where a testator had devised to the separate use of a feme covert for Ufe, so as she alone should receive the rent, and the husband should not intermeddle {a) Legatt v. Sewell, 2 Vern. 551 . (h) Blachhurn v. Stables, 2 V. & B. 367 ; recognised in Marshall v. Bous- Jield, 2 Mad. 166 ; and see Dodson v. Hay, 3 B. C. C. 405. (c) Jervoise v. Dtdce of Northuniber- land, 1 J. & W. 559 ; and see Wool- more V. Burrows, 1 Sim. 512. (d) Lord Glenorchy v. Bosville, C. t. Talbot, 3. («) Papillon V. Voice, 2 P. W. 471 ; and see Rochford v. Fitzmaurice, 1 Conn. & Laws. 158. (/) Leonard v. Lord Sussex, 2 Vern. 526. (gr) Thompson v. Fisher, 10 L. R. Eq. 207. It is presumed that the Court attributed an intention to this effect, for if the Court directed a strict settle- ment, merely on the gi-ound that the trust was executory, it would conflict with the authorities, and with the canon laid down in the House of Lords, that in the case of a will or a deed of gift the intention that the very words men- tioned in the instrument as proper for the more complete conveyance are not to be used, must be plainly manifested by the first instrument, and will not be assumed merely because the trust is exe- cutory. Sackville- West v. Visct.Holmes- dale, iL. R. Eng. & Ir. App. 555 per L. C. ; and see Duncan v. Bluett, 4 I. R. Eq. 469. CH. Vm. S. ].] IN WILLS. 107 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 curtesy, 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 " (6), or " as the executors shall think fit '' (c), as "ounsershall^' is strong collateral evidence, that something more was intended advise," &c. than a simple estate tail. Sir L. Shadwell thought that if a testator directed an estate to Kuie in Shelley's be settled on a, feme covert for life, for- her separate use, and at her caMe°where the death on her issue, the feme would not be tenant in tail, for the life estate is to 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 (cT). Where the trust was to settle on A. for life, ivithout impeachment of Trevor v. Trevor. waste, with remainder to his issue in tail male 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 tail 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 contingent re- mainders («). 16. We may here remark that "heirs of the body" and "issue" "Heirs of the are far from being synonymous expressions. The' former are 1?°''''"?"'^^ „ ° , . , ... issue not of properly words of limitation, whereas the latter term is in its the same import. 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) Roberts v. Dixwell, 1 Atk. 607 ; 239 ; and see Coape v. Arnold, 2 Sm. S C. West's Rep. t. Lord Hardwicke, & Gif. 311 ; 4 De G. M. & G 574. 536. (/) Ashton v. Ashton, cited in Boff- (i) White V. Carter, 2 Eden, 366 ; shaw v. Spencer, 1 Coll. Jur. 402 ; reheard, Arab. 670. Meure v. Meure, 2 Atk. 265 ; and see (c) Read v. Snell, 2 Atk. 642. Hornet. Barton, G. Coop. 257; Dodson {d) See Stonor v. Cunnen, 5 Sim. v. Hay, 3 B. C. C. 405 ; Stonor v. Cur- 268; Earl of VerulamY. Bathurst, 13 wen, 5 Sim. 264; Crazier v. Crazier, Sim. 386; Coapev. Arnold, 2 Sm. & 2 Conn. & Laws. 311 ; Rochford v. Gif. 311 ; 4 De G. M. & G. 574. Fitzmaurice, 1 Conn. & Laws. 158 ; («) Treoor v. Trevor, 13 Sim. 108 ; Bastard v. Prohy, 2 Cox, 6 ; TIaddelsey affirmed on this point, 1 H. of L. Ca. v. Adams, 22 Beav. 276. 108 EXECUTORY TRUSTS [CH. VIII. S. 1. Daaghters in- cluded in " heirs of the body " and " issue." Limitation to preserve contingent remainders. First freehold in trustees. Protector. 17. Of course, daughters as well as sons will be included under "heirs of the body" (a), or "issue" (&) ; for they equally answer the description, and are equally objects of bounty; and where these words are construed as words of purchase the settlement will be made upon the daughters in default of sons, as tenants in common in tail, with cross remainders between or amongst them (c). 18. In executing a strict settlement the Court, unless there be some special words which point to the contrary, will not make the tenant for life dispunishable for waste {d), and a direction to settle to the separate use without power of anticipation is inconsistent with a life estate without impeachment of waste («). Before 8 & 9 Vict. c. 106, the Court took care that proper limitations to trustees should be inserted after the life estates for the preser- vation of contingent remainders (/) ; and although, by the effect of the Act referred to, contingent remainders are no longer destructible by the forfeiture, merger, or surrender of the previous life estate, the limitations to trustees to preserve may still, it is conceived, be properly interposed, 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 (g). 19. In a case occurring before the Fines and Eecoveries Act (3 & 4 W. 4. c. 74), where the testator had shown an anxious 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 (Ji). However, in a case occurring after the Fines and Eecoveries Act, where an estate was vested in a trustee upon trust to execute a strict settlement on Lady Le Despencer and her family, and the Master, to whom a reference was directed, approved of a settle- ment on Lady Le Despencer for life, &c., but refused to appoint (a) Bastardy. Proby, 2 Cox, 6. (6) Mewe v. Meure, 2 Atk. 265 ; Asltton T. Ashton, cited in Bagshaw v. S])encer, 1 Coll. Jur. 402 ; Trevor v. Trevor, 13 Sim. 108, (c) Meure v. Meure, Ashton v. Ash- ton, Bastard v. Proby, and Trevor v. Trevor, uhisupra ; Marryaty. Townley, 1 Ves. sen. 106. (d) Stanley v. CouUhurst, 10 L. E. Eq. 259 ; Davenport v. Davenport, 1 H. & M. 779. («) Clive V. Clive, 7 L. R. Ch. App. 433. (/) Harrison v. Naylor, 2 Cox, 247 ; S. G. 3 B. C. C. 108 ; Woolmore v. Burrows, 1 Sim. 512 ; Baskerville v. Baskerville, 2 Atk. 279 ; Trevor v. Trevor, 13 Sim. 108 ; Stamford v. Hobart, 3 B. P. C. 31 ; and see Hop- kins V. HopJdns, 1 Atk. 593. fg) Garth v. Cotton, 1 Ves. 554. (h) Woolmer v. Burrows, 1 Sim. 512, see 527. CH. VIII. S. 1.] IN WILLS. ll)9 a protector under the 32nd section of the Act, the Court held that, though in certain cases it might be advisable to appoint a pro- tector, 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 discretion : that a protector under the Act was an irresponsil ile 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 (a). 20. Where gavelkind lands are the subject of the executory Gavelkind lands, trust, the circumstance of the custom will not prevent the settle- ment being made upon the first and other sons successively, for the heirs take hot by custom, but under the construction of a Court of Equity, which must be guided by the rules of the Common Law (&). 21. Where the Court rectifies the will it does so on the ground where the of the limitations having been imperfectlv declared ; but if a testator directs a , . ^, " T - ^^ . •^ , . settlement, but testator du'ect a settlement, and be his own conveyancer, that is, formally declares declare the limitations himself, intending them to be final, the tlie limitations. hands of the Court are bound, and the words must be taken in their natural sense (c). Thus where a testator devised to A. for life without impeachment of waste, remainder to trustees to preserve contingent remainders, remainder to the heirs of the body of A., remainders over, and then directed the residue of his personal estate to be laid out in the purchase of lands, and declared that the lands when purchased " should remain and continue to, for, and upon such and the like estate or estates, uses, trusts, intents, and purposes, 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 N"orthington said that the testator had referred no settlement to his trustees to complete, but had declared his own uses and trusts, which being declared, there was no instance where the Court had proceeded so far as to alter or change them (d). However, the [a] Bankes y.LeDespencer, 11 Sim. Conn. & Laws. 173 ; 2 Drur. & War. 508. 21 ; Doncaster v. Doncaster, 3 Kay & (6) Roberts v. Dixwell, 1 Atk. 607. J. 26. (c) Franhs v. Price, 3 Beav. 182; {d) Austen T. Taylor, 1 Eden. 368. and see Rochford v. Fitzmawice, 1 110 EXBCUTOEY TEUSTS [CH. VIII. S. 1. decision to which his Lordship came seems not to have met with the entire approbation of Lord Eldon (a). Executory trusts 22. 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 unsatis- factory state, but the result of the cases (h) at the present day appears to be that where a testator devises lands in strict settle- ment, 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 wiU belong to the tenant for life of the real estate for his life, 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 character, or if the trust be executory, the Court considers it has no authority in making a settlement to insert a limitation over on the tenant in tail dying under 21. However, there is no unlawful- ness in such a limitation, so that if a bequest of heir-looms in a will be clearly executory, and the testator manifests a distinct intention that a settlement shaU be made of the heir-looms, and that such clauses shall be inserted as wiU render them inalienable for as long a period as the law will permit, the Court would no doubt 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, or by his death under 21 without issue, be carried over to the person next entitled in remainder (c). But if heir-looms be assigned or bequeathed to trustees, not upon trust simply for the persons entitled under the limitations of the real estate, which, notwithstanding the words " so far as the rules of law and equity wiU permit," would vest them absolutely in the first {a) See Green v. Stephens, 17 Ves. (c) See the observations of Lord 76 ; Jervoise v. Duke of Northumber- Loughborough in Foley v. Burnell, land, 1 J. & W. 572. 1 B. C. C. 284, and of Lord Thurlow (b) Scarsdale v. Curzon, 1 Johns. & in Vaughan v. Burslem, 3 B. C. C. Hem. 40, and the cases there cited p. 106 ; and of V. C. Wood in Scars- and commented upon; and see Strut- dale v. Curzon, 1 Johns. & Hem. 40; ford V. Powell, 1 B. & B. 1 ; Doncaster Sacl-nllc- West v. Viscount Holmesdale, V. Doncaster, 3 K. & J. 26; Christie v. 4 L. E. Eng. & Ir. App. 543. Gosling, 1 L. R. Eng. & Ir. App. 279 ; Harrington v. Harrington, 3 L. II. Ch. App, 564; 5 L. E. Eng. & Ir. App. 87. CH. Vm. S. 1.] OF CHATTELS IN WILLS. 111- tenant in tail who came into being, but upon trust, " as far as the rules of law and equity will permit," for the persons successively entitled to the actual freeliold (in the sense of the freehold in possession), with a proviso that no child of a person made tenant for Hfe shall take absolutely unless he attained 21, here, though the trust be executed and not executory, the absolute vesting is coupled with the possession, and is therefore suspended until the death of the tenant for life, and will then vest in the child who, after his death, shall first fulfil the requisite of being tenant in tail in possession, and attaining the age of 21 years (a). 23. Again, in wills, if the words taken in their usual sense Whether joint- would create a joint-tenancy, the Court has no authority, as it has tory "rusts in in articles, to execute the trust by giving a tenancy in common ; wills to be con- , , , , - . „ . ,. n T ■ strued as tenancy but, where the testator has shown a desne of providing tor his in common. children (6), or putting himself in loco parentis for his grand- children (c), 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. 24. If personalty be directed by a will to be settled on a female Settlement on a " strictly," it wiU be settled upon her (if married) for her sole and *^™^ "strictly." separate use without power of anticipation, with a limitation to her absolutely, if she survive her husband, and should she pre- decease him, then for such intents and purposes as she may by wiU appoint, and in default of appointment for her next of kin {d). 25. Executory trusts in post-nuptial settlements, whether volun- Post-nuptial tary or founded on a valuable consideration, will be construed in ^^ ^""^ ^' the same manner as executory trusts in wills (e). 26. We shall conclude this branch of our subject with a few Of powers in observations upon the powers to be introduced in the execution executory trusts. of settlements, where the trust is executory. If the testator or contracting parties give no directions as to Powers not in- the insertion of powers, the Court cannot, upon the ground of a^direction"'^* implied intention, order a power to be introduced (/), except {a) Scarsdale v. Curzon, 1 Johns. & (e) Eochfort v. Fitzmaurice, 1 Conn. Hem. 40 ; Christie v. Gosling, 1 L. R. & Laws. 158. Eng. & Ir. App. 279 ; Harrington v. (/) Wheate v. Hall, 17 Ves. 80, see iforraifj'tora, 3 L. E. (Ch. App.) 564 ; 5 85; and see Brewster y. Angell, I J. L. R. Eng. & Ir. App. 87. &W. 628. In a recent case, however, (6) Marryat v. Townley, I Ves. where a will had simply directed a 102. settlement without authorizing any (c) Synge v. Hales, 2 B. & B. 499. powers expressly, the M. R. held a {d) Loch V. Bagley, 4 L. E. Eq. tacit intention to be implied that 122. powers of leasing, sale and exchange, 112 WHAT POWERS AUTHOEIZED. [CH. VIII. S, 1. possibly a power of leasing, which differs from aU other powers in being an almost necessary adjunct for the preservation of the estate itself (ft). If the authority be expressed in general terms, as " to Usual powers." insert all usual powers/' the trustees may then introduce powers of leasing for 21 years (6), of sale and exchange (c), of maiDtenance and advancement {d), of varying securities (e), and of appointment of new trustees (/) ; and, it seems, where the property is joint, or contains mines, or is lit for building, they may also insert powers of partition, of leasing mines, and of granting building leases (g). "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 per- sonal privileges on particular parties, such as powers to jointure, to charge portions, to raise money for any particular purpose, &c." Qi). The latter, therefore, may not be introduced under a direction to insert usual powers, for they have the effect of diminishing the corjjus of the settled estate, and the Court has no rule by which to determine the quantum of the charge (i). But where an estate was directed to be settled so as to go along with a Peerage, and the trustees were to insert all such powers as they should "consider proper or their counsel should advise," it was ruled that powers of jointuring and charging portions were for the honor of the whole settlement, and not a favor to the first tenant for life only, in contradistinction to his successors, and therefore ought to be inserted (k). And if the will 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 and appointment of new trustees, and (d) Mayn v. Mayn, 5 L. E. Eq. 150. of signing receipts, with provisions for (e) Sampayo v. Gould, 12 Sim. 426. maintenance, education, and advance- (/) Lindow Y.Fleetwood, 6 Sim. 152 ; raent, should be inserted, 2'urner v. Brewster v. Angell, 1 J. & W. 628, per Sargent, 17 Beav. 515. And see Scott Lord Eldon ; Sampayo v. Gould, 12 V. Steward, 27 Beav. 367; Charltoa v. Sim. 426. Rendall, U Hare, 296. {g) See Hill v. Hill, 6 Sim. 145; (a) See Fearne's P. W. 310 ; Wool- The Du.lce of Bedford v. The Marquis more -v. Burroros, 1 Sim. 518. of Ahercorn, ^ Myl. & Cr. 312. (6) See Hill v. Hill, 6 Sim. 144 ; (A.) Hill v. Hill, 6 Sim. 144. The Duke of Bedford v. Tiie Marquis (i) Higginson v. Barnehy, 2 S. & S. of Ahercorn, 1 Myl. & Cr. 312. 516, see 518. (c) Hill V. Hill, C S\m. -iSQ; PeaJce {k) Sachville -West v. Viscount V. Penlington, 2 V. & B. 311 ; and see Holmesdale, 4 K. L. Eng. & Ir. App. Williams v. Carter, Append, to Sugd. 543. Treat, on Powers, p, 945, 8th Ed. CH. VIII. S. l.J WHAT POWERS AUTHORIZED. 113 possession, a power of sale and exchange, of appointment of new trustees, and other v^ual powers, it was held that a power of granting building leases could not be inserted (a). 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 (6). 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 some- thing is expressed, I can imply more than is expressed ; and particularly where the will notices what powers are to be given " (c). But, 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 aU 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. R, 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 that they would authorise the insertion of the power " {d). A testator had directed the insertion ot proper powers for making "Proper powers." leases or otherwise to be reserved to the tenants for life, while qualified to Qxercise them, and, whenever disqualified, 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 tlie 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 («). It was afterwards debated before Sir T. Plumer, whether a power of sale and exchange could, in any form, be admitted ; when his Honour said, that " The first point to be considered was, in whom the powers were to be vested ; and it was (a) Pearse v. Baron, Jao. 158. 625 ; and see Home v. Barton, Jao. (J) Hill V. Hill, 6 Sim. 141, per 439. Sir L. Shadwell. (d) Lindow v. Fleetwood, 6 Sim. 152. (c) Brewster v. Aiigell, 1 J. & W. (e) Brewster v. Angell, 1 J. & W. 625. I 114 IMPLIED TRUSTS. [CH. VIII. S. 2. Powers of sale. Multiplication of charges. clear that they were to be given to the tenants for life, if qualified, but if they should not be able to act, to the trustees. — Now, if the power of sale and exchange was to be given to the tenant for life without check or control, he could not say that it was a proper power ; on the contrary, it might be very dangerous, as the tenant for life might for many reasons be induced to sell, when it might not be for the benefit of the remaindermen ; nor was 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 was disqualified, as by infancy, could the Court say it was 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 (a). 26. If a settlement of stock with a power of varying securities 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 to the power of varying securities (h). 27. Trusts are often created by words of reference to other trusts, and where this is the ease, 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, however, be omitted, the Court wiU. exercise its judgment on the question • whether the duplication of charges was or not intended by the parties ; and as a general rule a referential trust ought not to be so read as to create a duplication (c). SECTION" II. OF IMPLIED TRUSTS. General rule. 1. Wheeevee a person, having a power of disposition over property, manifests any intention with respect to it in favour of another, the Court, wJiere tJiere 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. (o) Home v. Barton, Jae. 437. (J) Williams v. Carter, Append, to Sug. Treat, on Powers, p. 945, 8th Ed.; Eiton V. Elton (No. 2), 27 Beav. 634 ; and see Home v. Barton, Jac. 440. (c) Hindle v. Taylor, 5 De G. M. & G. 577 ; Boyd v. Boyd, 9 L. T. (N. S.) 166. CH. VIII. s. 2.] IMPLIED TEUSTS. 115 2. A frequent case of implied trust arises where a testator Words precatory, employs yfoids precatory , or recommendatory, or expressing a helief (a). Thus if he "desire" (&), "wiU" (c), "request" {d), "will and desire" (e), "wUl and declare" (/), "wish and request" [g), "wish and desire " {h), " entreat" {i), " most heartily beseech " {k), "order and direct" [l], "authorise and empower" (m), "recommend" («,), " hope " (o), " do not doubt " {p), " be well assured " {q), " confide " (r), " have the fullest confidence " (s), "trust" {t), " trust and confide" (u), " have full assurance and confident hope " {v), be " under the (a) Cary v. Cary, 2 Sch. & Lef. 189, per Lord Redesdale ; Paul v. Compton, 8 Ves. 380 jjer LordEldon. (6) Harding v. ffZi/ra, 1 Atk. 469 ; Mason v. Limbury, cited FerBOM v. Fcrmom, Amb. 4 ; JVoi v. Vernon, 8 Viu. 72 ; Pushman v. Filliter, 3 Ves. 7 ; Smi v. O^e?/, 1 Cli. Rep. 246 ; Bonser v. Kinnear, 2 Griff. 195 ; Cary V. Car?/, 2 Sch. and Lef. 189 ; Cruwys V. Colman, 9 Ves. 319 ; and see Shaw V. Lawless, L. & G. 154 ; S. C. 6 CI. & Fin. 129 ; S. C. LI. & G. fem^j. Plunliet, 559. (c) £:ate V. England, Pr. Cli. 200 ; Clowdsley v. Pelham, 1 Vern. 411. (rf) Pierson v. Garnet, 2 B. C. C. 38 ; /S. C. affirmed, id. 226 ; Bade v. ^oi^e, 5 Mad. 118 ; Moriartyy. Martin, 3 Ir. Ch. Rep. 26 ; Bernard v. Min- slmll, 1 Johns. 276. (e) SiVcA V. Wade, 3 V. & B. 198 ; Forbes V. Ball, 3 Mer. 437. (/) Gray v. GVa^/, 11 Ir. Ch. Ee. 218. The devise was " to A. and B. in the most absolvie manner, and will- ing and declaring an intention." But the decision turned also on other grounds. (^r) Foley V. Parry, 5 Sim. 138; affirmed 2 M. & K. 138. Qi) Liddard v. Liddard, 28 Beav. 266. (i) Prevost V. Clarice, 2 Mad. 468 ; Meredith v. Heneage, 1 Sim. 553, 555, per Chief Baron Wood ; and see Taylor V. George, 2 V. & B. 378. [k) Meredith v. Heneage, 1 Sim. 553, per Chief Baron Wood. (0 Cary v. Cary, 2 Sch. & Lef. 189 ; White v. Briggs, 2 Phill. 583. [in) Brown v. Higgs, 4 Ves. 708 ; 5 id. 495 ; affirmed 8 Ves. 561 ; and in D. P. 18 Ves. 192. (Ji) Tibbits V. Tibbits, Jao. 317 ; S. C. affirmed 19 Ves. 656 ; Horwood V. West, 1 S. & S. 387 ; PauU. Comp- ton, 8 Ves. 380, per Lord Eldon ; Malim v. Keighley, 2 Ves. jun. 333 ; S. C. ib. 529 ; Malim y. Barher, 3 Ves. 150 ; Meredith v. Heneage, 1 Sim. 553, per Chief Baron Wood ; Kingston v. Lorton, 2 Hog. 166 ; Cholmondeley v. Cholmondeley, 14 Sim. 590; Hart v. Tribe, 18 Beav. 215; and see Meggison V. Moore, 2 Ves. jun. 630 ; Sale v. Moore, 1 Sim. 534; Ex parte Payne, 2 y. & C. 636 ; Randal v. Hearle, 1 Anst. 124 ; Lefroy v. J'fooe^, 4 Ir. Ch. Rep. 1. 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. (o) Harlandv. Trigg, 1 B. C.C. 142 ; and see Paul v. Compton, 8 Ves. 380. (^) Parsons v. Balcer, 18 Ves. 476 ; Ta2/for v. ffcor(?e, 2 V. & B. 378 ; Malone v. 0'' Connor, LI. & G. femp. Plunket 465 ; and see Sale v. Moore, 1 Sim. 534. (g) itfacey v. Shumer, 1 Atk. 389 ; >S. C. Amb. 520. See iJay v. Adams, 3 M. & K. 237. (r) Griffiths v. Evans, 5 Beav. 241 ; and see Shepherd v. Nottige, 2 Johns. & H. 766. (s) See Shovelton v. Shovelton, 32 Beav. 143; Wright y. AtJcyns, 17 Ves. 255, 19 Ves. 299, G. Coop. Ill, T. & R. 143 ; Webb v. Wools, 2 Sim. N. S. 267 ; Palmer v. Simmonds, -2 Drew. 225. (f) Irvine v. Sullivan, 8 L. E. Eq. 673. {u) Wood V. Cox, 1 Keen, 317; /S. C. 2 M. & C. 684; PilMngton v. Boughey, 12 Sim. 114. (u) Macnab v. Whilbread, 17 Beav. 299. I 2 116 IMPLIED TRUSTS. [CH. VIII. S. 2. No trust raised where there is uncertainty. firm conviction " [a), " well know " (6), or use such expres- sions as " of course the legatee will give " (c), " in consideration the legatee has promised to give " [d), &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. And though instances of this kind generally occur iipon the construction of wills, the doctrine does not apply to wlLLs exclusively, but has been extended to settlements inter vims (e). 3. But precatory words will be held to express a wish only, and not a command, if it be impracticable for the Court to deal with it as a trust ; as if a testator devise a house to his wife and express a wish that his sister should live with her, for here no interest in the house is given to the sister, and how can the Court compel the widow and sister to live together (/) ? and the like construction wUl prevail where either the objects intended to be benefited are imperfectly described {g), or the amount of the property to which the trust should attach is not sufficiently defined (A.) ; for the difficulty that would attend the execution of such imperfect trusts is converted by the Court into an argument that no trust was really intended {i). The rule as laid down by Lord Alvanley, and since recognised as the correct principle is, that a trust is created in those cases only " where a testator points out tlu objects, the property, and the way in which it shall go " (k). (a) Barnes v. Grant, 2 .Jur. N. S. 1127. (J) Bardswell v. Bardswell, 9 Sim. 323 ; Nowlan v. Nelligan. 1 B. C. C. 489 ; Briggs v. Penny, 3 Mac. & Gord. 546, 3 De G. & Sm. 525. (c) Robinson v. Smith, 6 Mad. 194 ; but see Lechmere v. Lavie, 2 M. & K. 198. {d) Clifton V. Lomhe, Amb. 519. (e) LiddardY .Liddard, 28 Beav.266. (/) Graves v. Graves, 13 Ir. Ch. Re. 182 ; and see Hood v. Oglander, 34 Beav. 513. {g) Rarlandv. Trigg, 1 B. G. C. 142 ; Tibbits v. Tibhits, 19 Ves. 664, per Lord Eldon ; Richardson v. Chap- man, 1 Burn's Eccles. Law, 245 ; Pierson v. Garnet, 2 B. C. C. 45, per Lord Keiiyon ; 8. C. id. 230, per Lord Thurlow ; Knight v. Knight, 3 Beav. 173, per Lord Langdale ; Sale v. Moore, 1 Sim. 534; Gary v. Gary, 2 Sch. & Lef. 189,i?er LordRedesdale ; Meredith v. Heneage, 1 Sim. 542, see 558, 559, 565; Ex parte Payne, 2 Y. & C. 636. {h) Lechmere v. Lavie, 2 M. & K. ■ 197 ; Knight v. Knight, 3 Beav. 148 ; Meredith v. Heneage, 1 Sim. 556 ; Bug- gins V. Yates, 9 Mod. 122 ; Sale v. Moore, 1 Sim. 534 ; Anon. Case, 8 Vin. 72; Tibbits V. Tibbits, 19 Ves. 664, per Lord Eldon ; Wynne v. Hawldns, 1 B. 0. C. 179 ; Pierson v. Garnet, 2 B. C. C. 45, per Lord Kenyon; S. C. ib. 230, per Lord Thurlow ; Bland v. Bland, 2 Cox, 349 ; Le Maitre v. Ban- nister, cited in note to Eales v. Eng- land, Pr. Ch. 200 ; Sprange v. Barnard, 2 B. C. C. 585 ; Pushman v. Filliter, 3 Ves. 7; Attorney -General v. Hall, Fitzg. 314; Wilson n. Major, 11 Ves. 205; Eade v. Bade, 5 Mad. 118; Curtii V. Ripon, 5 Mad. 434 ; Russell V. Jackson, 10 Hare, 213. (i) Moriee v. Bishop of Durham, 10 Ves. 536, per Lord Eldon. (i) Malim v. Keighley, 2 Ves. jun. 335. See Knight v. Boughton, 11 CI. & Fin. 548, 551 ; Briggs v. Penny, 3 Mac. &G. 546; Greene y.Greene,Zl.l&. Eq. 631. CH. Vm. S. 2.] IMPLIED TRUSTS. 117 4. But although uncertainty in the object will unquestionably Socus. Where furnish a reason for holding that no trust was intended by precatory arfses"from want words, it will be otherwise where the uncertainty arises from the "f evidence, circumstance that the Court has not before it for its guidance the whole intention of the testator in reference to the object : and in such a case the Court will make a declaration that the devisee or legatee is a trustee for objects unascertainable, and (unless the trust was by way of charge upon the estate of the devisee or legatee) wiU decree a resulting trust for the benefit of the heir- at-law or next of kin, according to the nature of the property (a). 5. The objects have been held to be uncertain where personal Tlneertainty of estate was given to A., with a hope " that he would continue it in ^ ° •'^'^ *'■ the family " (h) ; but, as regards personal estate, the word family- a pamily." has been sometimes construed as equivalent to relations, that is next of kin (c) ; and where freeholds were so devised, it was held that by " family " was to be understood the worthiest member of it, viz. the heir-at-law (d). But the designation was held to be too uncertain as to freeholds, where the request was to distribute "amongst such members of the person's family " as he should think most deserving (e). In another case both real and personal estate were blended "Heirs." 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 (/). Again, a residuary estate was bequeathed to A., with a recom- " Eeiations." mendation that she would " consider the testator's relations." Sir A. Hart asked. Who were 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 (a) Corporation of Gloucester v. {c) ' Cruwys y . CoZman, 9 Ves. 319 ; Wood, 3 Hare, 131 ; Briggs v. Penny, Grant v. Lynam, 4'Russ. 292. 3 McN. & G. 546 ; Bernard v. Min- [d) Athyns v. Wright, 17 Ves. 255 ; sM?,lJohns. 276; see and consider the S. C. 19 Ves. 299; S. C. G-. Coop, observations of V. C. Wood, ib. 286. HI; and see S. C. T. & R. 143; (6) Harland v. Trigg, 1 B. C. C Matotie^. O'Connor, LI. & G. temp. 142. See Wright v. Atkyns, G. Coop. Plunket, 465 ; Griffiths v. Evans, 121; Woods V. Woods, 1 M. & C. 5>Beav. 241 ; Whitev. Briggs, 2 I'hiW. 401 ; lie Parkinson's Trust, 1 Sim. N. 583 ; Gi'een v. Marsden, 1 Drew, 646. S. 242; Williams \. Williams, 1 Sim. (e) Greene. Marsden, 1 Drew, 646. N. S. 358|; Lambe\-v. Eames, 10 L. (/) Merediths. Heneage,\^\m. bi2, R. Eq. 267 ; 6 L. R. Ch. App. 597; see 558, 559, 565; but see Wright v. but see Whttev. Briggs, 2 Phill. 583; Atkyns, G. Coop. 119. and Liley y. Hey, 1 Hare, 580. 118 IMPLIED TRUSTS. [CH. VIII. S. 2. Uncertainty of the subject matter. Whether trust or power, is a ques- tion of intention, not of gramma- tical import. trust could attach {a). 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 (&). 6. The Court has refused to establish the trust from the uncer- tainty of the subject, (that is, of the property claimed to be bound by the trust), where the recommendation was to " consider certain persons " (c), " to be kind to them " (d), " to remember them " (e), " to do justice to them " (/), " to make ample provision for them " Qji), " to use the property for herself and her children, and to remember the Church of God and the poor " (h), " to give what should remain at his death, or what he should die seised or pos- sessed of" (i), " to finally appropriate as he pleased," with a recom- mendation to divide amongst certain persons (Jc), to divide and dispose of the savings (/), or the bulk of the property (m), or where the donee of the property had power to dispose of any part he j)leased, whether expressly given him, or arising from implication, or from the nature of the subject (w). But where the recoiomenda- tion was that the legatee, in case she married again, should settle what she possessed under the testator's wiU 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 (o). 7. Where both objects and property are certain, yet no trust will arise, if the testator expressly declare that the language is not to be deemed imperative, or the construing it a trust would be a (a) Sale v. Mooi-e, 1 Sim. 534, see 540 ; and see Macnab v. Whithread, 17 Beav. 299 ; but see Wright v. Athyns, G. Coop. 119—123. . (6) Piersonv. Garnet, 2 B. C. C. 38 ; S. C. id. 226 ; Atkyns v. Wright, 17 Ves. 255 ; S. C. 19 Ves. 299 ; S. C. G. Coop. Ill ; and see S. C. Turn. & Russ. 162 ; Knight v. Knight, 3 Beav. 173; Meredithv. Heneage, 1 Sim. 558. (c) Sale V. Moore, 1 Sim. 534; and see Hoy v. Master, 6 Sim. 568. {d) Buggins v. Yates, 9 Mod. 122. (e) Bardswell v. Bardswell, 9 Sim. 319. (/) Le Maitre v. Bannister, Pr. Ch. 200, note (1) ; Pope-i. Pope, 10 Sim. 1. (g) Winch v. Brutton, 14 Sim. 379 ; FoxY.Fooe, 27 Beav. 301. (A) Curtis V. Rippon, 5 Mad. 434. {i) Sprange v. Barnard, 2 B. C C. 585; Green v.Marsden,} Drewry, 646 Pushman v. Filliter, 3 Ves. 7 ; Wilson V. Major, 11 Ves. 205 ; Bade v. Bade, 5 Mad. 118 ; WynneY. HawUns, 1 B. C. C. 179 ; Lechmere v. Lavie, 2 M. & K. 197; Bland v. Bland, 2 Cox, 349; Attorney- General v. Sail, Fitzg. 314 ; and see Meredith v. Seneage, 1 Sim. 556 ; Tihbits v. Tibbits, 19 Ves. 664 ; Pope V. Pope, 10 Sim. 1. (k) White V. Briggs, 15 Sim. 33. (I) Cowman v. PLanison, 10 Hare, 234. (m) Palmer v. Simmonds, 2 Drew. 221. (re) Malim y. Kdghley, 2Ves. jun. b?>\, per Lord Loughborough ; and see Knight V. Knight, 3 Beav. 174; 11 CI. 6 Fin. 613 ; Huskisson v. Bridge, 4 De Gex & Sm. 245. {o) Hoi-wood V. West, 1 S. & S. 387. CH. VIII. S. 2.] IMPLIED TRUSTS. 119 contradiction to the terms in which the preceding bequest is given (a) ; or if, all circumstances considered, it is more probable that the testator meant to communicate a mere discretion (6) ; or if a testator give an estate to a feme covert to be her sole and separate property, " with power to appoint to her husband or children " (c) ; or the testator at the same time declare that the estate shall be " unfettered and unlimited " (d) ; or " in the legatee's entire power" (e) ; or be "left to his entire judgment" (/); or if he " recommend but do not absolutely enjoin " (g) ; or if a testator give the property to his wife, " well knowing her sense of justice and love to her family, and feeling perfect confidence that she will manage the same to the best advantage for the benefit of her chil- dren " (h) ; " or to be at her disposal in any way she may think best for the benefit of herself and family " (i). The construction of the words we are considering never turns on their grammatical import : they may be imperative, but are not necessarily so (Jc). 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 fieodUe 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 inconsistent with the other powers which the trustees were to exercise, and those powers being given in unambiguous terms, it was held that {a) Webb V.' Wools, 2 Sim. N. S. 542; S. C. 10 Price, 230; Hoy v. 267 ; HusUason v. Bridge, 4 De G-ex Master, 6 Sim. 568. & Sra. 245. (e) Eaton v. Walts, 4 L. K. Eq. (J) Bull V. Vardy, 1 Ves. jun. 270 ; 151. Knott V. Cottee, 2 Phill. 192; Knight (/) McCormick y. Grogan, 1 I. R. V. Knight, 3 Beav. 148 ; Meggison v. Eq. 313. Mom-e, 2 Ves. jun. 630 ; Hill v. {g) Young v. Martin, 2 Y. & C. Ch. of London, 1 Atk. 618 ; and Ca. 582. see Paul v. Compton, 8 Ves. 380 ; Qi) Greene v. Greene, 3 I. E. Eq. 90, Knight y. Knight, 3 Beav. 174, 11 CI. 629. & Fin. 513 ; Lefroy v. Flood, 4 Ir. {i) Lambe v. Eames, 10 L. E. Eq. Ciiano. Eep. 1 ; Shepherd v. Nottidge, 267 ; 6 L. E. Ch. App. 597. 2 Johns. & Hem. 766 ; Eaton v. Watts, (h) Meggison v. Moore, 2 Ves. jun. 2 W. E. 108. 632, ^er Lord Loughborough ; and see (c) Brook V. Brook, 3 Sm. & Gif. Johnston v. Eowlands, 2 De G-ex & 280 ; and see Paul v. Compton, 8 Ves. Sm. 385. 380; Howorth v. Dewell, 29 Beav. (Z) LI. & G. t. Sugden, 154; 5 CI. 18. & Fin. 129 ; LI. & G. t. Plunket, {d) Meredith v. Heneage, 1 Sim. 559. 120 IMPLIED TEUSTS. [CH. VIII. S. 2. Trustees of this kind not always so strictly bound as in a common trust. Case of trustee taking no bene- ficial interest. Where the words raise a partial trust, the surplus does not result. Implied trusts now rather dis- couraged. Directions as to maintenance. as the two provisions could not stand together, the flexible term was to give way to the inflexible term " (a). 8. If a trust be created, it does not foUow that it shall be equally restrictive, as in the case of a clear ordinary trust. Thus an estate was devised to A. and her heirs, "in the fullest confi- dence" that after her decease she would devise the property to the family of the testator ; and Lord Eldon asked, if there were any case in which the doctrine had been carried so far, that the tenant in fee was not 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 pro- perty (b). And so it was afterwards decided by the House of Lords on appeal (c). On the other hand, the settlement may be so specially worded that the person bound by the trust takes for Kfe only, with remain- der to the children (d), or is not even tenant for life and takes no beneficial interest at all. Thus where a testator devised to his wife in fee, " under the firm conviction that she would dispose of and manage the same for the benefit of her children,'' the widow claimed to be tenant for life, but the Court held that she was not so entitled (e). 9. Where the words are construed in equity to raise a partial trust, the devisee or legatee is treated as beneficial owner, subject to the charge, and the surplus wiU. not result to the heir or next of kin, but will belong to the devisee or legatee (/). 10. The current of decisions has of late years set against the doctrine of converting the devisee or legatee into a trustee (g). 11. Under the head of trusts which we are now considering, may be classed the cases where property is given to a parent or other person standing or regarded loco parentis, with a direction touching the maintenance of the children. The first question is, did the settlor intend to impose a trust, or do the words express only the (a) Knott V. Cottee, 1 Phill. 192. (b) Wright v. Atkyns, T. & R. 157, 163. (c) See Lawless v. Shaw, Lloyd & Goold, t. Sugden, 164. (d) Wace v. Mallard, 21 L. J. Ch. (N.S.) 355. (e) Barnes v. Grant, 26 L. J. Ch. (N. S.) 92, S. C. 2 Jur. N. ri. 1127; and see Greene v. Greene, 3 I. R. Eq. 98, 629. (/) Wood V. Cox, 1 Keen, 317; 2 M. & C. 684; Irvine v. Sullivan, 8 L. R. Eq. 678. {g) Sale v. Moore, 1 Sim. 540; and see Meredith v. Heneage, id. 566 ; Lawless v. Shaw, LI. & Q. t. Sugden, 164; Knight v. Knight, 3 Beav. 148; Williams v. Williams, 1 Sim. N. S. 358 ; Lefoy v. Flood, 4 Ir, Chanc. Rep. 9 ; Lambe v. Eames, 10 L. R. Eq. 267 ; 6 L. R. Ch. App. 597. CH. VIII. S. 2.] IMPLIED TRUSTS. 121 motive of the gift ? Instances of the latter kind, where no trust is created, are where the bequest is to a person " to enable him to maintain the children " (a), or an absolute bequest is made, and afterwards the motive is assigned, as " that he may support himself and his children" (6), or " to A. for her own use and benefit abso- lutely, having full confidence in her sufficient and judicious provision for her children" (c), or " being well assured that she will husband the means left to her for the sake of herself and her children" (<^), or "to be applied by her in the bringing up and maintenance of her children" (e). Instances of the creation of a trust are where property is given, " that he may dispose thereof for the benefit of himself and his children" (/), or " at her sole and entire disposal for the maintenance of herself and her children" {g), or " for his own use and benefit, and the maintenance and education of his children" (K), or "for the maintenance of himself and his family" {€), or "at the disposal of the legatee for herself and her children" {k), or " all overplus towards her support and her family" (/), or to A. "for the education and advancing in life of her children" (m). In a recent case (n), it was held that the circumstance of a trustee being interposed, instead of the property being given directly to the parent, was sufficient to show that no sub-trust was intended, but this view appears not to be supported by earlier decisions (o). Where a trust is created, the person bound by it is the hand to Nature of such administer it, and can sign a valid receipt for the fimd, the subject a trust. of the trust {p)- ^^id ^^^ person bound by the trust is regarded in the same light as a committee of a lunatic, or guardian of an {a) Benson v. WMttam, 5 Sim. 22 ; Bihhy v. Thompson (No. 1), 32 Beav. see Leach v. Leach, 13 Sim. 304 ; 646. nyan V. Keogh, 4 I. R. Eq. 357. (Z) Woods v. Woods, 1 M. & Or. (J) Thorp V. Owen, 2 Hare, 607; 401. see 611. (m) Gilbert v. Bennett, 10 Sim. 371. (c) Fox V. Fox, 27 Beav. 301. (n) Bynev. Blackburn, 26 Beav. 41 (d) Scott V. Key, 35 Beav. 291. (o) Gilbert v. Bennett, 10 Sim. 371 ; (e) Mackett v. Mackett, 14 L. R. Eq. Longmore v. Elcum, 2 Y. & C. Ch. C. 49. 363 ; and see Carr v. Living, 20 Beav. (/) Bailees v. Ward, 1 Hare, 445. 644. (g) Scott Y. Key, 35 Beav. 291. {p) Woods v. Woods, 1 M. & Cr. (h) Longmore v. Elcum, 2 Y. & C. 409, per Lord Cottenham ; Bailees v. Ch. Ca. 369; Carr v. Living, 28 PFar^, 1 Hare, 449, ^er V. C Wigram; Beav. 644; Berry y. Briant, 2 Drew. & Cooper v. Thornton, 3 B. C. C. 186 ; Sm. 1 ; Bird v. Mayhury, 33 Beav. Robinson v. Ticlcell, 8 Ves. 142 ; 351. Crockett v. Crockett, 1 Hare, 451, 2 [i) Re RoberUon's Trust, 6. W. R. Phil. 553; Greenex. GVeeree, 3Ir,R, Eq. 405. 102, per cur. ; but see Webb v. Wools, (k) Crockett v. Crockett, 1 Hare, 2 Sim. N. S. 272. 451; and see S. C. 2 Phil. 461; 122 IMPLIED TRUSTS. [CH. VIII. S. 2. infant {a), that is, he has a duty imposed upon him, but so long as he discharges that duty, he is entitled to the surplus for his own benefit, and the Court requires from him no account retrospectively of the application of the fund (b), and allows him prospectively to propose any reasonable arrangement how the object of the trust may be accomplished (c), or will order payment to him on his undertaking to maintain the children properly, with liberty to the chUdren to apply {d). Should the person bound by the trust become by misconduct unfit to maintain and educate the children, the Court will not allow him to receive the fund (e) ; and should the fiduciary assign his interest the Court will inquire what part is needed for the maintenance and education of the children, and will give the surplus only to the assignee (/). Porisfamiliation. It follows from these principles that if there be no children born {g), or if they have since died (h), the person bound by the trust takes the whole produce for his own benefit. So the children lose their claim if they become forisfamiliated, i.e., cease to be members of or to belong to the establishment contemplated by the testator, as if a chUd marry (i), or under other circumstances main- tain a separate establishment {k), for it can scarcely be supposed that the testator meant an income given with reference to one establish- ment, tobe split into as many different incomesas there are children (f). But it has been said that if a daughter marry, and afterwards becomes a widow and has no support, the right to maintenance may revive (m). Attaining 21. Whether a child's right to maintenance wiU cease ipso facto by his or her attaining the age of twenty-one years, must depend, of course, upon the particular words used (%), but is open generally to some uncertainty (o). It can hardly be maintained, on the one hand, that when a chUd has attained majority, and is fairly launched into the world, and is making a livelihood, the trust is to (a) As to the position of committees and guardians see Jodrell v. Jodrell, 14 Beav. p. 411-413. (6) Leach v. Leach, 13 Sim. 304; Browne v. PauU, 1 Sim. N. S. 92 ; Karr v. Living, 28 Beav. 644 ; Hora v. Hora, 33 Beav. 88. (c) Bailees v. Ward, 1 Hare, 450. {d) Crockett v. Crockett, 1 Hare, 451 ; Hadow V. Hadow, 9 Sim. 438. (e) Castle v. Castle, 1 De Gr. & Jon. 352. (/) Carr v. Living, 28 Beav. 644 ; ScoUy. Key, 35 Beav. 291. (p) Hammond v. Neame, 1 Swans. 35 ; Capev. Cape, 2 Y. & C. Ex. 5. 3; Re Main's Settlement, 15 W. R. 216. (h) Bushnell v. Parsons, Pr. Ch. 219. (j) Bowden v. Laing, 14 Sim. 113 ; Carr v. Living, 28 Beav. 644 ; Stani- land v. Staniland, 34 Beav. 536; Massey v. Massey, W. N. 1873, p. 76. (fc) See Thorp v. Owen, 2 Hare, 612 ; Longmore v. Eloum, 2 Y. & C. Ch. 370; Wilsons. Bell, 4 L. R. (Ch. App.) 581. (I) See Thorp v. Owen, 2 Hare, 613. (m) Scott V. Key, 35 Beav. 291. (ra) See the cases reviewed by V. C. Wood in Gardner v. Barber, 18 Jur. 508. (o) Longmore v. Elcum, 2 Y. & C. Ch. C. 370 ; Thorp v. Oioen, 2 Hare, 610. CH. VIII. S. 2.] IMPLIED TRUSTS. 123 continue (a) ; and on the other hand, if a child be willing to remain at home, and no reasonable objection can be made to it, the person bound by the trust cannot refuse maintenance on the mere ground that the child has attained twenty-one (b). If a person be entitled for life for the maintenance of herself, Case of tenant and the maintenance and education of the testator's children, and such sTtraXwith after her death the trust is for the children absolutely, a child on remainder over, coming of age cannot, even with the concurrence of the tenant for life, call for a transfer of a proportionate share of the property, if this diminution of the fund would endanger the right of the other children to be properly maintained and educated during the tenancy for life. The Court in such a case has adopted the expe- dient that a part of the child's share should be paid out on his undertaking to account for the income of it, and on the footing that the residue of the share should be retained as a,security for the due payment of the income (c). Where there was a clear trust for the maintenance of the children, the Court reserved the con- sideration of what would be the rights of the parties after the fi^^'w^ parent's death, and gave liberty to apply on that event (d). 12. To proceed with the instances of implied trusts, if a person charge of debts by wiU direct his realty to be sold, or charge it with debts and '^°- ^°- ^ ^1'- legacies (e), or with any particular legacy (/), 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 executiop of it against the legal proprietor. So, in many cases, if a person devise an estate with words of Conditions con- condition annexed, the conditional words are not construed to ^*™'^'3 ^ trusts. impose a legal forfeiture on breach so as to give a right of entry, but are viewed as trusts affecting the conscience of the owner, and so enforceable in a Court of Eq[uity ; as if a house be devised to A. for life, "he keeping the same in repair," or if an estate be given to A. in fee, " he paying the testator's debts within twelve months from the testator's death " (g). 13. Again, if a person agree for valuable consideration to settle Agi-eement for valuable con- (a) See Thorp v. Owen, 2 Hare, foot v. Garfoot, 1 Ch. Ca. 35 ; 5. C. sideration. 612 ; Carr v. Living, 28 Beav. 644. 2 Freem. 176 ; Gwilliams v. Bowel, {b) See Carr v. Living, (No. 2), 33 Hard. 204 ; Blatch v. WiUer, 1 Atk. Beav. 474; Thorp v. 6t«en, 2 Hare, 420; Carvill v. Carvill, 2 Ch. Re. 613 ; Scatty. Key, 35 Beav. 291. 301 ; Cooky. Fountain, 3 Swans. 592; (c) Berry v. Briant, 2 Drew. & Bennet v. Davis, 2 P. W. 318, &o. Sm. 1. (/) Wigg v. Wigg, 1 Atk. 382. (d) Scott V. Key, 35 Beav. 291. ( g) Wright v. Wilkin, 2 Best & Sm. (e) Pitt V. Pelham, 2 Freem. 134 ; 232 ; Re Skingley, 3 M. & Gord. 221 ; S. C. 1 Ch. Re . 283 ; Locton v. Locton, Gregg v. Coates, 23 Beav. 33 ; but see 2 Freem. 136; Auhy v. Doyl,\ Ch. Kinghamy. Lee,\h^irD.i'i&; Kinners- Cas. 180 ; Tenant v. Brown, ib. ; Gar- ly v. Williamson, W. N. 1870, p. 190. 124 IMPLIED TRUSTS. [CH. VIII. S. 2. a specific estate, he thereby becomes a trustee of it for the in- tended 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 (&), 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). But if a person covenant to settle such property as he shall die seised of, he may dispose of his property as he pleases in his lifetime, and the covenant will affect only such property as he may leave after payment of his just debts (e) ; and if a person covenant to secure an annuity, either by a charge on freeholds, or by investment in the funds, or by the best means in his power, it wiU not create a charge on the cove- nantor's property generally (/). (|SBB«HJf or sale. 14. Again, if a person contract to sell another an estate, the vendor has impliedly declared himself a trustee in fee for the pur- chaser, and is accountable to him for the rents and profits {g) ; and if the tenants have been allowed improperly to run in arrear (7i), or there has been unhusbandlike farming (i), or any other injury done, either by the wilful waste or neglect of the vendor Qc), he is answerable to the purchaser as for a breach of trust. On the other hand, if any damage arise to the estate, not by default of the vendor, as by fire {l), or dilapidations (w), the loss will fall on (a) Finch v. Winchelsea, 1 P. W. estate which he should be seised or 277 ; FreemouU v. Dedire, ib. 429 Kennedy v. Daly, 1 Sch. & Lef. 355 Legard v. Hodges, 1 Ves. jun^ 477 S. C. 3 B. C. C. 531 ; 4 B. C. C. 421 possessed of at the time of his death, and it was declared that the covenant bound all the real and personal estate which he had power to dispose of by Ravenshaw v. Hollier, 7 Sira. 3. will. (6) WelUsley v. Wellesley, 4 M. & (/) Mornington v. Keam, 2 De G. C. 561. As to the proper construction & Jon. 292 ; and see Stock v. Moyse, of the particular covenant in that case, 12 Ir. Ch. Re. 246. see Countess of Mornington v. Keane, [g) See Acland v. Gaisford, 2 Mad. 2 De G. & Jon. 293, 32 ; Wilson v. Clapham, 1 J. & W. 38. (c) Lyster v. Burroughs, 1 Drury & (h) Acland v. Gaisford, 2 Mad. 28. Walsh, 149 ; ;S«ooA;v.ik%se, 12 Ir. Ch. (i) Ferguson v. Tadman, 1 Sim. Rep. 246. 530 ; Foster v. Deacon, 3 Mad. 394. {d) Lewis v. MadocJcs, 8 Ves. 150 ; {k) Wilson v. Clapham, 1 J. & W. S. C. 17 Ves. 48. But in case of the 39. settlor's bankruptcy, see 32 & 33 V. (l) Paine v. Meller, 6 Ves. 349 ; c. 71, s. 91. Harford V. Furrier, 1 Mad. 539, per (e) Bowany. Chute, 13 Ir. Ch. Re. Sir T. Plumer ; Acland v. Gaisford, 168; Me McKenna, ib. 239; Nayler 2 Ms^d. 32, per eundem. As to Stent v. V. Weiherall, 12 Jan. 1831 ; affirmed 23 Bailis, 2 P. W. 220, see Faine v. Jan. 1833 (M.S.); where the covenant Meller, 6 Ves. 352. was to settle all the real and personal (to) Minchin v. Nance, 4 Beav. 332. CH. VIII. S. 2.] IMPLIED TRUSTS. 125 the purchaser; and if the accident by which the damage arises brings with it legal obligations which must be immediately an- swered, and which the vendor satisfies, the expense thus incurred must be borne by the purchaser (a). But where pending the com- pletion of a purchase of copyholds the trustee for sale died, and a new admittance became necessary, it was held that the expense of the fine must be borne by the trust estate (6). Should the estate become by any accident more valuable, the purchaser then will take the improvement (c). It should be observed, however, that the vendor is, after aU, a trustee sub modo only, for he cannot be compelled to deliver up the possession until the purchase money has been paid ((^). 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 (e). It would be endless to pursue implied trusts through all their ramifications, but the general principles may be collected from the examples given. {a) Roherison v. SJcelton, 12 Beav. v. Hancock, 4 Ves. 667 ; White v. 260. Nutts, 1 P. W. 61. (6) Paramore v. Greenslade, 1 Sm. {d) See Acland v. Gakford, 2 Mad. &Giff. 541. 32; Wall v. Bright, 1 J. &W. 494; (c) See Harford v. Furrier, 1 Mad. M'Creight v. Foster, 5 L. E. Ch. App. 539 ; Revell v. Hussey, 2 B. & B. 287 ; 604. Faine v. Meller, 6 Ves. 352 : Spurrier, (e) See Tosher v. Small, 3 M. & Cr. 70. 126 CHAPTER IX. OF RESULTING TBUSTS. Olassification of trusts by opera- tion of law. Subdivision of resulting Trusts. Having discussed the various questions involved in the creation of trusts by the act of a party, 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. Resulting. 2. Constructive. Eesulting 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 con- veyance, 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 appropriating to himself the beneficial interest. SECTION I. General rule. Chattel interest in real estate results to heir's personal repre- sentatives. OF EESULTING TEUSTS WHEEB THBEB IS A DISPOSITION OF THE LEGAL AKD NOT OF THE EQUITABLE INTEEEST. 1. The general rule is, that wherever, upon a conveyance, devise, or bequest, it appears, that the grantee, devisee, or legatee was intended to take the legal estate merely, the equitable inte- rest, 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, and, if out of personal estate, to himself or his executor. But 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 of money, it will, on the death of the heir, devolve on his personal representative {a). (a) Levet v. Ncedham, 2 Vern. 138; rett v. Bv-ch, 12 Jur. 771. See Hal- Wych V. Packington, 3 B. P. C. 44 ; ford v. Stains, 16 Sim. 448. Seivell V. Denny, 10 Beav. 315 ; Bar- CH. IX. S. l.J RESULTING TEUSTS. 127 If real estate be devised to A. subject to a charge of debts, and it be sold by the Court, the surplus, it seems, wUl not be considered personal estate, so as to devolve on the devisee's personal repre- sentative, but will descend to his heir (a). 2. The intention of excluding the person invested with the legal estate from the usufructuary enjoyment, may either be presumed by the Court, or be actually expressed upon the instrument. Should an estate be granted either without consideration or for merely a nominal one (h), and no trust be declared of any part, then if the conveyance be simply to a stranger 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, a trust of the 'whole estate (as in the analogous case of uses before the statute of Henry YIII.) will result to the settlor (c). And if two joint tenants make such a conveyance without considera- tion, the equitable interest will result to them in joint tenancy id). 3. If the conveyance be to a wife (e) or child (/) it will be presumed an advancement, and the wife or child wiU be entitled beneficially. In a case where a son conveyed an estate to his father, as pur- chaser on the face of the deed, for the sum of £400., and then filed a biU against the devisees of the father for a re-conveyance, on the ground that the son never intended to part with the beneficial interest, but meant only to facilitate the raising of a sum upon mortgage by means of this machinery, Sir J. Leach held, that since the Statute of Frauds parol evidence was inadmissible to prove a trust for the son, and that as there was no fraud or mis- Sale by Court. Of trusts result- ing by presump- tion. "Whether trust will result where no trust declared of any part. Case of wife or child. (ffl) Cooke, v. Dealy, 22 Beav. 196 ; but see Flanagan v. Flanagan, cited Fletcher v. Ashburner, 1 B. C. C. 500 ; and jRe Cross's Estate, 1 Sim. N. S. 260 ; and see Crowther v. Bradney, W. N. 1873, p. 86. (b) See Hayes v. Kingdome, 1 Vern. 33 ; Sculthorpe v. Burgess, 1 Ves. jun. 92. (c) Dulee of Norfolh v. Brown, Pr. Ch. 80; Warman v. Seaman, 2 Freem. 308, per Cur. ; Hayes v. Kingdome, 1 Vern. 33 ; Grey v. Grey, 2 Sw. 598, per Lord Nottingham ; Elliot v. Elliot, 2 Ch. Ca. 232, per eundem ; Attorney- General V. Wilson, 1 Cr. & Phil. 1 ; and see Sculthorpe v. Burgess, 1 Ves. jun. 92 ; Lady TyrreWs case, 2 Freem. 304; Ward y.Lant, Pr. Ch. 182; Barnes v. Otty (No. 2), 35 Beav. 208. But in Lloyd v. Spillett, 2 Atk. 150, and Young v. Peachey, ib. 257, Lord Hardwicke was apparently of opinion that, since the Statute of Frauds, there are only two cases of resulting trust viz. : 1st, Where an estate is pur- chased in the name of a stranger ; and 2ndly, Where on a voluntary con- veyance a trust is declared of part, in which case the residue results. It would seem to follow that, in his opinion, should a voluntary convey- ance be made and no trust at all be expressed, the grantee would take the beneficial interest to his own use ; and see Hutchins v. Lee, 1 Atk. 447. {d) Rex V. Williams, Bunbury 342. (e) See Chrisfs Hospital v. Budgin, 2 Vern. 683. (/) Jennings-^. Sellech, 1 Vern. 467 ; Grey^ v. Grey, 2 Swans. 598, per Lord Nottingham ; Elliot v. Elliot, 2 Ch. Ca. 232; per eundem; and see Hayes V. Kingdome, 1 Vern. 33 ; Baylis v. Newton, 2 Vern. 28 ; Cooh v. Hutchin- son, 1 Keen, 42. 128 RESULTING TEUSTS. [CH. IX. S. 1. Mistake or fraud. Addition to a Trust fund. Transfer of chattels. apprehension, but the meaning was that the father should exer- cise towards the world at large the beneficial ownership, there was no resulting or constructive trust, and that the devisees must keep the estate. But the Court decreed the son as the ostensible vendor to have a lien upon the property for the £400. as for unpaid purchase money {a). However, in a similar case of abso- lute sale upon the face of the deed, but where the grantee after- wards admitted himself in writing to be a trustee. Lord Kenyon held that, as the written evidence established facts inconsistent with the deed, further evidence by parol was admissible to prove the truth of the transaction (6). 4. Of 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 as- surance, if the defendant set up the defence, wiU remain absolute against the grantor (e) ; but if the defendant admit the tmst, it seems the Court wUl relieve (/). 5. If a person invest a sum in the names of the trustees of his marriage settlement, the presumption is that he meant it to be held upon the trusts of the settlement {g) ; and Sir J. Bacon once observed generally, that in marriage settlements the residting trust was not in favour of the settlor (h), mean- ing it is conceived that the presumption of making provision for the persons marrying and their issue, was strong enough in certain cases to prevail against the general rule. 6. It was said in one case that if a man transfer stoch or deliver money to another, it must proceed from an intention to benefit that other person, and therefore, although he be a stranger, it shall be prima facie a gift (i) ; but if such an intention cannot be inferred consistently with the attendant circumstances, a trust will result {k). {a) Leman v. Whitley, 4 Russ. 423. (6) Cripps V. Jee, 4 B. C. C. 472. (c) Birch v. Blagrove, Amb. 264 ; Anon, cited Woodman v. Morrell, 2 Freem. 33 ; Childera v. Childers, 1 De G. & Jon. 482 ; Manning v. Gill. 13 L. E. Eq. 485 ; Davies v. Olty (No. 2), 35 Beav. 208 ; and see Attorney -Gene- rals. Poulden, 8 Sim. 472. (d) Lloyd V. Spillett, 2 Atk. 150 ; S. C. Barn. 388, ^cr Lord Hardwicke ; Hutchins v. Lee, 1 Atk. 448, per eun- dem ; Young v. Peachy, 2 Atk. 254 ; Wilkinson v. Brayjield, cited ib. 257 ; S. C. reported 2 Vern. 307 ; V. Otty (No. 2), 35 Beav. 208. (e) Cottington v. Fletcher, 2 Atk .156, per Lord Hardwicke ; and see Chaplin V. Chaplin, 3 P. W. 233 ; Muckleston V. Brown, 6 Ves. 68. (/) See Cottington v. Fletcher, Mac- kleston v. Brown, uhi supra. (g) Be Curteis^s Trust, 14 L. R. Eq. 217 ; W. N. 1872, p. 165. (A) Iiainyy.Fllis,W. N. 1872, p. 104. (i) George v. Howard, 7 Price 651, 653. (h) See Custance v. Cunningham, 13 Beav. 363. CH. IX. S. 1.] EESTJLTING TRUSTS. 129 7. If upon a conveyance (a), devise (6), or bequest (c), a trust be Where a trust is declared of part of the estate, and nothing is said as to the residue, ^f ^te estate, the then, clearly, the creation of the partial trust is regarded as the trust of the resi- sole object in view, and the equitable interest undisposed of by the settlor will result to him or his representative. 8. But upon this subiect a distinction must be observed be- Partial deolara- tween a devise to a person for a particular purpose with no mten- tinguished from tion of conferring the beneficial interest, and a devise with the ^ charge, view of conferring the beneiicial interest, but subject to a par- ticular 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 (d). 9. ISTo positive rule can be laid down in what cases the de- no positive rule vise will carry with it a beneficial character, and in what it *° ^'^ ^^'^^ Ao^n.. will be construed a trust ; but on all occasions the Court, refusing to be governed by mere technical phraseology, extracts the prob- able intention of the settlor from the general scope of the in- strument (e). The recognition of the relationship of the parties has often Eelationship of materially influenced the court against the construction of a mere legater^*^*^ °^ trust (/) ; as, where a testator gave 5Z. to his brother, who was his heir-at-law, and " made and constituted his dearly beloved wife his (a) Northen v. Camiegie, 4 Drew. affirmed on appeal, 3 H. of L. Ca. 587 ; Cottington v. Fletcher, 2 Atk. 492 ; Bead v. Stedman, 26 Beav, 495 ; 155 ; Culpepper v. Aston, 2 Ch. Ca. Bird v. Harris, 9 L. R. Eq. 204 ; 115; Cookv. Owavas, cited Roper v. and see Dawson v. Clarke, 18 Ves. Raddiffe, 9 Mod. 187 ; Lloyds. Spillet, 254. 2 Atk. 150; S. C. Barn. 388, ^er {d) Ki9ig y. Denison, 1Y. Si's. 272, Lord Hardwicke. per Lord Eldon. (6) Sherrard v. Lord Harhorough, (e) Hill y . Bishop of London, 1 Atk. Amb. 165; Marquis of Townshend v. 620, ^er Lord Hardwicke; Walton y. Bishop of Norwich, cited Saunders on Walton, 14 Ves. 322,^e?- Sir W. Grant ; Uses, C. 3, s. 7, div. 3; Hobart v. Starkey y. Brooks, 1 P. W. 391 ; per Countess of Suffolk, 2 Vern. 644; Nash Lord Cowper ; King y. Denison, 1 V. V. Bmith, 17 Ves. 29 ; Wychy. Packin- & B. 279, peir Lord Eldon. ton, cited Roper v. Radcliffe, 9 Mod. (/) Lloyd v. Spillet, cited Cook v. 187 ; Davidson v. Foley, 2 B. C. C. Duckenfield, 2 Atk. 566 ; Lloyd v. 203 ; Kirieke v. Branshey, 2 Eq. Ca. Wentworth, cited Robinson y. Taylor, Ab. 508; Levety. Needham, 2 Vern. 2 B. C. C. 594; Smith v. King, 16 138; Halliday y. Hudson, 3 Yes. 210; East, 283 ; Coningham y. Mellish, Fr. Killett y. Killett, 3 Dow, 248 ; Hall y. Ch. 31 ; Cook y. Hutchinson, 1 Keen, Waterhouse, W. N. 1867, 11 ; &c. 42. (c) Robinson v. Taylor, 2 B. C- C. 589; Mapp V. Elcock, 2 Phill. 793; 130 EESULTING TEUSTS. [CH. IX. S. 1. Heir of settlor iiot to be ex- cluded from the resulting trust on mere conjecture. Parol evidence. Of trusts result- ing from inten- tion expressed. sole heiress and executrix to sell and dispose thereof at her plea- sure, and to pay his debts and legacies ;" and Lord King decreed the devisee to be beneficaUy entitled (a). But any allusion of this kind is merely one circumstance of evidence, and therefore to be counteracted by the language of the other parts of the instru- ment (6). 10. It must also be observed, that the heir will not be excluded from the resulting trust on bare conjecture (c) ; and there must be positive evidence of a benefit 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 lias declared no in- tention {d). Thus, a legacy to the heir, will not prevent a trust from resulting (e) ; but, joined to other circumstances in favour of the devisee, it will not be without its effect (/). 11. As the species of trust we are now considering results by presumption of law, it may be rebutted as to instruments inter vivos by positive evidence by parol, that the settlor's intention was to confer the surplus interest beneficially (g). And it seems that in one case the parol evidence was read as to the intention of a testator, but the decision of the case turned more particularly upon the intention, as collected from the will itself {h). 12. Next, a trust results, by operation of law, where the intention not to benefit the grantee, devisee, or legatee, is expressed upon the instrument itself, as if the conveyance, devise, or bequest, be to a person " upon trust," and no trust declared (i), or the bequest be (a) Rogers v. Rogers, 3 P. W. 193. (b) Buggins v. Yates, 9 Mod. 122 ; Wych V. Pachington, 2 Eq. Ca. Ab. 507 ; and see King v. Denison, 1 V. & B. 274. (c) HalUday v. Hudson, 3 Ves. 211, per Lord Loughborough, and see Kel- latt V. Kellett, 3 Dow, 248 ; Amphlett V. Parke, 2 R. & M. 227 ; Phillips v. PldUips, 1 M. & K. 661 ; Salter v. Cavanagh, 1 Dru. and Walsh, 668. {d) See Hophins v. Hopkins, Cas. t. Talb. 44 ; Tregonwell v. Sydenham, 3 Dow, 211 ; Lloyd v. Spillett, 2 Atk. 151 ; Habergham v. Vincent, 2 Ves. jun. 225. (e) Randall y.Bookey, 2 Vern. 425; S. C. Pr. Ch. 162 ; Hopkins v. Hop- hins, Cas. t. Talb. 44 ; Starhey v. Brooks, 1 P. W. 390, overruling iVo)-<7i V. Compton, 1 Ch. Ca. 196; Salter y. Cavanagh, 1 Dm. & Walsh, 668. (/) Rogers v. Rogers, 3 P. W. 193 ; S. C. Sel. Ch. Ca. 81 ; and see Dochsey V. Docksey, 2 Eq. Ca. Ab. 506 ; King V. Denison, 1 V. & B. 274 ; Amphlett V. Parhe, 2 R. & M. 230 ; Mallaiar v. Mallabar, Cas. t. Talb. 78. [g) Cook V. Hutchinson, 1 Keen, 50, per Lord Langdale ; and see Nicholson V. Mulligan, 3 I. R. Eq. 308. (Ji) Docksey v. Docksey, 2 Eq. Ca. Ab. 506 ; and see North v. Crompton, 1 Ch. Ca. 196 ; S. C. cited 2 Vern. 253; Mallabar v. Mallabar, Cas. t. Talbot, 78. See also the analogous case of an executor rebutting by parol evidence the presumption arising from the will of a testator's intention to exclude him from the beneficial enjoyment of the residue, ante, p. 54. (i) Dawson v. Clarke, 18 Ves. 264, per Lord Eldon ; Southouse v- Bati, 2 V. & B. 396 ; Morice v. Bishop of CH. IX. S. l.J EESULTING TRUSTS. 131 to a person named as executor " to enable him to carry into effect the trusts of the will," and no trust is declared (a), or the grant, devise, or bequest be upon certain trusts that are too vague to be executed (6), or upon trusts to be thereafter declared, and no decla- ration ever made (c), or upon trusts that are void for unlawfulness {d), or that fail by lapse [e), &c. ; for in these and the like cases the trustee can have no pretence for claiming the beneficial owner- ship, when, by the express language of the instrument, the whole property has been impressed with a trust. 13. Although the introduction of the words "upon trust'' may "Trust ''and be strong evidence of the intention not to confer on the devisee a " trustee " do ■,„.-,. -, . 1 ._ not necessarily beneficial mterest (/), yet that construction may be negatived by exclude a benefi- the context, or the general scope of the instrument (g) ; and, in '^^'^^ s^ft- like manner the devisee may be designated as " trustee ;" but the expression may be explained away, as, for instance, if the term be used with reference to one only of two funds, the devisee may still establish his title to the beneficial interest in the other (A.). On Durham, 10 Ves. 537 ; Woolktt v. Harris, 5 Mad. 452 ; Pi-att v. Sladden, 14 Ves. 198 ; Dunnagey. White, 1 Jac. & Walk. 583 ; Ooodere v. Lloyd, 3 Sim. 538 ; Anon. Case, 1 Cora. 345 ; Penfold V. Bouch, 4 Hare, 271 ; Corporation of Gloucester v. Wood, 3 Hare, 131, 1 H. Lds. Cas. 272; Attorney -General V. Dean and Canons of Windsor, 24 Beav. 679 ; S. C. in D. P. 8 Ho. Lds. Ca. 369 ; Welford v. Stokoe, W. N. 1867, p. 208; Aston v. Wood, 6 L. R. Eq. 419 ; Candy v. Candy, W. N. 1872, p. 168. (a) Barrs v. Fewhe, 2 Hem. & Mil. 60. (6) Fowler v. Garlike, 1 R. & M. 232 ; Morice v. Bishop of Durham, 9 Ves. 399; S. C. 10 Ves. 522; Stubbs V. Sargon, 2 Keen, 255 ; S. C. 3 M. & C. 507 ; Kendall v. Granger, 5 Beav. 300 ; Leslie v. Devonshire, 2 B. C. C. 187 ; Vezeyy. Jamson, 1 Sim. 6 Stu. 69 ; and see Ellis v. Selby, 7 Sim. 352 ; 8. C.IM..& C. 286 ; Wil- liams V. Kershaw, 5 CI. & Fin. 111. (c) Emblyn v. Freeman, Pr. Ch. 541 ; City of London v. Garway, 2 Vern. 571 ; Collins v. WaJceman, 2 Ves. jun. 683 ; Fitch v. Weber, 6 Hare, 145 ; and see Broivn v. Jones, 1 Atk. 188 ; Sidney v. Shelley, 19 Ves. 352 ; Brooleman v. Hales, 2 V. & B. 45. {d) Carrich v. Errington,. 2 F. W. 361 ; Arnold v. Chapman, 1 Ves. 108 ; Tregonwell v. Sydenham, 3 Dow, 194 ; Jones V. Mitchell, 1 8. & S. 290 ; Gibbs y,2Y. & B. 294; Fogey. Leapingwell, 18 Ves. 463; Pilkington y. Boughey, 12 Sira. 114 ; and see Cooke V. The Stationers' Company, 3 M. & K. 262. If an estate be devised to A. and his heirs, in trust to sell and pay part of the proceeds to persons capable of taking, and other part to a charity, the statute of mortmain does not avoid the whole legal devise, but affects only the interest given to the charity , Young v. Grove, 4 Com. B. Re. 668 ; Doe V. Harris, 16 Mees. & W. 517. (e) Acleroyd v. Smiihson, 1 B. C. C. 503 ; Spink v. Leids, 3 B. 0. C. 355 ; Williams y. Coade, 10 Ves. 500; Digby v. Legard, cited Cruse v. Barley, 3 P. W. 22, note by Cox (1)'; Hutcheson V. Hammond, 3 B. C. C. 128 ; Daven- porty. Coltman, 12 Sim. 610; Muchle- ston V. Brown, 6 Ves. 63. (/) See Hill v. Bishop of London, 1 Atk. 620; Woollett v. Harris, 5 Mad. 452. {g) Dawson v. Clarke, 15 Ves. 409 ; S. C. 18 Ves. 247, see 257 ; Coning- ham V. Mellish, Pr. Ch. 31 ; Cook v. Hutchinson, 1 Keen, 42 ; Hughes v. Evans, 13 Sim. 496. ih) Bateley v. Windh, 2 B. C. C. 31 ; Pratt v. Sladden, 14 Ves. 193 ; and see Gibhs v. Rumsey, 2 V. & B. 294. K 2 132 RESULTING TRUSTS. [CH. IX. S. 1. Parol evidence. General observa- tions as to result- ing trusts. In trusts for sale, the undisposed of proceeds result to the heir, not the executor. the other hand there may be a total absence of the word " trust " or " trustee " throughout the whole will, and yet the Court may coUect an intention that the devisee or legatee should be a trustee, as where there is a direction that the devisee shall be allowed all his costs and expenses, which would be without meaning if he took beneficially (a). 14. Where a trust results to the settlor or his representative, not by presumption of law, but by force of the written instru- ment, the trustee is not at liberty to defeat the resulting trust by the production of extrinsic evidence by parol (6). 15. 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. First. If real estate be devised upon trust to sell for a particular purpose, and that purpose either whoUy fails or does not exhaust the proceeds, the part that remains unapplied, whether the estate has been actually sold or not, will result to the testator's heir, and not to his next of kin (c), and if the testator was seized of the estate ex parte maternd, the undisposed of iaterest will result to the maternal heir (d). And the whole or surplus will result in this manner, though the proceeds of the realty be blended with personal estate in the formation of one common fund (e). And (a) Saltmarsh v. Barrett, 29 Beav. 474; SDeGex, F. & J. 279. (6) See Langliam v. Sanford, 17 Ves. 442; S. C. 19 Ves. 643; Bach- field V. Careless, 2 P. W. 158 ; Glad- ding V. Yapp, 5 Mad. 59 ; White v. Evans, 4 Ves. 21 ; Walton v. Walton, 1 4 Ves. 322 ; Irvine v. Sullivan, 8 L. R. Eq. 673. (c) Starhey v. Brooks, 1 P. W. 390 ; Randall v. Boohey, Pr. Ch. 162 ; Stone- house V. Evelyn, 3 P. W. 252 ; Uohin- son V. Taylor, 2 B. C. C. 589 ; Cruse V. Barley, 3 P. W. 20 ; Buggins v. Tates, 2 Eq. Ca. Ab. 508 ; Hill v. Coch, 1 V. & B. 173 ; City of London V. Garway, 2 Vern. 571; Nicholls-v. Crisp, cited Croft v. Slee, 4 Ves. 65 ; Whitehead V. Bennett, 1 Eq. Re. 560; Dighy v. Legard, 2 Dick. 500 ; Spinh V. Lewis, 3 B. C. C. 355; Chitty v. Parker, 4 B. C. C. 411; Collins v. Wakeman, 2 Ves. jun. 683 ; Howsey. Chapman, 4 Ves. 542 ; Williams v. Coade, 10 Ves. 500 ; Berry v. Usher, 11 Ves. 87; Gibbs v. JRumsey, 2 Yes. & 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 ; Gibbs v. Ougier, 12 Ves. 416; M'Cleland v. Shaw, 2 Sch. & Lef. 545 ; Mogg v. Hodges, 2 Ves. 52 ; Eyre v. Marsden, 2 Keen. 564 ; Ex parte Pring, 4 Y. & C. 507 ; Watson v. Hayes, 5 M. & Or. 125 ; jDavenport v. Coltman, 12 Sim. 610 ; Bunnell v. Foster, 7 Beav. 5'JO ; Marriott v. Turner, 20 Beav. 557, &c. Note, Countess of Bristol v. Hunger- ford, 2 Vern. 645, is misreported — see Rogers v. Rogers, 3 P. W. 194, note (C). {d) Hutcheson v. Hammond, 3 B. C. C. 128. (e) Ackroyd v. Smithson, 1 B. C. C. 503; Jessopp v. Watson, 1 M. & CH. IX. S. 1.] RESULTING TRUSTS. 133 even an express declaration that the proceeds of the sale shall be considered as part of the testator's personal estate will not prevent the operation of the rule (a) ; for a direction of this kind is con- strued to extend to the purposes of the mil only, and not to give a right to those who claim, as the next of kin, by operation of law. The case, of Phillips v. Phillips (&) before Sir J. Leech, to the contrary, has repeatedly received the disapprobation of the Court (c), and has now been overruled {d). If a testator direct the proceeds of the sale to be taken as per- Direction for sonal estate, and nothinq more is said, then, as every part of the ^^'^' ^^^ ^^^^ ' '> ' . the proceeds will ought, if possible, to have an operation, the meaning of the shaU be personal testator might be thought to be, that the realty should be converted ^^*^*^- into personalty for the benefit of the next of kin by implication ; and in The Countess of Bristol v. Hungerford (e), where the testator directed the proceeds of the sale to be taken as personal estate, and go to his executors, to whom he gave 20^. a-piece, it is said the next of kin were declared entitled. The two next of hin, however, were also the co-heirs, and therefore as utrdque vid datd the same persons would claim, it was obviously unnecessary to determine Fitch v. "Weber, the question. And in a late case where the testator even said, " nothing shall result to the heir-at-law," it was held that never- theless a bequest to the next of kin was not implied, but that the heir-at-law must take in spite of the intention to the contrary (/). If the execution of the trust require the estate to be sold, but Whether the the purposes of the trust do not exhaust the proceeds, the part that ^" reaiOT^per-'^ is undisposed of will result to the heir in the chara.cter of per- sonal estate. sonalty, and, though the sale was not actually effected in his life- time, will devolve on his executor {g) : and in the case of a trust, K. 665 ; Salt v. Chattaway, 3 Beav. G. 190; S. C. 1 Eq. Re 239 ; Mobin- 576. son V. London Hospital, 10 Hare, 19. (a) Collins v. Waieman, 2 Ves. jun. (e) Pr. Ch. 81 ; S. C. 2 Vera. 645 ; 683 ; and see Amphlete v. Parhe, 2 R. corrected from Reg. Lib. in Rogers v. &M. 226; Fields. Pechett, (No. 1), Rogers, 3 P. W. 194, note (C) ; and 29 Beav. 568. Ogle v. Cooh, cited in see Sir W. Bassetfs case, cited Bayley Fletcher v. AsUurner, 1 B. C. C. 502, v. Powell, 2 Vera. 361. scaAia Aclcroyd v. Smithson, id. 513, (/) jFYfc/iv. TFeJer, 6 Hare, 145;and was for a long time considered contra ; compare Johnson v. Johnson, 4 Beav. but in Collinsy. Waleeman, 2 Ves. jun. 318. 686, Lord Ijoughborough had the Reg. (g) Hewitt v. Wright, 1 B. C. C. 86 ; Lib. searched, and it was found the Wright v. Wi'ight, 16 Y es. 'l8S;Smii7i point had been left undecided. v. Claxton, 4 Mad. 484 ; Dixon v. (6) 1 M. & K. 649. Dawson, 2 S. & S. 327 ; Jessopp v. (c) SeeFitchv. Weber, 6 Hare, 145; Watson, 1 M. & K. 665 ; Hatfield v. ShaUcross v. Wright, 12 Beav. 505; Pryme,1 Coll. 204 ; Bagstery. Faclce- Flintv. Warren, 16 Sim. 124:. rel, 26 Beav. 469; Wilson \. Coles, id) Taylor v. Taylor, 3 De G. M. & 28 Beav. 215. 134 RESULTING TRUSTS. [CH. TX. S. 1. created by a settlor in his lifetime, the undisposed of interest in the proceeds of sale will result to the settlor as personal estate, and go to his personal representative, even though the trust for sale was not to arise until after the settlor's decease (»). If how- ever the trusts declared by the testator 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 (6), though the estate may by the mistake of the trustees have been actually sold (c), and if the testator was seised ex parte maternd, the equitable interest will descend to the testator's heir in the maternal line (d). Money to be laid Secondly. If a testator bequeath money to be laid out in a pur- out on land re- chase of land, to be settled to uses which either whoUy or par- aulta to the ' . , executor. tially fail to take effect, the undisposed of interest in the money, or estate if purchased, will result to the testatator's executor, upon trust for the testator's next of kin (e). The old authorities (/) upon the subject are. somewhat conflicting ; but it will be superfluous to enter upon a particular examination of them, as the case of Gogan v. Stephens (g), before Lord Cottenham, whUe at the Eolls, has now finally decided the point in favour of the next of kin. Thirdly. " Where (to use the words of Lord St. Leonards) there is a power to appoint a settled fund, the execution of the power takes the part appointed entirely out of the settlement. Although, therefore, the beneficial interest in the fund is not in terms expressly disposed of, yet there can be no resulting trust for the benefit of any person under the deed creating the power, for when the fund is appointed it must be considered as if it had never been comprised in the trust, because it is absolutely taken out of it by the execution of the power" (h). If, therefore, a feme covert has in certain events which occur a power to appoint a settled fund by wUl, and she (a) Clarke v. FranUin, 4 K. & J. (/) Fletcher v. Chapman, 3 B. P. 257. C. 1 ; HayfordY. Benlows, Amb. 582 ; (b) Smithv. Claxton,ubisup7-a (where Leslies. DuJce of Devonshire, 2 B. C. the doctrines of the Court are clearly C. 187 ; Brown v. De Laet, 4 B. C. C. stated) ; Bagster v. Facherel, 26 Beav. 534 ; TregonweU v. Sydenham, 3 Dow, 469; Chitty Y. Parher, 2^ e& ]mi. in; 207; 466o< v. ie«, 2 Vern.284; S. C. BuchananY. Harrison, 1 Johns. &Hem. Append. No. ii. to 3rd. Edition ; Mogg 662. V. Hodges, 2 Ves. 52. (c) Davenport v. Coltman, 12 Sim. {g) Append. No. iii. to 3rd. Edition ; 610. 8._ C. 5 L. J. N. S. Ch. 17. As to the (d) Wood V. Shelton, 6 Sim. 176 ; principle, see the author's argument in see Buchanan v. Harrison, 1 Johns. & favour of the next of kin in the early Hem. 673. editions. (e) Cogan v. Stephens, 5 L. J. N. S. {h) Treat, of Powers, 8th Ed. p. Chanc. 17 ; Hereford v. Ravenhill, 1 467. Beav. 481 ; Head v. GodJee, Johns. 536, see 583. CH. IX. S. 1.] RESULTING TRUSTS. 135 appoints executors and directs them to apply the fund in payment of legacies which do not exhaust it, the executors hold the surplus in trust, not for the persons entitled under the settlement in default of appointment, but as part of the personal estate of the donee of the power (a). Fourthly. It often happens, that the settlor makes a primary in a gift of the disposition of the whole property to A. subiect to a particular charge ^^°le, subject to ^ r r J J r o a charge that may in favour of B., and the charge in event either wholly or partially not arise, no fails so as either not to divest, or only pro twnio to divest the estate "^^ '^^^^ '^^ of A. The reader must distinguish the preceding 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 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" (&). Thus, if lands, be devised to A. charged with a legacy to B. Gift charged provided B. attain the age of twenty -one, should B. die without ,^^*^ acontmgent 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 (c). So if the lands be given to A. charged with a legacy to B., and B. dies in the testator's lifetime id,). The construction is the same, if lands be given to A. subject to Gift charged with and charged with any sum not exceeding 10,000?. to such persona, '^ *"T ^° ^^^^Ti," and in such manner as the testator shall appoint, and the power is power not either never exercised, or the execution of it is void (e) : for here, ^^'^'^"^^^ ■ as the testator confers the whole interest on the devisee, reserving the power, if he either abstain from executing the power, or appoint for an illegal purpose, he does not diminish that interest, but the heir is wholly disinherited (/). (a) Brickenden v. Williams, 7 L. E. same way, but the point was not no- Eq. 310; Chamberlains. Hutchinson, ticed. See Attorney -Oimeral v. Mil- 22 Beav. 444 ; Mansdl v. Price, Sug. ner, 3 Atk. 112 ; Croft v. 8le6, 4 Ves. Powers Appendix. 60. (6) Coohe V. The Stationers^ Com- (a!) Sulcliffe v. Cole, 3 Drew. 185. pav.y, 3 M. & K. 264. (e) Jackson y. Hurloch, 2 Eden, 263; (c) Tregonwell v. Sydenham, 3 Dow, Cooke v. The Stationers' Company, 3 210, per Lord Eldon. Sprigg v. M. & K. 262 ; Tucker v. Kayess, 4 li. Sprigg, 2 Vern. 394, was decided on & J. 339. this principle; Cruse v. Barley, 3 (/) Tregomeelly. Sydenham, 3 Dov/; P.W. 20, should have been decided the 213, per Lord Eldon 136 RESULTING TRUSTS. [CH. IX. S. 1. Noel ■». Lord Henley. Gift of a charge, and " subject thereto " to A. "Subject thereto"' implied. Besidue of an estate distin- guished from re- sidue of a sum certain. And where a testator had devised certain estates upon trust to sell, and out of the proceeds to pay 5000^. unto his wife, her exe- cutors and administrators, in part satisfaction of the sum, oflOfiQQl, secured to her hy marriage settlement in case of her surviving him, and to invest the residue upon certain trusts, and the wife died in the life time of the husband, so that the 10,000Z. never became raisable, it was held that the 5000^. instead of resulting to the heir, was included in the residue (a). 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 5000/. to arise on a certain event, and that contingency having never occurred, the primary devise of the entirety was never divested (6). Again, if an estate be settled to the use of trustees for a term of ninety-nine years, upon trusts that do not exhaust the whole inte- rest, and from and after the expiration, or other sooner determina- tion 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 (c). 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 held the 2000/. to be a charge upon and not an exception out of the estate {d). And if the limitation be to trustees for ninety-nine years upon the trusts thereinafter expressed, and the instrument 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 fijst instance, and will read the will, as if the words subject thereto and to the trusts thereof had been actually expressed (e). A distinction has been taken between the residue of an estate and the residue of a particular sum, and it has been held that in the case of a particular sum, as of 500/., if part of it be applicable (a) Noel V. Lord Henley, 7 Price. 241; S. C. Dan. 211, and 322. (6) That the case was probably de- cided on this ground, see Observations of Richards, C. B., Ban. 235, and of Lord Eldon, ib. 338. (c) Davidson v. Foley, 2. B. C. C. 203; Marshall v. Holloway, 2 Swans. 432 ; Lord Southampton v. Marquis of Hertford, 2 V. & B. 54; and see Maundrell v. Maundrell, 10 Ves. 259. (tf) Re Cooper's Trusts, 4 De G. M. & G. 757 ; 5. (7. 2 Eq. Re. 66. (e) Sidney v. Shelley, 19 Ves. 352 ; S. C. nom. Sidney v. Miller, G-. Coop. 206 ; overruling the dictum of Lord Hard- wicke, in Brown v. Jones, 1 Atk. 191. CH. IX. S. 1.] RESULTING TEUSTS. 137 to one purpose (as the maintenance of a tomb) and the residue to another, if the first purpose fail the second fails also (a). But where there is an out-and-out gift to a charity in the first instance upon a trifling trust which is void as to maintain a tomb, and then to apply the residue to the purposes of a charity, it has been held that the charity takes the whole (6). There has been much discussion in the Courts how far the rule Charity legacies, establishing a distinction between a charge upon and exception from a devise is applicable to a charity legacy. 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 had, before the late Wills Act, devised an estate. Difference be- worth 10,000Z., to trustees in trust to sell, and out of the proceeds frem'a devise, to pay lOOOZ. to A., and had given all the residue of his real estate and charge upon a devise. to B., and A. had died in the testator's lifetime, the lapse would have enured to the benefit not of the devisee but of the heir-at- law; the reason was, that in real estate the word "residue" had not the same meaning as in personal estate, but each devise was considered a specific one, and the 1000^. and the 9000Z. were dis- tinct fractions of the estate, so that if either failed in event, the undisposed of interest resulted to the heir-at-law. If, however, a testator had devised an estate to A. and his heirs charged with a legacy of 1000?. to B., and B. had died in the testator's lifetime, then A. would have taken the estate free from the legacy : not that the devisee was intended to take the legacy, quA legacy, but the testator had constituted a hmres factus to the disinherison at all events of the heir-at-law, and as the legacy was given not directly to the legatee, in which case it would be an exception from the devise of the estate, but had been made a charge to be raised, so far as might be necessary, out of the estate previously devised, the legacy, as in event it was not required to be raised, sunk for the benefit of the devisee. N"ow in a devise to A. and his heirs charged with a legacy to a Possible distinc- charity, on the one hand it may be said that in the case of an ^^^ legacy to^a ordinary charge the lapse of the legacy is an incident to the bequest, charity, which the testator may be taken to have contemplated, 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 (a) Fowler V. Fowler, a Vtsa-y. &\&\ 'R.'Eq.ZIl i&nA^e^ The Magistrates of and the cases there cited. Dundee v. Morris, 3 Macq. 134. (6) Fisk V. Attorney- General, 4 L. 138 BESXJLTING TRUSTS. [CH. IX. S. 1. money was payable has arisen ; he could not, therefore, have in- tended the devisee to take the legacy, which is bequeathed under the very circumstances to the charity; the legacy therefore in this case, though in form a charge, is in fact an exception. On the other hand if may be argued that where the legacy is admitted to be a charge and not an exception, the devisee does not take the legacy hecause the legacy was intended for him, since then in the case of a lapse the charge would not have sunk for the benefit of the devisee (for in real estate, until the late Wills Act, that only went to the devisee which was not otherwise expressed to be dis- posed of whether the bequest took effect or not, as in the case above noticed of a trust for sale, where the lapse of a legacy out of the proceeds enured to the benefit of the heir, but, nevertheless, in a charge the devisee did take the legacy in case of a lapse, from the form in which the legacy was given ; a result which shows the true view to be that the testator first constituted the devisee the hceres factus of the whole estate, which disinherited the heir, and then as the legacy was made a graft upon that estate, and the legacy failed, the estate was exonerated from the burden). Lord Alvanley was of opinion that this was the right ground, and that it mattered not in what way the failure of the legacy arose, 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 faU, no matter how, the devisee shall have the benefit of it and take the estate (a). Results of the The cases upon the subject are very conflicting, but the best results that can be obtained from them appear to be these : (l.) The first inquiry to be made is, whether upon the whole will the testator intended the legacy and the devise to be two dis- tinct 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 excep- tion (b), and in the latter a charge. (ii.) 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). (a) Kennell v. AUott, 4 Ves. 811. G. 757. See Tucker v. Kayess, 4 K. (6) Cooper's Trusts, 4 De G. M. & & J. 339. (c) Poor V. Mial, 6 Madd. 32 ; Ar- oasea. CH. IX. S. 1.] EESULTING TRUSTS. 139 (ill.) If the estate be devised charged with a sum, say of lOOOZ., to he paid to the testator's executors and applied in discharge of hia -debts and legacies, including a legacy to a charity, in this case the charge is raisable as against the devisee, and the charity legacy will be a resulting trust to the testator's heir-at-law (a). (iv.) 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 expressed 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 (&). (v). It may be doubted whether the circumstance of a direction 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 a 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 intel- ligible rule to lay down that where the failure of the legacy arises from any event which the testator might reasonably have contem- plated, 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 tlie heir. The subject, as the matter now stands, is in a very unsatisfactory state. Fifthly. It has been stated in general terms, that, in the cases The interest we have mentioned, a trust will result to the settlor or his real or ^^^^J°^^^ ^^^^e ' _ resulted may personal representative, but the doctrine must be received with at be disposed of least this qualification, that the interest which would have resulted ^ "^^ is not otherwise disposed of by the settlor himseK. noldv. Chapman, 1 Ves. 108; Ridgway Hurloch, 2 Eden, 263; Arab. 487 ; and V. Woodhouse, 7 Beav. 437. See contra see remarks of Lord Redesdale and Bland -V. Wilkins, cited Wright y. Row, Lord Eldon on this case in Tregonwell 1 B. C. C. 61, note. In Cooke v. Sta- v. Sydenham, 3 Dow, 208—213. Lord tioners' Company, the M. K. said the Eldon assumed the power to be good, condition made no difference, as it was but that, as it was exercised in favour no more than » charge, 3 M. & K. 266. of a charity, the devisee was rot af- (a) Arnolds. CAopOTara, 1 Ves. 108 ; feoted by a void execution of the power, Henchman y. Attorney- General, 3 M. and was rightly allowed to retain the & K. 494. estate ; in fact, there was no appoint- (6) Cooke V. Stationers' Company, ment to a charity, for the letter, not 3 M. & K. 262 ; Baker v. Hall, 12 Ves. being of a testamentary character, 497 (but the heir was not a party); could not be read, dee contra Crravenor Barrington v. Hereford, cited Wright v. Hallum, Amb. 643. v. Row, 1 B. C. C. 61 ; Jachson v. 140 RESULTING TEUSTS. [CH. IX. S. 1. Construction of the word "resi- due " in real estate. Construction of "personal estate" as applicable to proceeds from sale of real estate. " Personal estate" in certain cases may pass such proceeds. 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 incLuire what is the effect of certain general expressions. "With respect to a testator's realty, the heir " shall sit in the seat of his ancestor," unless the disinherison be expressed or clearly implied. The word "residue," therefore, had, before the late Wills Act, received in devises a strict and narrow construc- tion, and was held to mean, not all that the testator had not actually disposed of, but only so much of which he had shown no intention of disposing. Thus, if lands had been devised upon trust to raise 5000/. 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 where- soever " (h), in either case the void legacy would have resulted to the heir, and not have been included in the residuary clause. Now, by the late Wills A.ct, a residuary devise, unless a contrary intention a,ppear by the will, is made to sweep every interest un- disposed of in real estate, as a residuary bequest already did in respect of personal estate (c). If a testator direct his lands to be sold, and afterwards add a general bequest of aU his personal estate (d), or appoint a person residuary executor (e), any part of the proceeds of the sale that is undisposed of will not form part of the residuary fund in the first case, or pass to the residuary executor in the second ; for nothing, properly speaking, is a testator's personal estate, but what pos- sesses that character at the moment of his decease (/). But the intention of converting the property absolutely by the sale, so as to make the proceeds undisposed of by the will pass by the description of the testator's "personal estate," may be collected from a will specially worded (g) ; and the blending of the real and personal estate into one fund will be regarded as Ves. 25 per Sir W. Grant ; Doe v. Underdown, Willes, 293. But see Page v. Leapingwell, 18 Ves. 463; but it does not appear that the heir -was a party, and the question was not dis- cussed. (c) 1 Vict. c. 2fi, s. 25. (d) Mavgham v. Mason, 1 V. & B. 410 ; and see Gibbs v. Rumsey, 2 V. & B. 294. (e) Berry Y. Usher, 11 Ves. 87. (/) See Maugham v. Mason, 1 V. & B. 416. {g) Malldbar v. Mallabar, Rep. t. Talb. 78 ; Brown v. Bigg, 7 Ves. 279 ; (a) Hutcheson v. Hammond,3 B. C. C. 128 ; Page v. Leapingwell, 18 Ves. 463 ; Collins v. Walceman, 2 Ves. jun. 683 ; Cruse v. Barley, 3 P. W. 20 ; Jones Y. Mitchell, 1 S. & S. 293 ; Sprigg V. Sprigg, 2 Vern. 394, per Cur. ; Cooke V. Stationers' Company, 3 M. & K. 264, per Cur. ; Anon, case, 1 Com. 345. (6) OoodrightY. Opie, 8 Mod. 123; Wright V. Hall, Port. 182 ; S. C. 8 Mod. 222 ; Boe v. Fludd, Port. 184 ; Watson Y. Earl of Lincoln, Amb. 325 ; Oke V. Heath, 1 Ves. 141, per Lord Hardwicke ; Cambridge v. Sous. 8 CH. IX. S. l.j EESULTING TRUSTS. 141 a circumstance in some degree indicative of such an inten- tion (a), and this of course will be the case, where the testator expressly directs the proceeds to be considered as part of Ms personalty (5). The question was much discussed before the late Wills Act, and Whether a gift may still be material, what expressions of a testator will amount personal "State to such an absolute conversion of real estate into personal, that a }^iii pass lapsed in legacies from void or lapsed legaoy given out of the proceeds of the sale shall, proceeds of sale as if the property had been personal, fall into the residuary be- °^ ^^^^ estate, quest, 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 instrument " (c). But what will amount to such an impli- cation is a point that can with difficulty be brought under any very definite rule. Apparently the only principle to be extracted from the autho- Results of the rities is, that a lapsed or void legacy will pass to the residuary authorities, legatee, if the testator expressly declare that the proceeds of the sale shall he considered as "personal estate," or if the intention of an absolute conversion into personal estate for all the purp)oses of the vjill can, without the aid of any such express declaroMon, he gathered from the general structure of the will (d). It was stated in a former page, that if a testator direct the Next of kin and proceeds of the sale to be taken as "personal estate," a part of residuary legatee the proceeds undisposed of by him will nevertheless not result to Durour v. Motteux, 1 Ves. 321. (See sidue on the principles adopted in Motteux's will correctly stated, Jones Davers v. Dewes, 3 P. W. 40, and V. Mitchell, 1 S. & S. 292, note (d). Attorney- General v. Johnstone, Annb. See observations on Mallahar v. 577. Mallahar, and Durour v. Motteux, in (c) Amphlett v. Parke, 2 E. & M. ham V. Mason, 1 V. & B. 232; and see M'Cleland \. Shaw, 2 416.) Sch. & Lef. 545. (a) Compare Durour v. Motteux, 1 {d) Durour v. Motteux, 1 Ves. 321 Ves. 321, with Maugham v. Mason, (see the will stated from Reg. Lib. in 1 V. & B. 417 ; Hutcheson v. Ham- Jones v. Mitchell, 1 S. & S. 292, note mcmd, 3 B. C. C. 148, per Lord (d) ; Kennell v. Ahhott, 4 Ves. 802 ; Thurlow ; but see Berry v. Usher, 11 Amphlett v. Parke, 1 Sim. 275 ; S. C. Ves. 87. 2 R. & M. 221 ; Green \. Jackson, (b) Kidney v. Coussmaker, 1 Ves. 5 Russ. 35 ; & C. 2 R. & M. 238 ; jun. 435 ; and see Field v. Peckett Salt v. Chatlaway, 3 Beav. 576. As (No. 1), 29 Beav. 568, and Lowes v. to Mallahar v. Mallahar, Rep, t. Talb. Hachward, 18 Ves. 171. In Collins 78, see Phillips v. Phillips, 1 M. & K. V. TFafema?!, 2 Ves. jun. 683, the sum 660. undisposed of did not fall into the re- 142 RESULTING TRUSTS. [CH. IX. S. 1. Resulting trust of personal estate. Case of settlor or devisor dying without heir or next of kin. Of resulting trusts in gifts to charities. Where no object expressed, the Court will direct the application of the estate to some charity. the next of kin. The distinction between the next of Jcin, and the residuary legatee is this : the former claim dehors the wiU, 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 wiU only, and not for any object beyond it. With respect to resulting trusts of personal estate, the general residuary bequest was always held to sweep every interest, whether undisposed of by the will, or undisposed of in event, and therefore it is only where the will contains no residuary clause that the next of kin can asseil; a claim to the benefit of the resulting in- terest (a). 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 will then result to the next of kin (l). Sixthly. Should a settlor die intestate, without heir or next of kin, in that case the benefical interest undisposed of will, if the property be real estate, sink into the land for the benefit of the trustee or legal tenant (c) ; but in the case of personalty - the resulting interest, as honum vacans, will faU to the crown by the prerogative (d). Lastly, it may be noticed that settlements to charitable pur- poses are an exception from the law of resulting trusts : for, upon the construction of instruments of this kind, the Court has adopted the following rules : — (i.) Where a person makes a valid gift, whether by deed or will, and expresses a general intention of charity, but either par- ticularises no objects (e), or such as do not exhaust the proceeds (/), the Court will not suffer the property in the first case, or the (a) See Davison v. Clarke, 15 Ves 417 ; Brown v. Higgs, 4 Ves. 708 S. C. 8 Ves. 570 ; Shmiley v. Baker, 4 Ves. 722 ; Jackson v. Kelly, 2 Ves, 285 ; Oke v. Heath, 1 Ves. 141 ; Carrf bridge v. Sous, 8 Ves. 25 ; Cooke v. Stationers' Company, 3 M. & K. 264. {b) Daim-sY. Dewes, 3 P. W. 40 Attorney- General v. Johnstone, Amb 577. (c) Burgess v. Wheate, 1 Eden, 177 Henchrnati V. Attorney- Oeneral, 3 M & K. 485; Taylor v. Haygarth, 14 Sim. 8; Davallv. New River Company, 3 I>e (t. & Sm. 394 ; Cox v. Parker, 22 Beav. 168. {d) Middleton v. Spicei-, 1 B. C. C. 201 ; Barclay v. Russell, 3 Ves. 424 ; Taylor v. Haygarth, 14 Sim. 8 ; Powell V. Merrett, I Sm & Gif. 381 ; Cradock V. Owen, 2 Sm. & Gif. 241. (e) Attorney- General v. Herrick, Amb. 712. (/) Attorney- General v. Haber- dasher^s Company, 4 B. C. C. 102; S. C. 2 Ves. jun. 1 ; Attorney- General V. Minshiill, 4 Ves. 11 ; Attorney- Ge- neral V. Arnold, Shower's P. C. 22 ; and see Attorney- General v. Sparks, Amb. 201 ; and Lord Eldon's obser- vations, in Attoi-ney- General v. Mayor of Bristol, 2 J. & W. 319. But where CH. IX. S. 1.] EESULTING TRUSTS. 143 surplus in the second, to result to the settlor or his representative, but will take upon itself to execute the general intention, by declaring the particular purposes to which the fund shall be applied. (ii). 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 be applied in the sanie or a similar manner with the original amount (a). (ill.) But even in the case of charity, if the settlor do not give the land, or the whole rents of the land, but, noticing the property to be of a certain value, appropriates part only to the charity, the residue will then, according to the circumstances of the case, either result to the heir-at-law (&), or will belong to the donee of the property subject to the charge, if the donee be (as in the case of a charitable corporation) itself an object of charity (c). Where the rents increase, the surplus will be applied to like charitable pur- poses. Exceptions from the foregoing rules. a gift is to a particular charity which exists at the date of the will, but is dissolved in the testator's lifetime, it is as much a lapse as a gift to a man who has ceased to exist, Pislc v. At- torney-General, 4 L. R. Eq. 521. And when a fund was given to trustees for education in the United States, and the United States repudiated the gift, the fund was not applied to other charitable objects, but fell into the residue, New v. Bonaker, 4 L. R. Eq. 655. (a) Inhabitants of EMiam, v. War- reyn, Duke 67 ; Sutton Colefield case, second resolution, Id. 68 ; Hynshaw v. Morpeth Corporation, Id. 69 ; Thetford School case, 8 Re. 130 b ; Attorney- Ge- neraly. Johnson, Arab. 190; Kensington Hastings case, Duke 71 ; Attorney-Ge- neral v. Mayor of Coventry, 2 Vern. 397, reversed in D. P. 7 B. P. C. 236 (see the foregoing eases commented upon by Lord Eldon in Attorney- Gene- ral V. Mayor of Bristol, 2 J. & W. 316) ; Attorney General v. Coopers^ Company, 19 Ves. 189, per Lord El- don ; Attorney- General V. Wilson, 3 M. & K. 362 ; Lad v. London City, Mos. 99 ; Attorney- General v. Coopers^ Com- pany, 3 Beav. 29 ; Attorney- General^. Master of Catherine Hall, Cambridge, Jac. 381 ; Attorney- General v. Bever- ley, 6 H. L. Cas.310; Attorney- General V. Drapers^ Company, 2 Beav. 508 ; 4 Beav. 67 ; Attorney- General y. Christ's Hospital, ib. 73 4 Attorney- General v. Merchants Venturers' Society, 5 Beav. 338 ; Attorney- General v. Corporation of Southmolton, 14 Beav. 357 ; Attorney- General y. Cains College, 2 Keen, 150 ; Attorney- General v. Wax Chandlers' Company, 6 L. R. (Eng. & Ir. App.) 1 ; and see Attorney- Generalv. Smythies, 2 R. & M. 717 ; Attorney- General v. Drapers' Company, 6 Beav. 382 ; At- torney-General v. Jesus College, 29 Beav. 163. The additional benefit is not always distributed amongst the different objects of the charity rateably, but the Court exercises a discretion as to the ]iroyovt\o^s,. Attorney- General v. Mar- chant, 3 L. R. Eq. 424. (6) See Attorney -General v. Mayor of Bristol, 2 J. & W. 308. (c) Attorney- General v. Beverley, 6 H. L. Cas. 310; Attorney-General Y. Southmolton, 5 H. L. Cas. 1 ; Attorney- General V. Trinity College, 24 Beav. 383 ; Attorney- General v. Dean of Windsor, 24 Beav. 679 ; affirmed in D. P. 8 H. Lds. Ca. 369 ; Attorney- General V. Sidney Sussex College, 4 L. R. (Ch. App.) 722; Attorney- General V. Wax Chandlers' Company, 8 L. R. (Eq.) 452,5 L.R.(Ch. App.) 503; 6L. R. (Eng. & Ir. App.) 1 ; and see ^«0!-- ney- General v. Mercers' Company, W. N.1870,p. 58; Merchant Taylors' Com- pany\. Attorney- General, 11 L. R. Eq. 35, affirmed ; 6 L. R. (Ch. App.) 512. 144 PURCHASE IN NAMES OF STRANGEES. [CH. IX. g. 2. The doctrine in favour of chari- ties established before trusts were settled. The exceptions we have noticed were established at an early period, when the doctrine of resulting trusts was imperfectly- understood (a). The interest of the heir was shut entirely out of sight, and the question was viewed as between the charity and the trustee (b). Were the subject stUl unprejudiced by authority, there is little doubt but the Court would, at the present day, follow the general principle, and hold a trust to result (c). SECTION II. RESULTING TEUSTS UPON PUECHASBS IN THE NAMES OP THIED PEESONS. Purchases of this kind are governed , by different rules, accord- ing to the relation which subsists at the time between the person who pays the money, and tlie person in whose name the conveyance is taken. We must, therefore, distribute the subject under two heads. First, Purchases in the name of a stranger ; and, secondly, Purchases in the name of a child, or wife, or other near relative. General role. First Where the purchase is in the hands of a stranger. 1. " The clear result," said Lord Chief Baron Eyre, " of aU 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 {d) or successive (e), results to the man who advances the purchase money (/) ; and it goes on a strict analogy (a) Attorney- General v. Johnson, Amb. 190, per Lord Hardwioke ; At- torney- Oeneral v. Mayor of Bristol, 2 J. & W. 307, per Lord Eldon. {b) See Tketford School case, 8 Re. 130. (c) See Attorney- General V. Mayor of Bristol, 2 .J. & W. 307. (d) See Ex parte Houghton, 17 Ves. 251 ; Rider v. Kidder, 10 Ves. 367. («) Withers v. Withers, Amb. 151 ; Howe V. Hovie, 1 Vern. 415 ; Good- right V. Hodges, 1 Watk. Cop. 227 ; S. C. Lofft, 230 ; Smith v. Baker, 1 Atk. 385 ; Clarke v. Danvers, 1 Cli. Ca. 310 ; Pranlcard v. Prankard, 1 S. &S. 1. (/) Redington v. Redingion, 3 Ridg. 177, ^er Lord Loughborough ; Hungate V. Hungate, Tothill, 120; Exparle Vernon, 2 P. W . 549 ; Ambrose v. Ambrose, 1 P. W. 321 ; Willis v. Willis, 2 Atk. 71 ; Woodman v. Morrel, 2 Freem. 33, per Cur.; ib. 123 ; Finch V. Finch, 15 Ves. 50, per Lord Eldon ; Grey v. Grey, 2 Sw. 597 ; S. C. Finch, 340, per Lord Nottingham ; Wray v. Steele, 2 V. & B. 390, per Sir T. Plumer ; Smith v. Camelford, 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 Swans. 17, 18, ^e?- Lord Eldon; Crop v. Norton, 9 Mod. 235; S. C. Barn, 184 ; S. C.2 Atk. 75, per Lord Hardwioke ; Trench v. Harrison, 17 Sim. Ill; James v. Holmes, 4 De Gex. F. & J. 470. CH. IX. S. 2.] PUECIIASES IN NAMES OF STKANGEKS. 145 to the rule of the common law, that where a feoffment is made without consideration, the use results to the feoffor " (a). 2. But no trust will result unless the person advance the money "Who in particu- in the character of a purchaser ; for if A. discharge the purchase ^eai purchaser, 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. (6). 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., who takes the conveyance, stands in the light of a creditor (c). 3. Not only real estate but personalty also is governed by these Principle principles, as if a man take a bond {d),- or purchase an annuity (e), personalty, stock (/), or other chattel interest {g), in the name of a stranger, the equitable ownership results to the person from whom the con- sideration moves. 4. In Crop v. Norton (h) Lord Hardwicke doubted whether the Joint advance rule was not confined to an individual purchaser. But in Wray nameoTthfiV" V. Steele (i) the point was expressly decided in conformity with the person, general principle ; for what was there applicable to an advance by a single individual which was not equally applicable to a joi7it advance under similar circumstances ? If two persons, joining in a purchase, take the conveyance not Joint advance in the name of a stranger, or of one of themselves, but in the jSnt^tenaX^ names of ioth of themselves as joint-tenants, then a distinction must be observed between an equal and an unequal contribution. In the former case there is nothing on which to ground the pre- Equal contribu- sumption 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 convey- ance to pass a moiety of the estate, and in the meantime each runs his own life against that of the other (k). And so, if two persons (a) Dyer v. Dyer, 2 Cox, 93 ; S. C. (i) 2 V. & B. 388. 1 Watk. Cop. 218. (k) Robinson v. Preston, 4 K. & J. (6) ^ee. Bartlett-v. Piclcersgill,\'&di. 505; Eea v. Williams, Append, to 516 ; Crop v. Norton, 9 Mod. 235. Vend, and Puroh. 11th Ed. ; Moyse {c) BeeAvelingv. Knipe,19yesAil. v. G^'fes, 2 Vern. 385 ; York y. Eaton, (d) Ebrandv. Dancer, 2 Ch.Ca.. 26. 2 Freem. 23; Rigden v. Vallier, 3 • (e) Mortimer v. Dat'ies, cited Rider Atk. 735, per Lord Hardwicke ; V. Kidder, 10 Ves. 363, 366. Hayes v. Kingdome, 1 Vern. 33 ; Ave- (/) Rider v. Kidder, 10 Ves. 360 ; ling v. Knipe, 19 Ves. 444, ^er Sir W. Loyd V. Read, 1 P. W. 607 ; and see Grant ; Lake v. Gibson, 1 Eq. Ca. Sidmouth-v. Sidmouth, 2 Beav. 447; Ab. 291,^er Sir Jos. Jekyll ; Anon. Garrich v. Taylor, 29 Beav. 79; Carth. 15 ; Some v. PoZfa?-d, 24 Beav. Beecher v. Major, 2 Drew. & Sm. 431. 288 ; and see ThicJmesse v. Vernon, 2 (g) See Ex parte Houghton, 17 Ves. Preem. 84. 253 ; Garrick v. TaT/lor, 29 Beav. 79. (« Barn. 179; S. C. 9 Mod. 233; S. C. 2 Atk. 74. 146 PURCHASES IN NAMES OF STEANGEES. [CH. IX. S. 2. Mortgage. Trading. Subsequent improvement by one. Unequal con- tribution. Copyhold grant to A. for life, and fine paid by B., who on B.'s death shail have it ? contract for a purchase in favour of them, and their heirs, and one of them dies, the Court, if they paid equal proportions, will speci- fically 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 (a). 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 (&). Thus where two tenants in common, of a mortgage term, purchased the equity of redemption to them and their heirs, it was held that the nature of the inheritance should follow that of the term (c) ; for if two people join in lendinS money upon mortgage, equity says it could not 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 {d). And in all cases of a joint undertaking or partnership, by way of trade, or upon the hazard of profit and loss, the jus accrescendi is excluded, and the survivors are trustees, in due proportions, for the representatives of those who are dead (e). And where the purchasers pay equally, and take a joint estate, and one afterwards improves the property at his own cost, he has a hen upon the land pro tanto for the money he has expended (/). Should the contribution of the parties be unequal, then in aU cases a trust results to each of them in proportion to the amount originally subscribed (g). 5. If A. discharge the fine on a grant of copyholds to B., C, and D. successively for their Hves, the equitable interest will result to A. ; but should A. die intestate, on whom will the remaining equity devolve ? Estates pur autrie vie in copyholds were not within the Statute of Frauds Qi), nor the 14 G. 2. c. 20. s. 9. (^), nor is there a general occupancy of a trust {k), and before the late Wills Act (a) Aveling v. Knipe, 19 Ves. 441. (6) Bohinsoti v. Preston, 4 K. & J. 505. (c) Edwards v. FashioJi, Pr. Ch. 332 ; and see Aveling v. Knipe, 19 Ves. 444. {d) Morley v. Bird, 3 Ves. 631, per Lord Alvanley ; Rigden v. Vallier, 3 Atk. 7S4:, per Lord Hardwicke ; Anon, case, Garth. 16 ; Partridge v. Pawlet, 1 Atk. 467 ; Petty v. Styward, 1 Ch. Ee. 57 ; Vichers v. Cowell, 1 Beav. 529 ; and see Robinson v. Preston, 4 K. & J. 5n. (e) Lake v. Gibson, Eq. Ca. Ab. 290 ; S. C. (by name of Lakey. Crad- doeh) affirmed 3 P. W. 158; Jeffereys V. Small, 1 Vern. 217 ; EUiotv. Brown, cited Jackson v. Jackson, 9 Ves. 597 ; LysterY. Dolland, 1 Ves. jun. 434, 435, per Lord Thurlow ; and see York v. Eaton, 2 Freem. 23 ; Bone v. Pollard, 24 Beav. 288. (/) Lake v. Gibson, 1 Eq. Ca. Ab. 291, pel- Sir J. Jekyll. (g) Lake v. Gibson, 1 Eq. Ca. Ab. 291, per Sir J. Jekyll; Rigden v. Val- lier, 3 Atk. 735, per Lord Hardwicke. (A) 29 Car. 2. c. 3. s. 12. (i) Rundle v. Rundle, Amb. 152. (k) Penny v. Allen, 7 De G. M. & G. 422 ; and see Castle v. Dod, Cro. Jac. 200. CH. IX. S. 2.] PURCHASES IN NAMES OF STRANGERS. 147 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 ? (a). In Clark v. Danvers (6) the plaintiff was both heir and executor of the equitable owner, and was decreed the benefit of the trust. In ffou>e v. Howe (c) the administratrix was held entitled, and so it was allowed in Bundle V. Bundle (d), and Withers v. Withers (e), and was subsequently sanctioned by the high authority of Lord Mansfield (/). Now by the late Wills Act (7 Gul. iv. and 1 Vict. c. 26. s. 6.) it is declared that where there is no special occupant an estate pur autre vie whether in freehold or in copyhold shall, if not disposed of by the will of the grantee, go to his personal representative {g). 6. The Court cannot imply a resulting trust in evasion of an No resulting act of parliament, and therefore if A., on purchasing a ship, takes chase of a ship in the transfer in the name of B., the complete ownership, both legal stranger's name, and equitable, is in B. (/;.). 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 legislature might be indirectly defeated {i). 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 which could not be effected in the mode prescribed by the statutes, as in the transfer to executors, to trustees of bankrupts, &c. ; but they do reach the case of transfers by opera- tion of law based upon the acts of parties, and arising ex con- tractu (k). However, in certain cases a person may be the registered owner Exceptions to and still be a trustee. When, for instance, one of the members of ^^^ ^'"^®" a firm has a ship registered in his name, it is held by him in trust for the firm including the other partners (I). And when a ship is (a) See Jones v. Goodchild, 3 P.W. (A) Bx parte Yallop, 15 Ves. 60; 33, note B. Ex parte Hcmgliton, 17 Ves. 251 ; (6) 1 Ch. Ca. 310. Camden v. Anderson, 5 T. R. 709. (c) 1 Vera. 415. (») See Ex parte Yallop, 15 Ves. ifl) 2 Vera. 252,264; S. C. Amb. 152. 66, 69. (e) Amb. 151. {h) See Ex nartp, Yallop, 15 Ves. (/) Goodright v. Hodges, 1 Watk. 68 ; Ex parte Houghton, 17 Ves. 251. Cop. 228; Stud see Rumbolly.Rumboll, {I) Holdernessy. Lamport, 29 Beav. 2 Eden. 15. 129, jper M. K. {g) Reynolds v. Wright, 25 Beav. 100 ; 2 De Gex, F. & J. 590. l2 148 PURCHASES IN NAMES OF STEANGEES. [CH. IX. S. 2. Resulting trusts under papistry acts. In purchases for giving votes. Parol evidence as regards Statute of Frauds. Purchase by an agent. registered by mistake in the name of a person who is not the owner of it, and where the person who transferred it to him had no interest in it, the transferee does not acquire such a title to the ship as to deprive the rightful owner of it (a). If letters of administration were obtained to the estate of a shipowner, and the administrator transferred the ship into his own name, and afterwards a wUl was discovered and probate granted to the exe- cutor, could it be contended that the executor was precluded from obtaining the ship, because another person had, boiid fide but by mistake, been registered as the owner ? (&). While the papistry laws were in force, if A., a papist, had pur- chased an estate in the name of B., the Court could not have pre- sumed a resulting trust to A., which as soon as raised, would have become forfeitable to the state (c). And so if a purchaser take a conveyance in the name of another, with a view of giving him a vote for a member of parliament, he cannot afterwards claim the beneficial ownership, for the operation of such a right would render the original purchase fraudulent {(£). 7. As the Statute of Frauds (e) extends to creations or declara- tions of trusts by parties only, and does not affect, indeed ex- pressly excepts, trusts arising by operation or construction of law, it is competent for the real purchaser to prove his payment of the purchase money by 'parol, even though it be otherwise expressed in the deed. In Kirk v. Webb (/) the Court refused to admit evidence, and the decision was followed in subsequent cases ((/) ; however, the doctrine, though supported by numerous precedents, has since been clearly overthrown by the concurrent authority of the most distinguished judges Qi). The rule as at present established will not warrant the admission of parol evidence, where an estate is purchased by an ag&nt, and (a) Holderness v. Lamport, 29 Beav. 129. (6) lb. (c) See Rcdington v. Esdington, 3 Kidg. 184. {d) Groves v. Groves, 3 Y. & J. 163, see 172, 173. (e) 29 Car. 2. o. 3. (/) Prec. Ch. 84. (g) Heron v. Heron, Pr. Ch. 163; S. C. Freem. 246 ; Skett v. Whitmore, Freera. 280 ; Kinder v. Miller, Pr. Ch. 172 ; and see Halcott v. Marhant, Pr. Ch. 168; Hooper y. Eyles, 2 Vern. 480 ; Newton v. Preston, Pr. Ch. 103 ; Cox v. Bateman, 2 Ves. 19 ; Ambrose V. Ambrose, 1 P. W. 321 ; Deg v. Deg, 2 P. W. 414; The earlier case of Gascoigne v. Thwing, 1 Vern. 366, was in harmony with the modern doc- trine. {h) Ryally. Ryall, 1 Atk. 59 ; S. C. Anib. 413 ; Willis v. Willis, 2 Atk. 71 ; Bartlettv. PiclxTsgill, 1 Ed. 515; Lane v. Dighton, Amb. 409 ; Knight v. Pechey, 1 Dick. 337 ; ;S'. C. cited from MS. 3 Vend. & Purch. 258; Groves y. Crroves, 3 Y. & J. 163 : Lench v. Letich, 10 Ves. 517. CH. IX. S. 2.] PURCHASES IN NAMES OF STRANGERS. 149 no part of the consideration is paid by the employer ; for though an agent is a trustee in equity, yet the 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 (6). The employer, therefore, as he could not profit by the conviction, was never prevented by interest from being a witness against the agent (c). And parol evidence, where admitted, must prove the fact very Parol evidence clearly (d) ; though no objection lies against the reception of mere ™"^* ^^ '^^'^^'^■ circumstantial evidence, as that the means of the pretended pur- chaser were so slender as to make it impossible he should have paid the purchase-money himself («). And should the nominal purchaser deny the trust by his answer Trust may be the solemnity of the defendant's oath will of course require a con- defendant's"^ siderable weight of evidence to overcome its impression (/). denial. 8. It is laid down by Mr. Sanders, that " if a person at his Of written evi dfillCG flftcr fill6 death leave any papers disclosing the real circumstances of the death of the no- case, the Court will raise the trust even against the express de- ™™'il purchaser claration of the purchase-deed " {g). We have seen that, according to the latest authorities, parol evidence is in ordinary cases admis- sible against the language of the purchase-deed ; but if Mr. San- ders's opinion to the contrary were weU 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. Ryall (A) and Lane v. Dighton (j), which are cited for the position, do not at all turn upon the distinction suggested. 9. It is observed by the same writer, that, "after the death of Of parol evidence the supposed nominal purchaser, parol proof alone can in no ^}'^ ^^^ ^ea.t\i instance be admitted against the express declaration of the purchaser, deed " (k) ; but the cases relied upon in support of this doc- (a) Barthtt v. Pichersgill, 1 Ed. 515 ; (e) Willis v. Willis, 2 Atb. 71, per Rastel V. Hutchinson, 1 Dick 44 ; Lord Hardwicke ; and see Lench v. Lamas v. Bayley, 2 Vern. 627 ; Atkins Lench, 10 Ves. 518 ; Wilkins v. Stevens, V. Rowe, Mose. 39 ; S. C. Cas. Dora. 1 Y. & C. Ch. Ca. 431. Proc. 1730. (/) See Cooth v. Jackson, 6 Ves. [h) Bartletty.Pickersgill,\'&A.b\l. 39. (c) King v. Boston, 4 East. 572. {g) Uses and Trusts, c. 3. s. 7, [d) Gascoigne v. Thwing, 1 Vern. div. 2. 366; HalcottY. Markant,'Pr. Ch. 168; (^) Amb. 413. Willis Y. Willis, 2 Atk. 71 ; Gooclright [i) Amb. 409. V. floras, 1 Watk. Cop. 229, ^e?' Lord {k) Uses and Trusts, c. 3, s. 7, Mansfield ; Groves v. Groves, 3 Y. & div. 2. J. 163; and see Rider v. Kidder, 10 Ves. 364. 150 PUKCHASES IN NAMES OF STRANGERS. [CH. IX. S. 2. Of following trust-money into land. The resulting trust may be re- butted by parol. Declarations subsequent to the purchase. trine (a) do not distinguish between proofs in a person's lifetime and after his decease ; they are certainly authorities for the exclu- sion 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. 10. In the question, whether a purchase in the name of a third person can be established by parol testimony, is also involved the question, whether trust money can be followed into laiid 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 (6). 11. As in the cases we have been considering the trust results to the real purchaser by presumption of law, which is merely an arbitrary implication in the absence of reasonable proof to the contrary, the nominal purchaser is at liberty to rebut the pre- sumption by the production of parol evidence showing the inten- tion of conferring the beneficial interest (c) ; and the evidence to rebut need not be as strong as evidence to create a trust {^. And as he may repel the presumption in toto, so may he in part ; as by proving the purchaser's intention to permit the legal tenant to enjoy beneficially for life (e). 12. When it has been once ascertained that the understanding of the parties at the time of the purchase was that the legal owner should also be the beneficial owner, it is not competent to the person who paid the money to put a different construction upon the instrument at any subsequent period, and claim the estate against his intentions at the time (/) ; and even if under such (a) Kirh v. Wehh, Pr. Ch. 84; 8. C. Freem. 229 ; Heron v. Heron, Pr. Ch. 163; Halcott v. Markant, id. 168 ; Kinder V. Miller, irl. 172 ; 8. C. 2 Vern. 440 ; Deg v. Dec/, 2 P. W. 414 ; per Lord King. (6) Lench v. Lench, 10 Ves. 517, per Sir W. Grant ; Ryall v. Ryall, 1 Atk. 59 ; 8. C. Amb. 413 ; Lane v. Difjliton, Amb. 409 ; Balgney v. Ha- milton, Amb. 414 ; Trench v. Harrison, 17 Sim. 111. (c) OoodrigM v. Hodges, 1 Watk. Cop. 227 ; 8. C. Lofft. 230 ; Rider v. Kidder, 10 Ves. 364 ; Rundle v. Ruiidle, 2 Vern. 252, 264; Taylors. Taylor, 1 Atk. 386 ; Redington v. Redington, 3 Ridg. 106; see 165, 177, 178; Gar- rich V. Taylor, 29 Beav. 79 ; Beecher V. Major, 2 Drew. & Sm. 431. {d) Nicholson v. Mulligan, 3 I. R. Eq. S22, per cur. (e) Rider v. Rider, 10 Ves. 360; see 368 ; Benhow v. Toivnsend, 1 M. & K. 506 ; and see Nicholson v. Mulli- gan, 3 I. R. Eq. 308. if) Groves V. Groves, 3 Y. & J. 172, per Alexander, C. B. CH. IX. S. 2.] PURCHASE IN NAME OF A CHILD. 151 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 voluntary (a). 13. The real purchaser may be barred of his interest by laches, Egeot ot time, for the presumption of a resulting trust will not be raised, after a great length of time, more particularly if it be in opposition to the evidence afforded by the actual enjoyment (&). Secondly/ : Where the purchase is made hy a person in the name of a child, or wife, or other near relative. Where a father purchases in the name of his child, the pre- Advancement, sumption of law is, that a provision was intended (c). The grounds of this doctrine are weU stated by Lord Chief Paron Eyre (if). " The circumstance," he said, " of one or more of the nominees rpj^^ relationship being a child or children of the purchaser, is held to operate by of fatberand rebutting the resulting trust ; and it has been determined in so circumstance of many cases that the nominee being a child shall have such opera- evidence, tion as a circumstance of evidence, that it would be disturbing laud- marks if we suffered either of these propositions to be called into question ; — namely. That such circumstance shall rebut the result- ing trust ; and, That it shall do so as a circumstance of evidence. I think it would have been a more simple doctrine, if the children had been considered as piurchasers for valuable consideration. This way of considering it would have shut out aU the circumstances of cndence which have found their way into many of the 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 without very certain guides." The difficulties arising from the light in which the question has (a) Groves v. Groves, 3 Y. & J. 163. cited 2 Cox, 97, and 1 Watk. Cop. \h) Dekme v. Delane, 7 B. P. C. 224, per Sir T. Sewell ; Goodright v. 279 ; and see Groves v. Groves, 3 Y. & Hodges, 1 Watk. Cop. 228, per Lord J. 172 ; Clegg v. Edmondson, 8 De G. Mansfield ; Pole v. Pole, 1 Ves. 76, M. & G. 787. per Lord Hardwicke ; Lamplugh v. (o) Dyer v. Dyer, 2 Cox, 93, S. C. Lamplugh, 1 P. W. Ill, 2nd point ; 1 Watk. Cop. 219, per Eyre, C. B. ; Woodman v. Morrel,2 Freem. ?>?i,per Grey v. Ch-ey, 2 Swans. 597 ; S. C. Cur.; Murless v. Franklin, 1 Swans. Finch 340, per Lord Nottingham ; 17, 18, per Lord Eldon ; Finch v. Sidmou&Y. Sidmouth, 2 Beav. 454, Finch, 15 Ves. 50, per eundem; per Lord Langdale ; Bedington v. Fearne's P. W. 327, &o. rtoJi, 3 Ridg. 176, per Lord (d) Dyer v. Dyer, 2 Cox, 94 ; S. C. Loughborough; Christy v. Courtenay, 1 Watk. Cop. 218; and see Lord 13 Beav. 90 ; Elliott v. Elliott, 2 Ch. Nottingham's observations in Grey v. Ca. 231, agreed ; Bedwell v. Froome, Grey, 2 fcjwans. 598. 152 PURCHASE IN NAME OF A CHILD. [CH. IX. S. 2. Case of the child being an infant. Purchase of a reversionary estate. Purchase in joint names of father and son. been viewed will amply appear from the numerous refined dis- tinctions 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 infant (a) ; 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 stUl more improbable was the supposition that an infant should have been selected as a trustee (b), and accordingly the notion has long since been overruled (c) ; nay, the infancy of the child is now looked upon as a circumstance particularly favourable {d). 2. It was objected, that a reversionary estate, from the uncer- tainty of the time when it would fall into possession, was not such a kind of interest as a parent would prudently purchase by way of provision for a child ; but mere proximity or remoteness of the enjoyment, whether the reversion be expectant on the decease of the parent or a stranger, has since been held clearly insufficient to countervail the general rule (e). 3. A purchase in the joint names of the father and son has met with objections ; " for this," observed Lord Hardwicke, " 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 abso- lutely even after a division, besides the father's taking a chance to himself of being a survivor of the other moiety : nay, if the son die during his minority, the father would be entitled to the whole by survivorship, and the son could not prevent it by severance, he being an infant " (/). But surely no improvidence can be 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 survivor- ship as to the whole ; that the son shall have the power, when necessary, of settling one moiety of the estate, but shall leave the other moiety to his parent. Whatever opinion may be entertained as to the principle, the doubts above expressed by Lord Hardwicke (a) 2 Freem. 128, o. 151 ; and see Binion v. Stone, id. 169 ; S. C. Nels. C8. (6) See supra, p. 34. (c) Lamplugh v. Lamplugk, 1 P. W. Ill ; Lady Gorge's case, cited 2 Sw. COO; Skeats v. Skeats, 2 Y. & C. Ch. Ca. 9 ; Christy v. Courtenay, 13 Beav. 90 ; CoUinson v. Collinson, 3 De Gr. M. & G. 403 ; Mumma v. Mumma, 2 Vern. 19 ; Finch v. Finch, 15 Ves. 43, &c. [d) f^earne's P. W. 327. («) Rumboll V. Rumboll, 2 Eden, 17, per Lord Henley ; Finch v. Finch, 15 Ves. 43 ; Murless v. Franklin, 1 Swans. 13. (/) Stileman v. Ashdown, 2 Atk. 480; and see Pole v. J-'ole, 1 Ves. 76. CH. IX. S. 2.] PUECHASE IN NAME OF A CHILD. 153 can scarcely be maintained in opposition to repeated decisions (a), A purchase in the joint names of the son and a strmiger is less favourable to the supposition of an intended advancement (&) ; but even here the right of the child is now indisputably established (c). However, the advancement cannot be more extensive than the legal estate in the child (d) ; and therefore the stranger, quatenus the legal estate vested in him, must hold upon trust for the father (e). 4. It is the custom, in many manors, to make grants for lives Purchase of copy- suecessivd. Should a father pay a fine upon a grant to himself uygs stoccesswe. and his two sons, shall this be held an advancement or a trust ? Upon the difficulty of this case. Lord Chief Baron Eyre remarked, that " when the lessees were to take successive, the father could not take the whole in his own name, but must insert other names in the lease, and that there might be many prudential reasons for putting in the life of a child as trustee for him, in preference to any other person" (/). And in accordance with this reasoning was decided the case of Dichenson v. Shaw (g) ; but in Dyer v. Dyer (h) the notion was overruled as savouring too much of refinement ; and so at the present day it must be considered as settled (i). 5. It may happen, that the child in whose name the purchase is Child already- taken may have been already provided for, a circumstance of very ^"^"^^ ^ °''" considerable weight in rebutting the presumption of further ad- vancement. " 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 " (h). However, the distinction has been relied upon in several cases (/), and has been repeatedly recognised by the highest authorities (m). At the same time, it must be noticed that the prior advancement (a) Scroope v. Scroope, 1 Ch. Oa. (g) Cited 2 Cox, 95 ; IWatk. Cop. 27; Bade v. Andrews, 2 Vern. 120; 221. Grey v. Grey, 2 Swans. 599, and oases (A) 2 Cox, 92 ; 1 Watk. Cop. 216. there cited; JDummer v. Pitcher, 2 M. [i) Swift y. Davis, 8 East, 354, note & K. 272. (o) ; Fearne's P. W. 327 ; Skeats v. (h) See Hayes v. Kingdome, 1 Vern. Skeats, 2 Y. & C. Ch. Ca. 9; Jeans v. 34. Cooke, 24 Beav. 513. (c) Lamplngh v. Laraplugh, 1 P. W. (Ic) Dyer v. Dyer, 2 Cox, 94 ; S. C. Ill ; Kingdome v. Bridges, 2 Vern. 1 Watk. Cop. 220. 67. (?) Elliott V. Elliott, 2 Ch. Ca. 231 ; {d) See Rumholl v. Rumholl, 1 Eden, Pole v. Pole, 1 Ves. 76. 17. (to) See Grey y. GVey,2 Swan.s. 600 ; (c) See Kingdome v. Bridges, 2 S. C. 'Pinch, 3il; Lloyd-v. Read, 1 F. Vern. 67 ; Lamplugh v. Lamplugh, 1 W. 608 ; Redington v. Redinglon, 3 P. W. 112. Eidg. 190; Glib. Lex. Praet. 271. (/) Dyer v. Dyer, 2 Cox, 95 ; S. C. 1 Watk. Cop. 221. 154 PUECIIASB IN NAME OF A CHILD. [CH. IX. S. 2. Whether child considered as provided for when adult. Preyious pro- vision in part. Eeversioilary estate not a provision. Case of father holding the possession, and child an infant. Son signing receipts for rents in father's name. Chief Baron Byre's opinion. Lord Notting- ham's opinion. of the child has always been accompanied with some additional circumstance that tended to strengthen the presumption that no further provision was designed (a) ; 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 (6). It is said by Lord Chief Baron Gilbert, that " if a father pur- chase in the name of a son who is full of age, which hy 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 " (c). But for this opinion there appears to be not the slightest ground (d). The provision must exist not by a fiction of law but iond fide and substantially ; " as," said Lord ISTottingham, " if the son be married in his father's lifetime, and with his father's consent, and a settle- ment be thereupon made, whereby the son appears to be fully advanced, and in a manner emancipated " (e). A provision in part will not have the effect of rebutting the presumption of advance- ment (/) ; and the settlement of a reversionary estate upon the son will not be deemed a provision, for he might starve before it feU into possession (g). 6. Suppose the father continues, after the purchase, in the per- ception of the rents and profits, and exerts other acts of ownership, 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 exer- cise 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 (h) ; 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 his father (f). Lord Chief Baron Eyre expressed himself dissatisfied with this reasoning in reference to the guardianship (k), and Lord Nottingham referred the decisions to a higher ground. " Some," he said, " have taken" the difference, (a) Pole V. Pole, Elliott v. Elliott, ubi suprii ; and see Grey v. Grey, 2 Swans. 600; Gilb. Lex. Prset. 271. (6) Reditigton v. Redington, .3 Riclg. 190 ; and see Sidmouth v. Sidmouth, 2 Beav. 466. (c) Lex Prset. 271. {d) In Greyy. Grey, (ubi supra), hv instance, the son was of age. (e) Grey v. Grey, 2 Swans. 600. (/) lb ; Redington v. Redington, 3 Ridg. 190. (g) Lamplugh v. Lamplugh, 1 P.W. 111. {h) Gorgets case, cited Cro. Car. 550, & 2 Swans. 600 ; Mumma v. Mumma, 2 Vera. 19; Taylor v. Taylor, 2 Atk. 386 ; Lamplugh v. Lamplugh, 1 P. W. Ill; and see Stihman v. Aslidown, 2 Atk. 480 ; Lloyd v. Read, 1 P.W.608 ; Chriityv. Courtenay, 13 Beav. 96; Fox V. Fox, 15 L-. Ch. Re. 89. (i) Taylor v. Taylor, 1 Atk. 386. (h) Dyer v. Dyer, 2 Cox, 94 ; S. C. 1 Watk. 220. CH. IX. S. 2.] PURCHASE IN NAME OF A CHILD. 155 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 giiardianshvp, but upon the loresumptive advancement, for a pur- chase in the name of an infant stranger (that is, notwithstanding the relation of guardian and ward) with perception of profits, &c., wiU be evidence of a trust " (a). 7. Suppose, the father purchases in the name of a son who is Case of a father ackdt, and then, without contradiction from the son, takes the possession, and rents and profits, and exerts other acts of ownership ; even here son adult, it has been determined that the right of the son will prevail. A stronger instance can hardly be conceived than occurred in the very leading case of Grey v. Chey (&), before Lord JSTottingham. Gfrey v. Grey. We have his lordship's own manuscript of this case, and the cir- cumstances are thus stated : — " The evidence to prove tliis pur- chase 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 settle- ment ; 9thly, treated about the sale of it " (c) : yet, for all this, it was decided, after long and matui-e deliberation, that the con- sideration 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 contradict, could not countervail it (d). The propriety of this decision, upon principle independently of authority, has been called into ques- tion (e). It might perhaps be successfully contended, that Lord Nottingham'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 (/). The advancement of the son is a mere question of intention, Evidence from facts to rebut the presumption (a) Grey v. Grey, 2 Swans. 600. ib. 252 ; Sidmouth v. Sidmouth, 2 Beav. (6) 2 Swans. 594 ; Pinch. 338. 447 ; Williams v. Williamn, 32 Beav. (c) 2 Swans. 596. 370; and see Elliotts. Elliott, 2 Ch. Ca. [d) See 2 Swans. 599. 231 ; but see Lloyd v. Bead, 1 P. W. («) Dyer v. Dyer, 2 Cox. 95 ; 8. C. 607 ; Redington v. Redington, 3 Eidg. 1 Watk. Cop. 220. 190 ; Murless v. Franklin, 1 Sw. 17 ; (/) Woodman v. Morrell, 2 Freem. Scawin v. Scawin, 1 Y. & C. Ch. Ca. 32, reversed on the re-hearing (see 65. note by Hovenden) ; Shales v. Shales, 156 rUECITASE IN NAME OF A CHILD. [CH. IX. S. 2. Evidence from parol declai-a- tions. Eyidence on the part of a child. and, therefore, facts antecedent to or contemporaneous with the purchase (a), or so immediately after it as to constitute part of the same transaction (&), 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 surrenders the copyholds to the use of his wUl (c), or obtains a licence from the lord to lease for years {d), or takes possession by some overt act immediately consecLuent upon the purchase (e), or serves a notice with a view of taking possession, and then waives it and receives the rents, &c. (/). 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. Of course the father cannot defeat the advancement by any subsequent declaration of intention {g). But his evidence is admissible for the purpose of proving what was the intention at the time Qi). On the other hand, the son may produce parol evidence to prove the intention of advancement {i), 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 instrument {k). (a) See Williams v. Williams, 32 Beav. 370 ; Tucker v. Burrovj, 2 Hemm. & Mill. 524 ; Collinson v. Col- linson,'6 De Gex, M.&G.409; Murless V. Frnnldin, 1 Sw, 17, 19 ; Bidmouih V. Siclmouih, 2 Beav. 447 ; Lloyd v. Bead, 1 P. W. 607 ; Taylor v. Alston. cited 2 Cox, 96, 1 Watk. Cop. 223 Redington v. Redington, 3 Ridg. 177 Grey v. Grey, 2 Sw. 594 ; RawldgKs case, cited Hard. 497 ; Baylis v. New- ton, 2 Vern. 28 ; Shales v. Shales, 2 Preem. 252 ; Scawin v. Scawin, 1 Y. & C. Ch. Ca. 65 ; Christy v. Courtenay, 13 Beav. 90. (&) Redington v. Redington, 3 Ridg. 196, per Lord Loiigliborough ; Jeans v. Cooke, 24 Beav. 621, per M. R. (c) Prankerd v. Prankerd, 1 S. & S. 1. {d] Swift V. Davis, 8 East, 354, note (a). (e) Lord Eldon could scarcely have meant more than this, when he observed, " Possession taken by the father at the time would amount to such evidence." Murless v. Franklin, 1 Swans. 17. (/) Stock V. McAvoy, 15 L. E. Eq. 55 In this case evidence was given that the father said it should be his son's after his own death, but V.-C. Wickens observed, " If tlie son is a trustee at all, he is wholly a trustee," lb. 58. ((/) See Williams v. Williams, 32 Beav. 370; Elliots. EllioU,2 Ch. Ca. 221 ; Finch v. Finch, 15 Ves. 51 ; Woodman v. Morrel, 2 Freem. 33 ; Birch V. Blagrave, Amb. 266 ; Gilb. Lex. Prset. 271; Sidnwuthv. Sidmouth, 2 Beav. 456 ; Skeats v. Skeats, 2 Y. & C Ch. Ca. 9 ; Christy v. Courtenay, 13 Beav. 96. (7i) Devoy v. Devoy, 3 Sm. & Gif. 403. (i) Taylor v. Alston, cited 2 Cox, 96, 1 Watk. Cop. 223 ; Beckford v. Beckford, Lofft. 490. {k) See Taylor v. Taylor, 1 Atk. CH. IX. S. 2.] PURCHASE IN NAME OF A CHILD. 157 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 (a), and so the subsequent acts or declarations of the son may be used against him by the father, provided he was a party to the purchase, and his construction of the transaction may be taken as an index to the intention of the father (b) ; but not otherwise, for the question is, not what did the son, but what did the father mean by the purchase ? From the manner in which the Court has disposed of the several Rule not to be distinctions we have been considering, one general principle is to refinements, be extracted applicable to every case. " We think," said Chief Baron Eyre, " that reasons which partake of too great a degree of reiinement 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 " (c) ; and Lord Eldon to the same effect observed, " that the Court in Dyer V. Dyer meant to establish this principle, that the purchase is an advancement primd facie, and in this sense, that this principle of law and presumption is not to be frittered away by mere refine- ments" id). The doctrine of advancement has been applied to the case of Eu\e applies to even an illegitimate son (e) ; for it is said the principle is, that a child, 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 presumption (/). But the doctrine will not be applied to the illegitimate son of a legitimate child of the real purchaser, or person who pays the purchase-money, though such purchaser may have placed himself loco parentis to the ille- gitimate grandchild (^). It has been said that the presumption of advancement is not so E^^ls applies to strong in favour of a daughter as of a son, because daughters are as sons, not generally provided for by a settlement of real estate (h) ; but 386; Lamplugh v. Lamplugh, 1 P.W. (d) Finch v. Finch, 15 Ves. 50. ]13; Redingiony. Bedington, 3 Ridg. (e) Beckfordy. Beckford,hoSt. idO; 182, 195. Fearne's P. W. 327 ; and see Soar v. (ffl) See Redington v. Bedington, 3 Foster, 4: K. k J. 160; Kilpin v. Kil2nn, Eidg. 195, 197 ; Sidmouth v. Sidmouth, 1 My. & K. 520 ; Tucker v. Burrow, 2 Beav. 465 ; Stock v. McAvoy, 15 L. 2 Hemm. & Mill. 525. R. Eq. 55. (/) See Fonb. Eq. Tr. 123, note (•*), (6) See Murless v. Franklin, 1 Sw. 4th ed. 20 ; Foley. Pole, 1 Ves. 76 ; Sidmouth (g) Tucker y. Burrow, 2 lleram. & V. Sidmouth, 2 Beav. 455; Scawin y. Mill. 515. Scawin, 1 Y. & C. Ch. Ca. 65 ; Jeans [h) Gilb. Lex. Prset. 272. V. Cooke, 24 Beav. 521. (c) 2 Cox, 98 ; 1 Walk. Cop. 226. 168 PUECHASE IN NAME OF A CHILD. [CH. IX. S. 2. Rule applies to a wife, and grand- child or nephew, towards whom the purchaser stands in loco X)arentis. Case of a mother. Purchase-money not paid, a debt from parent. Advancement applies to per- sonalty. the distinction has been contradicted by more than one decision, and does not now exist (a). Advancement will be presumed in the case of a wife (&), but not of a reputed wife, being the sister of a former wife, and therefore not legally married (c) ; and the presumption will be made where the purchase is taken in the name of a grandchild, where the father is dead (d), or of a nephew who had been adopted as a son («) ; but it seems that the advancement will not be presumed in favour of a more remote relation, and d fortiori not of a stranger, though the real purchaser may have placed himself loco parentis (/). The cases of advancement are generally those of a father, but the principle is equally applicable, and has accordingly been ap- plied as between a mother and her child {g). Where the purchase is held to be an advancement, and the pur- chase-money has not been paid, it will be a charge on the father's assets as an ordinary debt Qi) ; and the conveyance where the contract in favour of the wife or child remains to be executed, will be made to the wife or child, though the real purchaser's executor pays the purchase-money, for it is not the case of a volunteer (viz., the wife or child, calling for specific performance), but the vendor on his side has a right to enforce the contract and compel payment of the price, and then the Court settles the conveyance in the form in which, according to the contract, it was meant to be taken, viz., in favour of the wife or child {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). (a) Lady Gorgets case, cited Cro. Car. 550, 2 Swans. 600 ; Jennings v. Sel- leck, 1 Vern. 467 ; and see Woodman V. Morrel, 2 Freem. 33 ; Clarke v. Danvers,^ 1 Ch. Ca. 310. (6) Kingdome v. Bridges, 2 Vern. 67 ; Chrisfs Hospital v. Bugdin, id. 683 ; Bach v. Andrews, id. 120 ; Glais- ter V. Hewer, 8 Ves. 199, per Sir W. Grant ; Bider v. Kidder, 10 Ves. 367, per Lord Eldon ; Gilb. Lex. Praet. 272; Dummer v. Pitcher, 2 M. & K. 262 ; and see Lloyd v. Pughe, 14 L. R. Eq. 241 ; 8 L. R. Ch. App. 88. (c) Soar V. Foster, 4 K. & J. 152. {d) Ebrand v. Dancer, 2 Ch. Ca. 26 ; and see Loyd v. Read, 1 P. W. 607 ; Currant v. Jago, 1 Coll. 265, note (c) ; Tuchery. Burrow, 2 Hemm. & M. 525. (e) Currant v. Jago, 1 Coll. 261. (/) See Tucker v. Burrow, 2 Hemm. & Mill. 515 ; but see the analogous class of cases iu reference to double portions, Powys v. Mansfield, 3 My. & Cr. 359, &c. [g] Sayre v. Hughes, 5 L. R. Eq. 376; but see Be De Visme, 2 De Gex, J. &Sm. 17. {h) Redington v. Redington, 3 Ridg. 106, see 200 ; and see Nicholson v. Mul- ligan, 3 I. R. Eq. 308. (i) Drew v. Martin, 2 Hemm. & Mil. 130 ; and see Nicholson v. Mulligan, 3 I. R. Eq. 308. {Jc) Dummer v. Pitcher, 2 M. & K. 262 ; Sidmouth v. Sidmouth, 2 Beav. 447 ; Hfpivorih v. Hepworth, 11 L. R. Eq. 10 ; Fox V. Fox, 15 L-. Ch. Re. 89 ; and see Bmie v. Pollard, 24 Beav. 283 ; Devoy v. Devoy, 3 Sm. & Gif. 403. CH. IX. S. 2.] PURCHASE IN NAME OF A CHILD. 159 In a recent case, where money was lent out in the name of a Solicitor, person who was both son and solicitor of the owner of the sum lent, it was held that the particular relation of solicitor prevented the application of the general rule (a). {a) Garrett v. Wilkinson, 2 De Gex & Sra. 244. 160 CHAPTER X. OF CONSTRUCTIVE TRUSTS. General doctrine. 1- -^ constructive trust (a) is raised by a court of equity, wherever a person, clothed with a fiduciary character, gains some personal advantage iy availing himself of his situation as trustee ; for as it is impossible that a trustee should be allowed to make a profit by his of&ce, it follows that so soon as the advantage in question is shown to have been acquired through the medium of a trust, the trustee, however good a legal title he may have, will be decreed in equity to hold for the benefit of his cestid que trust. Renewalofleases 2. A common instance of a constructive trust occurs in the re- newal of leases ; the rule being, that if a trustee (V), or executor (c), or even an executor de son tort (d), renew a lease in his own name, he will be deemed in equity to be trustee for those interested in the original term. The leading authority upon this subject is Sandford v. Keech, case. commonly called the Rumford Market Case (e). A lessee of the profits of a market had devised the lease 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 be no distress of the profits of a market, but the remedy must rest singly in covenant, of which an infant was incapable. Upon this the trustee took a lease (a) As to the meaning of the term Miller, 2 Atk. 597, per Lord Hard- " constructive trust," see page 95, wicke ; Killich v. Flexney, 4 B. C. C. supra. 161; Pickering v. Vowles, 1 B. C. C. (6) Griffin y. Griffin, 1 Sch. & Lef. 198, per Lord Thurlow ; Luchin v. 354, per Lord Redesdale ; Piclcering v. Sushworth, Finch 392 ; Anon. 2 Ch. Vowles, 1 B. C. C. 198, ^er Lord Thur- Ca. 207 ; and see Mulvany v. Dillon, low ; Pierson v. Shore, 1 Atk. 480,per 1 -B. & B. 409 ; Fosbroohe v. Balguy, Lord Hard wicke ;iVesMHani, 18 Ves. 419, and following pages. CH. XII. S. 1.] BY THE TKDSTEE. ,193 ses («), unless it be quite clear upon the face of the deed itself that the words " during the life of A.'' were meant to be in the deed, and were wanting through inadvertence (&). Of course there can be no such restriction of the estate by implication where the natural sense of the words admits of a fair and reasonable construction ; as if before the late Act (c) the fee simple in the trustees would have supported contingent limitations that would otherwise have been left at the mercy of the tenant for life (d). 3. But if a devise be to trustees and their heirs upon a trust that Trust to lease, cannot be executed without an absolute control over the property, simple, as iu trust to lease for an indefinite number of years («), or to raise a sum of money by sale (/), and subject thereto to uses in strict settlement, the trustees will not be held to take a mere poiver so as to let in the statute to execute the uses in strict settlement, but will be construed to take the legal estate in fee, and the uses that are limited will stand as equitable interests. So if copyholds be devised to trustees (who are also appointed Charge of debts, executors of the testator) and the survivor of them, and the heirs of such survivor, charged with debts, and subject thereto upon trust to pay the rents to the testator's daughter for life, and after her death, the copyholds are devised by the testator directly to the heirs of the body of such tenant for life, here, as the charge of debts may require the fee simple to be in the trustees, fa) Colmore v. Tyndall, 2 Y. & J. of Hawker v. Hawker, 3 B. & Aid. 605 ; Lewis v. Rees, 3 K. & J. 132 ; 537. The devise was probably con- Cooper V. Kynock, 7 L. R. Ch. App. sidered to be of a double aspect, 398. visr. to the trustees and their heirs (b) Beaumont v. Marquis of Salis- upon trust to sell, &c. if one event hury, 19 Beav. 198. happened, and upon trust for the (c) 8 & 9 Vict. 0. 106, s. 8. daughter, &c. if another event hap- (d) Venahles v. Morris, 7 T. R. 342, pened, and as the latter series of 438 ; and see Curtis v. Price, 12 Ves. limitations took effect, and therefore 100 ; Doe v. Hicks, 7 T. R. 437 ; Roch- no power of sale was to be exercised ford V. Fitzmaurice, 1 Conn. & Laws. by the trustees, it was not necessary 169 ; 2 Drur. & Warr. 16. under the circumstances to arm them («) Doe V. Willan, 2 B. & Aid. 84 ; with the inheritance. The case of but see Heardson v. Williamson, 1 Warier v. Hutchinson, 5 Moore, 143, Keen, 33; AcJcland v. Lutley, 9 Ad. & 1 B. & C. 721, is more difficult to Ell. 879. be reconciled with the rule we are (/) Wright v. Pearson, 1 Ed, 123 ; discussing. The construction appears Bagshaw v. Spencer, 1 Ves. 142 ; to have been, that, as the limitation to Glover V. Monckton, 3 Bing. 13 ; Bale the trustees and their heirs was ex- V. Coleman, 2 Eq. Ca. Ab. 309 ; note pressly limited to the period until A. (e) ; Sanford v. Irby, 3 B. & Aid. 664 ; attained twenty-one, the estate was Jones y . Morgan, 1 B. C. C. 206 : fora intended to be a chattel interest only, correct report of the will, see Fearne's and the charges were to be raised C. R. Appendix, No. 3. It has been either by sale or mortgage of that observed in the "Treatise of Powers " chattel interest, or out of the inherit- (Sug. Pow. Ill, 8th edit.), that this ance by virtue of an implied power, rule was not attended to in the case 194 ESTATE TAICEN [CH. XII. S. 1. Present rule regulating clevises to trustees. Devise to uses. Where the powers do not affect the fee. they take the legal estate not only for the life of the tenant for life but absolutely, and the issue in tail take only equitable estates (a). 4. Eecent cases have established the following important qualification of the rule now under consideration, viz., that 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 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 pass- ing the fee, but 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 power (6). Baron Parke observed, in the leading case (c), " When an estate is given to trustees, all the trusts must primd facie, at least be performed by them by virtue and in respect of the estate vested in 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 required, and then when the trust does require the whole fee simple, to hold that that must be suppHed by way of power defeating the estate to the subsequent devisees, and not out of the interest of the trustees." 5. The rule of construction laid down in this case has since been followed, even where the language of the subsequent limi- tations 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 {cl). 6. But where the devise, before the late Wills Act, was to trustees and their heirs upon trust for a person for life, and after her death upon certain trusts during the minority of her children, followed by a direct devise to the children ou the youngest attain- (ffl) Creaton v. Creaton, 3 Sm. & Gif. 386. {b) Watson v. Pearson, 2 Exch. Rep. 58i ; Blagrave v. Blagrave, 4 Exch. Rep. 5.50 ; Davies v. Davies, 1 Q. 13. Hep. 430; Doe v. Cadoqan, 7 Ad. & l':il. 036 ; Rcickham v, Si'dcMl, 1 McX. & G. 607; Pood v. Watson, 6 Ell. & Bl. 606 ; and see Watkins v. Frederick, U H. L. Ca. 358. (c) Watson v. Pearson, 2 Exch. Rep. 593. [d) Blagrave v. Blagrave, 4 Exch. Rep. 650; Rackham v. Siddall, 1 McN. & G. 607. CH. XII. S. 1.] BY THE TRUSTEE. 195 ing 21, without words of limitation (and therefore construed to give life estates only), with a mere power of leasing for 21 years, to be exercised during the continuance of the trust without any purpose affecting the fee simple, and which power of leasing extended to other estates also, which were clearly devised to the beneficiaries directly, it was held that the mere power of leasing was not sufficient to countervail the rule that the legal estate was not to be extended beyond the necessity of the trust, and that under all the circumstances the trustees took an estate for the life of the mother and the minority of the children with a power of leasing (a). 7. The law upon the subject has now undergone some alteration Late Wills Act. from the provisions of the late act (7 W. 4. and 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 implieation." And by the following section it is enacted, " that where any real estate shall be devised to a trustee luithout any express limi- tation 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 contimie 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 is Effect of the act. 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 (h), there the words of the will are for the future made to pass the fee simple (c). (a) Doev. Cc*/e,7Exch.Rep.675;and (c) See the observations on the above see Arfa?M v.^rfams, 6 Q. B. Rep. 8G0. claii-es, H. Siigden on Wills, p. lUt; (J) 5 East, 162. 2 Jann. on Wills, 263. ::: 196 PEOPERTIES OF THE LEGAL ESTATE. [CH. XIL S. 2. SECTION" II. THE PBOPEETIBS AKD DEVOLUTION OF THE LEGAL ESTATE IN THE TEUSTEB. This branch of our subject we propose to consider, First, with reference to the common law ; and, Secondly, with reference to the construction of particular statutes. Legal estate at common law. Of dower, curtesy, &c. Trust chattels subject to forfeiture, &c. Devolve on executor. Renunciation by one executor. First. Of the legal estate at common law. 1. It may be stated as a general rule, that the legal estate in the hands of the trustee has at common law precisely the same proper- ties and incidents as if the trustee were the usufructuary owner. If real estate be put in trust it is subject at law in the hands of the trustee to curtesy (a), and dower (6), and in the case of copy- hold to freebench (c) ; and until a late act the trust estate was liable to forfeiture {cl), and on the decease of the trustee, if there was no heir, it fell by escheat to the lord (e) ; but now by 13 & 14 Vict. c. 60, ss. 16, 46, (substituted for 4 & 5 W. 4. c. 23,) the legal estate of trust property is protected from forfeiture and escheat (/). 2. So chattels real and personal held upon trust were forfeitable until the late act, (which extends to personal as weU. 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 (li). On the decease of the trustee the chattel, as part of his personal estate at law, devolves on his executor or administrator. And if the executor die after probate, having appointed an executor, the chattel becomes vested in that executor. Until a late act, if an executor had renounced probate, the renunciation, though j^rimd facie absolute (i), might have been retracted at any time before a new administration was granted. (a) Bennet v. Davis, 2 P. W. 319. (b) Noel V. Jevon, Freera. 43 ; Nash V. Preston, Cro. Car. 190. (c) Hinton v. Hinton, 2 Ves. sen. 631, 638 ; Bevant v. Pope, Freem. 71 ; and see Brown v. Raindle, 3 Ves. 256. {d) Pawlet V. Attorney- General, Hard. 466, per Lord Hale ; Geary v. Bearcroft, Cart. 67, pen- Cur. ; King v. Mildmay, 5 B. & Ad. 254. (c) Jenk. 190, c. 92. (/) See infra. [g) Pawlet v. Attorney- General, Hard. 466, per Lord Hale ; Wilkes's case. Lane, 54 ; Scounden v. Haicley, Comb. 172,^e)-Dolben, J. ; Jenk. 219, c. 66 ; ib. 245, c. 30. (A) Wilkes's case, Lane, 54. (i) Vendbles v. East India Company, 2 Exch. R. 633. ' CH. XII. S. 2.] PROPERTIES OF THE LEGAL ESTATE. 197 Hence where two executors were named and one renounced, and the actmg executor died having appointed executors, but pre- deceased his co-executor, it was necessary to take out letters of administration to the original testator, for the acting executor not being' the survivor did not transmit the interest, and the renouncing executor declined to act (a). But now by 20 & 21 Vict. c. 77, s. 79, where an executor renounces probate, the rights of such executor are made to cease ; and the representa- tion to the testator and the administration of his effects, without further renunciation, go, devolve and are committed as if such person had not been appointed executor (b). But the act does not apply to the case of a person who renounced before the act came into operation, and if he renounced before the act, auy second renunciation after the act for the purpose of bringing himself within it is ultra vires and nugatory (c), and a disclaimer or renun- ciation by answer in chancery will not operate as a renunciation within the act (d), and a renunciation is not complete until it has been entered and recorded in the proper office (c). 3. If the lands comprised in a trust term be situate in a dif- whether term in ferent diocese from that in which the trustee was domiciled, it ^ trustee requires a prerogative seems that previously to 20 & 21 Vict. c. 77, which created the probate. Court of Probate, a prerogative probate or limited administra- tion was necessary before the term could have been legally trans- ferred (/). 4. A chattel interest held upon trust may at law be taken in whether a execution for the debt of the trustee (a) ; for, as soon as the writ j'^/'***^l ™^y ^e ^■' ' ' taken m execu- of execution reaches the sheriff's office, it binds the goods and tion for the debt 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 can have no discretion to exempt upon grounds of equity property which the common law holds liable. The mere officer of the court cannot have ligmicli et non ligandi potestatem (h). (a) Arnold Y Blencowe, 1 Cox, 426. hury, 3 Hagg. 201. (h) In re Goods of C. Lorimer, 10 [g) Foley v.Burnell,! B. C. C. 278. W. R. 809, & 2 S. & T. 471. In Farr v. Newman, 4 T. K. 647, (c) Re Whitham, 1 L. R. Prob. & Ashurst, J., expressed a contrary Div. 303. opinion ; and see Blake v. Dove, 7 (d) ChalouY. Webster, W. N., 1873, Hurlst. & Norm. 465. But see now p. 189. ■ 36 & 37 Vict. c. 66, s. 24. (e) Ooods ofMorant,y^. N. 1874, {h) Burdett v. Rockey, 1 Vern. 58, p. 24. per Cur. (/) See Crosley v. Archdeacon qfSud- 198 PEOPEETIES OF THE LEGAL ESTATE. [CH. XIL S. 2. The common law recognises assets in the hands of an execiitor to be trust property. Attachment. Trustee may deal with the trust estate by act inter vivos. May devise or bequeath it. 5. Assets in the hands of an executor are regarded as a species of trust property, even by the common law, which in respect of them has engrafted upon itself a quasi equitable jurisdiction : as, 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 (a) ; and though the husband during the coverture has power to dispose of the assets in the course of administration (&), he will not be entitled to them in his marital right by survivorship (c) ; and if the wife survive she is liable for the devastavit committed by her husband (d) ;■ nor can the assets be taken in execution for the debt of the executor («) ; and, if he commit felony or treason, they are exempted from forfeiture to the Crown (/) ; and if the executor die intestate, instead of vesting in his administrator, they vest in the administrator de hojiis non of the testator (ff). 6. Attachment by the custom of the City of London does not apply to debts vested in the garnishee upon trust for another, and in which he has no beneficial interest himself (Ji). 7. A trust estate, whether real or personal, may, at laiv, be conveyed, assigned, or encumbered by the trustee like a bene- ficial estate ; and, if there be co-trustees, each may exercise the like powers of ownership over his own proportion. Thus if lands be vested in trustees as joint-tenants, each may at law receive the rents {i), and each may at law sever the joint-tenancy by a conveyance of his share (k) ; and if the trust estate be stock each may receive the dividends without any authority from the co-trustee. But, in dealings with the trust estate, the Court has regard to the trust, and will not construe general words to pass the trust estate where the assurance, if so construed, would amount to a breach of trust (I). 8. As the trustee may dispose of the property in his lifetime, so he may devise or bequeath it at his death. (a) Scammell v. Wilkinson. 2 East, 552 ; Hodsden v. Lloyd, 2 B. C. C. 543, per Lord Thurlow. (h) Thrustout v. Cojppin, 2 W. Black. Kep. 801. (c) Co. Lit. 351 a, 351 b. ; Stow v. Drinkwater, Lofft, 83. (d) Soady v. TurnhuU, W. N. 1866, p. 278, L. J. (e) Farr v. Newman, 4 T. R. 621. (/) Farr v. Newman, 4 T. R. 628, ^ec Grose, J. (g) lb. per eundem ; Rachfield v. Cureless, 2 P. W. 161, pec Powis, .1. (h) Westohy v. Day, 2 Ell. & Bl 605 ; Lewis V. Wallis, Sir T. Jones, 222. (i) Tovmley v. Sherborne, Bridge. 35. (k) Boursot V. Savage, 2 L. R. Eq. 134. {I) Fausset v. Curpento; 2 Dow, cS: CI. 2.32; 5Blish, N. S. 75; and see St. Leonards' H. L. oases, 76. CH. XII. S. 2.] DEVISE OF TRUST ESTATES. 199 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. 9. Whether a trust estate shall pass inclusively in a general in what case.s the 7 • . i- i.1 i 1 1 J? ii J T ■ trust estate will devise, is a question that has been frequently under discussion, p^gg j,y ^ general The rule as originally established was, that a general expression devise. would carry a dry trust estate (a), but afterwards there were some misgivings upon the subject (b) (1) ; and the Court at last acceded to the proposition, that general words would not pass trust estates, unless there appeared a positive intention that they should so pass (c). 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 co7i- struction, nor any such disposition of the estate as it was unlikely a testator luoidd make of property not his own (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 ivould pass {cl) . 10. A charge of debts, legacies, annuities, &c., and a fortiori, a Charge of debts, direction to sell, is considered a sufficient indication of an inten- ^^ trust'estate'* tion not to include a mere trust estate (e) ; as where a testator having a trust estate and also estates of his own, gave and devised (a) Marhw v. Smith, 2 P. W. 198. {d) Brayhrohe v. Inskip, 8 Ves. 436; (6) See Brayhroke v. Iiiskip, 8 Ves. see Roe v. Reach, 8 T. R. 118; Ex 437. parte Morgan, 10 Vea. 101 ; Langford (c) Attorney-General v.BuUer,5 Ves. v. Auger, 4 Hare, 313. 340. (e) Roe v. Reade, 8 T. E. 118; (1) The doubt appears to have originated in part from an expression of Lord How the opinion Hardwicke in Casbornev. Scarfe, 1 At)?;. 605, that by a devise of all lands, arose that a gene- tenements and hereditaments, a mortgage in fee would not pass, unless the equity ral devise would of redemption were foreclosed. But Lord Hardwiclie was not speaking here of not pass a trust the legal estate, but of tlie beneficial interest in the mortgage. Tlie same thing estate, was said in the same sense in Strode v. Russel, 2 Vern. 625. Lord Hardwicke's authority has been cited on both sides of the question (compare Duke 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 Boives, cited in iMr. Sanders's note to Cashorne v. Scarfe, 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 Tliurlow, see an obiter dictum, Pickering v. Vowles, 1 B. C. C. 198.) estate. 200 DEVISE OF TRUST ESTATES. [CH. XII. S. 2 "all his real estate, whatsoever and -wheresoever, to G. T., her 'heirs and assigns, for ever, charged with 50^. to his friend W.", it was held that the trust estate did not pass (a). 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 in fee vested in the testator upon trust for another (6). What expreasions H. The expression "my real estates" will not restrict the exclude the trust meaning to those Vested in the testator beneficially (c), nor will a devise to A., his heirs and assigns, " to and for his and their own use and Icnefit " (d), nor a devise to A. and her heirs, to be dis- j)osed of by her by will or otherwise, as she may think fit («) : though under a devise to a woman for her separate use, as the words import a beneficial enjoyment, a dry legal estate wiU. not pass (/) ; but a devise to a woman, " her heirs and assigns, for her and their own sole and absolute use," expresses only the absolute interest, and does not create a separate estate ((f). A residuary devise of lands, goods, mortgages, securities, real and personal estate, to A. and B., " to be equally divided between them as tenants in common and to their respective heirs,'' will pass the trust estate (/;-). But it has been held that a devise to the tes- tator's nephews and nieces share and share alike as tenants in common, and not as joint-tenants, as the class is unascertained at the date of the will, does not pass a trust estate (i). And if the devise be to A. for life or in tail, with remainders over, in strict JDuJce of Leeds y. Munday,3y CB.SiS; C. 347; Sharpe v. Sliarpe, 12 Jur. Attorney- General V. Buller,bYes. 339; 598 ; and compare Ex parte Brettell, 6 Ex parte Marshall, 9 Sim. 555 ; Ex Ves. 577, with BrayhroTce v. Inship, parte Morgan, 10 Ves. 101 ; Sylvester 8 Ves. 434. V. Jarnian, 10 Price, 78; Re Morhy''s (c) Ex parte Shaw, 8 Sim. 159. Trvst, 10 Hare, 293; see Wall v. (/) Undsell v. Thocker, 12 Sim. Bright, 1 J. & W. 494. 178. The marginal note of the Report (a) Rac/chamy. Siddall, 16 Sim. 297, is quite contrary to the decision. 1 McN. & Gr. 607; Hope \ . Liddell, {g) Lewis v. Mathews, 2 Law. R. 21 Beav. 183; Life Association of Eq. 177. Scotland v. Siddall, 3 De G.F. & J. 58. (A) Ex parte Whitaa-e, at the Rolls, (J) Ex parte Morgan, 10 Ves. 101 ; July 22, 1807, cited 1 Sand. Uses & and see Sylvester y. Jarman, 10 Price, Trusts, 359, 4th ed. See Re Morley's 78 ; Ex parte Brettell, 6 Ves. 577. Trmt, 10 Hare, 293 ; Martin v. La- (c) Brayhrohe v. Inslcip, 8 Ves. 425. verton, 9 L. R. E.q. 568 ; Thirtle v. (<^) Ex parte Shaiv, 8 Sim. 159; Vaughan,2^ Law Times, 5. Bainhridge v. Lord Ashhirton, 2 Y. & (») Re Finney's Estate, S Giff. 465. CH. XII. S. 2.] DEVISE OF TEUST ESTATES. 201 settlement, the trust estate will not pass (a). " Where there is a limitation of real estate," said Lord Eldon, " in strict settlement, with a vast number of limitations, .contingent remainders, execu- tory devises, powers of jointuring, leasing, and raising sums of money, it is impossible to say the intention could be to give a dry trust estate " (h). 12. The question whether the legal estate in a mortgage in fee Distinction as to passes by a general devise in the will of the mortgagee, stands on J^f rtg'^ges.^ '" a different footing. The mortgagee has a ieneficial 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 (c). Hence the legal estate passes by a general devise of securities for money (d), and neither a general trust to sell and con- vert (e), nor a charge of debts (/), wiU. prevent it from passing. And it is conceived, notwithstanding a former decision of the Court of Exchequer (g), that the case of a general devise and bequest of real and personal estate charged with debts or legacies admits of no substantial distinction (h). But the legal estate will not pass by a general devise of real estate, if there be special trusts for sale, or other limitations, &c., which would be inapplicable to an estate in mortgage (i). 13. 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 devise thTtrust a breach of trust, othenvise general words would not have been estate, 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 material difference between a conveyance inter vivos and a devise, for the latter was nothing but a 2^ost mortejn conveyance (/<;). But (a) Thompson v. Grant, 4 Madd. (e) Ex parte Barber, 5 Sim. 451 ; 438 ; Be Florsfall, 1 Maclel. & Younge, Mather v. T/wmas, 6 Sim. 1 1 5. 292 ; Galliers v. Moss, 9 B. & Cr. 207 ; (/) Field's Mortgage, 9 Hare, 414 ; JExpai'te Bowes, cited in Mr. Ba-nAers's overruling Benvoize v. Cooper, 10 note to Cashorne v. Scarfs, 1 Atk. 603. Price, 78. (&) Braybroke v. Inship, 8 Ves. 434. (g) Doe v. Lightfoot, 8 M. & W. 553. (c) Doe v. Bennett, 6 Exch. 892 ; ifi) Now so decided. Re Stevens' and comments of Vice-Chancellor Trusts, 6 L. K. Eq. 597. Kindersley on this case, Re Cantley, {i) Re Cantley, 17 Jur. 123 ; Mar- 17Jur. 124. tin v. Lavei-ton, 9 L. R. Eq. 563; (d) King's Mortgage, 5 De Gex & Thirtle v. Vaughan, 24 Law Times, 5; Sm. 644, and cases there reviewed ; Re Finney's Estate, 3 Giff. 465. Knight v. Robinson, 2 K. & J. 503 ; {Jc) Cooke v. Crawford, 13 Sim. 98 ; Rippen V. Priest, 13 Cora. B. N. S. 308. andseeBeasleyv. Wilkinson,lSJav.6i9. 202 DEVISE OF TRUST ESTATES. [CH. XII. S. 2. Lord Langdale ccmsidered that there wa.? a wide distinction between a conveyance in the trustee's litetime 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 (a). 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, then, if the heir apparent or pre- sumptive be a fit person to be trustee, the testator ought not to intercept the descent to the heir by passing the legal estate to a devisee, 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 (b) ; but if the heir apparent or presumptive be an infant, bankrupt, insolvent, lunatic, feme covert, or out of the juris- diction, it might be a proper act to transmit the estate to a devisee. Whether a de- 14. How far a devisee of the trust estate can execute the trust, visee call execute ^jji ^f course, depend on the intention of the settlor, to be col- tue trust. . . lected from the terms in which the instrument is expressed. Thus, real or personal estate may be so vested in A. that A. alone shall pej'sonally execute the trust ; and in such a case, the heir or executor of A., though he took the legal estate, could not act as trustee (c) ; and a fortiori in such a case the devisee, though made the depositary of the legal estate, would have no authority to execute the trust (d). And if a settlor vest an estate in A. upon trust, that A. and his heirs shall sell, and A. devises the estate, neither the heir nor devisee can sell ; not the heir, for as regards this estate the descent has been intercepted and there is no heir, and not the devisee, for he is not the person to whom the execu- tion of the trust was committed (e). 15. In another case (/), where leaseholds were assigned to two (a) Titley v. WolsteHholme,T Benv. {d) Mortimer v. Ireland, 11 Jur. 435; and see Macdorudd v. Walker, 721; 5. C. befoie Vice-Chancellor 14 Beav. 556 ; Wilson v. Bennett, 5 De Wigram, 6 Hare, 196. Gex & Sm. 479. (e) Cooke v. Crmvford, 13 Sim. 91 ; (6) See Cookey. Crawford, 13Sim. 98. Wilson v. Bennett, 5 De U. & Sm. 475; (c) See Mortimer V . Ireland, 11 Jur. Stevens v. Austen, 7 Jur. N. S. 873. 721. (/) -ff« Burtt's Estate. 1 Drew. 319. CH. XII. S. 2.] DEVISE OF TRUST ESTATES. 203 trustees, their executors and administrators, upon trust ; and the Re Burtt's estate. surviving trustee devised the leaseholds to A. and B. ujum the same trusts, and appointed A. B. and G. exeeutors ; on a petition by A. and B. to the Court to have the 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 bj 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 executoj's 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. 16. But it most frequently happens that an estate is vested in Where the tmst A. upon trust, that A., his heirs, executors, administrators, and trus°ee'a^d*his'^^ assigns, shall hold upon the trusts ; and the question then is, whether assigns. a devisee of A. may, as falling under the description of assigns, not only take the estate, but also execute the trust ? In Titley v. Wolstenholme (a), where the settlement contained no power of appointment of neiv trustees, it was held, that as a conveyance in the lifetime 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 consequently that the devisees had not oidy the legal estate, but were properly trustees within the scope of the settlor's intention. 17. This case seems to have raised some scruple in the mind of Titley ». Woi- V. C. afterwards L. J. Knight Bruce, for he observed that " What al^te "'"' he should have done if Titley y. Wolstenholme had come before him he need not say, nor was he sure " (h). And the reasoning upon which Lord Langdale proceeded is not quite conclusive, for the word " assigns " does not necessarily imply a devise, as it would be satisfied by holding it to refer to a tenant by the curtesy or dowress, who would be assigns in law. However the case was referred to, without disapprobation, by Lord Cottenham (c), and was approved by V. C. Stuart (d). (a) 7 Beav. 425. See Saloivay v. (c) Mortimer v. Ireland, 11 Jur. Strawhridge, 1 K. & J. 371 ; 7 De,G. 721. M. & G-. 594, which however was the {d) Ashton v. Wood, 3 Sm. & Gif. case of a mortgage. 435. [h) OcMeston v. Hemp, 1 De G. & Sm. 642. 204 DEVISE OF TRUST ESTATES. [CH. XII. S. 2. Hall?). May. All estate con- tracted to be .sold will be imduded in a general de- vise. Trustee has the privileges and burdens of the legal estate. 18. In Hall v. May (a), V.-C. Wood went further, and held that under a trust containing the word assigns, and also a power to ap- 2Joint neiu trustees, the devisee could make a title. It was conceded that the word " assigns " would not have enabled a trustee to transfer the trust by act inter vivos, and it could not be disputed that, as the instrument contained a power of appointment of new trustees, the assigns introduced by virtue of the power would give a meaning to the word " assigns " without having recourse to a devise. It was therefore necessary to lay down a broader principle than that acted upon in Titley v. Wolstenholme, and the doctrines upon which the Vice-Chancellor proceeded appear to have been substantially these — " That a settlor must have intended to provide a permanent machinery for the execution of the trust ; that he could not have reposed any personal confidence in the trustee's heir, who was unknown, and could not be ascertained be- forehand ; that the settlor must have contemplated the possibility that on the death of the trustee the heir might be an infant, or lunatic, or bankrupt, or insolvent, and so either incapable or unfit to discharge the office ; that it might therefore be reasonably in- ferred that the settlor meant by confiding the trust to the' trustee, his heirs and assigns, to give the trustee a discretionary power of preventing these inconveniences by vesting the estate in a devisee ; and that the circumstance that the settlor had given to the sur- viving trustee a power of appointing new trustees by deed, rather favoured the view that he also intended, when using the word 'assigns,' to confer on the trustee a right to devise the trust estate." The Court was also actuated by the feeling that many titles must have been accepted upon the footing of this enlarged construction. The decision was perhaps a bold one, but having been made it is not likely to be disturbed. 19. 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 (6). 20. 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 in him beneficially, so it confers upon him all the legal privileges, and subjects him to aU the legal burdens, that are incident to the usufructuary possession (c). (a) 3 K. & J. 585. (6) Wall V. BrigM, IJ. & W. 494. (c) Burgess v. Wheate, 1 Ed. 251, per Lord Northington. CH. XII. s. 2.] trustee's eight to vote. 205 Thus the trustee can bring any action respecting the trust estate Trustee must in a court of law, the cestui que trust, though the absolute owner ""= '^^ ^°^^' in equity, being at law regarded in the light of a stranger (a). So the trustee of a manor is the person to appoint the steward of it (h), and the trustee of an advowson to present to the church (c), but in either case he has the mere legal right, and is bound in equity to observe the directions of his cestui que trust (d). 21. So where a debtor to the trust estate becomes bankrupt, the Trustee must trustee may prove for the debt, and that without the concurrence P"°y^ ™ bank- ■' ^ ' ruptcy. of the cestui que trust (e), unless it be such a simple trust as where A. is trustee for B. absolutely, and then it rests in the discretion of the judge to require the concurrence of the cestui qu,e trust, for who knows but that B. may have already received the money (/). If the trustee himself become bankrupt a cestui que trust may obtain an order to prove for the whole sum and will be entitled to vote at the choice of the creditors' trustee {g). 22. The trustee as the legal proprietor had originally the right Trustee if in of voting for coroners Qi) (1) ; but by 58 G. 3, c. 95, sect. 2, it was for coronerl" "^^ transferred to the cestui qice trust in possession. This act, however, has since been repealed (i), and the matter now stands as it did before any legislative interference (k). 23. So the trustee was the person entitled at common law to vote Trustee's right to for members of Parliament (Z), But by the 74th section of 6 & 7 berof parliameiit. Vict, c 18 {m), it is enacted, that "no trustee of any lands or tenements shall in any case have a right to vote in any such elec- ta) See Allen v. Imlett, Holt, 641 ; Black. Bep. 1053, per De Grey, J. ; Gibson V. Winter, 5 B. & Ad. 96; May and see post. V. Taylor, 6 M. & Gr. 261. But see (e) Ex parte Green, 2 Deac. & Chit, now 36 & 37 V. c. 66. 116, per Cur. (b) Mott V.Buxton, 7 Ves. 201 ; and (/) Ex parte Dubois, 1 Cox, 310; see Gary, 14. and see Ex parte Battier, Buck. 426 ; (c) See in Be Shrewsbury School, 1 Ec parte Gray, 4 D. & Ch. 778. M. & Cr. 647 ; Hill v. Bishop of Lon- (g) Ex parte Cadwallader, 4 De G. don, 1 Atk. 618. F. & J. 499. {d) Attorney General v. Parker, 3 {h) Buryess v. Wheate, 1 Eden, 251. Atk. 577, per Lord Hardwicke ; At- [i) 7 & 8 Viet. c. 92. torney- General v. Forster, 10 Ves. 338, (k) Regina v. Day, 3 Ell. & Bl. 859 ; per Lord Eldon; Attorney- General v. see post c. 25, s. 1. Newcombe, 14 Ves. 7, per eundem ; [V) Burgess v. Wheate, \ Eden, 251, Kensey v. Langham, Cas. t. Talb. 144, per Lord Northington. per Lord Talbot ; Amhurst v. Dawling, [m) As to the effect of certain inter- 2 Vern. 401 ; Barret v. Glubb, W. mediate statutes see 3rd Edit. p. 270. (1) And Lord Northington added for " sheriffs" [Burgess v. Wheate, 1 Eden, 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. rates. 206 TBUSTEE LIABLE TO COPYHOLD FINES. [CH. XII. S. 2. tion for or by reason of any trust estate therein, but that the cestui qui tnist 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 notwithstand- ing such trust," and by the 5th section of 30 & 31 V. c. 102, the right of voting is conferred upon persons who are seised at law or in equity, of lands or tenements of the yearly value of five pounds. Trustees liable to 24. Again, the trustees are liable to be rated for the property vested in them (a), unless they are trustees exclusively for public purposes without any profit to themselves or a particular class, as trustees of court houses, prisons, or the like (6). Trustee pays the 25. The trustee of a copyhold must pay a fine on his admis- to copyholds. ^^^^^ i'^)' ^^^ ^^ ^^^ ^^^ foUows the admission the lord cannot refuse admission until the fine is paid (d) ; and on the decease of a trustee a heriot becomes due to the lord (e) ; and if the trustee die intestate, and the customary heir before admission devise the estate, the lord is entitled to a double fine on the admission of the devisee, as it carries with it also the admission of the de- visor (/). But where a trustee died intestate, and the Court under the Trustee Acts appointed a new trustee in the place of the deceased trustee, and the lord demanded two fines, one for the admission of the customary heir of the old trustee, and another for the admission of the new trustee, it was held that he could claim but one fine, viz., for the admission of the new trustee (jj) ; and where two or more trustees have been admitted jointly, on the decease of 07ie neither fine nor heriot is due; not a fine for admission, because, joint tenants being seised per my et per tout, the estate is vested in the survivors or survivor 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 (li). If a copyhold be devised to trustees for five hundred years on certain trusts, with remainder to A. B. in fee, and the lord admits A. B., not as remainderman, but as a present (a) Regina v. Sterry, 12 Ad. & Ell. [d) Reginaw. Wellesley, 2 Ell. & Bl. 84 ; Queen v. Stapldon, 4 B. & Sm. 924. 629. (e) Trinif,yCoUege\.Broiime,\Y^\-i\. (b) Regina v. Shee. 4 Q. B. Rep. 2 ; 441 ; see Car v. Ellison, 3 Atk. 77. Mayor of Manchester v. Overseers of (/) Lord Londeshorough v. Foster, Manchester, 17 Q. B. Rep. 859 ; Queen 3 Best & Sm. 805. V. Harrogate Commissioners, 15 Q. B. (g) Bristow y. Booth, 5 L. R. C. P. Rep. 1012. 81. (c) Earl of Bath v. Abncy, 1 Dick. (/j) See 2 Wutk. Cop. 147. 260 : S. C.l Bur. 206- CH. XII. S. 2.] TEUSTEE LIABLE TO COPYHOLD FINES. 207' tenant and upon payment of a full fine, the lord has a perfect tenant, and cannot compel the termors to be admitted (a). The Court in this case adverted to several points of practical importance, which are worth noticing. Thus : 1. It is commonly said that an admission is void, except so far as it follows the uses of the surrender or will ; but the Court held that the excess of the admis- sion is void only as against the parties interested, and that the lord may be estopped by his own act. 2. Where the termors have been admitted, the lord may require the admission of the executor of the last survivor, for the lord is entitled to a tenant or to possession. 3. The admission of the tenant for life or for years is a constructive admission of the remainderman, but such an admission does not disentitle the lord to call for a subsequent admission of the re- mainderman, where the custom of the manor gives the lord a fine in respect of the remainder. 4. The lord is not bound to admit a remainderman, but if he do admit him as such remainder-man, al- though this admission may be a constructive admission of the par- ticular estate, the lord may afterwards require the tenant for life or years to be admitted for the purposes of a new fine. Where a number of trustees are admitted as the joint owners of Principle on the trust estate, the fine is to be assessed upon the following principle ; assessed, for the first life is to be allowed the fine usually paid on the ad- mission of a single tenant, for the second life one-half the sum taken for the first, and for 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 (V). 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 (c). In order to avoid these onerous fines, where the estate devolves on several trustees, all the trustees but one may disclaim or release to that one, who can then be admitted, and the lord can then claim only a single fine {d). But there may be some risk in adopting this course otherwise than with the sanction of the Court of Chancery, since to vest the legal estate in one trustee (a) Everingham v. Ivatt, 7 L. R. W. 608 ; but see Wilson v. Hoare, 10 Q. B. 683 ; affirmed 8 L. E. Q. B., Ad. & Ell. 236. 388. {d) Wellesley v. Withers, 4 Ell. & Bl. (J) Wilsons. Hoare, 2 B. & Ad. 750; and see Paterson v. Paterson, 2 350, see 360 ; 10 Ad. & EU. 236, and L. Rep. Eq. 31 ; S. C. 35 Beav. 506 ; 1 Seriven, Copyh. 393, 394, 3rd edit. Be Flitcroft, 1 Jur. N. S. 418. (c) Sheppard v. Woodford, 5 M. & 208 TRUSTEE LIABLE TO COPYHOLD FINES. [CH. XII. S. II. Disclaimer to avoid a fine. Eeimbursement. If trustee trade in that character, lie is amenable to the bankrupt laws. alone must in strictness be viewed as a breach of trust, and the expected pecuniary advantage might, by the early death of the trustee who is admitted in the lifetime of his co-trustees, be turned into a loss, and then the trustees might be held liable for the detriment to the trust estate. The last contingency might, how- ever, be guarded against by an insurance, effected either at an annual premium or for a gross sum payable in advance. Where a copyhold has been surrendered to several trustees, there can be no disclaimer by one trustee, for the purpose of vesting the entire estate in the co-trustees, where that one trustee, by having acted as owner, has virtually accepted the estate (a). And where a testator devised to three trustees, whom he appointed executors, and one disclaimed and the two others proved the will, but, wishing to escape the double fine, put forward the heir to be admitted as the person upon whom the estate descended until the devisees were admitted, it was held that the lord was justified in refusing to admit the heir; and the Court, in the exercise of its discretionary power, would not issue a mandamus to compel him (&). But in the same case, the lord having made the usual proclamation, and the heir having tendered himself for admission, and the lord having refused to admit him on the ground that the estate was in the devisees, who refused to come in, it was ruled that, as the devisees had no title until admittance and the estate descended to the heir, the lord was not justified in seising for want of a tenant (c). 26. Though the manorial burdens in respect of copyholds fall upon the trustee personally at law, he is of course entitled in equity to reimburse himself the expenditure out of the trust estate (d). 27. The trustee of a leasehold estate is liable upon the cove- nants of the lease just as if he were the real owner (c). 28. If a trustee carry on a t^-ade 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 on his OAvn account (/), and the debts contracted by him in such trade are not Gilpin, 3 L. R. Garland, 5 L. R. (a) Bence v. Exch. 76. (i) Queen v. Q. B. 269. (c) Garland v. Mead, 6 L. R. Q. B. 441. (d) Rivet's case, Moore, 890. (e) White V. Hunt, 6 L. R. Excli. 32. (/) Wightman v. Townroe, 1 M. & S. 412; Ex parte Garland, 10 Ves. 119, per Lord Eldon ; Hankey v. Hammond, cited in marginal note to 1 Cooke's Bank. Law, 84, 3rd ed. ; and see i?e Phait}ix Life Insurance Company, 2 Johns. & Hem. 229 ; Lucas v. Wil- liams, No. 1. 4 De G. F. & J. 436 ; Farhall v. Farhall, 7 L. R. Ch. App. 123. CH. XII. S. 2.] BANKEUPTCY OF TRUSTEES. 209 debts of the testator, but his own debts (a), and on his decease his lands, as those of a trader, were liable under Sir Samuel Eomilly's Act (6) to the discharge of simple -contract debts (c). Now, by 3 & 4 W. 4. c. 104, the lands of all persons, traders or otherwise, are liable to their simple contract debts, and by 32 & 33 V. c. 46, simple contract debts are payable pari passu with specialty debts. But an executor carrying on a business in pursuance of the direc- tions of a will, is entitled to be indemnified out of the estate, as against aU persons claiming under the will, though not as against creditors who claim paramount to the will {d). 29. If trustees be holders of shares in a company, their liabi- shares in lities are the same as if tbey were the beneficial owners, though the *^"'"P™iss- fact of their trusteeship be noticed in the company's books (e). Secondly. Of the legal estate in the trustee with reference to the construction of particular statutes. 1. By the Bankruptcy Act, 1869 (32 & 33 V. c. 71), it is enacted, How the legal that " all such property as may belong to or be vested in the banli- by the b!mk-° ^ rupt at the commencement of the bankruptcy, or may be required ruptcy of the by or devolve on him during its continuance, shall, until the ap- pointment of a trustee, vest in the registrar of the Court, and on the appointment of a trustee shall vest in such trustee." 2. The operation of the Bankruptcy Acts was thus commented Assignees take upon by Lord Chief Justice Willes :— " The assignees under a com- hdrs^and'^exTcm- mission of bankruptcy, are not to be considered as gmural assignees tors. of aU the real and personal estate of which the bankrupt was seised and possessed, as heirs and exeeutors are of the estate of their an- cestors and testators, for nothing vests in the assignees even at law but such real and personal estate of the bankrupt in which he had the equitable as weU as legal interest, and which is to be applied to the payment of the bankrupt's debts (/). 3. It is clear, therefore, that in the case of a lare trust, the The trust estate property, whether real {g) or personal (li), will not vest by the ^^^^ °°* P*^^ *° lug crustGcs in [a) Farhall v. Farhall, 7 L. R. Ch. party, 2 Johns. & H. 229 ; Re Leeds ^e^tarultee^ °* App. 123; reversing S. C. 12 L. R. Banking Co., Fearnside's case, Doh- Eq. 98 ; Owen v. Delamere, 15 L. R. son's case, 12 Jur. N. S. 60 ; Lumsden Eq. 134. V. Buchanan, 4 Macq. H. L. C. 950 ; (J) 47 Gr. 3 c. 74. Repealed and re- Imperial Mercantile Credit Association, enacted by 11 G. 4, & 1 Will. 4, o. 47. Chapman and Barker's case, 3 L. R. (c) Longuet v. Hochley, Feb. 16, Eq. 361. 1836, Exch. MS. See a short state- (/) Scott v. Surman, Willes 402. nient of this case at p. 273, note (5) of {g) Ex parte Gennys, 1 Mont. & 3rd edition; and see iwcasv. WiHiams, Mac. 258; Hovghton v. Kanig, 18 3 Giff. 150. Com. B. Re. 235. {d) Lucas V. Williams, No. 2, 4 De (A) See Winch v. Keeley, 1 T. R. Gex. F. & J. 439. ' 619 ; Carpenter v. Marnell, 3 B. & P. (e) Ee Phcenix Life Assurance Com- 40; Gladstone v. liadwen, 1 M. & S, P 210 BANKRUPTCY OF TEUSTEB. [CH. XII. s. 2. Nor the property into which the trust estate haa been converted. Factor selling and taking notes. Factor selling for money payable at a future day. banlcruptcy in the creditors' trustee, even at law. And the pro- position applies not only to express trustees, but also to trustees virtute officii, as executors, administrators {a), factors, (h), &c. ; and by the present Bankruptcy Act (c) it is expressly enacted that the bank- rupt's property shall not be taken to comprise property held by the bankrupt in trust for any other person. 4. Where the trust estate or fund has been converted into property of a different character, the new acquisition wOl equally be protected against the effects of the bankruptcy ; for the pro- duct or substitute of the original thing must follow 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, wiU. have the benefit of that specific sum (e). 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 cir- culation (/). 5. So, if the factor seU the goods and take rwtes in payment, the value of the notes, notwithstanding the bankruptcy, may be recovered by action from the creditors' trustee (g) ; for, though negotiable securities are said, like money, to have no ear-mark, the expression does not intend that such securities in the hands of a bajikrupt have run into the general mass of his property, and pass to his creditors, 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 Qi). 6. So, if a factor sell the goods of his employer for money payable at a future day, and become banlcrapt, and the creditors' 517 ; Boddington v. CasteUi, 1 Ell. & Bl. 879; Westoby v. Day, 2 EII. & Bl. 605. (a) Howard v. Jemmei, 3 Bur. 1369, per Lord Mansfield ; Ex parte Butler, 1 Atk. 213, per Lord Hardwicke ; Viner v. Cadell, 3 Espin . 88 ; Farr V. Newman, 4 T. R. 629, per Grose, J. ; see Ex parte Ellis, 1 Atk. 101. (i) Godfrey v. Furzo, 3 P. W. 186, per Lord King ; Tooke v. Hollingworth, 5 T. K. 226, per Lord Kenyon; E'Aposti-e V. Le Plaistrier, cited Cope- manv. Gallant, 1 P.W. 318 ; Delauney V. Barher, 2 Stark. 539 ; Baddy v. Esdaile, I Car. & P. 62 ; see Ex parte Dumas, 2 Ves. 582; S. C. 1 Atk. 232 ; Paul v. Birch, 2 Atk. 623 ; Pyall V. Solle, I Atk. 172 ; Ex parte Chion, note (A) to Godfrey v. Furzo, 3 P. W. 187. (c) 32 & 33 V. c. 71, s. 15. (d) See Taylw v. Plumer, 3 M. & S. 575 ; Scott v. Surman, Willes, 404. (e) Tooke v. Hollingivorth, 5 T. 11. 227, ]}er Lord Kenyon ; see Taylor v. Plumer, 3 M. & S. 571. (/) Miller v. Race, 1 Bur. 457, ^cr Lord Mansfield. {g) Anon. Case, citei Ex parte Dumas, 2 Ves. 586. (/i) Hartop V. Hoare, 3 Atk. 50, per Lee, C. J. ; Miller t. Race, 1 Bur. 457. CH. XII. S. 2.] BANKRUPTCY OF TRUSTEE. 211 trustee receives the money, he will be answerable for it to the merchant by whom the factor was employed (a). 7. In another case the conversion had been in breach of the Tortious conver- f actor's duty (6) ; and it was argued, that, as the principal would property. 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 (c). 8. Where the legal property does not pass, any action against the in whose name creditors' trustee must be brought by the bankrupt himself, for he is brought to re- the person possessed of the legal right (rf) ; but, in the case of a cover the trust factor, an action may also be brought by the principal, for the abso- creditors' trustee, lute property remains with the employer, and a special property only vests in the agent (e). 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 factor, that no action of trover can be maintained by the principal (/). 9. If the property possessed by the bankrupt in his character of where the trust trustee has become so amalgamated with his general property estate has become . ° D jr jr ./ amalgamated that it can no longer be identified, the representative of the trust with the trustee's has then no other remedy but to come in as a general creditor, the^s'/jtfffwJ' and prove for the amount of the loss (^). But, in one case, though >"'•"«< must prove the trust money had got into the general fund, it was held, but under very particular circumstances, to have subsequently got out again Qi). 10. As a general rule, where the bankrupt has a substantial Case of a bank- beneficial interest, however small, in property legally vested in him, f "P* trustee such property passes to the creditors' trustee, who takes as trustee cial interest. for the creditors and other parties interested (t). It is conceived, however, that the rule would not apply to a case where a bank- (a) Ryallv. Rolle, 1 Atk. 172, per (/) Ex parte Dumas, 2 Ves. 583. Burnet J. ; Taylor v. Plumer, 3 M. & [g] Ex parte Dwmas^ 1 Atk. 234; S. 577 ; Zinck v. Walker, 2 W. Bl. per Lord Hardwicke ; "Ryall v. Rolle, 1164; Garratty. CuUum, Bull. N. P. 1 Atk. 172, per Burnet, J.; Scott y. 42. Surman, Willes, 403, 404, per Willes, (J) Taylor v. Plumer, 3 M. & S. C. J. 562 ; see Ryall v. RolU, 1 Atk. 172. Qi) Ex parte Sayers, 5 Ves. 169. (c) Taylor v. Plumer, 3 M. & S. (i) Carpenter v. Marnell, 3 Bos. & 574, per Lord Ellenborough. Pull. 40 ; Parnliam v. Hurst, 8 M. & {d) Winch V. KeeUy, 1 T. R. 619 ; W. 743 ; Leslie v. Guthrie, 1 Bing. N. Carpenter v. Marnell, 3 B. & P. 40. C. 697 ; D'Arnay v. Chesneau, 13 M. (e) VApostre v. Le Plaistrier, cited & W. 809. See Boddington v. CastelU, Copeman v. Gallant, 1 P. W. 318 ; 1 Ell. & Bl. 879. Delauney v. Barker, 2 Stark. 539 ; Boddy v. Esdaile, 1 Car. 62. 212 BANKKUPTCY OF TEUSTEE. [oh. XII. S. 2. Of trust chattels left in the pos- session of the bankrupt trustee. No forfeiture where they are in his possession according to the title. rupt is expressly a trustee, though he may himself have some partial beneficial interest, for his act ought not to work a prejudice to others, and as a conveyance by the bankrupt himself to a stranger would be a breach of trust, it can hardly be supposed that the Bankrupt Act could be construed to have a similar tortious effect (a). Where the trust is constructive and the equity doubt- ful the Court has sometimes directed the creditors' trustee to concur in conveying (6). And where the legal property passes, the cestuis que trust may have the same relief in equity against the creditors' trustee, as they would have been entitled to against the bankrupt himself (c). 11. By the Bankruptcy Act, 1869, it is enacted that goods and chattels " being at the commencement of the bankruptcy in the possession, order or disposition of the bankrupt being a trader, by the consent and permission of the true owner, of which goods and chattels the bankrupt is reputed owner, or of which he has taken upon himself the sale or disposition as owner," shall be forfeited for the benefit of the creditors (d). Thus, although all persons (traders or not) can now be made bankrupts, traders only come under the operation of the order and disposition clause. The same section also provides that "things in action other than debts due to the bankrupt in the course of his trade or business, shall not be deemed goods and chattels within the meaning of the clause." It has been decided under the corresponding clause in the previous Bankruptcy acts, that the enactment does not apply where the possession of the goods by the bankrupt can be satisfactorily ac- counted for by the circumstances of the title, as, if a trustee be in possession of effects upon trust for payment of debts, and become bankrupt (e), or if goods be vested in A. upon trust to permit B. (a) See Fauwett v. Carpenter, cited ante p. 198, as to the effect of a convey- ance expressed in general words upon a trust estate. (6) Bennett v. Davis, 2 P. W. 31fi ; Taylor v. Wheeler, 2 Vern. 564 ; Ex parte Gennys, Mont. & Mao. 258. (c) Bennett v. Davis, 2 P. W. 316; Taylor v. Wheeler, 2 Vern. 564 ; Mit- ford V. Mitford, 9 Ves. 100, pe!r Sir W. Grant ; Ex parte Dumas, 2 Ves. 585, per Lord Hardwicke ; Hinton v. Hinton, 2 Ves. 633, per euiidem ; Grant v. MilU, 2 V. & B. 309, per Sir W. Grant ; Jones v. Mossop, 3 Uare, 572, p)er Sir J. Wigram ; Tyrrell \. Hope, 2 Atli. 558 ; Boivles v. Rogers, Ves. 95, note (a) ; Ex parte Hansom, 12 Ves. 349, per Lord Eldon; Ex parte Coysegame, \ Atk. 192 ; Frith V. Cartland, 2 Hem. & Mill. 417; Fleeming v. Howden, 1 L. K. Scotch App. 372 ; see Mestaer v. Gillespie, 11 Ves. 624; Ex parte Herbert, 13 Ves. 188 ; Waring v. Ccmentry, 2 M. & K. 406. {d) 32 & 33 V. c. 71, s. 15. Shares in companies are not clioses en action within the act. Union Bank of Man- chester, Re Jaclcson, 12 L. E. Eq. 354. As to equitable interests in shares, see Ex parte Barry, 17 L. R. Eq. 113. (e) Copeman v. Gallant, 1 P. W. 314; and see under the last Bank- ruptcy Act, Ex parte Bai-ry, 17 L. U. Eq. 113. CH. XII. s. 2.] BANKRUPTCY OF TRUSTEE. 213 to have the enjoyment during his life, and B. becomes bankrupt while in possession under his equitable title (a) ; but if a residue be given to trustees upon trust to seU with all convenient speed, and to invest the proceeds 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, and if instead of sell- ing, the trustees permit A. to retain possession for a length of time, the goods are forfeited, such possession being contrary to the title (h). 12. The enactment does not extend to a lawful and necessary Executors and possession en auter droit, as that by executors and adminstra- administrators, tors (c) ; but there 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 (d). 13. So goods in the possession of factors, in the ordinary course Factors. of their trade, are not forfeitable under this clause (g). 14. The old Bankruptcy Acts affected interests in reversion as Reversions, well as in possession (/), though such interests were contingent {g), and the circumstance that notice was given to the trustee, after the bankruptcy, but before* the appointment of assignees in bankruptcy, was held not to prevent the operation of the act (h). 15. Under the old Bankruptcy Acts, no forfeiture was incurred Deposits, where the security for a diose en action, as a policy, was deposited with a banker, not by way of equitable assignment so as to give the banker a right to receive the money, but by way of lien, so as to disable the bankrupt from receiving the money (i). But the case was otherwise where the depositee had a right conferred upon (a) Ex parte Martin, 19 Ves. 491 ; S. C. 2 Rose, 331 ; see Ex parte Hor- wood, 1 Mont. & Mac. 169 ; Mont. 24 ; Jarman v. Woolloton, 3 T. R. 618 ; Ex parte Massey, 2 Mont, and Ayr. 173; Ex parte Elliston, 2 Mont. & Ayr. 365 ; Ex parte Geaves, 25 \j. J. Bank. 53 ; 2 Jur. N. S. 651 ; Re Bank- head's Trust, 2 K. & J. 560. (6) Ex parte Moore, 2 Mont. D. & De G. 616; and see Fox v. Fisher, 3 B. & A. 135 ; Ex parte Thomas, 3 Mont. D. & De G. 40. (c) Ex parte Marsh, 1 Atk. 158; Joy V. Campbell, 1 Sch. & Lef. 328. {d) Fox V. Fisher, 3 B. & A. 135 ; Ex parte Moore, 2 Mont. Deac. & De G. 616; Ex parte Thomas, 3 Mont. Deac. & De G. 40 ; see Quick v. .— , 1 B. & P. 293; Whale v. Booth, cited Farr v. Newinan, 4 T. R. 625, note (a). (e) Mace v. Caddell, Cowp. 232 ; Ex parte Pease, 19 Ves. 46, per Lord Eldon; L'Apostre v. Le Ptaistrier, cited Copeman v. Gallant, 1 P. W. 318 ; Whitfield v. Brand, 16 M. & W. 282. (/) BartUtt V. Bartlett, 1 De G. & Jon. 127 ; Re Rawhoiie's Trust, 3 K. & J. 300, 376 ; Richards v. Gledstanes, 3 Giff. 298. {g) Heiuley v. Wills, W. N. 1867, p. 172; DavidsonM. C/^aZmers,33Beav.653. (A) Re Tiehener, 35 Beav. 317. (i) Gibson v. Overbury, 7 M, & W„ 555. 214 BANKRUPTCY OF TRUSTEE. [CH. XII. S. 2. Ignorance. Whether bare trustee a " true owner." Of judgments against the trustee. him to receive the money, for then the chose en action was for- feited (a). 16. The clause has been held not to apply where the true owner was ignorant of his being such, for if he did not know that he was the true owner, how could he have given any consent as such (&). And where the bankrupt held in trust for a corporation which had no power to possess such property, it was ruled that the corpora- tion being a mere abstraction of law, and incapable of action beyond the limits of its own legal powers, it could not consent as true owner (c). 17. Whether the permission of a hare trustee can be said to be that of the " true owner" to the prejudice of his ianocent cestuis que trust is a question of some difficulty {d). It has been decided that a cestui que trust absolutely entitled is a true owner within the meaning of the act («). But here the trustee is a mere passive depositary, and can do no act without the direction of his cestui que trust ; but the case is different, where, as in a marriage settle- ment, a fund is vested in trustees in trust for persons under dis- ability or not in existence, and it is therefore intended that they should act on the behalf of aU parties as the absolute proprietors. It would seem that here the trustees are regarded as the true owners, and that if the funds are left by the trustees in the order and disposition of the bankrupt, they are so left with the consent of the true owners (/). 19. Judgments, at least so far as they affect lands (for execution against goods and chattels is by common law), derive their origin from certain statutory enactments {g). 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 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 appearance, and therefore judg- (a) Green v. Ingham, 2 L. R. C. P. 525. (&) Re Rawhone's Trust, 3 Kay & John. 300, 476. (c) Great Eastern Railway Com- pany V. Turner, 8 L. R. Ch. App. 149. {d) See Ex parte Richardson, Buck, 480 ; Ex parte Horwood, 1 Mont. & Mac. 169, Mont. 24 ; Viner-^. Caddell, 3 Esp. 88 ; Ex parte Geaves, 8 De Gr. Mac. & Gord. 291. (e) Ex parte Burhidge, 1 Deac. 131; 4 Deac. & Ch. 87 ; and see Day v. Day, 1 De G. & Jon. 144. (/) Ex parte Caldwell, 1 3 L. R. Eq. 188; Darby v. Smith, 8 T. R. 82 ; Ex parte Dale, Buck, 365 ; and see Ifensley v. Wills, W. N. 1867, p. 172. (g) 11 E. 1 ; 13 E. 1. st. 1, c. 18 ; 13 E. 1. St. 3; 27 E. 3. st. 2, c. 9 ; see Co. Lit. 289, b. CH. XII. S. 3.] JUDGMENTS AGAINST TRUSTEE. 215 ments have been held to hind all lands of the conusee 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 PEKSONS TAKING THE LEGAL ESTATE WILL BE BOUND BY THE TEUST. 1. The universal rule, as trusts are now regulated, is, that all General rule, persons who take through or under the trustee (except purchasers for valuable consideration without notice) shall be liable to the trust. 2. On the death of the trustee, the heir, executor, or administrator, Heir and exe- becomes the legal owner of the property ; but as he merely repre- the^rust""*^ ^^ sents the ancestor, testator, or intestate, he takes in the same character, and is therefore bound by the same equity. 3. So, if a trustee devise the estate, the devisee takes the estate So the devisee, subject to the trust (b). 4. So all assigns of the trust by acts inter vivos, (except pur- And assigns by chasers for valuable consideration without notice) will be bound ^'^' '^'^^'^'^ *'™*- by the trust (c). 5. Assigns in the post, or by operation of law, are invested with So assigns in 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 hy the curtesy (e) are compellable to recognise the right of the cestui que trust. So a creditor of the trustee extending the trust estate under an elegit (/), or taking a trust chattel by writ of (o) Fimihv. Earl of Winchelsea, 1 (/) Pawlett v. Attorney- General, P. W. 277 ; Burgh v. Francis, 1 Eq. Hard. 456, per Lord Hale ; Kennedy Ca. Ab. 320; Medley y. Martin, Finch, v. Daly, 1 Sch. & Lef. 373, per Lord 63 ; Prior v. Penpraze, 4 Price, 99 ; Eedesdale ; Finch v. Earl of Winchel- Langton v. HorUm, 1 Hare, 560, per sea, 1 P. W. 277 ; Burgh v. Burgh, Sir J. Wigram. Eep. t. Finch, 28. In the case of (5) Marlow v. Smith, 2 P. W. 201, Whitworth v. Gaugain, 1 Cr. & Phil. per Sir J. Jekyll ; Lord Grenville v. 325, where a person made a deposit Blyth, 16 Ves. 231, ^er Sir W. Grant. of title deeds, and then a judgment (c) See infra. was entered up against him, Lord Cot- (d) Pawlett V. Attorney- General, tenham expressed a doubt whether the Hard. 469, per Lord Hale ; Noel v. judgment creditor, if he had no notice, Jevon, Freem. 43 ; Hhiton v. Hinion, would be bound by the prior equity. 2 Ves. 634, ^cr Lord Hardwicke. However, such a doctrine was not (e) Bennet v. Davis, 2 P. W. 319. tenable, for a judgment creditor isnot 216 ESCHEAT OF THE TRUST ESTATE. [CH. XII. S. 3. Forfeiture. Escheat. Burgess v. Wbeate. execution (a), and by the same rule the creditors' trustee under a bankruptcy (b) are made subject to the equity. 6. And if the trustee commit a forfeiture, the lord, as he suc- ceeds to the identical estate of the forfeitor, must take the property with all the engagements and encumbrances attached to it, and is therefore liable to the trust (c). In the case of a forfeiture to the Crown, it was formerly held that there was no equity against the Crown (d) ; but in modern times the equity has been fully admitted, though the precise nature of the remedy has never been distinctly ascertained (e). 7. A lord taking by escheat stands on a somewhat different footing, for he does not take through or under the trustee at all ; he is not an assign of the trustee either in the per 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, however, in Burgess v. Wheate (J), that a trust ought to be binding on the lord, and cited the opinions said to have been expressed by Lord Chief Justice Bridgman and Sir John Trevor (g) ; but as to the words attributed to the former, it appears from his own note-book, that they were a purchaser for valuable consideration. Brace v. Duchess of Marlborough, 2 P. W. 491. He advances 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, but 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, 3 Ell. & Bl. 743, three of the four judges while approving of Whitworth v. Gaugain refused to apply the principle of it to a case of stock. The remaining judge differed, and held that in personal 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 con- ceived that the single judge took the clearer view. Those who determined the other way, seem to have assumed that notice was necessary for the trans- fer of an equitable interest, which is not true, as between assignor and as- signee, but only as between two con- tending assignees. The case of Watts V. Porter has since been disapproved by the highest authorities, Beavan v. Lord Oxford, 6 De G. M. & G. 507 ; Kinderley v. Jervis, 22 Beav. 34; Scott V. Hastings, 4 Kay & J. 633. (a) Foley v. Burnett, 1 B. C. C. 278, per Lord Thurlow. (6) See supra, p. 212, note (c). (c) Burgess v. Wlieate, 1 Ed. 203, per Sir T. Clarke ; ib. 252, per Lord Henley. {d) Winces' case. Lane, 54, agreed. (e) Burgess v. Wheate, 1 Eden, 252 ; and see PawUtt v. Attorney- General, Hard. 467, which was a case of for- feiture, though treated by Lord Hale as a case of escheat. And see supra, p. 29. (/) 1 Eden, 177, see p. 229, and see observations upon Lord Mansfield's argument in 3rd edit. p. 281. ((/) Burgess v. Wheate, 1 Ed. 230. CH. XII. S. 3.] ESCHEAT OF THE TRUST ESTATE. 217 never spoken (a) ; and the observation of Sir John Trevor was at the utmost a mere ohiter dictum. Sir Thomas Clarke, on the- other hand, who assisted Lord Mansfield in the case of Burgess v. Wheate, thought that cestui que trust was no more reUevable against the lord by escheat, than against a sale by the trustee to a purchaser without notice (6) ; and Lord ISTorthington's inclina- tion 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 (c). It is clear that the lord was not bound by a use. However, it must be ad- mitted that in modern times the Courts have acted on more liberal principles ; and they have actually decided that where the fee out of which a mortgage term has been carved escheats to the lord, he may redeem (d), and if the lord take a benefit through the tenant why may he not sustain an onus ? Indeed an opinion to that effect has recently fallen from M. E. (e) and from the bench in Ireland (/), and should the point, not- withstanding 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. 8. 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 according to 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 {g) ; but if a surrender be made upon a trust either expressed or referred to on the roll, the Idrd is stopped by this evidence of his will, and cannot afterwards claim in contradiction to his grant (K). 9. Customary freeholds held not at the will of the lord, but Customary free- according to the custom of the manor, stand on the same footing as copyholds in reference to escheat (i), for it is now established holds. (a) See ib. 230, note (a); and see {g) Attorney- General v. Duke of Sir T. Clarke's observations, ib. 202. Leeds, 2 M. & K. 343; and see Peachey (J) Burgess v. Wheats, 1 Eden, 203. v. Duhe of Somerset, 1 Str. 454 ; Bur- (c) Burgess Y. Wheate, 1 Eden, 246. gess v. Wheate, 1 Ed. 231. {d) Viscount Doione v. Morris, 3 {h) Burgess v. Wheate, 1 Eden, 231, Hare, 394. j)er Lord Mansfield ; Weaver y. Maule, (e) Re Martinez' Trust, W. N. 1870, 2 R. & M. 97. p. 70. (i) Weaver v. Maule, 2 E. & M. (/) White V. Baylor, 10 Ir. Eq. 100, ^e?- Sir John Leach. Rep. 54 ; and see Evans v. Brown, 5 Beav. 116. 218 EQUITY OF EEDEMPTION. [CH. XII. S. 3. Equity of re- demption. Vi.scount Bowne V. Morris. Real estate es- cheating is assets in the hands of the lord. that customary freeholds are in fact copyholds, but of a privileged character (a) 10. 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 aU persons in the post or otherwise (&), because it is an ancient right which the party is entitled to in equity " (c). 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 (d), there seems to be no reason why in the case of escheat the lord, who takes by title paramount, should be bound by an equity of redemption any more than by a simple trust (e). In a late case (/), however, the distinction between an equity of redemption and a trust was observed upon, and the Court expressed an opinion that a lord who was in by escheat would be bound by an equity of redemption, if not by a trust (^r). 11. The 3 & 4 W. 4, c. 104 (which subjects a person's real estate to the payment of his simple contract debts), annexes the quality of assets to the estate itself, and, subject to the right of alienation in the heir or devisee (k), creates a charge on the estate for the benefit of the creditors (i) ; and it has been held that a (a) Duhe of Portland v. Hill, 12 Jur. N. S. 286. (6) Semhle not a purchaser without notice ; see Harding v. Hardrett, Eep. t. Finch. 9 ; Spurgeon v. Collier, 1 Ed. 55. (c) Pawlett V. Attorney- General, Hard. 469 ; and see Bacon v. Bacon, Tothill, 133 ; Burgess v. Wlieate, 1 Ed. 206 ; Tucker v. fhurstan, 17 Ves. 133. id) See Pawlett w. Attorney-General, Hard. 467. (e) See Burgess v. Wheate, 1 Ed. 255 ; Attorney- General v. DuJce of Leeds, 2 M. & K. 344. Pawlett v. Attorney- General, Hard. 465, in which Lord Hale and Baron Atkins thought the king was bound by an equity of redemption, was not a case of escheat, as called by Lord Hale, but of for- feiture. {/) Viscount Downs v. Morris, 3 Hare, 394. ig) lb. {h) Spachman v. Timbrell, 8 Sim. 253 ; Richardson v. Horton, 7 Beav. 112; Hynes Y. Bedington, 10 Ir. Ch. Rep. 194; Pimmv.Insall,7 Hare, 193; 1 Mac. & Gor. 449 ; and see DiUces v. Broadmead, 2 Giff. 113. (i) Evans v. Brown, 5 Beav. 116. N. B. This case was appealed and compromised. Hawer's Devisees, 2 De Gex, M. & G. 306 ; Beale v. Symonds, CH. XII. S. 3.] FOEFEITUEE AND ESCHEAT ACT. 219 debtor's estate is assets, even in the hands of the lord taking by escheat (a). 12. The law relating to the forfeiture and escheat of trust 13 & 14 Vict, estates, except so far as it illustrates general principles, has now, by the interference of the Legislature, become of little importance : for by 13 & 14 Vic. c. 60, it is enacted in effect, by sect. 15, that in case of failure of heirs of a trustee, the Court of Chancery shall have power, upon summary application, to transfer the legal estate (&) ; and by sect. 46, the trust property shall not escheat or be forfeited by reason of the attainder or conviction for any offence of the trustee. 13. If a trustee be outlawed for treason or felony, the outlawry Outlawry of the amounts to conviction (c), and the ordinary consequences of for- t^^^^tee. feiture or escheat (if) are averted by the above act. But an outlawry on an indictment for a misdemeanor or in a personal action is not equivalent to a conviction of the offence, but merely of a contempt of Court (e), punishable with forfeiture of the life rent of the outlaw's lands, and of his chattels, real and per- sonal, absolutely, and in this case, therefore, the statute does not apply. 14. A disseisor is not an assign of the trustee either in the per a disseisor not or post, for he does not claim through or under the trustee, but ^°^^^ ^^ ^^'^ holds by a wrongful title of his own, and adversely to the trust. The first resolution in Sir Moyle Finch's case, was, that "a dis- seisor was subject to no trust, nor any suipcena was maintainable against him, not only because he was not in the past, 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 " (/). And we may add the authority of Lord St. Leonard's, who, in his edition of Gilbert on Uses, observes, " At this day every one is bound by a trust who obtains the 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 collusion with the trustee, wUl not be bound by the trust. Therefore, if I oust A., who is a trustee for 16 Beav. 406 ; Kinderley v. Jervis, 22 (c) Co. Lit. 390 b.; Holloway's case, Beav. 1. 3 Mod. 42 ; King v. Ayloff, ib. 72. {a) Evans v. Brown, 5 Beav. 116; {d) See pp. 26, 27, supra. and see Viscount Dowtw v. Morris, 3 (e) Rex v. Tippin, Salk. 494. Hare, 394. (/) Sir Moyle's Finch's case, 4 Inst. (J) See Re Martinez' Trust, W. N. 85. 1870, p. 70. 220 DISSEISIN OF THE TRUST ESTATE. [CH. XII. S. 3. B., and a claim is not made in due time, A. wOl be barred, and his cestui que trust with him, although I had notice of the trust" (a) (1). And the same thing may be inferred from the terms of the section of the late Limitation Act relating to express trusts (&). (a) Gilb. on Uses, Sugd. ed. 249. (&) 3 & 4 W. 4. c. 27, s. 25. (1) And an outstanding teim in a trustee would have attended the inheritance gained by the disseisin. Reynolds v. Jones, 2 Sim. & Stu. 206 ; and see Turner V. Buch, 22 Vin. Ab. 21 ; Doe v. Price, 16 M. & W. 603. 221 CHAPTER XIII. GENEEAL PEOPEETIES OF THE OFFICE OF TEUSTEE. From the estate of the trustee we pass to the consideration of his office, and upon this subject we may, in the first place, investi- gate the general properties annexed to the office, as. First. A trustee having once accepted the trust cannot afterwards renounce it. Secondly. He cannot delegate it. Thirdly. In the case of co- trustees the office must be exercised by aU the trustees jointly. Fourthly. On the death of one trustee there is survivorship, that is, 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. First. A trustee who has accepted the trust cannot afterwards renounce it. 1. It is a rule, without any exception, that a person who has once undertaken the office, either by actual or constructive dc- renounce after ceptance, cannot discharge himself from liability by a subseq^uent ^'^''^P ^'^'^^' renunciation. The only mode by which he can obtain a release is either under the sanction of a Court of Eq^uity, or by virtue of a special power in the instrument creating the trust, or with the eon- sent of all the parties interested in the estate being sui juris (a). Thus, where A. was named executor, and acted in behalf of 1 T , T J T 1 • 1 j_i • J J- f ■ Executor cannot some particular legatees, but disclaimed the intention of inter- renounce after fering generally, and then renounced, and B. obtained letters of ^^ ^^ acted, administration cum testamento annexe, and possessed himself of assets, and died insolvent, it was held that A. having acted, could not afterwards discharge himself, and was responsible for the devastavit committed by B (b). (a) See Doyle v. Blahe, 2 Sch. & 80. As to the discharge of the trustee, Lef. 245; Chalmers. Bradley, IJ. & see Ch. XXIV. infra. W. 68 ; Beadv. Truelove, Amb. 417 ; (5) Doyle v. BlaJce, 2 Sch. & Lef. MansoH v. Baillie, 2 Macq. H. L. Cas. 231 ; see Lowry v. Fulton, 9 Sim. 123. Trustee cannot 222 DELEGATION OF THE TEUST. [CH. XIII. Moororof t r. Dowding. 2. 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 of the trust estate, 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 pajonent 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 re- covered upon the bond, with the interest at the usual rate (a). Trustee cannot delegate the office. Secondly. The office of trustee, being one of personal confidence, cannot be delegated. 1. " 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 remain subject to responsibility towards their cestuis que trust for whom they have undertaken the duty" (6). If a trustee, there- fore, confide the application of the trust fund to the care of another, whether a stranger (c), or his attorney or solicitor (d), or even co-trustee or co-executor (e), he will be personally responsible for any loss that may result. But trustees were not responsible where they drew a cheque and delivered it to a co-trustee, but crossed with the names of bankers to whom the money was meant to be paid, and to whom it was payable in the due execution of the trust, and the co-trustee (as the Court assumed) erased the (a) Moorcroft v. Dowding, i P. W. 314. (6) Turner v. Carney, 5 Beav. 517. (c) Adams v. Clifton, 1 Russ. 297 ; Hardwidc v. Mynd, 1 Anst. 109; Venables v. Foyle, 1 Ch. Ca. 2 ; case cited by Sir J. Jekyll, Walker v. Symonds, 3 Swans. 79, note (a); Char. Corp. V. Sutton, 2 Atk. 405 ; Kilhee v. Sneyd, 2 Moll. 199, per Sir A. Hart; Douglas y. Browne, Mont. 93; Ex parte Booth, id. 248 ; Turner v. Carney, 5 Beav. 515. {d) Chambers v. Minchin, 7 Ves. 196, per Lord Eldon ; Ew parte Town- send, 1 Moll. 139 ; Griffiths v. Porter, 25 Beav. 236; Ghost v. Waller, 9 Beav. 497 ; Bostoch v. Floyer, 1 L. R. Ch. 26; 8. C. 35 Beav. 603; Wood V. Weightman, 13 L. R. Eq. 434 ; Ingle v. Partridge, 32 Beav. 661, 34 Beav. 411 ; but see In Be Bird, 16 L. R. Eq. 203. (e) Langford 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 R. & M. 66, ^cr Sir .J. Leach; Kilbee v. Sneyd, 2 Moll. 200, 212, ^er Sir A. Hart; Lane v. Wroth, and Stanley v. Daring- ton, cited in Anonymous case, Mos. 36 ; Marriott v. Kinnersley, Tainl. 470 ; Ex parteWinnall,^!). & C. 22 ; Anon. Mos. 36; Chugh v. Bond, 3 M. & Cr. 497, per Lord Cottenham ; Dines v. Scott, T. & R. 361, per Lord Eldon ; Truich v. Lamprell, 20 Beav. 116; Thompson v. Finch, 22 Beav. 316; 6 De G. M. & G. 560; Cowel v. Gat- combe, 27 Beav. 568 ; Eaves v. Hickson, 30 Beav. 136. CH. Xm.] DELEGATION OF THE TEUST. 223 crossing and received the money himself; for such receipt was a fraud on the trustees, and not the result of any act of theirs (a). 2. The case of Balchen v. Scott (b), is no exception to the general Balchen v. Scott, 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 (c), and therefore was no more answerable for the application of the money by the co-executor, than any stranger would have been under similar circumstances. 3. In Churchill v. Hdbson (d), an executor had paid 500/. into Churchill ». 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 cir- cumstance 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 (e). 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." 4. But trustees cannot be answerable, if they merely follow the Trustee may testator's directions. Thus a testator by his will recommended tatofs^dii-ect^on his executors to employ A. (who had been in the testator's own employment) as their clerk or agent. The executors gave A. a power of attorney to receive debts, and A. subsequently became insolvent. It was contended that the executors were answerable for the default of A., but Sir A. Hart said that if a testator pointed out an agent to be employed by the executor, and such employee received a sum of money, and immediately made default, the exe- cutor 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 (/). 5. And an executor cannot be answerable for having handed Trustee acting as over money which he had no legal right to retain. Thus, a tes- ^s^°*- tator appointed A., B., and C. his executors, and empowered one of them. A., to sell certain freehold premises, and directed the proceeds of the sale to be applied and disposed of in the same (a) Barnard v. Bagshaw, 3 De G. (d) 1 P. W. 241. Jones & Smith, 355. (e) See Harrison v. Graham, 3 HiU's (J) 2 Ves. jun. 678. MSB., cited 1 P. W. 241, note {y), 6th (c) As the executor had proved the ed., Chambers v. Minchin, 7 Ves. 198. will he would be deemed at the present (/) Kilbee v. Sneyd, 2 Moll. 199, day to have accepted the trust. See 200 ; and see Doyle v. Blake, 2 Sch. ante p. 179. & Lef. 239, 245. 224 DELEGATION OF THE TEUST. [oh. XIII. Delegation per- mitted where there is a moral necessity for it. manner as his personal estate. A. employed B., as Ms agent, 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 Ms hands, not in the character of executor, but of agent (a). 6. And trustees and executors may justify their admimstration of the trust fund by the instrumentality of others, where there exists a moral necessity for it. " There are," said Lord Hard- wicke, " two sorts of necessity : first, legal necessity ; and secondly, moral necessity. As to the first a distinction prevails. Where two ex&cutors join in 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 only one 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 " (&). And Lord Loughborough in very similar terms observed, " If the business was transacted in the ordinary manner, unless there were some circumstances to create suspicion, surely the allowance is fair " (c). " JSTecessity," said Lord Cottenham, " wMch includes the regular course of business, will exonerate " (d). And Lord Eedesdale, 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 Ms 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 " (e). (o) Davis V. Spurling, 1 R. & M. 64 ; 8. C. Taml. 199 ; and see Crisp V. Spranger, Nels. 109 ; Keane v. Roharts, 4 Mad. 332, see 856, 359. (i) Ex parte Belchier, Arab. 219. (c) Bacon v. Bacon, 5 Ves. 335. {d) Clough V. Bond, 3 M. & O. 497. (e) Joy V. Campbell, 1 Sch. & Lef. 341 ; and see Bacon v. Bacon, 5 Ves. 331, and compare Chambers v. Min- chin, 7 Ves. 193, and Langford y. Gascoyne, 11 Ves. 335; and see -Da«is V. Spurling, 1 B. & M. 66; Munch v. Cocherell, 5 M. & Cr. 214; Re Bird, 16 L. R. Eq. 203. CH. XIII.] DEI,EGATION OF THE TRUST. 225 In conformity with these principles, where A.' and B. were Ex parte Griflan. 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 was of opinion that the delivery of the cheques by A. to B. as his co-assignee, was an act done of necessity in the course of business, and that he was not responsible for the sub- sequent loss of the cheques {a). 7. But where the assignees of a bankrupt employed an attorney Ex parte to recover debts due to the estate, and the attorney received the Townsend. money, and absconded. Sir A. Hart held them accountable on the ground that there was no necessity for permitting the attorney to receive one shilling of the money recovered further than his costs, and laid it down, that if the attorney received the money one day and became insolvent the next, the assignee would be liable. And his Lordship said the same point had been decided in an unreported case before Lord Eldon (6). 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 ; unless, as suggested, it had been so ruled by Lord Eldon. However, we have here the authority of Sir A. Hart, that the plaintiff's attorney in an action cannot virtute officii sign a discharge, and that if the plaintiffs empower him to receive the amount recovered, they are answerable for his receipts as for the act of an agent improperly appointed to sign such receipt. 8. 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 J''l"i^e security ° ' r J from nis agent. greatly to the hindrance of business (c). 9. Where trust money is to be transmitted to a distance, the How trust money trustee may do it most conveniently and securely through the 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 ((f). {a) Ex parte Gh-iffin, 2 Gl. & i. 114; (c) Ex parte Belchier, Amb. 220, per and see WaoJcerbath v. Powell, Buck, Lord Hardwieke. 495; S. C. 2 Gl. & J. 151 ; Kilbee v. {d) Knight v. E.of Plymouth,! Dick. Sneyd, 2 Moll. 186. 120 ; S. C. S Atk. 480 ; recognised {b) Ex parte Toiensend, I MoU. 139; Ex parte Belchier, Amb. 219, and ieeAtion.Case, 12 Mod. 560; BeFryer, Bouth v. Howell, 3 Ves. 566 ; and see 3 K. & J. 317. Wren v. Kirton, 11 Ves. 380, 385. to be transmitted. 226 DELEGATION OF THE TEUST. [CH. XIII. Payments into bank must be to the account of the trust. Rule at law as to liability of ex- ecutors. Delegation of a discretionary trust. Not permitted, though to a co-trustee. Transfer of the trust estate does not transfer the power. 10. 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 liable for the loss to the cestuis que trust (a). 11. The rule applied to executors in a Court of law seems to be 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 dis- appointed, or a loss not occasioned by any negligence or default ; as if an executor transmit a sum to his co-executor under circum- stances 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 administravit (h). But now that an equitable defence may be pleaded at law as well as in equity the distinction must disappear. 12. 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 wiU. 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 held that, as the election had been conducted in this manner, it could not be sup- ported (d). 13. And a discretionary trust can no more be delegated to a co-executor or co-trustee than to a stranger (e). Thus, where 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 deter- mination of the property of every object was left by the testator to the direction of all the executors " (/). 14.. Of course if a trustee convey the estate, the mere transfer {a) See Wren v. Kirton, 11 Ves. 380, 38] ; Massey v. Banner, IJ. & W. 247. (b) Crosse v. Smith, 7 East, 246; and see Jones v. Lewis, 2 Ves. 241. (c) See Alexander v. Alexander, 2 Ves. 643; Bradford v. Beljield, 2 Sim. 264 ; Ritch v. Leiom-fhy, 2 Hare, 200. (d) Attoi-ney- General v. Scoit, 1 Ves. 413, see 417 ; Wilson v. Dennison, A mb. 82 ; S. C.7 B. P. C. 296. (e) Crewe v. Dicken, 4 Ves. 97. (/) Attorney- Genera.ly. Gleg, 1 Atk. 356. CH. XIII.] TKUST A JOINT OFFICE. 227 of the estate will not have the effect of communicating the trust or power to the grantee (a). And so if a trustee devise the estate, the devisee cannot administer a discretionary trust unless the original settlement contemplated such an event, and by vesting the powers in the trustee and his assigns annexed the powers to the estate in the hands of the devisee (h). 15. It must be noticed that the appointment of an attorney or Delegation dia- proxy is not in all cases a delegation of the trust. When the app^Jintment™? trustee has resolved in his own mind in what manner to exercise a proxy, his discretion, he cannot he said to delegate any part of the con- fidence if he merely execute the deed by attorney, or signify his will by proxy. Thus, in the case before cited (c) where the trust was to elect and present a proper clerk to a benefice. Lord Hard- wicke had no doubt that so far as related to the mere act of pre- sentation, the trustees having themselves fixed upon the object, might have signed the presentation by proxy ; " a trustee who had a legal estate might make an attorney to do legal acts." Thirdly. In the case of co-trustees the office is a joint one. 1. Where the administration of the trust is vested in co-trustees, Trust a joint they all form as it were but one collective trustee, and therefore must execute the duties of the office in their jomi capacity ((f). It is not uncommon to hear one of several trustees spoken of as the acting trustee, but the Court knows no such distinction ; all who accept the office are in the eyes of the law acting trustees. If any one refuse or be incapable 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 (e). The act of one trustee done with the sanction and approval of a co-trustee may be regarded as the act of both (/). But such sanction or approval must be strictly proved {g). 2. A receipt for money must, in the absence of a receipt clause Receipts, specially worded, receive the joint authentication of the whole body of trustees, and not of the majority merely, ot it will not be (a) Crewe v. DicJcen, 4 Ves. 97, see {d) See Ex parte Griffin, 2 Gl. & J. 100; Doyley v. Attorney- General, 2 Eq. 116. Ca. Ab. 194; Bradford v. Belfield, 2 (e) Doyly n. Sherrart, 2 Eq. Ca. Ab. Sim. 264; Cole -v. Wade, 16 Ves. 47, 742, marginal note to (D). Re Cali- per Sir W. Grant ; Kingham v. Lee, gregational Church, Smethwich, W. N. 15 Sim. 400, per Sir L. Shadwell. 1866, p. 196. (&) Re Burtt's Trust, 1 Drewry, 319; (/) Messeeha v. Carr, 9 L. R. Eq. and see ante, p. 203, 204. 260. (c) Attorney- General y. Scott, 1 Ves. {g) See Lee v. Sankey, 15 L. R. Eq. 413 ; and see Ex parte Righy, 19 Ves. 204. 463. Q 2 228 TRUST A JOINT OFFICE. [CH. XIII. All the trustees must proYe. In public trusts the majority of the trustees may bind the rest. valid (a). And therefore where the trustees are numerous, it is common in orders of the Court to insert a special direction that the monies may be paid to any two or more of them (&). 3. Again, if a debtor to the trust become bankrupt, all the trustees should join in the proof (c), but under particular circum- stances the Court will make an order for some of the trustees to prove, but even then the Court has occasionally inserted a direc- tion that the dividends shall be payable to all the trustees {d). If a mortgage be made to two trustees so described and twenty years elapse, an interim acknowledgment by one of the trustees will not prevent the operation of the Statute of Limitations in bar of re- demption (e). 4. Where 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 (/), as where there were seven trustees and they met for the purpose of electing a schoolmaster, and at the meeting five of the trustees concurred in the appointment, but two dissented, the act of the majority was considered to bind the minority {g). But of course the act of the majority does not bind the minority, so far as the act is beyond the proper sphere of the duty of the trustees {h). And when a special power is given to trustees it cannot be exercised by the majority only, but all must join ; if the settlement, for instance, declare that on the death or resignation of a trustee the surviving or continuing trustees shall appoint a successor, it is apprehended that the appointment of the new trustee must be the joint act of all the surviving or continuing trustees [i). Now by 32 & 33 V. c. 110. s. 12, it is enacted that a majority of charity trustees present at a meeting duly constituted, and voting, shall have and be deemed to have always had the same power of disposition over the charity property, as if it were the act of the whole body ; and by the 13th section the majority of the charity trustees may with the sanction of the charity commissioners sue, as if they were the sole trustees. (a) Walker v. Symonds, 3 Swans. 63; Hall v. Franch, 11 Beav. 519; Lee V. Sanlcey, 15 L. R. Eq. 204. (i) See Attorney- General 'y. Brich- dale, 8 Beav. 223. (c) Ex parte Smith, 1 Deac. 391, per Sir T. Erskine. {d) Ex parte Smith, 1 Deac. 385. (e) Richardson v. Younge, 6 L. R. Ch. App, 478. (/) WilkinsonY. Malin, 2 Tyr. 544; Perry v. Shipway, 1 Gift'. 1 ; and see Attorney- General v. Shearman, 2 Beav. 104; Attorney- General v. Cuming, 2 Y. & C. Ch. Ca. 139 ; Younger v. Welham, 3 Swans. 180. {g) Wil/cinson v. Malin, 2 Tyr. 572. As to the power of a majority of two thirds of the trustees to pass tiie legal estate, see 23 & 24 V. o. 136, s. 16, and post, (h) Ward v. Hipwdl, 3 Giff. 547. (j) See Re Congregational Church, Smethwick, W. N.' 1866, p. 196. CH. XIII.] TEUST A JOINT OFFICE. 229 5. Where a numerous body are appointed trustees by the Court, Trustees of as in cases of charity, the Court sometimes for greater convenience '^ *" ^^^' annexes to the order a direction that part of them shall form a quorum. 6. Where stock is standing in the names of several co-trustees, Dividends and then, as they are joint tenants and the Bank does not recognise the trust, any one of them may receive the dividends, though all must join in the sale of the corpus ; and the Court itself has occasionally directed the dividends of stock, standing in the names of the accountant-general, to be paid to one of several trustees (a). Where there are co-trustees of lands, any one of them may receive the rents though all must concur in a convey- ance (6). But if there be two trustees and one of them receives tfte rents and misapplies them, and the other trustee has notice of this, it is the duty of such other trustee to serve a notice on the tenants not to pay their rents to the defaulting trustee alone, and if he omit to do this or to take the necessary steps for in- suring the safety of the rents, as against the defaulting trustee, he will himself become liable (c). 7. As co-trustees are a joint body the Court requires them, Co-trustees 1 J •!• i ijrj -J---J.1 J should not sever unless under special circumstances, to defend a suit jointly, and i^ jegal pro- if they sever the extra costs thereby occasioned must be borne by ceedings. the defaulting party. It is conceived that this rule, so strictly observed in Court, must not be lost sight of in transactions out of Court, and that co-trustees are bound, unless they can show good reason to the contrary, to act by the same solicitor and the same counsel. It would be a strange anomaly if four trustees were allowed only one solicitor and one counsel in Court, and four separate solicitors and four separate counsel out of Court. Every trustee should be prepared to act in harmony with his co-trustees, or he should not accept the office. It may be said that as each trustee is responsible for the due administration of the trust, he ought to be at liberty to employ a professional adviser of his own choosing, but this argument would a fortiori apply to so important a matter as the defence of a suit, and yet there the Court pays no attention to it. (a) Be Coulson's settlemeni, W. N. Gouldsworih v. Knight, 11 M. & W. 1867, p. 233. 337. (b) SeeTownley V. SherbormjBndg. (c) Oough v. Smith, W. N., 1872, 35 ; Williams v. Nixon, 2 Beav. 472 ; p. 18; reversed under a different state of circumstances, W. N., 1872, p. 66. 230 SURVIVOKSHIP OF THE TEUST. [CH. XIII. the trust. Fourthly. On the death of one trustee the joint office survives. Survivorship of 1. It is a well-known maxim that a hare authority committed to several persons is determined by the death of any one ; but, if coupled with an interest, it passes to the survivors {a). 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 (&). But an executorship or administratorship survives (c) ; for " if," says Lord Talbot, " a joint estate at law will survive, why shaU not a joint administra- tion, when they both have a joint estate in it?" {d). So a testa- mentary 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 (e^. It follows that as co-trustees have an authority coupled with an estate or interest, their office also must be impressed with the quality of survivorship (/) : as if land be vested in two trustees upon trust to seU and one of them dies, the other may sell {g) ; and if an advowson be conveyed to trustees upon trust to present a proper clerk, the survivors or survivor may present (K). Other- wise, indeed, the more precaution 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 2000Z. 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 tmstees 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 (a) Co. Lit. 113 a, 181 b; Butler v. (/) nudson^.Hudson,'R&^.t.T^\h. Bray, Dyer, 189 b ; Attorney- General 129, ^er Lord Talbot ; Co. Lit. 113a; V. Gleg, 1 Atk. 356; 8. C. Amb. 584; Attorney- General v. Glegg, Amb. 585, Goulds. 2, pi. 4 ; Peyton v. Bury, 2 P. per Lord Hardwicke ; Gwilliams v. W. 628 ; Mansell v. Vaughan, Wilm. Howell, Hard. 204 ; Billingsley v. 49; Eyre v. Countess of Shaftesbury, Mathew, Toth. 168. 2 P. W. 108, 121, 124. {g) See Co. Lit. 113 a; Warhurton (b) Exparte Lynej'Ref.t.Tidh. lis. v. Sandys, 14 Sim. 622; Watson v. (c) Adams V. Buclcland,2Ye.Yn.bli; Pearson, 2 Exch. Rep. 594. Hudson V. Hudson, Rep. t. Talb. 127. {h) See Attorney- General v. Bishop {d) Hudson v. Hudson, Rep. t. Talb. of Litchfield, 5 Ves. 825 ; Attorney- 129. General v. Cuming, 2 Y. & C. Ch. Ca. (e) Eyre v. Countess of Shaftesbury, 139. If two trustees employ a soli- 2 P. W. 102. But if joint guardians citor, the surviving trustee may tile a be appointed by the Court, the office, bill against the solicitor for an account, on the death of one, is at an end ; without malcing the representative of Bradshaw v. Bradsliaw, 1 Russ. 528 ; the deceased trustee a party ; Slater v. Hall V. Jones, 2 Sim. 41. WheeUr, 9 Sim. 156. CH. XIII.] LIABILITY OF CO-TEUSTEES. 231 clear duty to perform. Is it to be said that the sale is a breach of trust because the co-trustee is dead ? If I were to lay down such a rule, it would coriie 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 trus- tees " (a). 2. The survivorship of the trust wUl not be defeated because the Trust survives, settlement contains a power for restoring the original number of ^ power of ap- trustees by new appointments (b) : unless there be something in pointment of iiGw trustCGs. 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 ap- point new trustees, the Court said the proviso was analagous to the common one in settlements, and expressed an opinion (for the de- cision was upon another point), that the clause was not imperative, but merely of a directory character (e). Fifthly. One trustee shall not be liable for the acts or defaults Trustee not liable of his co-trustee. *°'^ *^'« co-trustee. 1. This canon appears to have been first established by the case Townley v. of Townley v. Sherborne (/) in the reign of Charles the First. 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 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 (a) Zawcv.DeJen^am, U Hare, 188; (c) Foley y. Wortner,2 J. &W.24:5; and see Hind v. Poole, 1 K. & J. 383. and see Jacob v. Lucas, 1 Beav. 436. (6) See Doe v. Godwin, 1 D. & R. {d) As to the force of- the words 259; Warhwton v. Sandys, 14 Sim. " shall and may " in an Act of Parlia- 622 ; compare Toimsend v. Wilson, raent, see Attorney- General v. Lock, 3 1 B. & Aid. 608, with Hall v. Dewes, Atk. 166 ; Stamper v. Millar, id. 212; Jac. 193 ; and see Attorney-Generaly. Rex v. Flochviood, 2 Chit. Eep. 252. Ployer, 2 Vern. 748 ; Jacob v. Lucas, [e) Doe v. Godmn, 1 D. & R. 259. 1 Beav. 436; Attorney- General v. (/) Bridg. 35; and see Leigh v. Cuming, 2 Y. & C. Ch. Ca. 139. Barry, 3 Atk. 584 ; Anon, case, 12 Mod. 560. Sherborne. 232 LIABILITY OF CO-TEUSTEES. [CH. XIII. 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 K&e/p&r amA the Lords flu 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 Grook, Mr. Justies Barcley, and Mr. Justice Crawley, for their assistance also in the same, and appointed precedents to be 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 trus- tees were chargeable only according to their several and respeeiive xeeeipts, and not one to answer for the other, but no precedent to the contrary was produced to them. Whereupon his Lordship, after long and mature deliberation on the case, and serious advice with all the said Judges, did this day in open Court declare the resolution of his Lordship and the said Judges — That where lands lOr leases were conveyed to two or more upon trust, and one of Ithem receives all or the most part of the profits, and after .dyeth ©r '.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 djring or decayed, unless some practice, fraud, or evil dealing appear to have been in them to prejudice the trust ; for, they heing hy law joint tenants or tenants in common, ■every one hy law 77iay receive either all or as tzmch of the profiis as he can come hy. It is no .breach of trust to permit one of the trustees to receive aU or the most part of the profits, it faUimg 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. 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 malus, or any evil practice, fraud, or ill intent in him that permitted his companion to receive the whole profits, he should be-eharged though he received nothing." Trustee not liable 2. Co-trustees {a), as was determined in Townley v. Sherborne, for joining^ro forniA in receipts. [a) Townley \.Sherborne,'Bridg. 35; v. Symonds, 3 Svrnns. IB, note (a) ; but Spalding v. Shalmer, 1 Vern. 303 ; said by Lord Cowper, Fellowes v. Sadler v. Hohhs, 2 B. C. C. 114 ; and Mitchell, 2 "Vern. 516, to be contrary BeeBradwellv. Catchpole, cMeAWallcer to natural justice. CH. XIII.J LIABILITY OF CO-TEUSTEES. 233 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 conformity, but without receiving, shall not be answerable for a misapplication by the trustee who receives (a). Where the administration of the trust is vested in co-trustees, a receipt for money paid to the account of the trust must be authenticated by the signature of aU the trustees in their joint capacity, and it would be tyranny to punish a trustee for an act which the very nature of his office will not permit him to decline. 3. But it lies upon a trustee who joins in a receipt to show But he must that the money acknowledged to have been received by all was notTctuaiiy'^ in fact received by the other or others, and that he himself receive, joined only for conformity (&). In the absence of all evidence, the effect of a joint receipt is to charge each of the trustees in solido ; 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 (c). A joint receipt at law is conclusive evidence that the money came to the hands of both, but a Court of equity, which rejects estoppels and pursues truth, win decree according to the justice and verity of the fact {d). "Where," said Lord Cowper, "it cannot be distinguished 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 " («). (a) In re Fryer, 3 K. & J. 317 ; note {y) ; Carsey v. Barsham, cited Brice v. Stokes, 11 Ves. 324, per Lord Joy v. Campbell, 1 Sch. & Lef. 344, Eldon; Harden y. Parsons, 1 Ed. 147, per eundem ; Anon, case, Mosely, 35; per Lord Northington ; Westley v. Ex parte Wackerbath, 2 Gl. & J. 151. Clarke, 1 Ed. 359, per eundem; Hea- (6) Brice y. Stokes, 11 Ves. 324, ^«r ton V. Marriot, cited Aplyn v. Brewer, Lord Eldon ; and see Scurjield v. Pr. Ch. 173 ; Ex parte Belchier, Amb. Howes, 3 B. C. C. 95, Belt's Edition, 219, per Lord Hardwicke ; Leujh v. note (8). Barry, 3 Atk. 584, per eundem ; Fel- (c) Westley v. Clarke, 1 Eden, 359, lows V. Mitchell, IP. W. 81 ; Gregory per Lord Henley. V. Gregory, 2 Y. & C. 316, per Baron (d) Harden v. Parsons, 1 Eden, 147, Alderson ; Sadler v. Hobbs, 2 B. C. C. per eundem ; Wilson v. Keating, 4 De 117, per Lord Thurlow ; Chambers v. G. & Jon. 593, per cur. Minchin, 7 Ves. 198, per Lord Eldon ; (e) Fellows v. Mitchell, 1 P. W. 83. Lord Shiphrook v. Lord HincMnbrook, For the ordinary and more natural Id Yes. 4:79, per eundem; Harrison Y. application of this illustration, see Graham, 3 Hill's MSS. 239, per Lord infra. Hardwicke, cited 1 P.W. 241, 6th ed. 234 LIABILITY OF CO-TEUSTEES. [CH. xin. Trustee joining in a receipt must not permit the money to lie in the hands of the co-trustee. Walker v. Symonds. 4. 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 reasonably require («). And it is the duty of a trustee not to rely on a mere statement by his co-trustee, that the money has been duly invested, but to ascertain that such is the fact (6). Two trustees authorized a co-trustee to remove from their bankers a box containing active Spanish stock, for the purpose of converting it into deferred Spanish stock, and the co-trustee after the con- version returned the box with only a part of the converted stock in it, and the co-trustees, who relied on the assurance of the co- trustee to their solicitor that all was right, and did not ascertain the fact, were held liable for the deferred stock which had been misappropriated (c). 5. Walker v. Symonds (d) involved an unusual particularity of circumstances ; but as Lord Eldon described it as a case of great importance to trustees in general («), it may be useful to present a summary of it so far as it bears upon the present subject. A sum of money secured by mortgage had been assigned to Donnythorn, Griffith, and Symonds, upon certain trusts. On 12th 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 Donny- thorne. The inoney was shortly afterwards invested by Donny- thorne, with the sanction of his co-trustees, in bills or notes of the East India Company payable at the end of two years. In 1793 the bills were paid off by the Company, and the money received by Donnythorne. Intelligence to that effect having been trans- mitted to the co-trustees, Symonds the same year wrote to Donnythorne 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 (a) Brice v. Stolees, 11 Yes. 319; Bone V. Cook, M'Clel. 168 ; Gregory V. Gregory, 2 Y. & C. 313 ; Thompson V. Finch, 22 Beav. 316 ; Lincoln v. Wright, 4 Beav. 427 ; and see ReFryer, 3 K. & J. 317. This doctrine appears to have been very little regarded in the time of Lord Talbot. See Attorney- Generals. Randall, 21 Vin. Ab. 534. (6) Thompson v. Finch, 22 Beav. 31 C ; 8 De G. M. & G. 560 ; and see Han- hury V. Kirkland, 3 Sim. 265. (c) MendesY. Guedalla, 2 Johns. & Hem. 259. {d) 3 Swans. 1, (e) 3 Swans. 74. CH. XIII.] LIABILITY OF CO-TEUSTEES. 235 prepared, to secure it by their joint bond. The co-trustees con- Walker r. ceiving the security to be ample, expressed their consent, and the ^y™°" ®' joint bond was accordingly executed. Donnythorne not having sent the mortgage as he promised, Symonds made several applica- tions 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 hlame 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 autho- rised 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 to set aside (as having been fraudu- lently 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 case was brought upon appeal, reversed Sir W. Grant's decree, and directed an inquiry by the Master as to the conduct of the trustees from January, 1791, when the mortgage was paid off, to 1796, the time of Donny- thorne'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 dis- charged 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 (a) 3 Swans. 41. 236 LIABILITY OF CO-TEUSTEES. [CH. XIII. Walker «. Symonds. Executor answer- able for joining in receipts ^ra Jortita, 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 Bonnytliorne, a palpable breach of trust by placing the fund under his control, secured by little more than a promissory 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 suffer 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 Donnythorne alone, and in leaving the state of the funds unascertained for five years (6). I agree with the Master of the EoUs 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 iynplicated in no breach of trust, they had a co-trustee who had been guilty of a shameful violation of his duty, and imtnediately 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, I should have hesitated long before I charged them, 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 " (c). The result of his Lordship's judgment was, that under the circumstances disclosed by the Master's report, the trustees were to be held responsible for the loss of the money. 6. Co-executors also, like co-trustees, are generally answerable each for his own acts only and not for the acts of any co-executor {d). But in respect of receipts, the case of co-executors is materially different from that of co-trustees. An executor has, 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 (a) 3 Swans. 65. (i) 3 Iswans. 67. (c) 3 Swans. 71 ; see Thompson v. Finch, 22 Beav. 326. {d) Sargthorpe v. Milforth, Cro. El. 318 ; Anon. Dyer, 210 a ; Wentw. Off. Ex. 306, 14 Edit. ; Williams v. Niicon, 2 Beav. 472. CH. XIII.] LIABILITY OF CO-EXECUTORS. 237 when the nature of the office 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 (a). 7. In Westley v. Clarke (b), Lord Northington expressed an Westleyw. Clarke, opinion that aimed at breaking down the rule ; and by his decision of that case he succeeded in establishing a qualification 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 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 accord- ingly did. Thompson afterwards became bankrupt, and the money was lost, and thereupon a bill was iiled to charge the co-executors. Lord ISTorthington said, "The rule that executors joining in 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 discharged 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 the act was done, what grounds has any Court in conscience to charge him ? The only act that affected the assets was the first that discharged the debt, and, according to the sense of the Bar, transferred the legal estate of the lands. Then that 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 Uable for the misapplication by the co-executor. The doctrine propounded in this case, that the joint receipt Executor ioining of co-executors is merely a stronger proof of the actual receipt aiisweraWe'where the joiuing was a (a) Aplyn v. Brewer, Pr. Ch. 173 ; 148. Yet in Churchill v. Hohson, 1 nngatory act. Murrell v. Cox, 2 Vern. 560 ; Ex parte P. W. 241_, note (1) by Mr. Cox, his Belchier, Amb. 219, per Lord Hard- Lordship is reported to have said, wicke; Leigh v. Barry, 3 Atk. 584, according to a note of the case by Sir per eundem ; Harrison y. Graham, 3 'L.Ke'njon,th3.t inWesileyv. Clarkehe Hill's MSS. 239, per eundem ; cited should have thought the co-executors ] P. W. 241, 6th ed. note (y) ; Dar- liable if they had been present at the well V. Darwell, 2 Eq. Ca. Ab. 456 ; time the money was paid ; and Lord Gregory v. Gregwy, 2 Y. & C. 316, Redesdale in Doyley. Blake, 2 Scb. per Baron Alderson. & Lef. 242, 243, seemed to think that (6) 1 Eden, 357 ; S. C.\ Dick. 329 ; Lord Northington had no intention of and see Candler v. Tillett, 22 Beav. breaking dotvn, but only of qualifying 267 ; Harden v. Parsons, 1 Eden, 147, the rule. 238 LIABILITY OF CO-EXECUTOES. [CH. XIII. than in the instance of co-trustees, and that an executor as well as a trustee may rebut the presumption by positive evidence, has since been repeatedly controverted (a). The simple point deter- mined, viz. that an 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 (6) : 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 " (c). And, again, he said, " he perfectly con- curred in the decision of that case ; and the joining in a receipt, though not perhaps absolutely necessary, he would not consider conclusive " (d). Lord Eldon, in evident allusion to the case of Westley v. Clarke, admitted that the old rule had been pared down, at the same time expressing his opinion that the notion upon which the later cases had proceeded, 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 easUy under- stood and might be generally known, was much more inviting to executors than a rrde referring everything to the particular circumstances (e). Present doctrine The later doctrine of the Court was thus enunciated by Lord on e su ject. Eldon ; — " Though one executor has joined in a receipt, yet whether he is liable shall depend upon his acti7ig. The former was a simple rule that joining should be considered as acting, but now joining alone does not impose responsibility " (/) ; and in another case he observed that the old rule had been " broken down, leaving every case to be determined by its own circumstances " (b). Lord Eedesdale laid down the rule thus : " the distinction with respect to mere signing appears to be this ; that if a receipt be given for the purpose of form, then the signing wiU not charge the person not receiving ; but if it be given under circumstances pur- porting that the money, though not actually received by both [a] Sadler v. ITobbs, 2 B. C. C. 114 Scurfield v. Howes, 3 B. C. C. 90 Langford v. Oascoyne, 11 Ves. 333 and see Doyle v. Blahe, 2 Sch. & Lef. 243; Joy-w. Campbell, 1 Sch. & Lef. 341 ; Chambers v. Minchin, 7 Ves 198; Brice v. Stokes, 11 Ves. 325 Shipbrooh v. Binchinbrook, 16 Ves, 479 ; Walker v. Symonds, 3 Swans. 64: Be Fryer, 3 Jur. N. S. 485. (J) Sadler v. Ifobbs, 2 B. C. C. 117. (c) Scurfieldy. Howes, 3 B. C. C. 94. {d) Hivey v. Blakeman, 4 Ves. 608. (e) See Chambers v. Minchin, 7 Ves. 198; Brice v. Stokes, II Ves. 325 ; Walker v. Symonds, 3 Swans. 64. (/) Walker v. Symonds, 3 Swans. 64. (b) Shipbrook v. Hinchinbrook 16 Ves. 479. CH. XIII.J LIABILITY OF CO-EXECUTOES. 239 executors, was under the control of both, such receipt shall charge ; and the true question in all these cases seems to have been, whether the money was under the control of both executors : if it was so considered "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). And in another case he said, " 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 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' " (b). 8. In Churchill v. Hobson (c). Lord Harcourt took a distinction churoMll v. between creditors and legatees {d) ; that in the case of creditors, S°"^°"- 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 the legatees were concerned, who had no remedy for their demand except in equity, it was altogether inequitable, that one executor should answer for the receipt of the other. This doc- trine was thus commented upon by Lord Northington. " 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 (e) ; 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 that in a court of equity, where alone legacies are received, such receipt shall not be conclusive, but the Court will see who actually received, and charge that person accordingly " (/). But the distinction taken by Lord Harcourt has by subsequent authorities been clearly overruled {g). Lord Eedesdale, however, has rightly observed, that " there may Executor may be , , , ij-ui,j -j-jv answerable to be a case, where executors would be charged as agamst creditors, creditors wben though not as against legatees ; for legatees are bound by the "ot to legatees. (a) Joy V. Campbell, 1 Soh. & Lef. (e) See ante, p. 179. 341. (/) Harden v. Parsons, 1 Eden, 147. (6) Doyle v. Blahe, 2 Sell. & Lef. (g) See Sadler v. Hobbs, 2 B. C. C. 242 117 ; and see Doyle v. Blake, 2 Sch. & (c) 1 P. AV. 241. Lef. 239. [d) See Gibbs v. Herring, Pr. Ch. 49. 240 LIABILITY OF CO-EXECUTOKS. [CH. XIII. Executor respon- sible for any act which puts assets into the hands of a co-executor. Executor not answerable for Joining where the act is uecessarj'. As in bills of exchange held jointly. And in transfer of stock. terms of the will, creditors are not, and therefore, if the testator 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 executors ; but, as regards a legatee, the executors may justify themselves by the directions of the -vjill " (a). 9. On the same principle that an executor is liable for joining in a receipt, he is responsible for any act by which he reduces any part of the testator's property into the sole possession of his co- executor (6), as if an executor join in drawing (c), or indorsing (d), a bill, or be otherwise instrumental in giving to his co-executor possession of any part of the property («). So it is laid down in an old case, that " if by agreement between the executors one be to receive and intermeddle with 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 " (/). So an executor is answerable, if he give a power of attorney, or other authority, to his co-executor to collect the assets (g), or deliver to him securities for money which enable liim to receive the amount due (h). 10. But under particular circumstances the joining of an exe- cutor is as absolutely necessary as the joining of a trustee, and of course in such cases executors and trustees are put upon the same footing in respect of liability. Thus, if a bill of exchange be remitted to two agents payable to them personally, who on the death of their principal are 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 (i). And so where the joining of both executors is necessary to the transfer of stock {k). (a) Doyle v. Blake, 2 Sch. & Lef. 239, 245. (b) Townsendv. Barber,! Dick. 356; Moses V. Levi, 3 Y. & C. 359 ; Candler V. Tillett, 22 Beav. 263, per M. R. (c) Sadler v. Hobbs, 2 B. C. C. 114. (d) Hovey v. Blakeman, i Yes. 608, per Lord Alvanley. (e) Clough v. Dixon, 3 M. & C. 497, per Lord Cottenham ; and see Dines v. Scott, T. & R. 361. (/) Gill V. Attorney- General, Hard. 314 ; see Moses v. Levi, 3 Y. & C. 359. (g) Doyle v. Blake, 2 Sch. & Lef. 231; Lees v. Sanderson, 4 Sim. 28; Kilbee v. Sneyd, 2 Moll. 200, per Sir A. Hart. (h) Candler v. Tillett, 22 Beav. 236, per M. R. (j) Hovey v. Blaheman, 4 Ves. 608, per Lord Alvanley. {h) Chambers v. Minchin, 7 Ves. 197, per Lord Eldon ; Shipbrooh v. Hinchin- brooh, 11 Ves. 254; S. C. 16 Ves. 479 ; per eundem; Terrell v. Matthews, 1 McN. & G. 434, note ; see Murrell V. Cox, 2 Vem. 570, and compare Scurfield v. Howes, 3 B. C. C, 94; (Note, the doctrine at the period of the last case had not been settled); and see v. ieoi, 3 Y. & C. 359. CH. XIII.] LIABILITY OF CO-EXECTJTOES. 241 11. But where the joining of an executor is absolutely indispen- Unless the act be sable, it is stiU incumbent on the executor to see that the act in ^t^ ™P™per which he joins is perfectly consistent with the due execution of the trust (a). 12. And the executor wiL. not be excused if he rely on the mere Executor must representation of his co-executor as to the necessity or propriety of mere representa- the act, for the executor has imposed upon him at least ordinary tion of his co- and reasonable diligence to inquire whether the representation is true (&). 13. And if, at a period when in the ordinary course of adminis- Greater caution tration the debts should long since have been discharged, an executor jeqmred where •^ " the testator has is applied to by his co-executor to join in a transfer of stock for been long dead. the purpose of payment of debts, and the executor does inquire, and ascertains there are such debts, but afterwards 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 (c). 14. And the executor wiU. be answerable if he leave the money. Executor must as for two years, in the hands of the co-executor, when by the terms money In the of the trust it ought to have been invested on proper securities (d). hands of the co- But 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 (e). 15. And the executor will be equally answerable, whether the Liability of exe- money left in the hands of the defaulting co-executor consists of a ^^^°^ ^™ '^°* •> o getting in money debt due from him to the testator, or of property received by him owing from a after the testator's death. Thus, in Styles v. Gtcy (/), a testator appointed three executors, all of whom proved the will ; but one of (a) Chambers v. Minchin, 7 Ves. Butter, 21 Beav. 560 ; Williams v. 186 ; Shiphrooh v. Hinchinbrooh, 11 Siggim, W. N. 1868, p. 49 ; and see Ves. 252 ; Undenoood v. Stevens, 1 Lincoln v. Wright, 4 Beav. 427. Mer. 712 ; Bick v. Motley, 2 M. & K. (e) SMpbrook v. Hinchinbrooh, 11 312 ; Williams v. Nixrni, 2 Beav. 472 ; Ves. 252 ; S. C. 16 Ves. 477 ; Wil- Hewett V. Foster, 6 Beav. 259. Hams v. Nixon, 2 Beav. 472 ; Kilbee v. (6) Shiph-ooh V. Hinchinbrooh, 11 8neyd,2 Moll. 213, per Sir A. Hart; Ves. 252, see 254 ; Underwood v. Ste- Underwood v. Stevens, 1 Mer. 712 ; and vens, 1 Mer. 712; Hewettv. Foster, 6 seeBricey.Stohes,\lYes.328; Hewett Beav. 259. v. Foster, 6 Beav. 259. (c) Shipbrooh V. Hinchinbrooh, 11 (/) 1 McN. & G. 422; 1 Hall & Ves. 254, per Lord Eldon ; Bick v. Tw. 523 ; Egbert v. Butter, 21 Beav. Motley, 2 M. & K. 312. 560; and see Scully v. Delany, 2 Ir. {d) Sairfield v. Hawes, 3 B. C. C. Eq. Rep. 165 ; Candler v. Tillett, 22 91 ; Styles v. Guy, 1 McN. & G. Beav. 257. 422 ; 1 Hall & Tw. 523 ; Egbert v. co-executor. 242 LIABILITY OF CO-EXECOTOBS. [CH. XIII. Co-administra- tors on same footing as co- executors. How trustee ought to act where a breach of trust is com- mitted by a co- trustee. Effect of the in- demnity clauses. tliem, 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 20,000/. out of their own pockets. They knew, or ought to have known, that Guy was a debtor to the estate ; and having by pro- bate accepted the executorship, it was their duty to have recovered the debt from Guy as from any other debtor to the estate, and this they neglected to do for a period of six years. 16. The rules respecting co-executors are equally applicable to co-administrators. Lord Hardwicke once expressed an opinion that joint administrators resembled rather co-trustees, and that any one of them c.ould not exercise the office without the concurrence of the rest (a) ; but it was afterwards determined in the Court of King's Bench, that joint administrators and co-executors stood in this respect precisely on the same footing (6). 17. To return to the liabilities of co-trustees, if one trustee be cognisant of a breach of trust committed by another, and either industriously conceal it (c), or do not take active measures for the protection of the cestui que trust's interest {d), he will himself become responsible for the mischievous consequences of the act. A trustee is called upon, if a breach of trust be threaten&d, to prevent it by obtaining an injunction (e), and, if a breach of trust has been already committed, to file a bill for the restoration of the trust fund to its proper condition (/), 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 {g). 18. An express clause is usually inserted in trust-deeds, that one trustee shall not be answerable for the receipts, acts, or de- faults 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 Westleij v. Clarke (Ji) Lord Northington was inclined to attach some importance to the (a) Hudson v. Hudson, 1 Atk. 460. (J) Willand v. Fenn, cited Jacomb T. Harwood, 2 Ves. 267. (c) Boardman v. Mosman, 1 B. C. C. 68. {d) Brice v. Stokes, 11 Ves. 319; and see Walker v. St/monds, 3 Sw. 41 ; Oliver V. Court, 8 Price, 166 ; In re Chertsey Market, 6 Price, 279; At- torney- General V. Holland, 2 Y. & C. 699 ; Booth v. Booth, 1 Beav. 125 ; Williams v. Nixon, 2 Beav. 472 ; Blackwood v. Burrowes, 2 Conn. & Laws. 477 ; Gough v. Smith, W. N., 1872, p. 18. (e) In re Chertsey Market, 6 Price, 279. (/) Franco v. Franco, 3 Ves. 75 ; Earl Powlet v. Herbert, 1 Ves. jun. 297. {g) See Walker v. Symonds, 3 Sw. 71. [h) 1 Eden, 360. CH. XIII.J TRUSTEES NOT TO PROFIT BY THE TRUST. 243 clause. But equity infuses such a proviso into every trust-deed (a), and a person can have no better right from the expression of that which, if not expressed, had been virtually implied (b). It is clear, that, in later cases, the Court has considered it an imma- terial circumstance whether the instrument creating the trust con- tained such a proviso or not (c). And now by Lord St. Leonards' Act, every instrument creating a trust shall be deemed to contain the usual indemnity and re-imbursement clauses, and therefore in future the express introduction of them in deeds and wills may be safely dispensed with {d). 19. A settlor, however, has full power to abridge the ordinary duties of trustees, and a special indemnity clause may be so worded as to exempt trustees from responsibility in respect of acts, which would otherwise be breaches of trust. Thus, if a testator declare " that any trustee who shall pay over to his co- trustee, or shall do or concur in any act enabling his co-trustee to receive any monies, shall not be obliged to see to the applica- tion thereof; nor shall such trustee be subsequently rendered responsible by an express notice or intimation of the actual mis- application of the same monies," here the testator has not only appointed joint trustees, but has also authorised each of them to delegate his duties to a co-trustee ; and therefore where two trustees, under such a power, enabled a third to receive monies, who misapplied them, and the fraud was concealed for two years, the two were held not to be responsible, though but for the special power they would have been declared liable on the ground of crassa negligentia (e). Sixthly. A Trustee shall not make a gain of his office. 1. It is a general rule established to keep trustees in the straight Trustee shall de- line of their duty, that they shall not derive any personal advantage tage from the' from the administration of the trust property (/). It was upon ^i^st. (a) See Daioson v. Clarhe, 18 Ves. Beav. 5 ; Rehden v. Wesley, 29 Beav. 254. 213. (6) Worrall v. Harford, 8 Ves. 8. (d) 22 & 23 Vict. c. 35, s. 31. (o) Brke V. Stohes, 11 Ves. 319; (e) Wilkins v. Hogg, 3 Giff. 116; Bone V. Cook, M'Clel. 168; S. C. 13 10 W. R. 47. Fries, 332 ; Hanhury v. Kirhland, 3 {f) Burgess v. Wheate, 1 Eden, 226, Sim. 265; MoyleY. Moyle, 2 R. & M. per Lord Mansfield; ib. 251, per Lord 710 ; SadUr v. HoUs, 2 B. C. C. 114; Henley ; O'Herlihy v. Hedges, 1 Sch. Muchlow V. Fuller, Jao. 198 ; Pridey. & Lef. 126, per Lord Eedesdale ; Ex Fooks, 2 Beav. 430 ; Williams v. Nixon, parte Andrews, 2 Rose, 412, per Sir T. 2 Beav. 472 ; FeJiwicJcv, Greemvell,\0 Plumer ; Middleton v. Spicer, 1 B. C. Beav. 418; Drosier v. Brereton, 15 C. 205, per Lord Thurlow; Docker y. Beav. 221 ; Dix v. Burford, 19 Beav. Somes, 2 M. & K. 664, per Lord 409 ; Brumridge v. Brumridge, 27 Brougham ; Guhhins v. Creed, 2 Sch. R 2 244 TRUSTEES NOT TO PROFIT BY THE TRUST. [CH. XIII Not entitled to the game on the trust estate where it can be let. Nor to a right of presentation. Trustee may not buy up debts for himself. 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 game- keeper, if necessary, for the preservation of the game, but not to keep up a mere establishment of pleasure (a). 2. So if an advowson be devised to trustees, and the next pre- sentation cannot be made productive to the trust estate, the right of presentation does not belong to the trustee, but must be exer- cised by him for the benefit of the heir-at-law, or of the cestuis que trust, according to circumstances. Thus, where an advowson was devised to trustees upon trust during the life of A., to apply the rents and profits in the purchase of an estate to be settled to certain uses upon the death of A., it was decided that the right of presentation during A.'s life, as undisposed of, was not to be ex- ercised by the trustees at their own pleasure, but on the nomina- tion of the heir-at-law (6) ; but in a later case where there was a devise to trustees during the life of A. to apply the rents and profits in payment of debts, it was held that the right of next presentation during the life of A. was a profit, and ought to be sold for the benefit of the creditors (c). If a testator devise an advowson to trustees for sale, the proceeds to be divided amongst certain persons, and a presentation falls, though the heir is abso- lutely disinherited, the trustees have not the nomination, but it belongs to the cestuis qae trust {d), and where the cestuis que trust are tenants in common, they must cast lots for the pre- sentation (e). 3. If trustees or executors buy up any debt or incumbrance 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 creditors or legatees, or other cestuis que trust shall have the advantage of it (/). But if a trustee buy up a debt intending it & Lef. 218,^6?- Lord Redesdale; and see Hamilton v. WngM, 9 CI. & P^in. Ill ; Bentley v. Craven, 18 Beav. 75. A legacy therefore to a person, as a mere trustee for others, is not invali- dated by the fact of such trustee or his wife being an attesting witness to the will. Cresswell v. Cresswell, 6 L. R. Eq. 69. (a) Webb v. Earl of Shaftesbury, 7 Ves. 480, see 488 ; and see Hutchinson V. Morritt, 3 Y. & C. 547. (i) Sherrard v. Harborough, Amb. 165 ; and see Martin v. Martin, 12 Sim. 579 ; Gubbins v. Creed, 2 Sch. & Lef. 218 ; Re Shrewsbury School. 1 M. & C. 647. (c) CooJceY. Cholmmtde!ey,3'Dr:ev!.l (d) Hawkins v. Chappel, 1 Atk. 621 ; Johnstone v. Baber, 2 2 Beav. 562. (e) Johnstone v. Baber, 22 Beav. 562; reversed on this point on appeal, 6 De G. M. & G. 439. ( f) Robinson v. Pelt. 3 P. W. 251, note (A) ; Darcy v. Hall, 1 Vern. 49 ; Ex parte Lacey, 6 Ves. 628,^6?' Lord Eldon ; Morrett v. PasJce, 2 Atk. 54, per Lord Hardwicke ; j4)jo>i. 1 Salk. CH. XIII.] TRUSTEES NOT TO PROFIT BY THE TRUST. 245 for the cestuis que trust and they refuse to take it or pay the pur- chase-money, they cannot, after lying by for a length of time step forward when the speculation turns out profitably and claim the debt for themselves (a). 4. Again, if a trustee or executor use the fund committed to Trustee trading 1 ■ • 1 • n Ti- 1 1 . T 1 .• 1 with the trust his care m buymg and selling land, or m stock speculations, or lay estate must out the trust money in a commercial adventure, as in fitting out account for the a vessel for a voyage ; or put it into the trade of another person from which he is to derive certain stipulated gains (6), or employ it himseK for the purposes of his own business or trade (e), in all these cases, while the executor, or trustee is liable for all losses, he must account to the cestui qioe trust for the profits. And where a trustee retired from his trust in consideration of his successor paying him a sum of money, it was held that the money so paid must be treated as forming part of the trust estate, and be ac- counted for by the retiring trustee {<£). Neither can a trustee bargain with his cestui que trust for a benefit, and it is even said, that a cestui que trust cannot give a benefit to his trustees (e). 5. Mortgagees are to some though not to all intents and pur- Mortgagee re- poses trustees, and in one case, the authority of which, however, trustee to some has been doubted, where a morgtagor in fee died, and the mort- '"tents, gagee bought in the mortgagor's wife's right of dower, it was decreed that the heir of the mortgagor, on bringing in his bill to redeem, might take the purchase at the price paid (/). 6. Partners also stand in a fiduciary relation to each other (c/), Partners, and if on the termination of the partnership by effluxion of time Qi), or bankruptcy {i), or death {k), a partner instead of 155 ; Carter v. Horiie, 1 Eq. Ca. Ab. {d) Sugdm v. Crossland, 3 Sm. & 7 ; Dunch v. Kent, 1 Vern. 260 ; Fos- Gif. 192. brooJce v. Balguy, 1 M. & K. 226 ; (e) Vaughion v. Noble, 30 Beav. 34, Pooley V. Quilter, 4 Drew. 184 ; 2 De see 39. Gr. & Jon. 327. (/) Baldwiny. Banister, cited Eobin- (a) BarweU v. Barwell, 34 Beav. son v. Pett, 3 P. W. 251, note (A) ; 371. and see comments thereon, Dobson v. (6) Docher v. Somes, 2 M. & K. 664, Land, 8 Hare, 220 ; and compare per Lord Brougham. Arnold v. Garner, 2 Phil. 231 ; Mafhi- (c) Docker v. Somes, 2 M. & K. son v. Clarke, 3 Drewry, 3. 655; Willetty.Blandford,\li&r6,2bi Cummins v. Cummins, 8 Ir. Eq. Rep 723 ; Parleer v. Bloxam, 20 Beav. 295 Wedderburn v. Wedderburn, 2 Keen 722 ; 4 M. & Cr. 41 ; 22 Beav. 84 (g) Bentley v. Craven, 18 Beav. 75; Parsons v. Hayward, 31 Beav. 199. (A) See Lord Eldon's observations, Crawshay v. Collins, 15 Ves. 226. (?) Crawshay v. Collins, 15 Ves. Townend v. Townend, 1 Giff. 201. If 218. the trustee or executor be one only of {Jc) Brown v. De Tastet, Jac. 284 ; a firm, he must account for his share Wedderburn v. Wedderburn, 2 Keen, of the profits. Vyse v. Foster, 8 L. E. 722 ; 4 Myl. & Cr. 41 ; 22 Beav. 84 ; Ch. App. 309 ; Jones v. Foxall, 15 and see Flochton v. Bunning, 8 L. R. Beav. 388. Ch. App. 323, note (6). 246 TEUSTEES NOT TO PROFIT BY THE TEUST. [CH. XIII. winding up the partnership affairs, retains the whole assets in the trade, so that in effect the partnership continues, he must account for a share of the profits {a). But as profits arise not only from capital but also from the application of skill, and industry, and other ingredients (&), in former times the Court often found a difficulty in taking the account, and gave interest only (c) ; but at the present day, the Court will direct an account of profits, having regard to the various ingredients of capital, skill, industry, &c., or wiU comprise them under the head of " just allowances " {,d). Traders not 7. Where the trader stands in no fiduciary situation, as where partners. j^g jg neither trustee nor executor, nor was the partner of the testator, but trust monies come to his hands hond fide, though with a knowledge of the trust, that is, of the breach of trust (as where a trustee or executor lends money without authority to a trader), here the trader, though answerable for principal and in- terest, is not made to account for the extra profits («). And if a person was in fact a partner with the testator but without knowing it (/), or has hond fide, settled the partnership accounts {g), he will be equally protected as if he had not been such partner. And if the terms of the partnership be that on the death of any partner his share shall be taken by the survivor, at the value estimated at the last stock-taking, and a partner dies having appointed three executors, one of whom is a co-partner, and another afterwards be- comes a co-partner, and the testator's share is left in the business and traded with, the two executors who are in the firm are not answer- able for profits, but only for the capital of the testator's share with interest. The surviving partners are in this case regarded as pur- (a) In Knox v. Gye, 5 L, R. Eng. & expiration of six years from the death Ir. App.656, LordWestburydeniedthat of his co-partner, any fiduciary relation existed between (i) See Vyse v. Foster, 8 L. R. Ch. the surviving partner, and the represen- Ap. 331. tativeof the deceased partner, but Lord (c) See the observations in Docker Hatherley was clearly of opinion to v. Somes, 2 M. & K. 662. the contrary. See the arguments of (d) Brown v. De Tasiet, Jac. 284 ; these judges pro. and con. in the Willett v. Blanford, 1 Hare, 253. report. The surviving partner has no (e) Stroud y. Gwyer, 28 Beav. 130; doubt larger powers than an ordinary Toionend v. Townend, 1 GiiF. 210 ; trustee, for as between liim and third Simpson v. Chapman, 4 De G. M. & G. persons he can sign a valid receipt 154; Macdonaldv. Michardson, 1 Giff. for an outstanding asset, and being 81. SeeFlocktony. Bunning,8 h. R. personally liable for the debts, he may Ch. App. 323 note (6). be able to give a good title on sale of (/) Brown v. De Tasiet, Jac. 284-. the partnership property, the presump- {g) Chambers v. Howell, 11 Beav. 6. tion being that such realization is And in Ex parte Watson, 2 Ves. & B. wanted for payment of debts ; but it 414, Lord Eldon seems to speak of seems a strong measure to lay down, partners taking with notice, as debtors that the surviving partner is not to ac- for the money, as if it had been placed count for what he receives after the with them by way of direct loan. CH. XIII.] TRUSTEES NOT TO PEOFIT BY THE TEUST. 247 chasers of the share of the deceased, at the price expressed by the articles, and the two executors are answerable on the footing- only of having left outstanding a debt, which they ought in a reasonable time to have got in (a). 8. The foregoing principle that trustees are not to profit by the trust Agents, &c. applies to agents (i), guardians (c), (who are trustees to the extent of the property come to their hands (d) ), directors of a company (e), inspectors under creditor deeds (/), the mayor of a corporation, (g), and generally to aU persons clothed with a fiduciary character (/i). 9. Even an heir has been so far regarded as a trustee for creditors Heir or devisee of the ancestor, that he cannot hold an incumbrance as against them Purchasing '' ' ° . incumbrance. for more than he gave for it (^), and it is presumed, though there is no decision upon it, that the rule applies equally to a devisee as between him and the creditors of the testator (k). But either an heir or devisee who was himself an incumbrancer at the death of the ancestor or testator, may buy up a prior (but not a subsequent) incumbrance, and hold it for the whole amount due; for his own incumbrance is by title paramount and not affected by any trust for creditors, and the Court considers him to that extent as a stranger, and allows him to buy up the prior incumbrance not as heir or devisee, but for the protection of his own incumbrance (l). And if the heir or devisee acquire the prior incumbrance not hy his own act or 'procurement but by the lounty of another, as either by gift inter vivos, or by will, there (a) Vyse v. Foster, 8 L. R. Ch. Ap. (c) Powell v. Glover, 3 P. W. 251, 309- The judgment of the court note. • should be read, to see the principles [d] Sleeman v. Wilson, 13 L. R. upon which the court now acts. The Eq. 41 per cur. court in this case viewed the claim (e) Great Luxemhourg Railway Com- against the surviving partners, though pany v. Magnay, 25 Beav. 586 ; Im- one of them was also executor, as a perial Mercantile Credit Association v. debt only, and, as such, not giving a Coleman, 6 L. R. Ch App. 558 ; 6 right to an account of profits, and the L. R. Eng. & Ir. App. 189. court observed, that, although there had (/) Chaplin y. Young, (No. 2), 33 been hundreds, probably thousands, Beav. 414. of cases in which traders had been {g) Bowes v. City of Toronto, 11 executors, and in which, on taking the Moore, P. C. C. 463. accounts, balances; and large balances {h) Docker v. Somes, 2 M. & K. had been found due from them, yet 665. where there had been no active breach (i) Lancaster v. Evors, 10 Beav. 154 ; of trust, in the getting in or selling out and see 1 Phill. 354 ; Braithwaite v. trust assets, but there had been a mere Braithwaite, 1 Vern. 334 ; Long v. balance on the account of receipts Clapton, 1 Vern. 464 , Darcy v. Hall, 1 and payments, the omission to invest Vern. 49 ; Morret v. Police, 2 Atk. 54. the balance had never made the exe- {h) See Long v. Clopton, 1 Vern. cutor liable to account for the profits 464 ; Davis v. Barrett, 14 Beav. 542. of his own trade. lb. p. 335. (I) Davis v. Barrett, 14 Beav. 542 ; (6) Morret v. Paske, 2 Atk. 5i, per Darcy v. Hall, 1 Vern. 49. Lord Hardwicke. 248 TRUSTEES NOT TO PROFIT BY THE TRUST. [CH. XTII. Joint purchasers. Tenant for life. Trustee may not charge for ser- Tioes. Trustee may not be receiver of the trust estate at a salary. Factors, &c. seems no reason on principle why the heir or devisee should not hold the prior incumbrance for the whole amount due ; and semble it can make no difference whether the donor was the prior incum- brancer himself, or was a stranger who had purchased from the incumbrancer at an under-value (a). And' an heir or devisee may, it seems, hold an incumbrance which he has bought up himself at an under-value for the whole amount as against a subsequent incumbrancer, though not as against the general creditors of the ancestor or testator ; as if A be the first in- cumbrancer, B. the second, and C. the heir or devisee, and C. buys up A.'s incumbrance, here if B. have a charge merely and is not a creditor, or his debt is barred by the statute, there is no thread of trust or confidence running between B. and C. and therefore C. is regarded as a stranger (b). 10. One of two joint purchasers of an estate has been declared a trustee for the other of a proportionate part of the benefit de- rived by the former from an incumbrance bought up by him at a less value (c). 11. An opinion has also been expressed by a high authority, that even a tenant for life stands in such a confidential relation towards the remainderman that he cannot as against him hold an in- cumbrance which he has bought up for more than he gave for it (d). 12. As regards trustees, in the strict sense of the word, the general rule deprives them of any right to receive remuneration for their personal labour and services. 1 3. Thus, the trustee of an estate cannot be appointed receiver of it at a salary (c) ; and even should he offer his services gratui- tously, he would not be appointed except under particular circum- stances, 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). 14. In the absence of any special authority contained in the instrument of trust (h), a trustee or executor who is a factor (i), (a) See Anon. 1 Salk. 155. (6) Davis V. Barrett, 14 Beav. 542. The observations of M. R. are general, but he probably meant no more than this. (c) Carter v. Home, 1 Eq.Ca. Ab. 7. {d) Hill v. Browne, Drur. 433. (e) Sutton V. Jones, 15 Ves. 584 ; Sykes v. Hastings, 11 Ves. 363 ; V. Jolland, 8 Ves. 72 ; Anon. 3 Ves. 515 ; and see Morison v. Morison, 4 M. &C. 215. (/) Sykes V. Hastings, 11 Ves. 364; per Lord Eldon. (ff) Sutton y. Jones, 15 Ves. 587, ^er Lord Eldon. {h) Douglas v. ArMutt, 2 De Gr. & J. 148 ; -Re Sherwood, 3 Beav. 338. (J) Scattergood v. Harrison, Mos. 128. CH. XIII.J TRUSTEES NOT TO PEOFIT BY THE TEUST. 249 broker (a), commission agent (b), or auctioneer (c), can make no profit in the way of his business from the estate committed to his charge. So trustees who are bankers cannot in their cliaracter of trustees borrow money of themselves, as banlcers, at compound interest, though it be the usage of the bank with ordinary cus- tomers (d). 15. So a trustee, whether expressly or constructively such (e). Solicitor, who is a solicitor cannot charge for his professional labours, but will be allowed merely his costs out of pocket (/), unless there be a special contract or direction to that effect (g) ; and even then he cannot charge for matters not strictly belonging to the profes- sional character, such as attendances for paying premiums on policies, for transfers of stock, attendances on proctors or auc- tioneers, attendances on paying legacies or debts (h). But a trustee who in that character invests the trust fund upon mortgage, and acts also for the mortgagor, is not accountable to the trust for the professional profits made by the mortgage and which are paid by the mortgagor {€). As the solicitor-trustee himself cannot charge, so neither can Partners, the charge be made by a firm of which he is a partner {k), even though the business be done by one of the partners who is not a trustee (I) ; but a country solicitor defending a suit in Chancery as executor, through a town agent, will be allowed such propor- tion of the agent's bill in respect of the defence as such agent is entitled to receive (m) ; and a trustee may employ his partner as the solicitor to the trust, and pay the usual professional charges, if by the articles of partnership the trustee is not to participate in the profits or have any benefit from such charges (m). 16. In Cradock v. Pi2oer (o), the principle of the rule was held Cradock u. Piper, not to apply where several co-trustees were made defendants to a suit, this being a matter thrust upon them and beyond their own (ffl) Arnold v. Garner, 2 Phil. 231. and see Douglas v. Archhutt, 2 De G. (J) Sheriff Y. Aske, 4 Euss. 33. & J. 148. (c) Mathison v. Clarke, 3 Drewry, 3 Kiricman v. Booth, 11 Beav. 273. {d) CrossMll V. Bower, 32 Beav. 86 («) Pollard V. Doyle, 1 Drew. & Sm 319. (/) New V. Jones, Exoli. Aug. 9, 1833, 9 Byth. by Jarm. 338 ; Moore 523. V. Frowd, 3 M. & Cr. 46 ; Eraser v. Palmer, 4 Y. & C. 515 ; Yorlc v. Brown. 1 Coll. 260; Broaghton v. Broughton. 5DeG. M. &G. 160. {g) In re Sherwood, 3 Beav. 338 (h) HarUn v. Darhy, 28 Beav. 325. (i) Whitney v. Smith, 4 L. R. Ch. App. 513. {k) Collins Y. Carey, 2 Beav. 128; Ldncoln v. Windsor, 9 Hare, 158. {I) Christophers v. White, 10 Beav. (m) Burge v. Burton, 2 Hare, 373. {n) Clack v. Carlon, 7 Jur. N. S. 441. (o) 1 McN. & G. 664 ■,S.C.\ Hall & IV. 617; overruling Brainhrigge v. Blair, 8 Beav. 588. 250 TRUSTEES NOT TO PEOFIT BY THE TEUST. [CH. XIII. Trustee may accidentally be advantaged, as by failure of heirs of the cestui que trust. Onslow V. Wallis. Purchaser dying without heir after payment of purchase-money, and before con- veyance. control, SO that one of the trustees, who was a solicitor, was al- lowed to act for himself and the others, and to receive the full costs, it not appearing that they had been increased through his conduct. But this decision is open to comment. If the distinc- tion be made between costs out of court and costs in court, be- cause as regards the latter, the conduct of the trustee is under the cognisance of the Court, and the costs are to be taxed, the rule would equally apply to the case of a single trustee defending himself (a). The exception appears to be anomalous, and is not likely to be extended. Indeed where a single trustee defended himself by his partner, the professional profits were disallowed (6). 17. A trustee may hy possibility derive a benefit from the trust estate, not from any positive right in himself, but from the want of right in any other ; as if lands be vested in A. and his heirs upon trust for B. and his heirs, and B. dies without an heir, the equitable interest in this case can neither escheat to the lord (c) ; nor, if the trust was created by conveyance from B., whose seisin or title was ex parte paternd, can the lands, upon failure of heirs in that line, descend to the heir of B. ex parte maternd (d) : but the trustee, no person remaining to sue a sulpcena, retains, as the legal proprietor, the beneficial enjoyment (e). 18. But if an estate be held by A. upon trust for B., and B. dies without leaving an heir, but having devised the estate to C. and D. upon trusts which fail or do not exhaust the beneficial interests, A. cannot insist on retaining the estate upon offering 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 so 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 (/). 19. In Burgess v. Wheate, Sir Thomas Clarke, M. E., put the case of a purchaser paying the consideration money, and then dying without an heir before the execution of the conveyance. Whether under such circumstances the vendor should keep both the estate and the money ? The M. E. thought that the vendor (a) See Broughton v. Broughton, 2 Sm. & Qif. 422 ; 5 De G. M. & G. 160. (6) Lyon y. Baher, 5 De Gex. & Sm. 622. And see Manson v. Baillie, 2 Macq. H. L. Ca. 80. (c) Burgess v. Wheate, 1 Eden, 177. {d) See 1 Eden, 186, 216, 256. (e) Taylor v. Eaygarth, 14 Sim. 8 ; Davall V. New River Company, 3 De Gex & Sm. 394 ; Cox v. Parlcer, 22 Beav. 1 68 ; Barrow v. Wadldn, 24 Beav. 9 ; and see Attorney General v. Sands, Hard. 496 ; Gary 14 ; Burgess V. Wheate, 1 Eden, 212, 213, 253. (/) Onslow V. Wallis, 1 McN. & G. 506 ; and see Jones v. Goodchild, 3 P. W. 33. CH. XIII.] TRUSTEES NOT TO PROFIT BY THE TRUST. 251 would keep the estate, but that the purchaser's personal repre- sentative would have a lien upon it for the purchase money (a). In the same case the questions were asked, whether in the Mortgagor dying event of a mortgagor in fee dying and leaving no heir, the ^^ mortgagee should hold the estate absolutely ? and whether, if the mortgagee demanded his debt of the personal representative, he should take to himself both the land and the debt ? Sir Thomas Clarke thought that the mortgagee might hold the estate abso- lutely ; but that if the mortgagee took his remedy against the personal representative, the Court would compel him to re-convey, not to the lord by escheat, but to the personal representative, and would consider the estate reconveyed as coming in lieu of the per- sonalty, and as assets to answer even simple contract creditors (&). Lord Mansfield said, "He could not state on any ground esta- blished what would be the determination in that case " (c). 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 " (d). In the opinion of the late Master of the EoUs the mortgagee holds absolutely, subject to the qualification that the equity of redemption is assets for payment of the mortgagor's debts (e). 20. But a failure- of inheritable blood might before 4th July, Cestid que trust 1870, have happened (/), not only for want of an heir, (as fgiony. in the case of an illegitimate person dying without issue), but through the corruption of blood caused by attainder, for petit treason or murder; and in the case of such attain- der, the question arose should the trustee hold against the heir of the person attainted. Under the system of uses the heir could not sue his subpoena by reason of the corruption of blood (g) ; but trusts have since been administered on more liberal prin- ciples than uses formerly were. In reference to this point, and also to the question, whether the trustee could hold against the person attainted himself if subsequently pardoned, Sir Thomas Clarke said, " The detaining the estate against the Crown where the cestui que trust dies without leaving a relation was different from detaining it against the cestui «2a, 15 Beav. 84; Wiles y. Gh-esham, 184. 2 Drewry, 258; Waritig \. Waring, (d) Hughes\.Empson,22'Biiei\. IB3, 3 Ir. Ch. Rep. 335 ; Tebbs v. Carpen- per M. R. ier, 1 Mad. 298 ; Grove v. Price, 26 (e) lb. Beav. 103 ; and see Rowley v. Adams, (/) Field \. Pechett (No. 2), 29 Beav. 2 H. L. Cas. 725 ; MacJcen v. Hogan, 576. 14 Ir. Ch. R. 220. (g) Hughes v. Empson, 22 Beav. 181. (o) StoneY-Sione,5h. R.Ch.App.74. 256 GETTING IN THE TRUST ESTATE. [CH. XIV. S. 1. particular case. The will had directed the trustees to convert " with all convenient speed," but this, observed his Lordship, was the ordinary duty implied in the office of every executor (a). But in Graylurn v. Clarkson, where the testator died possessed of shares in the Leeds BanMng Company which involved a liabHity without limit, and the shares remained unsold for many years, L. J. Wood said that there was no fixed rule that conversion must take place by the end of one year, but that such was the primd facie rrde, and that executors who did not convert by that time, must show some reason why they did not (6) ; and the Court directed an inquiry whether any loss had accrued by the neglect to sell by the end of one year from the death of the testator, and declared the executor responsible for any such loss (c). And again in ScuUhorpe v. Tipper (d), where a testator died possessed of shares in an unlimited Banking Company, and directed his executors to realize his personal estate "immediately after his decease, or so soon thereafter as his trustees might see fit so to do," the trustees acting as they believed, for the best interests of the parties, neglected for two years and a quarter to sell the shares, and they were made liable for the consequences, the Vice-Chancellor observing that although a discretion was vested in the trustees, they were bound to exercise it within a reasonable time, that is within a year. This has been considered a somewhat harsh decision. Had the testator simply directed the executors to realize immediately after his decease, they would still have had the year, and the Vice-Chancellor therefore gave no effect to the words of the power, " or so soon thereafter as they might see fit.'' The question should rather have been was the discretion vested in them bond fide exercised. Personal security. 4. An executor is not to allow the assets of the testator to remain outstanding upon personal security (e), though the debt was a loan by the testator himself on what he considered an eligible investment (/). And it will not justify the executor, if he (a) Buxton v. Buxton, 1 M. & C. 80. en action is recoverable only in equity, (&) Graybumv. Clarkson, B L. E. a, cestui que trust may take acti\e steps Cli. App. 606. for getting it in, and as to the effect of (c) Grayhurn v. Clarhson, 3 L. R. cestui qim trusts laches, in this respect Ch. App. 606 ; and see ScuUhorpe v. see Paddon v. Richardson, 7 De Gr. " r, 13 L. R. Eq. 232. Mac. & G. 563; Horton v. Brockle- {d) 13 L. R. Eq. 232. hurst, (No. 2), 29 Beav. 511. (c) Lowson V. Copeland, 2 B. C. C. (/) Powell v. Evans, 5 Ves. 839 ; 156; Caney v. Bond, 6 Beav. 486; Bulloch y. Wlieatley, 1 Coll. 130; and Bailey v. Oould, 4 Y. & C. 221 ; and see TeUs v. Carpenter, 1 Mad. 298 ; see Attorney- General v. Higham, 2 Y. Clough v. Bond, 3 M. & Cr. 496. & C. Ch. Ca. 634 ; Where the chose CH. XIV. S. I.] GETTING IN THE TRUST ESTATE. 257 merely apply for payment through his attorney, but do not follow it up by instituting legal proceedings (a). Personal security changes from day to day, by reason of the personal responsibility of the debtor giving the security ; and as a testator's means of judging of the value of that responsibility 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 (6). An executor win be equally liable 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 (c). Nor will an executor be excused for not calling in money on personal security by a clause in the will, that the execu- tors are to call in " securities not approved by them ;'' for such a direction is construed as referable to securities upon which a tes- tator's property may allowably be invested, and not as authorising an investment which the Court will not sanction (d). And if a settlement contain a clause that the trustees are to get in the money " whenever they shall think fit and expedient so to do," they will be liable, if they refrain from enforcing payment out of tenderness to the tenant for Life without a due regard to the interests of all the cestuis que trust («). If, however, it appears, or there is reasonable ground for beheving, that had legal steps been taken they would have produced no useful result, the executor or trustee is not liable (/). 5. Money outstanding upon good mortgage security an executor Case of trust is not called upon to realise until it is wanted in the course of on mortgage, administration (g). "For what," said Lord Thurlow, "is the 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 " (h). But the trustee should (a) Loivson v. Copeland, 2 B. C. C. (e) Luther v. Bianconi, 10 Ir. Ch. 156. Re. 194. (b) Bailey v. Gould, 4 Y. & C. 226, ('/) Clack v. Holland, 19 Beav. 262; per Baron Alderson. Hobday v. Peters, 28 Beav. 603 ; Alex- (o) Styles v. Guy, 1 McN. & G. ander v. Alexander, 12 Ir. Ch. Eep. 1 ; 422; 1 Hall & Tw. 523 ; Egberts. Afai&Mtfv. .Bafemam,16Sim.233,note; Butter,2i Beav. 560; Candler y. Tillett, Walker v. Symonds, 3 Swans. 71. 22 Beav. 257. {g) Orr v. Newton, 2 Cox, 274 ; and {d) Styles v. Guy, 1 McN. & Gr. 428 ; see Howe v. Earl of Dartmouth, 7 Ves. and see Scully v. Dekmy, 2 Ir. Eq. 150. Kep. 165. {h) Orr v. Newton, 2 Cox, 276. s 258 GETTING IN THE TRUST ESTATE. [CH. XIT. S. 1. How money to be received by trustees. Eeceipts of trustees. ascertain that there is no reason to suspect the goodness of the security (a) ; and if it be not adequate, it is the duty of the trustee to insist on its being paid, though by the terms of the settlement every investment or change of investment is to be with the con- sent of the tenant for life who refuses, for nothing will justify conduct that puts the trust fund in danger (b). 6. When the property is reduced into possession by actual pay- ment, as both trustees cannot receive, but both must join in sign- ing the receipt, the money may be paid for the time to one without responsibility on the part of the other. But a trustee wiU 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 (c). 7. 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 (d) ; and, on the other hand, if the nature of the trust be such that the person having the money in his hands could not reasonably be expected to see to the appli- cation, he may pay safely to the trustee (e). Some recent cases in Ireland have gone further, and taken a distinction between monies which are 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 Rolls in Ireland expressed an opinion (for a decision was not then called for), that if the Insurance Company were released from the debt by the person to whom they were liable at law, and whom the owner of the policy had constituted the trustee of it, they would not be answerable m equity for the execution of the trusts, and he did not understand how the rules applicable to purchasers of real property could be extended to debtors so as to implicate them in trusts created by their creditors (/). And in another case (g), where the insurer effected a policy for 700^., and then assigned it to a trustee to pay 400^. to one, and 300^. to another, without an ex- (a) See Ames v. Parkinson, 7 Beav. 384. (S) Harrison v. Thexlon, 4 Jur. N. S. 550. (c) See/«.s<. (d) Pritchard v. Laugher, 2 Vern. 197. (e) Glynn v. Loche, 3Dru. & War. 11 . (/) Fernie v. Maguire, 6 Ir. Eu. Kep. 137. (<7) Ford V. Ryan, 4 Ir. Ch. Eep. 342. CH. XIV. S. ].J GETTING IN THE TRUST ESTATE. 259 presa power of signing receipts, and a bonus of 33/. was added to ■ the policy, and the insurer being dead without a personal repre- sentative, and one of the cestuis que trust being also dead without 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 Eolls between a loersonal 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. The de- cision of the Lord Chancellor may have been correct, for the cir- cumstance 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 suggested distinction between pure personalty and money raised out of realty until adopted by the English courts, cannot be relied upon. 8. By a late act it is declared that where "purchase or mortgage 22 & 23 Vict, money shall be payable to a person upon any express or implied °- ^^• trust," and the payment is made bona fide, the receipt of the trustee "shall effectually discharge the person paying the same, unless the contrary shall be expressly declared by the instrument creating the trust " (ct). It seems the better opinion that the clause applies only to trusts created since the Act, viz. 13 Aug. 1859, for how can a person expressly declare that an Act shall not apply when the Act itself does not exist ? 9. By a more recent act (6), the receipts of trustees for any 23 & 24 Vict. money generally payable to them under any trust or power created °- ^^^• by a deed, will or other instrument executed since 28th Aug. 1860, are made sufficient discharges. 10. Where the holder of the money knows that the trustee Receipt of a intends to commit a breach of trust, it would not be safe to pay known to intend to the trustee, whether he has by these Acts or otherwise a power ^ breach o£ trust. of signing receipts or not. But, of course, the fact of such know- ledge must be brought home to the person paying, so as to make him particeps criminis, a privy to the fraud (c). (a) 22 & 23 Vict. c. 35, s. 23. (c) See Fernie v. Maguire, 6 Jr. Eq. (6) 23 & 24 Vict. c. 145, ss. 29, 34; Rep. 137. and see s. 12. S 2 2G0 CUSTODY OF THE TRUST PROPERTY. [CH. XIV. S. 2 SECTION II. OF THE SAFE CUSTODY OF CHATTELS. Trustee must tike same care of the trust property as of his own. Robbery of the trust property. Chattels passing by delivciy. 1. Lord Nokthington 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 mentioned, to elicit strong- marks of disapprobation. A trustee is called upon to exert pre- cisely the same care and solicitude in behalf of his cestuis que trust as he would do for himself ; but greater measure than this a court of equity does not exact (6). 2. A trustee in an old case, had kept in his house 40Z. of trust money, and 200Z. belonging to himself, and was robbed of both by his servant, and was held not to be responsible (c). An adminis- tratrix 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). Lord Eomilly, however, in a recent case, made a distinction between a loss arising from a criminal act done by a stranger, and a criminal act done by an agent appointed by the trustee himself, and held that in the latter case, but aggravated by circumstances of carelessness, and where both parties were innocent, the trustee was liable (e). 3. Where there are several trustees, as they cannot all have the custody of the property, if the subject of the trust be articles which pass by delivery, as plate, it should be deposited with the bankers of the trustees (/). As to stocks transferred by delivery and payable to bearer, as Spanish bonds, Vice-Ohancellor Wood observed, that " no doubt the bonds might be kept at the bankers in a box with three locks, opened by three different keys, one to be kept by each of the three trustees ; but as the interest was payable upon coupons twice a year, so that the box must be opened (a) Harden v. Parsons, 1 Eden, 148. (5) Morley v. Morley, 2 Ch. C. 2, per Lord Nottingham ; J3udge\. Oum- mow, 7 L. R. Ch. App, 720, per V. C. Bacon ; Jones v. Lewis, 2 Ves. 241, per J^ord Hardwicke ; Massey v. Ban- ner, 1 Jac. & Walk. 247, per Lord Eidon ; Attorney- General \. Dixie, 13 Ves. 534, per eundem. (c ) Morley v. Morley, uhi supra ; and see Jones v. Lewi^, 2 Ves. 241 ; Ex parte Belchier, Amb. 220; Ex parte Griffin,2Gl &J. lU. Bat see Sut- ton V. Wilders, 12 L. R. Eq. 377. (d) Jones v. Lewis, 2 Ves. 240. (e) Bostock V. Floyer, 1 L. R. Eq. 28 ; 35 Beav. 603. (/) Mendes v. Guedalla, 2 Johns. & Hem. 259. CH. XIV. S. 2.] CUSTODY OF THE TRUST PROPERTY. 261 as often for that purpose, he thought that ordinary prudence did not require such a course to be adopted, more particularly as it would be the banker's duty to see that the coupons only were taken out of the box, and that neither the box nor the securities were removed ;" and so it was decided (a). 4. An executor has been held not to be answerable for having omitted to secure the safety of leasehold premises by insuring them against fire (&). 5. If the subject of the trust be money, it may be deposited for temporary purposes in some responsible banking-house (c), but in such a manner that the cestuis que trust may follow the fund into the hands of the bankers (d) and it is no objection that the bank allows interest on the deposits (e). But if the trustee pay the money to his own credit and not to the separate account of the trust estate (/), or if he allow the drafts of another person to be honoured who draws upon the account and misapplies the money (g), the trustee will be personally liable for the con- sequences. 6. And a trustee must not lodge the money in such a manner as to put it out of Ms own control, though it be not under the control of another. White, a receiver appointed by the Court, in order to induce Adams and Burlton to become his sureties, en- tered into an arrangement with them, that the rents, as received, should be deposited in a bank in the joint names of the sureties, and that all drafts should be in the handwriting of Anderson, who was Adams' partner, and should be signed by White. An account was opened upon this footing, and the bank failed, and a consider- able loss was incurred. Sir J. Leach held that the receiver and Insurance. Trustee should place trust money in a responsible bank, but not to hia own credit. Trustee must not put the trust- fund out of his own control. (a) Mendes v. Chiedalla, 2 Johns. & H. 259 ; Consterdine v. Consterdine, 31 Beav. 331. (6) Bailey v. Gould, 4 Y. & C. 221 ; and see Ex parte Andrews, 2 Rose, 410; Dobson v. Land, 8 Hare, 216; Pry V. F9y, 27 Beav. 146. (c) Routh V. Howell, 3 Ves. 565 ; JoTies V. Lewis, 2 Ves. 241, per Lord Hardwicke ; Adams v. Claxton, 6 Ves. 226 ; Ex parte Belchier, Amb. 219, per ]jOrd Hardwicke; Attorney- General y. Randall, 21 Vin. Ab. 534, per Lord Talbot; Massey \. Banner, 1 Jac. & Walk. 248, per Lord Eldon ; Horsley V. Chaloner, 2 Ves. 85, per Sir J. Strange; France v. Woods, Tam\. 172; Lara Dorchester v. Earl of Efingham, id. 279; Freme v. Woods, \A. 172; Wilks V. Groom, 3 Drew. 584 ; Johnson v. Newton, 11 Hare, 160 ; Swinfon v. Swinfen, (No. 5), 29 Beav. 211. {d) Ex parte Kingston. Re Gross, 6 L. R. Ch. Ap. 632. (e) Re Marcon's Estate, W. N. 1871, p. 148. (/) Wren V. Kirfon, 11 Ves. 377; Fletcher v. Walker, 3 Mad. 73 ; Mac donnell v. Harding, 7 Sim. 1 78 ; Matthews v. Brise, 6 Beav. 239; Massey v. Banner, 1 Jac. & Walk. 241 . See observations of L. J. K. Bruce and L. J. Turner on this case in Pennell v. Dcffell, 4 De G. M. & G. pp. 386, 392. [g) Ingle v. Partiidge, 32 Beav. 661 ; 34 Beav. 41 1 ; and see Hardy v. Metro- politan Railway Company, W. N. 1872, p. 40. 262 CUSTODY OF THE TRUST PROPERTY. [CH. XIV. S. 2. Whether execu- tors may place money in bank payable to either of the co-execu- tors. Trustee responsi- ble for bank if he ought not to have placed the money there. his sureties were not to be answerable («.) ; but his Honour's de- cision was reversed on appeal by the Lord Chancellor (h) ; and this reversal was afterwards affirmed on the final appeal by the House of Lords (c). 7. In a case before Sir A. Hart, in Ireland, an executor was held to be justified, though he had placed the assets in a bank 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-executors, but the bank was in the habit of answering the cheques of either co- executor singly. " It is the custom of bankers," said Lord Chan- cellor Hart, " that what is deposited by one to the joint account may be withdrawn by the cheque of the other; and for conve- nience 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 '' (d). However, his Lord- ship 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 " (e). But even with this qualification the doctrine is so contrary to the principle of other cases that no trustee or ex- ecutor could be advised to rely iipon it in practice (/). 8. 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 improve- ment (g), or if he left it there when he ought to have paid it to new trustees duly appointed (h), or into court (i) ; 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 this in effect cannot be distinguished from an or- dinary loan on personal security, which the Court never sanctions (k). And if the trustees ought not under the circumstances to have left so large a balance in the hands of the bankers, they will be liable for the excess beyond the proper balance (I). But trastees will (a) Salway v. Salway, 4 Euss. 60. (J) 2 R. & M. 215. (c) Id. 220. See the argument of Lord Brougham stated from MS. in 3rd Edition, p. 335. {d) Kilbee v. Sneyd, 2 Moll. 186; see 200, 213. (e) Id, 203, 213. (/) See Clough v. Dixon, 8 Sim. 594; 3 M. & Cr. 490; Gibhins v. Taylor, 22 Beav. 344 ; Ingle v. Part- ridge, 32 Beav. 661 ; 34 Beav. 411. (gr) Moyley. Moyle, 2 R. & M. 710; Sir W. P. Wood in Johnston v. Newton, 11 Hare, 169, called it a very strong ease, and hard upon the executors. (h) Lunham v. Blundell, 4 Jur. N. S. 3. (»■) Willdnson v. Bewick, 4 Jur. N. S. 1010. (k) Darhe v. Martyn, 1 Beav. 525. (I) Astbary v. Beadey, W. N. 1869, p. 96. CH. XIV. S. 3.] CONVERSION. 263 not be liable for having left monies in the hands of a respectable bank during the first year from the testator's death, where there are no special directions in the will for investment, and the estate has not been wound up (a). But they will be liable, if, during the first year they draw out of one bank money which ought, by the will, to be invested in Government stocks, and deposit it in another bank at interest, for this is an iri'egular investment and not a deposit. And a direction in the will that the trustees should not be liable for any banker was held not to be material (6). 9. The trustee, wherever the trust property may be placed. Mixing the trust p , 1 ^ . . , , . r -r property with must always be careful not to amalgamate it with his own, tor, it private property. he do, the cestui que trust will be held entitled to every portion of the blended property, which the trustee cavmot prove to be his own (c). SECTION IIT. OF CONVBESION. 1. Express trusts for conversion, must, of course, be strictly General prin- pursued {d), and where the trustees have a discretionary power to convert or not, or at such time as they may think fit, the Court cannot interfere with the exercise of the power (e). But besides express trusts of this kind, there is frequently imposed upon trustees a duty to convert, not directed in terms, but arising out of the nature of the property and the relation in which cestids que trust stand to each other. 2. As a general rule, if a testator give his personal estate (/), Implied conver- or the residue of his personal estate {g), or the interest of his bequests of property (A), in trust for or directly to (i) several persons in sue- wasting property cession. (a) Jb^insfein V. iVcwtoB, 11 Hare, 160; (e) In re SewelVs Trusts, 11 L. R. Smnfm v. Swinfen, (No. 6), 29 Beav. Eq. 80. 211. {f) Howe V. Earl of Dartmou'h, 1 (b) Rehden v. Wesley, 29 Beav. 213. Ves. 137. (c) Luplon V. White, 15 Ves. 432 ; ((/) Cranch v. Cranch, cited Howe and Panton v. Panton, cited ib. 440 ; v. Earl of Dartmouth, 7 Ves. 141, Chedworth v. Edwards, 8 Ves. 46 ; note; Powells. Cleaver, cited lb. 142; White V. Lincoln, 8 Ves. 363; Fel- Lichfeld v. Baker, 2 Bestv. iSl ; Craw- lowes v. Mitchell, 1 P. W. 83 ; Ch-ay v. ley v. Crawley, 7 Sim. 427 ; Sutherland Haig, 20 Beav. 219 ; Duke of Leeds v. v. Cooke, 1 Coll. 498 ; Johnsons. John- Amherst, 20 Beav. 239 ; Mason v. son, 2 Coll. 441 ; Re Shaw's Trust, 12 Morley, (No. 1), 34 Beav. 471, and L. B. Bq. 124. S. C. (No. 2), ib. 475 ; Cook v. Addi- [h] Fearns v. Young, 9 Ves. 549 ; son, 7 L. E. Eq. 466. Benn v. Dixon, 10 Sim. 636. See Oakes (d) See Craven v. Craddoch, W. N. v. Strachey, 13 Sim. 414. 1868, p. 229 ; W. N. 1869, p. 48, &c. (i) Bmise v. Way, 12 Jur. 959. 264 IMPLIED CONVERSION. [CH. XIV. S. 3. Intention to give right of enjoj'- ment in specie may be collectccl from the bequest. Use of word " rents.*' cession, and the subject of the bequest is of a wasting nature, as leaseliolds, long annuities, &c., the Court implies the intention that such perishable estate 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, and trustees and executors are bound to observe the same rule in their administration of property out of Court, and if they fail to do so, will be liable as for a breach of trust (a). 3. But an intention that the property should be enjoyed in specie may appear from the form of the bequest, or be collected from the terms in which it is expressed. Thus if there be a specific hequest of leaseholds or of stock the specific legatee will take the rents or dividends (&). And a power of varying the securities expressly given to the executors will not prejudice the right of the specific legatee, for the testator is held to have given the executors the authority, not with the intention of vaiying the relative rights of the legatees, but merely with the view of adding security to the property (c). 4. Again, if after a mention of leaseholds, there is a general direction to pay rents to the tenant for life, this is held sufficient to prevent the application of the general rule (d), though it is doubtful upon the authorities whether the use of the word rents in connection with a gift containing no mention of leaseholds would have the same effect (e). A mere mention of "dividends" is cer- tainly not sufficient to authorise the nonconversion of terminable annuities (/). But a bequest of the testator's public funds or government annuities [g), or of the "interest, dividends, or income of all monies or stock, and of all other property yielding income at the testator's death " has been held to be specific [h). Hood V. Clapham, 19 Beav. 90 ; Mar- shall V. Bremner, 2 Sm. & Gif. 237 ; Re Elmore's Trusts, 6 Jur. N. S. 1325. (e) See Goodenough v. Tremamondo, 2 Beav. 512 ; Hunt v. Scott, 1 De G. & Sm. 219 ; Wearing v. Wearing, 23 Beav. 99 ; Pickup v. Atkinson, 4 Hare, 624; Craig v. Wheelei; 29 L. J. Chanc. 374; VacMl v. Robeits, 32 Beav. 140. (/) Blann v. Bell, 2 De G. M. & G. 775 ; Hood v. Clapham, 19 Beav. 90 ; and see Sutherland v. Cooke, 1 Coll. 503; Neville v. Fortescue, 16 Sim. 333 ; Pidgeon v. Spencer, W. N. 1867, p. 87. (g) Wilday Y. Sandys, 7 L. R. Eq. 455. (70 Boys V. Boys, 28 Beav. 436. (a) Bate v. Hooper, 5 De G. M. & G. 338. (6) Vincent v. Newcomhe, Younge, 599 ; Lard v. Godfrey, 4 Mad. 455. But it is not necessary tiiat the bequest should technically be specific in order to entitle the tenant for life to enjoy the income in specie ; see Pickering v. Pickering, 4 M. & Cr. 299 ; Hubbard V. Young, 10 Beav. 205 ; Harris v. Poyner, 1 Drew. 181. The case of Mills V. Mills, 7 Sim. 501, is contrary to the other authorities, and is not law. (c) Lord V. Godfrey, 4 Mad. 455; and see Morgan v. Morgan, 14 Beav. 72 ; Re Llewellyn's Truest, 29 Beav. 171. {d) Blann v. Bell, 2 De G. M. & G. 775; Crowe v. Crisford, 17 Beav. 507 ; CH. XIV. S. 3.] DIEECTION TO ACCUMULATE. 265 5. And if a testator negative a sale at the time of his death by Conversion authorising or directing a conversion at a subseq^uent period (a) ; later periocf or if he use any other expressions which assume the leaseholds or stock to be unconverted when by the general rule it M'ould be converted, the doctrine of conversion is excluded (b). 6. The rule of the Court under which perishable property is Rule does not converted does not proceed upon the assumption that the testator '^^aTale"^""^*^'"^ in fact intended his property to be sold, but is founded upon the circumstance that the testator intended the perishable property to be enjoyed by different persons in succession, which is accom- plished by means of a sale (c). The Court presumes that inten- tion unless a contrary intention appear on the face of the will, and the only difficulty is as to what constitutes a sufficient indication of a contrary intention, the more recent decisions allowing smaller indications to prevail than were formerly deemed sufficient (d). 7. The object of the rule under which a direction to convert Eule as to con- wasting property is implied being to secure a fair adiustment of ■''''^s'™ where ° -^ ^ ■' '- ^ "' property IS not the rights of the tenant for life and those coming after him, it wf^sting, tat of a follows that where a residue which, without any express trust iijedby'the^Court. for conversion, is 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, shares of insurance or other companies, foreign bonds, or stocks, &c., the persons entitled in expectancy have a right to call for the con- version of such property into Three per Cent. Stock (e). 8. Even where the general estate or residue is directed to be Case of debts, enjoyed specifically, the tenant for life is not entitled to enjoy in specie what is not an investment, but a mere debt (/). 9. If a testator direct that his personal estate shall be laid out Direction for in a purchase of lands, to be settled upon A. for life, with remain- p^Ison'af estate and accumnla- (o) Daniel v. Warren, 2 Y. & C. (c) Cafe v. Bent, 5 Hare, 35. tions of income Ch. Ca. 290 ; Bowden v. Bowden, 17 (d) Craig v. Wheeler, 29 L. J. Chano. in land. Sim. 65; Burton y. Mount, 2 De Gex. 374; Morgan v. Morgan, 14 Beav. 82. & Sm. 383 ; Akock v. Sloper, 2 M. & (e) Thm-nton v. Ellis, 15 Beav. 193; K. 699 ; Hindv. Selhy, 22 Beav. 373 ; Blann v. Bell, 5 Dq G. & Sm. 658 ; SUrving v. Williams, 24 Beav. 275 ; 2 De G. M. & G. 775 ; Wightwick v. Harvey V. Harvey, 6 BeaY.lSi; Hinves Lord, 6 H. L. Cas. 217. But the V. Hinves, 3 Hare, 609 ; JRowe y. Rowe, Court will not allow a mortgage to be 29 Beav. 276. called in, without an inquiry whether (J) Collins y. Collins, 2 M. & K. it is for the benefit of all parties to do 703 ; see observations on this case in so ; per Lord Eldon, in Howe v. Dart- Vau'ghan v. Buck, 1 Phill. 78 ; Lich- mouth, 7 Ves. 150. field v. Balcer, 13 Beav. 451 ; Harris (/) Holgate v. Jennings, 24 Beav. V. i'oyner, 1 Drew. 180; and contrast 630, /lerM. K. ; but it maybe doubted with the last case Chambers v. Cham- whehter the general doctrine laid down hers, 15 Sim. 190. was rightly applied. 266 DIRECTION TO ACCUMULATE. [CH. XIV. S. 3. Devise of real estate upon trust to sell and invest proceeds and rents until sale. Produce during first year from testator's death. Income of pro- perty applied in paying legacies. ders over, and that the interest of the personal estate shall he accu- mulated 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 deferred for a long period, either from unavoidable circumstances, or from the dilato- riness 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 expiration of that period, the Court pre- sumes the trustees to be in a condition to invest the personal estate, and gives the tenant for life the interest from that time (a). And, conversely, if a testator devise his real estate to be sold and the produce thereof, and also the rents and profits of the said estate in the meantime, to he laid end in Bank Annuities or other securities, upon trust for A. for life, with remainders over, the 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 (6). 10. From the language used by Lord Eldon, in the case of Sitwell V. Bernard (c), (in which the rule, that the accumulation, where expressly directed, extends only to one year from the tes- tator's death, was first established), an impression prevailed that in no case was the tenant for life entitled to the income during the first year of the fund or land directed to be converted, and both Sir John Leach (d), and Sir Thomas Plumer (e), sanctioned this doctrine by their authority. However, Lord Eldon had no in- tention of laying down any such rule (/), and it has since been settled that where there is no express direction to accumulate, the tenant for life has an interest in the first year's income (g), but an interest varying according to the circumstances of the case, as will appear from the following distinctions : (a.) The tenant for life of a residue is not entitled to the income accruing during the delay allowed for the payment of legacies on so much of the testator's property as is subsequently applied in paying them {h). Executors, as between themselves and the (a) Sitwell V. Bernard, 6 Ves. 520 ; EntwistU V. Marhland, Stuan v. Bruere, cited lb. 528, 529 ; Griffith v. Mon-isoM, cited 1 J. & W. 311 ; Tucker V. Boswell, 5 Beav. 607; Kilvington v Gray, 2 S. & S. 396; Parry v. War- rington, 6 Mad. 155 ; Stair v. Macgill, I Bligh, N. S. 662. (6) Noel V. Lord Henley, 7 Price, 241 ; Vichers v. Scott, 3 M. & K. 500 ; and see Vigor v. Harwood, 12 Sim. 172; GreisleyY. Earl of Clwsterfidd, 13 Beav. 288; Beardand v. Halliwell, 1 C. P. Cooper, t. Cottenham, 169, note (a). (c) 6 Ves. 520. (d) Stott V. Hollingworth, 3 Mad. 1 61. (e) Tatjlor v. Hibbert, IJ. &W. 308. (/) See Angerstein v. Martin, T. & R. 238 ; Hewitt v. Morris, lb. 244. (g) Macpherson v. MacpJicrson, 16 Jur. 847. (h) Holgate v. Jennings, 24 Beav. 623 ; Crawley v. Crawley, 7 Sim. 427 ; CH. XIV. S. 3.] DIKECTION TO ACCUMULATE. 267 persons interested in the residue, are at liberty to have recourse to any funds they please for payment of debts and legacies, but in adjusting the accounts between the tenant for life and remain- derman, they must be taken to have paid the debts and legacies not out of capital only or out of income only, but with such portion of the capital, as together with the income of that portion for one year from the testator's death, was sufficient for the purpose (a). As to contingent legacies which may or may not become payable, the tenant for life is, from a rule of convenience, entitled to the income of the fund as part of the residue, until the contingency arises (6). (/S.) If a testator desire that his personal estate shall be laid out Where funds are and invested either in Government or real securities, in trust for A. ought to be. for life, with remainders over, (c), or in a purchase 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 in trust for A. for life, with remainders over, the income of the Governinent and real securities of which the testator was possessed at the time of his death (these being the very investments contemplated by his will), belongs from the time of the death to the tenant for life. (y.) If, during the first year, the conversion directed by the Where the proper testator is actually made, the tenant for life is also entitled to the made*before the produce of the property, in its converted form, from the time of end of the year, the conversion, as if land be directed to be sold, and the produce invested in Government or real securities (/), or money be directed to be laid out on land {g), the tenant for life is entitled to the divi- dends or interest in the first case, from the time of the sale and investment, and to the rents in the latter case from the time of the purchase, though made in the course of the first year. (8.) Where, at the death of the testator, the property is not in where the funds the state in which it is directed to be, the tenant for life is, before ^^''^ "°* ?' *'^'^ , testator s death the conversion, entitled, as the Court has now decided, not to the in the state they actual produce, but to a reasonable fruit of the property, from the °"^ * *° '^' Cranley v. Dixon, 23 Beav. 512 ; (c) Hewitt v. Morris, T. & R. 241 ; Fletcher v. Stevenson, 3 Hare, 371; La Terriere v. Bulmer, 2 Sim. 18; Allhusen v. Whittell, 4 L. E. Eq. 295; Allhusen v. Whittell, 4 L. R. Eq. 295. as to the principle to be applied where {d) Angerstein v. Martin, T. & R. the debt is compromised, see Maclaren 232. V. Stainton, 4 L. E. Eq. 448.1 («) Caldecott v. Caldecott, 1 Y. & C. («) Allhusen v. Whittell, 4 L. R. Ch. Ca. 312, 737. I^q. 295; Lamberty. Lambert, 16 L.H. (/) La Terriere v. Bulmer, 2 Sim. Eq. 320. 18 ; Gibson v. Bott, 7 Ves. 89. (b) Allhusen v. Whittell, 4 L. R. Eq. {g) See Angerstein v. Martin, T. & 305. R. 240. 268 APPLICATION OF INCOME [CH. XIV. S. 3. death of the testator up to the time of the conversion, whether made in the course of the first year, or subsequently ; as if per- sonal 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 from the death of the testator 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 tes- tator's death (a). Case of nltm in- (e.) Where the nonconversion is attended with any risk of the risk.^' ^ ^" °" property, as in the case of bonds, &c., the remainderman, whose interest is thus imperilled, has a right to share in the extra profit of the annual produce (&) ; but suppose land to have yielded a rental beyond what would have been the annual produce of the purchase- money, and there has been no depreciation, can the remainderman call back the extra rent received by the tenant for life, or as the remainderman gets all that was ever intended for him, viz. the undepreciated property, may the tenant for life keep the fuU. rent ? If not, then, conversely, if the land yield no annual fruit, or less than what the purchase-money would yield, the tenant for life should have a claim against the remainderman (c). But, if the tenant for life be also a trustee for sale, and neglect to sell, he cannot be allowed to put into his own pocket the higher annual (a) Dimes v. Scott, 4 Euss. 195. In tator's death. In Allhusen v. Whittle, Douglass y. Congreue,! Keen, 410, the 4 L. R. Eq. 295, V.-C. Wood con- M. R. gave the tenant for life the sidered the true principle to be, to as- actual interest of the personal estate certain what part of the testator's making interest from the death of the estate (including the income of such testator until the end of one year; and part during the first year from the in Robinson v. Robinson, 1 D. M. & G. testator's death) was required for the 247, the tenant for life was allowed payment of funeral and testamentary 4 per cent, from the expiration of one expenses, debts, and legacies, and to year; but in the cases of Taylor v. give the tenant for life the income of Clark,\'ii-A):e,\G\\ MwganY. Morgan, the residue from the testator's death, 14 Beav. 72 ; Holgate v. Jennings, 24 any part not in a proper state of in- Beav. 623 ; Brown v. Qellatly, 2 L. E. vestment to be taken as invested in Ch. App. Ib2; 'Allhiisen -v. Whittle, consols at the death of the testator. 4 L. R. 295; Re Llewellyn's Trust, 29 (6) Dimes v. Scott, 4 Russ. 195. Beav. 171 ; Hume v. Richardson, 4 De But see Stroud \. Gwyer, 28 Beav. 130, G. P. & J. 29, the authority of Dimes which M. R. distinguished from Dimes V. Scott was followed ; but in the last v. Scott, on the ground that in the case, {Hume v. Richardson), the Court latter the irregular investment existed gave the tenant for life the income of at the death of the testator, but in so much 3 per cent. Consolidated Stroud v. Gwyer, the irregular invest- Bank Annuities as would have been ment had been made by the trustees, purchased had the conversion been This appears to be a somewhat thin made at the testator's death, and not at distinction, the expiration of one year from the tes- (c) See Tales v. Yates, 28 Beav. 637. CI-I. XIV. S. 3.] ACCKUING BEFORE CONVEaSION. 269 produce which has arisen from his own laches, for no trustee can derive a profit from the exercise of his own office (a). (s.) In Gibson v. Bott (b), leaseholds from a defect of title could Gibson v. Bott. not be sold, and the Court gave the tenant for life interest at 4 per cent, from the death of the testator on the value. It does not appear from the report at vjhat time the value was to be taken, but according to recent cases it should have been ascertained at the expiration of one year from the testator's death (c). {t) If a, testator's estate comprise funds not immediately con- Capital comiiig vertible, but receivable by instalments, such as a testator's share ments?'^ in a partnership assessed at a certain sum and payable by instal- ments, carrying interest at 5 per cent., the tenant for life is allowed 4 per cent, from the death of the testator on the value taken at the expiration of one year from the testator's death {d). (rj.) If it appear from the terms of the will that the testator in- Discretion tended to give his trustees a discretion as to the time of conver- by^thrtestator! sion, 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 intention, and not by the general rule (e). But if the power be so expressed as to negative the intention of varying by its exercise the rights of the parties, the general rule will prevail (/). 10. The principle upon which the Court implies in favour of Reversionary ^, . • J T i.- i i J.' i 1 interest con- those m remainder a direction to convert wasting property, namely, verted in favour that both tenant for life and remainderman were intended to share »* tenant for lite. in the enjoyment of it, demands equally in favour of the tenant for life a conversion of future or reversionary interests (g). Hence if a testator entitled to a reversion expectant on lives direct a conversion and investment of his personal estate, with a discretion to the trustees as to the time, and the trustees decline to sell until in event the reversion falls into possession, here had the reversion been sold at the end of one year from the testator's death, the tenant for life would have received the interest of the purchase- money, and the fund therefore, when it falls into possession, re- presents the capital with the interim interest; and the Court (a) See Wiglitvnck v. Lord, 6 H. L. Wreyv. Smithy 14 Sim. 202; Sparling Cas. 217. V. Parker, 9 Beav. 524; Johnstone y. (J) 7 Ves. 89. Moore, 4 Jur. N. S. 356 ; Re SewelVs (c) See Caldecott v. Caldecott, 1 Y. Trust, 11 L. R. Eq. 80 ; and see Mur- & C. Ch. 312, 737; Sutherland v. Cook, ray v. Olasse, 17 Jur. 816. 1 Coll. 503. , (/) Brown v. Oellatly, 2 L. R. Ch. (d) Re Llewellyn's Trust, 29 Beav. App. 751. 171; Meyer Y, Simonsen, 5 De G. & {g) Howe v. Lord Dartmouth,! Yes, Sm. 723. 148. («) Mackie v. Mackie, 5 Hare, 70 ; 270 INVESTMENT. [CH. XIV. S. 4. under these circumstances, gives the tenant for life out of the capital the difference between the purchase-money received and the value of the reversion estimated at one year from the testator's death of the sum in question on the assumption of its being- payable on the day, when, as afterwards happened, it actually fell into possession (a). SECTION IV. OF INVESTMENT. Of investment of trust-money. Trustee may not invest on per- sonal security. 1. Where the trust-money cannot be applied, either immediately or by a short day, to the purposes of the trust, it is the duty of the trustee to make the fund productive to the cestui qii,e trust by the investment of it on some proper security. 2. It was the opinion of Lord Northington that a trustee might be justified in lending on personal credit. " The lending money on a note," he said, " is not a breach of trust, without other cir- cumstances crassce negligentiw " (h). But the case from which this dictum is taken has been called by Lord Eldon, from the ex- traordinary doctrines contained in it, " a curious document in the history of trusts " (c) ; and certainly it is now indisputably settled that a trustee cannot lend on personal security (c^) . Lord Hard- wicke said, " a promissory note is evidence of 'a debt, but no security for it " («) ; and Baron Hotham observed, that " lending on personal credit for the purpose of gaining a larger interest was a species of gaming" {f); 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 rv^ng in the ears of every one who acted in the character of trustee " {g). And it wiU not alter (a) WiVdnson v. Diuncan, 23 Beav. 469. (6) Harden v. Parsons, 1 Eden, 148. (c) Walker v. Symonds, 3 Swans. 62. (d) Adye v. Feuilleteau, 1 Cox, 24 ; Daricev. Martyn, 1 Beav. 525; Holmes V. Dring, 2 Cox, 1 ; Terry v. Terry, Vr. Ch. 273 ; Ryder v. Bicherston, cited Hardenv. Parsoiis, 1 Ed. 149, note {a), and more fully Walker v. Symonds, 3 Sw. 80, note (a) ; Vigrase v. Binfield, 3 Mad. 62 ; Walker v. Symonds, 3 Sw. 63 ; Anon, case Lofft. 492 ; Kehh v. Thompson, 3 B. C C. 112 ; Wilkes v. Steward, Gr. Coop. 6 ; Clough^ . Bmvl, 3 M. & Cr. 496 ; -per Cur. ; and see . Pocock v. Beddinglon, 5 Ves. 799 ; CoUis V. Collis, 2 Sim. 365 ; Black- wood V. Borrowes, 2 Conn. & Laws. 477; Watts\. Girdlestone,6Bea.v. 188; Graves v. Siralian, 8 De Gex, Mac. & G. 291. (c) Ryder Y.Bickerston, cited Walker V. Symonds, 3 Sw. 81, note (a). (/) Adye v. Feuilleteau, 1 Cox, 25. (g) Holmes v. Dring, 2 Cox, 1. CH. XIV. s. 4] INVESTMENT. 271 the case that the money is lent on the joint security of several obligors (a), or to a person to whom the testator himself had been in the habit of advancing money on personal security (b). 3. A trustee may not invest the trust fund in the stock of any Investment on private company, as South Sea Stoek, &c., for the capital depends company, upon the management of the governors and directors, and is subject to losses. The South Sea Company, for instance, might trade away their whole capital, provided they kept within the terms of their charter (c). Nor until the Act to be presently mentioned {d) could a trustee invest in Bank stock (e) or East India stock. " 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 trustees and executors " (/). But if a trustee or executor has by mistake invested 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 {g). By Lord St. Leonards' Act, 22 & 23 Vict. c. 35, s. 32, trustees, 22 & 23 v. c. 35. executors, and administrators, where not expressly forbidden by the instrument creating the trust, are authorised to invest trust funds in the stock of the Bank of England or Ireland, or on East India stock, but the act does not apply where a particular fund is settled specifically and there is no power of varying securities (7i). This clause was rightly held by the Master of the Eolls (€) (in accordance with the view taken by V. C. Kindersley, in reference to the 21th section {k), but in opposition to V. -C. Stuart {I) ), not (a) Holmes v. Dring, 2 Cox, 1. (6) Styles v. Guy, 1 McN. & G. 423. (c) Traffoj-dv.Boehm,3 Atk. 440; see 444. Milk v. Mills, 7 Sim. 501 ; Adie V. Fenniliiteau, cited Hancom v. Alle.n, 2 Dick. 499, note ; JSmelie v. Emelie,7B.¥.C.259. The reporter speaks in the last case of South Sea Annuities; but no doubt the investment had been made iu South Sea Stock. In Trafford v. Boehm the investment had been in South Sea Stock, but the reporter cites the case by a similar mistake as one of investment in South Sea Annuities. For the difference be- tween the two see Trafford v. Bochni, 3 Atk. 444. Adie v. Fennilitteau, or more correctly, Feinlleteau, has been examined in the Registrar's Book, but the point does not appear. {d) 22 & 23 Vict. c. 35, s. 32. (e) Hynes v. Redington, 1 Jones & Lat. 589 ; 7 Ir. Eq. Rep. 405. (_/) Howe v. Earl of Dartmouth, 7 Ves. 150. (g) Hyiies v. Redington, 7 Ir. Eq. Rep. 405 ; 1 Jones & Lat. 589 ; see post Q. 29, s. 3. (h) Re Ward''s Settlement, 2 Johns. & Hem. 191 ; but see contra Watte v. Littlewood, 41 L. J. Ch. 636. But in which the case before V.-C. Sir W. P. Wood was not cited. See 23 & 24 Vict. c. 145, s. 25. (?) Re Miles' s Will, 5 Jur. N. S. 1236. {k) Dodson v. Sammell, 6 Jur. N. S. 137 ; see S. C. 1 Drew. & Sm. 575. (Q Re Rick's Trusts, Jan. 27, 1860 ; 272 INVESTMENT. [CH. XIV. S. 4. 30&.S1 V. c. 132. Indian Railway Stock. 23 & 24 V. c. 38. General order. to apply to trusts created by an iilstrument dated before the Act, but now by the Amendment Act, 23 & 24 Vict. c. 38, s. 12, the 32nd section of the original Act is made retrospective. The Court refused under this Act to sanction an investment in stock created under the Indian Loan Act, 22 & 23 Vict. c. 39 (a), but by 30 & 31 Vict. c. 132, s. 1, the words East India Stock are to be taken to include as well the old East India Stock as " East India Stock charged on the revenues of India, and created under and by virtue of any Act of Parliament," passed on or after the 13th day of August, 1859 (6). The stock under the Indian Loan Act has been issued under the name of India, and not of JEast India Stock, 'and hence a doubt has been suggested whether India Stock be within the purview of 30 & 31 Vict. c. 132, but it is conceived that the doubt is purely technical, and has no solid foundation (c). Kailway stock guaranteed by the Indian Government is not within the act {d). By s. 10 of the above-mentioned Act, 23 & 24 Vict. c. 38, the Court of Chancery is empowered to issue general orders from time to time as to the investment of cash subject to its jurisdiction, either "in Three per Cent. Consolidated, or Reduced, or ISTew Bank Annuities, or in such other stocks, funds, or securities " as the Court shaU. think fit ; and by the following section, trustees, executors, or administrators, " having power to invest their trust funds upon Government securities, or upon railway stocks, funds, or securities or any of them," may invest " in any of the stocks, funds, or securities, in or upon which, by such general order," cash may be invested by the Court. A General Order, dated February 1, 1861, was issued under the powers of this Act, as follows : — 1. " Cash under the control of the Court may be invested in Bank stock, East India stock, Exchequer tills, and 21. 10s. per cent. Annuities, and upon mortgage of freehold and copyhold estates respectively in England and Wales ; as well as in Consolidated 31. per cent. Annuities, Reduced Zl. per cent. Annuities, and Neio M. per cent. Annuities." and see Page v. Bennett, 2 Giff. 117 ; EeSimsori'sTrusts, 1 Johns. & Hem. 89. (a) Re Colne Valley Railway ,1 Johns. 528; 29 L. J. Ch. 33; Re Simson's Trusts, 1 Johns. & Hem. 89 ; Equitable Reversionary Interest Society v. Fuller, ib. 382, per Cur. (J) The day on which the Indian Loan Act received the Royal Assent. (c) As to the parties to be served, see Re Price's Estate, W. N. 1872, p. 159. {d) Green v. Angell, W. N. 1867, p. 305. CH. XIV. S. 4.] INVESTMENT. 273 2. "Every petition for the purpose of the conversion of any dl. per cent. Bank Annuities into any other of the stocks, funds, or securities hereinbefore mentioned, shall be served upon the trustees, if any, of such Bank 31. per cent. Annuities, and upon such other persons, if any, as the Court shall think fit." It is understood that by East India stock in this order was Meaning of East meant the old East India stock (a), and not the stock created under the India Loan Act, 22 & 23 Vict. c. 39. It is clear that this was so as regarded the 32nd section of the Act 22 & 23 Vict- c. 35, which authorised investments in East India stock, as the only stock known at that time by the name of East India stock was what is described in other Acts of Parliament as the capital stock of the East India Company, and known on the Stock Exchange and in common parlance as East India stock. Indeed the East India Loan Act did not itself create any stock, but only gave a power of raising money in certain modes pointed out, one of which was the creation of stock. It is scarcely less clear that by East India stock in the 07'der of the Goitrt of Chancery the capital stock of the East India Company was meant, for the new loan had not then acquired the distinctive name of East India stock. In fact the old East India stock and the new loan were quite distinct securities ; the East India stock was the capital stock of the East India Company, re- deemable in 1874 at 200^. per cent., with a guarantee fund for raising by accumulation the means of payment ; but the new loan is like the Government Bank Annuities, with the distinction that the East India loan is not guaranteed by the Imperial Government but chargeable on the Eevenues of India, and is redeemable at any time. Upon applications under this order, the Court at first sane- Appiication.s tioned investments in East India stock (h) upon the petition of '^^^'^^ ''^'^ ^"'^ the tenant for life, even though the market price of investment exceeded, as it commonly did, the fixed rate at which the stock would be redeemable in 1874, viz. 200Z. per cent. (c). But in a sub- (a) See 36 V. c. 17, which provides (o) Bishop v. Bisho2}, 9 W. R. bid ; for the redemption or commutation of Cohen v. Waley, 7 Jiir. N. S. 937; Equi- the stock on or before 30 April, 1874. table Reversionary Interest Society v. (6) That is the old East India Fuller, 1 Johns. & H. 379. This stock, technically known by that name; cause was heard on appeal before Equitable Reversionary Interest Society L. J. J. on 17th July, 1861 , when L. J. V. Fuller, 1 Johns. & Hem. 382 ; Colne Knight Bruce thought the order should Valley and Halstead Railway Company be sustained on special grounds, so that 1 De G. F. & J. 53; Re Fromoiva any expression of opinion by L. J. Estate, 8 W. R. 272. Turner became unnecessary ; but both T 274 INVESTMENT. [CH. XIV. S. 4. sequent case Lord Chancellor Campbell and the Lords Justices upon appeal concurred in refusing the application on the ground that it would work an injury to the remainderman. Lord Camp- bell observed that no more precise rule could safely be laid down than " that in the absence of any special circumstances which might make the desired transfer asked by the tenant for life beneficial to those in remainder, irrespective, of pecuniary calculations, the transfer ought not to be permitted, if on pecu- niary calculations it might be injurious to those in remainder." And Turner, L. J., appears to have assented to this view, giving as an instance in which the Court might properly make such investment, where " from the exigency of a family it would be desirable for the children that the income of the parents should be increased." But he added that the decision was "not intended to embarrass trustees where the fund was not in Court, and that they would in making such an investment be entitled to the pro- tection of tke Court if they acted bond fide to the best of their discretion " (a). And accordingly where trustees were directed to invest in the public stocks or funds, and they retained English and Irish Bank stock and East India stock in specie, it was held (there being no imputation on their lona fides) that they had not exceeded their duty, and the tenant for life was declared to be entitled to the actual income which had arisen from those secu- rities since the passing of the Act which authorised them, but not to the actual income which had accrued before the passing of the Act (6). And where Bank stock stood settled upon A. for life, with re- mainder to his children, if any, with remainder to certain persons absolutely, and A. (who had been married twenty-seven years with- out issue) applied, with the consent of the ultimate remaindermen, for an investment in East India stock, M. E. said he never sanctioned such' an investment where infants were interested, unless an increase of income was absolutely required for their maintenance ; but con- sidering the improbability of there being children in that case, he made the order (c). In another case the tenant for life of a residue applied for the sale of Bank Annuities and the investment of the proceeds upon Bank stock, and the Court, after taking time to consider, declined L. J. J. assented to the principle laid Tvff, 9 W. R. 729 ; Waite v. Little- down in Coclcburn v. Peel, 3 De Gex. wood, 41 L. J. Ch. 636. Fish. & Jon. 170. ' (b) Hume v. Richardson, 4 De G. (a) Cockburn \. Peel, 3 De Gex. p\ & J 29. Fish & Jon. 170: and see Me Boyccs (c) Montefiore v. Guedalla, W. N. Minors, 1 Ir. R. Eq. 45; Unrjless v. 1868, p. 87. CH. XIV. S. 4] INVESTMENT. 275 to make any order on the ground that the exercise of the power by the Court was discretionary, and that there were no special circumstances to call for such a change of investment (a). But where a tenant for life had a wife and five children, and his income, exclusive of the dividends of the fund in Court (6357^. 15s. 2d. Consols), was only 70^. per annum, the Court thought these circumstances sufficient to justify an investment in Bank stock and made the order accordingly (h). So where the tenant for life was suffering from ill health and was straitened in his circumstances, and asked for an investment of one moiety in India stock and the other moiety in Bank stock, the Court assented to the prayer, with the qualification that as investment in India stock involved a possible loss of capital, the whole fund should be invested in Bank stock (c). So where a fund was charged with an annuity of 500/. per annum, and was insufficient for its purpose, the Court, though it would not have listened to an application with the mere view of augmenting the income of the tenant for life, directed an invest- ment in East India stock, in order to aid the primary intention of providing for the annuity [d). The powers conferred by the Act have been held to apply to monies paid into Court under Acts of Parliament directing the monies to be invested on securities other than those mentioned in the Act under consideration (e). Applications under Number 1 of the general order need not be Service, served on the trustees of the fund, but such service is necessary under Number 2 of the same order (/). Powers of investment are generally to be exercised with the con- Consent. sent of the tenant for life and it has been doubted whether the several Acts enlarging the power of trustees apply where such a consent is required. It is conceived, however, that the effect of the Acts is to authorise trustees to invest on the extended securities, provided {a) Maclarm v. Stainton, M. R. (e) Re Birmingham Bluecoat School, July 4, 1861. 1 L .R. Eq. 632 ; Re Wilkinson's Settled (h) Pdllon V. Brooking, M. R. July Estate, 9 L. R. Eq. 343 ; Re Cook's 6, 1861 ; and see Re Boyces Minors, 1 Settled Estate, 12 L. R. Eq. 12 ; Re Ir. R. Eq. 45 ; Re Ingram's Trusts, Thorold's Settled Estate, 14 L. R. 11 "W. R. 980, where the tenant for Eq. 31 ; Reading v- Hamilton, W. N. life by the change would receive more 1872, p. 91 ; Re Taddy's Settled than two dividends in the year. Estates, W. N. 1873, p. 188. But (c) Re Longford's Trust, 2;johns. & see Re Shaw's Settled Estate, 14 L. R. Hem. 458 ; and see Vidler v" Parrott, Eq. 9; Re Boyd's Settled Estate, W. K. 4N. R. 392. 1873, p. 113. {d) Mortimer v.Picton,^OJ\lV.'N.S. (/) Re Adams' Will, W. N. 18G8, 83 ; and see Hurd v. Hurd, 11 W. K- p. 58. 50 ; Fluid v. Fluid, 7 L. T. N. S. 590. 276 INVESTMENT. [CH. XIV. S. 4. the investments be accompanied with all the conditions required for investment upon the securities specified in the settlement. Any- other construction would be a trap, into which many trustees must already have fallen. moiT*^r^"'^ °° '^' ^i*'^ respect to investments upon mortgage Lord Harcourt said, "The case of an executor's laying out money without the indemnity of a decree, if it were on a real security and one that there was no ground 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 (6), 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 Lord Thurlow, upon application made to him to lay out on mortgage money belonging to a lunatic, observed, that " in latter times the Court had con- sidered it as improper to invest any part of a lunatic's estate upon private security " (d). And Sir John Leach refused a similar ap- plication with reference to the money of infants, at the same time expressing his surprise that any precedent could have been pro- duced to the contrary (c). Where there was no power of investing on mortgage, and the trustees intending to invest on government securities, afterwards, at the instance of the tenant for Hfe, and to procure a higher rate of interest, invested on mortgages which proved deficient, they were held to be liable for the difference to the cestui que trust in remainder. The ground of the decision, however, was, that the trustees had consulted the benefit of the tenant for life at the expense of the remainderman, and the 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 (/). Trustees, until the recent Acts, were certainly not justified in lending upon mortgage, when by the terms of their instrument of trust they were expressly directed to invest in the ftmds {g). Late Acts. N'ow by 22 & 23 Vict. c. 35, s. 32 Qi), " when a trustee, exe- (a) Brown v. Litton, 1 P. W. 141 ; 157, note(e) ; Ex parte Franklyn, 1 De and see Lyse v. Kingdon, 1 Coll. 188. Gex. & Sm 531 ; Barry v. Marriot, 2 (i) Knight v. Earl of Plymouth, D% Gres. Ik ^m. iSl; Ex parte Johnson, 1 Dick. 126. 1 Moll. 128 ; Ex parte Ridgway, 1 Hog. (c) Pocock V. Redington, 5 Ves. 800, (d) Ex parte Cathorpe, 1 Cox, 182 Ex parte Ellice, Jac. 234. (e) Norhuryv. Norhury, 4 Mad. 191 and see Widdowson v. Duck, 2 Mer parte Fust, 1 C. P. Cooper T. Cott, 309. (/) Rahy v. Ridehalgh, 7 De G. M. & G. 104. ig) Pride v. Fooks, 2 Beav. 430; Waring v. Waring, 3 Ir. Ch. Rep. 331 . 494 ; Ex parte Ellice, J.icob, 234 ; Ex (h) Made retrospective by 23 & 24 Vict. c. 38, s. 12. CH. XIV. S. 4] INVESTMENT. 277 cutor, or administrator, shall not by some instrument creating his trust be expressly forbidden to invest any trust fund on real securities in any part of the United Kingdom" he is at liberty to make such investment, provided it be in other respects reasonable and proper. Under this enactment, therefore, trustees may now lend on real security in England or Wales, or Ireland, but not in the Isle of Man, and as the Act by the last section is not to extend to Scotland, and as the Scotch real property law is quite different Scotland. from the English, trustees could not be advised to lend money on real security in Scotland (a). Also by 23 & 24 Vict. c. 38, s. 12, and the general order of the Mortmain. Court of Chancery before mentioned, dated 1st February, 1861, trustees having power to invest on Government or Parliamentary securities may now invest on real securities in England or Wales, and such investments may be made by corporations and trustees holding moneys in trust for any public or charitable purpose not- withstanding the statutes of mortmain (&). Previously to these Acts the Court had, even where an express Investments by power existed to lend on real security, refused to exercise it by sanctioning a loan on mortgage, on the ground that in ninety- nine cases out of a hundred the expense of the mortgage more than counterbalanced the increase of income (c). But it is conceived that the rule has since been relaxed {d). 5. In the absence of express powers created by the settlement Where no express and irrespective of powers conferred by statute, trustees, exe- m^Tnvestin^ cutors, or administrators have always been held justified in in- Three per Cent, vesting in one of the Government or Bank Annuities ; for here, as the directors have no concern with the principal, but merely super- intend 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 speculation, to hazard the pro- perty of the shareholder (e). It should be observed that aU public annuities are not necessarily government annuities (/) ; 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 which at the time when the rule of the Court was established was considered from its low rate of interest the {a) See Keikfife'sFiZZ. 5 Jur.N.S. {d) See Unless v. Tvff, 9 W. R. 1236. ' 729. (&) 33 & 34 V. c. 34. ^ (e) Trafford v. Boehm, 3 Atk. 444, (c) Barry w. Marriot, 2 De G. & Sm. per Lord Hardwicke. 491 ; and see Exparte Franklyn, 1 De (/) Sampayo v. Gould, 12 Sim. 435. G. &Sm. 531. 278 INVESTMENT. [CH. XIV. S. 4. Investment on other stock ordered under particular cir- cumstances. Whether trustees may inve^t on any othier Government security. least likely to be determined by redemption (a). And if a trustee, who has money in hand wliich he ought to render productive, invest it on this security, he has done his duty, and will not be answerable for any subsequent depreciation (&). 6. The Court will, however, under special circumstances, invest in other Government stock than consols. Thus, 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. Consolidated 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). 7. In the report of Hancom v. Allen (d) it is said, " The trust money had been laid out by the trustees in funds which sunk in their value, without any mala fides ; but the same not being laid out in the ftond in which the Court directs trust money to be laid out, the trustees were ordered to account for the principal 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 before the late Acts had invested in any other Government security than the Three per cent. Consols, the Court would have held him accouirtable for any loss by a fall of the stock ; but such a doctrine would have been extremely severe against trustees (e), and the case as extracted from the Eegistrar's book is no authority for any such proposition. Thomas Phillips, a trustee of 1500Z., instead of investing the money in a purchase of land and in the mean time on some sufficient security, as re- quired by the trust, had advanced it to his brother, John Phillips, (a) See Howe v. Earl of Dartmouth, 7 Ves. 151. 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, whicli the Three per cent. Con- sols are not, the latter are protected by a legislative provision requiring a year's notice to be given before re- demption. (i) Exparte Champion, cited Frank- lin V. Frith, 3 B. C. C. 434 ; Poivell v. Evans, 5 Ves. 841, nui Howe v. Etirl of Dartmouth, 7 Ves. 150 ; Kniyht v. Earl of Plymouth, 1 Dick. 12G, ptr Lord Hardwicke ; Peat v. Crane, cited Hancom v. Allen, 2 Dick. 499, note ; Clough V. Bond, 3 M. & Cr. 496, per Lord Cottenham ; Holland v. Hughes, 16 Ves. 114, per Sir W. Grant ; Moyle V. Moyle, 2 E. & M. 716, ^er' Lord Brougham ; and see Jackson v. Jackson, I Atk. 513. (c) Caldecott v. Caldecott, 4 Mad. 189. (d) 2 Dick. 498. (e) See Angell v. Dawson, 3 Y. & C. 316 ; Ex parte Projected Railway, II Jur. 160; Matthews v. Bi-ise, 6 Beav. 239 ; Baud v. Farddl, 7 De G. M. & G. 628. CII. XIV. S. 4.] INVESTMENT. 279 a banker, without taking any other precaution than accepting a simple acknowledgment of the loan. John PhiUips continued to pay interest upon the money for some time, but eventually became insolvent, and the fund was lost. The Court under these circum- stances called upon the trustees to make good the amount. The decision was reversed in the House of Lords, probably on the ground of the plaintiff's acquiescence (a). By 23 & 24 Vict. c. 38, s. 12, and the general order before Late Acts, referred to, trustees having power to invest in Government or Parliamentary securities are now expressly authorised to invest not only in Consols but also in Three per cent. Reduced Bank Annuities and New Three per cent. Bank Annuities. By a later Act of the same session (6), trustees under an instru- 2.3 &;_24 Vict, ment dated since 28th August, 1860, and having money in their hands which it is their duty to invest at interest, may invest the same in any of the Parliamentary stocks or public funds, or in Government securities, with power of variation, but no investment except in Consols is to be made without the consent in writing of the person, if there be one, who is entitled in possession to the income for his life, or for a term of years determinable with his life, or for any greater estate, and is under no disability. By another Act (c) it is enacted, that " it shall be lawful for any 3u & 3i v. u. 132, trustee, executor, or administrator, to invest any trust fund in his ^' "' possession or under his control in any securities, the interest of which is or shall be guaranteed hy Parliament (d). 8. A trustee may lend even on personal security, where he is Trustee, if expressly erapmvered to do so by the instrument creating the powered, may trust (e). But no sucli authority is communicated by a direction lenfl on per- ^ ' •' , . , sonal security. to place out the money at interest at the trustees discretion (/), or on such good security as the ti'ustee can procure, and may think safe (g). And if joint trustees be empowered to lend on personal security, they may not lend to one of themselves, for the settlor must be taken to rely upon the united vigilance of all the trustees with respect to the solvency of the borrower (h) : and trustees (a) 7 B. P. C. 375. (g) Wilkes v. Steward, G. Coop. 6 ; (6) 23 & 24 Vict. c. 145, s. 25. Styles v. Guy, 1 Mac. & Gor. 422 ; (c) 30 & 31 V. C. 132, s. 2. Attorney- General v. Iligham, 2 Y. & C. {d) lb. Cll. Ca. G34 ; and see Mills v. Osborne, ■(e) See Forbes v. Ross, 2 B. C. C. 7 Sim. 30 ; Westover v. Chapman, 1 430; S. C. 2 Cox, 113; Paddon v. Coll. 177. Richardson, 7 ])e G. Mao. & G-. 563. (h) v. Walker, 5 Russ. 7 ; and (/) See PococJc V. ReddingtoH, bYes. see Slickney v. Sewell, 1 M. & C. 14; 794; Potts V. Britton, 11 L. R. Eq. Westover y. Chapman, 1 Coll. 177. 433 ; Bethell v. Abraham, 17 L. R. Eq. 24. 280 INVESTMENT. [CH. XIV. S. 4. "VVherc em- powered to lend on personal security, trustee may not accom- modate a person. Tenant for life not to be favoured. having a power, with the consent of the tenant for life, to lend on personal security, cannot lend on personal security to the tenant for life himself (a). And when the Court has assumed the administra- tion 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 Government security (&). A power to lend on personal security may mean on the security of personal property, or the security of the personal undertaking of the borrower, and where the trustees had such a power and lent upon a note of hand, the Court allowed the loan, but directed a bond to be taken (c). 9. Where the trustees of a sum of money for A. for life, re- mainder for her children, were authorised by the settlement to lend the trust fund upon real or personal security as should be thought good and sufficient, and the trustees lent it to a 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 accommodation : 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 " (d). And in another case, where a trustee was even 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 80^. 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 " (e). 10. No applications from cestuis que trust to their trustees are so frequent as for a more productive investment for the benefit of the tenant for life. In these cases the triistees must remember that any special power which the settlement may give them was not created for the purpose of favouring one party more than (a) Keays v. Lane, 3 I. R. Eq. 1. (&) Hohnes v. Moore, 2 Moll. .328. (c) Pickard v. Anderson, 13 L. R. Eq. 608. (d) Langston v. Ollivant, G. Coop. 33. In this case as the person to whom the money was lent was a trader, it has been inferied that under a power to lend on personal security the trustee cannot lend to a trader, but the Court has never yet gone to that extent. (e) .Boss V. Godsall, 1 Y. & 0. Ch. Ca. 617 ; and see Luther v. Bianconi, 10 Ir. Ch. Re. 194 ; Costello v. O'Borke, 3 1 R. Eq 172. Compare cases, at p. 289, note (c), infra. CH. XIV. S. 4] INVESTMENT. 281 another, but for the benefit of all, and that if they lend themselves improperly to the views of the tenant for life, at the expense of the remaindermen, they will be held personally responsible (a) ; and where trustees have the ordinary power of varying securities with Trustees bound the consent of the tenant for life, the trustees must consider the remainderman. intention to be that as the control is given to the tenant for life for his protection, so the trustees have a particular discretion reposed in them for the protection of the remainderTnen (b). And on the other hand where every change of investment is to be with the consent of the tenant for life, and he withholds his consent though the fund is in danger, the trustee can file a biU and compel a change of investment, against the wishes of the tenant for life (c). 11. All the conditions annexed to the power must be strictly consent, observed, as if the authority be to lend to the husband with the consent of the vjife, the trustees cannot make the advance on their own discretion, and take the consent of the wife at a subsequent period (d). And if the consent of two trustees be required, the consent of one of them does not operate as the consent of both (e). And if the consent of a married woman be necessary to authorize an investment with the sanction of the Court, a petition by the husband and wife praying for such investment is no consent by the wife, for the petition is regarded as that of the husband only (/), nor will a married woman be deemed to have consented to an investment by joining in a deed of appointment of new trustees, in which such an investment is recited or noticed for the deed is executed alio intuitu (g). Where the consent of two trustees is not required to be by deed, one may consent by deed and the'other by parol (h). Where the natiire and object of the power and the circumstances of the case point to a previous or contemporaneous consent, then such previous or contemporaneous consent is necessary although not expressly required by the terms of the power (i). If for instance, a consent be required for the substitution of one estate for another, the consent must precede or at all events accompany the execution of the power, (a) Eaby v. Ridehalgh, 7 De G-. M. (e) Greenham v. Gibheson, 10 Bing. & Gr. 104 ; and see Stuart v. Stuart, 3 363. Beav. 430 ; Fitzgerald v. Fitzgerald, 6 (/) Norris v. Wright, 14 Beav. 291, Ir. Ch. Re. 145 ; VicJcery v. Evans, 3 see 303. N. R. 286. ig) Wiles v. Gresham,, 2 Drew. 258, (6) See Harrison v. Thexton, 4 Jur. see 267. N. S. 550. {h) Ojfen v. Harman, 1 De Gex, (c) Costello V. O'Rorke, 3 I. R. Eq. F & J. 253. 172. ■ (i) Greenham v. Gihbeson, 10 Bing. [d) Bateman v. Davis, 3 Mad. 98. 374, ^er Tindal, C. J. 282 IXVESTMENT. [CH. XIV. S. 4 Investment in trade. Loan by way of annuity. Loa-ns upon shares of companies. for the question must be determined by the relative values of the two estates, at the time of substitution (a). But if an invest- ment has been made without the required consent, a cestui que trust cannot coniplain of it, who, being sui juris at the time, lias acquiesced in and adopted the investment (b). 12. A power to " invest at the discretion of the trustees '' will not authorize an investment on the securities of the United States, or of the railway companies in that country (c), and a power " to place out at interest, or other way of improvement," will not authorise an investment of the money in any trading concern {J) ; or in fact any investment but a Government or real or other unobjectionable security (e) ; but it has been held that a direction not to " invest " but to " employ " the money, savours of a trading concern (/) ; but the distinction appears too thin to be relied upon with safety. 13. Upon a marriage the wife's portion was settled upon the intended husband and wife for their respective lives, with re- mainder 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 400^., and laid it out in the purchase of an annuity for one life, and insured the life^ and Lord Manners said the purchase of the annuity was not a proper disposition of a trust fund settled as this was {g). 14. A power to invest " upon security of the funds of any company incorporated by Act of Parliament," will not authorise an investment in " Great Northern Preference shares," which are not a security upon the property of the company, but a participa- tion in the partnership (li). A power to lend on the debentures of a public company did not, it is conceived, authorise an in- vestment on debenture stock, for the settlor in allowing debentures relied on the liability of the company to pay the capital ; but in debenture stock the dividend only can be recovered, and there are no means of realising the capital but by transfer, and the value in the market may have greatly sunk. Debenture bonds are a temporary loan, but debenture stock is perpetual. But by 34 V. c. 27, (29 June, 1871), it was enacted that where power had been before the passing of the Act or should (a) Greenham v. Gibheson, 10 Bing. 363. (6) Stevens v. Robe/i'tson, W. N. 1863, p. 123. (c) Bethellv. Abraham^, 17 L. R. Eq. 24. (d) Cocky. Goodfelhio,\Q^oAAW. («) Dickooison v. Player, C. P. Ci)Oper's Cases, 1837-8, 178. (/) S. C. (si) Fitzfjeraldv. Pnngle, 2 Moll. 534. (A) Harris v. Harris, No. 1, 29 'Beav. 107. CH. XIV. S. 4.J INVESTMENT. 283 at any time thereafter be given to trustees to invest in the mortgages or bonds of a railway or other company, such povsfer should, unless the contrary be expressed in the instrument, be deemed to include a power to invest in the debenture stock of a railway or other company, and an investment in debenture stock may now be made accordingly. And where a fund is settled upon trust for one for life with remaindei's over, a power to "invest upon Government real or personal security, or in such stocks, funds, or shares, as the trustees in their absolute discretion may think fit," will not authorise a purchase of ordinary consolidated stock, or of preference or guaran- teed stock of a terminable character (a). If a testator direct his " personal estate invested in Govern- Direction to re- ment or other securities in bonds or shares of whatever nature t^^" ""■estments. or kind, to be held in the same or the like investments," the executors are justified in retaining in specie Victoria bonds, Brazilian and Eussian bonds, and English and Indian Railway Stock, and East India Stock (&). 15. If a trust fund be given to three trustees, with power to sell shares whicb out and invest in the shares of a company, the trustees may not sell out and invest in the shares of a company which requires the shares to be held by a si7igle person. But if shares in such a com- pany be specifically bequeathed to three trustees, they are justified from the nature of the case in taking the shares in the name of one of themselves (c). 16. Where monies paid into Court were directed by an Act to Exchequer bills, be invested in " Three per cent. Consols, or Three per cent. Reduced, or any Government securities," the Court refused to allow an investment on Exchequer bills as not within the meanino- of the Act {d) ; but where a trustee had engaged to lend a sum upon mortgage, which was authorised by the powers of the will, and instead of leaving the money idle at his bankers, 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 preparation, the Court held that such a dealing with the fund was justifiable (e) ; and it has since been (a) Stewart v. Sanderson, 10 L. R. {cT) Ex parte Chaplin, 3 Y. & C. 397. Eq- 20. (e) Matthews v. Brise, 6 JBeav. (6) Arnould v. Grinstead, W. N. 239. But the trustee having left the 1872, p. 216 Exchequer bills in the hands of the (c) Consterdine v. Consterdine, 31 broker for more than a year, and wilh- Beav. 330; and see Mendess. Gue- out being earmarked, and the broker dalla, 2 Johns. & Hem. 259. having disposed of the Exchequer must ."itand in one name only. 284 INVESTMENT. [CH. XIV. S. 4. Foreign securities. Greek bonds. ruled that Exchequer bills do fall within the description of Govern- ment securities (a) ; and they are now expressly authorised as an investment by 23 & 24 Yict. c. 38, s. 11, and the general order of the Court of 1st February, 1861 (&). 17. Stock of the United States, and even the bonds and deben- tures of the particular states, come under the description of " foreign funds," but not so the bonds or debentures of .municipal towns or railway companies abroad (c). And where trustees were empovi'ered to " continue or change securities from time to time, as to the majority should seem meet," and they proposed to call in certain securities and invest in American Government and American railway secu- rities, the Court in an administration suit would not allow the trustees to exercise their discretion in this way, though great part of the testator's own estate was left by him thus invested (d). 18. Where a testator directed aU his property, except ready money or monies in the funds, to be converted, and the proceeds 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 comprehended in the word "funds," and that they ought to be converted, though the Court disavowed any intention of saying that bonds of that descrip- tion might not, in other cases, be deemed Government secu- Colony or foreign ^^*''®® W' 19. A power to invest on "the bonds, debentures, or other securities, or the stocks or funds of any colony or foreign country " will not authorise an investment upon tlie Preference Bonds of a Foreign Kailway Company, though a sinking fund for paying off the capital expended, and the payment of the interest in the meantime, be guaranteed by the foreign government (/). 20. Government or Parliamentary stocks or funds are such as are managed by Parliament, or paid out of the revenues of the British Government, or at least guaranteed by it, and therefore East India stock, under the charter of the East India Company, as possessing none of these requisites, was not a Government stock (g). 21. Trustees may be, as they generally are, expressly empowered country. East India stoclf. Trustees where there is power bills for his own purposes, and become bankrupt, the trustee was, on that ^TOMnrf, made responsible for the value of the bills at the date of the bank- ruptcy, with 4 per cent, interest. {a) Ex parte South Eastern Railway Covipany, 9 Jur. 650. (6) And see 23 & 24 V. c. 145, s. 25. (c) Ellis V. Edm,, 23 Beav. 543; Re iMngdale's Settlement Trust, 10 L R. Eq. 39. {d) BethellY. Ahraham, 17 L. R. Eq. 24. (e) Burnie v. Getting, 2 Coll. 324. ,(/) Re LcngdaWs Settlement Triists, 10 L. li. Eq. ?(). (g) Broicn v. Brown. 4 Kay & J. 704. CH. XIV. S. 4.J INVESTMENT. 285 to invest on real as well as Government security, and where this *^j^g[^^]f!^n/'^^^ is the case, and there is a power to vary securities, the trustees invest on mort- may safely sell out Three per cent. Bank Annuities, and invest s^°^* the proceeds 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 constant quantity, and on the tenant for life's death the remainderman himself wiU have the benefit. A notion is sometimes entertained that where the stock has become depreciated since the original purchase of it by the trustees, the trustees cannot sell out the stock and lend the money on mortgage without being answerable for the difference between the bought and the sale price. But there is no ground for this apprehension, for if the trust authorise the purchase of stock at all, the trustees cannot be wrong in dealing with it at the market price of the day. No doubt if there were a sudden fall under peculiar circumstances, the trustees should not, without good reason, sell out at the very moment of casual depreciation, but if the power be iond, fide exercised, the mere fact of a depre- ciation below the bought price cannot per se constitute a breach of duty. 22. The trustees in changing the investment should have a Apportionment regard to the tenant for life's interest in the income. The stock, divMends upon a for instance, should be sold so as to make the time of accruer of change of invest- ment, the last dividend the startmg point as nearly as possible for the commencement of the interest on the mortgage. However, if the sale of the stock be made on an intermediate day between two dividends, although the price may be enhanced by the near ap- proach of the dividend, it is not the practice to pay to the tenant for life the estimated amount of the current dividend out of the proceeds (a), although it was held in one case under very special circumstances, that the tenant for life was entitled to an appor- tionment (b). 23. Under the ordinary power of varying securities, a trastee Mortgage to re- T 1 .1 . , -r. J * 1 J- I* X 1 , place stock and would not be justiiied m lending a sum of stock upon a mortgage pay interim of real estate, conditioned for the replacement of the specific stock Ai!, 14 Beav. 308 ; and see cases cited in note {a) ante. u2 292 INVESTMENT. [CH, XIV. S. 4 Mixing trust- money in a mortgage. Powers of sale. Caution in pay- ment of the money. In loans of trust- money, the trust kept out of sight. 42. Of course trustees should not join with others in a mort- gage, 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 also be a delegation of their duty. 43. Mortgages at the present time almost invariably contain powers of sale, but formerly it was otherwise, and trustees would no doubt be held justified in taking a transfer of an old mortgage not accompanied with a power of sale. Where, however, it is prac- ticable, tmstees should always insist on a power of sale, though the omission might not amount to a breach of trust (a). 44. When trustees lend on mortgage, they should be careful not to part with the money, except on delivery of the security; for they will be liable for all the consequences 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 proposed security was a pure invention, and that the money has been misapplied (6). A power of investment does not justify trustees in admitting a clause that the mortgage shall not be called in for a certain period, and if the interests of the ceshds que trust were thereby affected, the trustees would be per- sonally responsible (c). 45. 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 mortgage deed a declaration, that the money advanced belongs to the trustees (not described in that character, but by name) on a joint account, and that the receipt of the survivors or survivor, his executors or administrators, their or his assigns, shall be a suflacient dis- charge ; a practice which, assuming the trust settlement to confer the power of executing the trusts and giving receipts on the survivors and survivor, his executors and administrators, their or his assigns, does not seem open to much objection, and has received the sanction of general usage. Any declaration of trust of the mortgage that may be requisite is executed by a separate deed. The trustees should, however, also execute the mortgage deed, as doubts have been entertained (though it is con- ceived without reason {d) ) whether, if they omit to. execute, the declaration will bind them. By this method, should the mortgage (a) See Farrar v. Barraclough, 2 265; and see Broadhurst v. Balguy, Sm. & Gif. 231. 1 Y. & C. Ch. Ca. 16. (6) Bowlandy. Witherden, 3 Mac. & (c) Vickery v. Evans, 3 N. R. 286. Gor.568; UanburyY. Kirkland, 3 Sim. See p. 290, note {d). id) How can a person claim at the CH. XIV. S. 4.] INVESTMENT. 293 be called in or transferred before any change of trustees occurs, no inconvenience arises. Upon a change of trustees, however, the difficulty of framing a transfer of the mortgage to the new trustees so as not to disclose the .trust is very great. Some con- veyancers, indeed, treat the difficulty as insurmountable, and dis- close 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). Another 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 have 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 a greater prospect of success than those previously mentioned, and on the whole perhaps to be preferred. In any case the assignment by the original mortgagees should contain a power of attorney, accompanied with the usual conditions of indem- nity, that the transferees may be able to sign a legal discharge. 46. Where trust-money is secured upon a mortgage and the Mortgage where trust appears upon the title, the mortgagor generally requires a '?® ^^^^ ^ '^'^" covenant for production of the settlement for the purpose of satisfy- ing a future purchaser that the estate has been discharged, and it is conceived that the trustee should give such a covenant, same time under and against a deed? If the mortgagees are trustees, ani have he claim under the mortgage at all, he no beneficial interest, conceiving, and, must admit the declaration tliat the it is apprehended, rightly, that this money was a joint advance. Besides affirmation, which refers to no specific the presumption (unless and until the trust, would not render it incumbent contrary is proved) would be, that on any person paying the mortgage to the solicitor who prepared the deed, inquire into the nature of the trust." had sufficient authority to insert the This proposition, it is conceived, can- clause, not safely be acted upon. See on the (a) In a note to Jarman's Bythewood, doctrine of notice, Jones v. Smith, 1 vol. 6, p. 381, it is stated that " some Hare, 43 ; Bridgman v. Gill, 24]Beav. gentlemen introduce a declaration that 306 ; Jones v. Williams, 24 Beav. 47. 294 INVESTMENT. [CH. XIV. S. 4. limited to the time that he continues in the trust, with a declara- tion of intention that subsequent holders of the deeds are meant to be bound. Scale must be held evenly by trustees. Long Annuities, &c. Navy 5 per cents. Selling out Consols. Where trust funds are irregu- larly invested, the tenant for life and the trustees may be called upon to answer the dif- ference. 47. Where successive estates are limited, the scale in invest- ments should of course be held evenly as between all parties, and the tenant for life should not be allowed, by an investment on a security less safe or less permanent than the usual one, and there- fore yielding to the present holder an increased rate of interest, to advance himself at the expense of the remainderman (a). 48. If a testator's estate consist of Long Annuities, or other fund either not a Government security or not of the most per- manent character, the Court, as we have seen, as soon as its observation is attracted to the circumstance, invariably directs a conversion of such estate into Three per cent. Bank Annuities (b) ; and even Four per cent, and Five per cent. Bank Annuities, while tha.t description of stock existed, were ordered to be similarly converted (c). It follows that trustees, who must be guided by the practice of the Court, would not be justified, in the absence of a special power, in investing trust monies settled upon several persons successively upon any securities, which, by the rule of the Court referred to, would be liable to be converted into other securities. 49. However, where the trustees were directed by the will to 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 {d). 50. Where the fund is already invested in Goyisols, it would be a clear breach of trust to sell out and invest the proceeds in an irregular fund, as, for instance, in Long Annuities (e). 51. Where a tenant for life has been wrongly in possession of the dividends of a stock producing an extraordinary income, he will be accountable to the remainderman for the excess of his receipts beyond the income which he would have received had the fund been properly invested (/). Upon the question whether if the (a) See Raby v. Ridelialgh, 7 De G. M. &a. 104. (b) See pp. 263, 265, supra. (c) Howe V. Earl of Dartmouth, 7 Ves. 151, per Lord Eldoii ; Powell v. Cleaver, and other cases, cited id. 142. {d) Baud V. Fardell, 7 De (i. M. & G. 628. (e) Kellaway v. Johnson, 5 Beav. 319. (/) HoweY. Earl of Dartmouth, 7 Ves. 137, see 150, 151 ; Mills y. Mills, 7 Sim. 501 ; and see Pickering v. Picker- ing, 4 M. & Cr. 289. CH. XIV. S. 4.] INVESTMENT. 295 tenant for life be insolvent, the trustees should be decreed to make compensation to the suffering party, Lord Eldon said, he would not state what the Court would do in such a case, for it depended on many circumstances {a). In the case of Dimes v. Scott (&), where the executors were expressly directed to convert the testator's personal estate into money, and invest the proceeds in Government or real securities in trust for A. for life, 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 10 per cent, interest which they had wrongfully paid, and the interest that would have resulted from a conversion into Three per cent. Consols at the expiration of one year from the testator's decease. And in other later cases the Court, under similar circumstances, has apparently viewed the trustees as primarily liable, and the tenant for life as liable over, to the extent of his benefit, to the trustees (c). 52. Where a testator dies in India, and neither the fund nor of conTsrsion of the parties entitled to it are under the jurisdiction of the Court of ^^^^^ i" inAla. Chancery, it is not the duty of the executor in India to transmit the assets to England to be invested in the Three per cent. Consols, but he may invest the property in the securities of the government of India, and the tenant for life wiU be entitled to the divi- dends or interest, whatever the amount. 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 con- sequential reduction of his income ((f). 53. If trustees be expressly bound by the terms of their trust Trust to inveat in to invest in the public funds, and instead of so doing they retain *|^*^ ^""'^^ ^'^^ Jr J ' o J the money is the money in their hands, the cestuis que trust may clearly elect retained, to charge them with the amount of the money or with the amount of the stock which they might have purchased with the money («). 54. If trustees or executors be directed by the will to convert Trustees ordered the testator's property and invest it in Government or real seen- to invest in stock {a) See Howe\. Earl of Dartmouth, son, 1 De G. M. & G. 256, per Cur. ; 7 Ves. 150; Holland v. Hughes, 16 Byrchall v. Bradford, 6 Mad. 13, 235. Ves. 114. And it has been said, that if a trust he (6) 4Euss. 195; and see McArfeizs v. of a permanent character, in wliich the Andrews, 3 Beav. 72. Court expects trustees to invest in (c) Hood V. Clapham, 19 Beav. 90 ; Consols, though the settlement con- Bate V. Hooper, 5 De G. M. & G. 338. tains no express direction to that effect, {d) Holland V. Hughes, 16 Yes. HI , trustees who improperly retain the S. C. 3 Mer. 685. funds in their hands may perhaps be (e) Shepherd v. Mouls, 4 Hare, 504, held liable, at the option of the cestuis per Sir J. Wigram ; Rolnnwn v. Rohiii ■ que trust, for the principal sum or the 296 INVESTMENT. [CH. XIV. S. 4. or on real secnri - ties and neglect- ing to do either. Trustees selling out stock im- properly. rities, 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 conver- sion should have been made with subsequent dividends, at the option of tlie cestuis que trust (a) ; or whether they should be charged witli the amount of principal and interest only, without an option to the cestuis que trust of taking the stock and divi- dends (&). It has now been decided that the trustee is answerable only for the principal money and interest, and that the cestuis que t7^ust have no option of taking the stock and dividends. The prin- ciple upon which the Court proceeds, is, that the trustee is liable only for not having done what it was his duty to have done, and the measure of his responsibility is that which the cestuis que trust must have been entitled to in whatever mode that duty was per- formed ; that the trustee might have discharged his duty without purchasing Three per cent. Bank Annuities ; that the trustee is not to be deemed retrospectively to have exercised the discretion one way or the other, but is answerable only for the consequences of not having exercised the discretion : that to compel the trustee to purchase a sum of stock because the price has since risen, is to regulate the liability by an accidental 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). 65. If the trust-fund be standing on a proper security, and the trustee calls 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 wiU be compellable, at the option of the cestuis 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 intermediate dividends (e), or to account for the proceeds of the sale (/) with interest at 5 per cent. {g). And the breach of trust will not be cured by a subse- amount of stock which it would have purchased ; Robinson v. Robinson, 1 De Gez. M & G. 266,iJe)- Cur. (a) Hochhy v. BantocJc, 1 Russ. 141 ; Wattsv. Girdlestone,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. 10th May, 1830; Shepherd V. Mouls, 4 Hare, 500; Rees V. Williams, 1 De G. & Sm. 319. (c) Robinson v. Robinson, 1 De Gex. Mac. & Gor. 247. {d) PhillipsonY. Gatty,! Hare, 516; Norris v. Wright, 14 Beav. 304, 305 ; Phillippo V. Munnings, 2 M. & Cr. 309. (e) Davenport v. Stafford, 14 Beav. 335. ( /■) Bostock V. Blakeney, 2 B. C. C. 653 ; Ex parte Shaheshaft, 3 B. C. C. 197 ; O'Brien v. O'Brien, 1 Moll. 533, per Sir A. Hart ; Raphael v. Boehm, 11 Ves. 108, ^e?- Lord Eldon ; Harrison V. Harrison, 2 Atk. 121 ; Bate v. Scales, 12 Ves. 402 ; Phillipson v. Gatty, 7 Hare, 516 ; Norris v. Wright, 14 Beav. 305 ; Rowland v. Withea-clen, 3 McN. & G. 568; Wiglesworth v. Wiglesworth, 16 Beav. 269. (g) CrackeltY. Bethune, 1 J. &W. 587 ; Mosleyy. Ward,l\ Ves. 581; Pocockv. Reddington,b'Ves. 794; Piety v. Stace, 4 CH. XIV. S. 4.] INVESTMENT. 297 quent reinvestment upon the trusts unless the reinvestment be the same in specie (a). But in a case where the trustee did not seek to make anything himself, but was honourably unfortunate in having yielded to the importunity of one of the cestuis 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 interest (&). 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 bankruptcy with interim dividends (c). 56. If trustees be under an obligation to invest 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 (d). 57. Trustees would not be justified in making any investment Trustees may that would subject the trust money to the power or control of any "" subje'ct the^ one of the trustees singly ; they could not, for instance, lay out fund to the cou- the fund upon India bills (supposing such a security to be war- trust'ee.'^"^ ""' ranted by the settlement), if made payable, not to all the trustees in their joint capacity, but to one of the trustees individually (e). 58. Attornies and solicitors employed in negotiating a loan of Attomies and 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 duty, but they wiU be deemed trustees and be re- sponsible as such if they act professionally in carrying out a trans- action which they know to be a breach of trust, and which is calculated to promote their own private ends (/). 59. In laying out trust monies, trustees would do well not to Trustees lending employ the solicitor who acts for the borrower. Besides the pioy the'same inconveniences that arise from the doctrine of implied notice, solicitor as the borrower. 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 (g). Ves. 620; Jonesy. Foxall,\b Beav. 392. 594; 3M. & C.490. But see ante pp.260, (a) Lander v. Weston, 3 Drew. 389. 261 ; Mendes v. Giiedalla, 2 Johns & (6) O'Brien v. O'Brien, 1 Moll. 533. Hem. 259 ; Consterdine v. Consterdine, (c) Ex parte Shakeshaft, 3 B. C. C. 31 Beav. 330. 197 ; Ex parte Gurner, 1 Mont. Deac. (/) AUeyne v. Darcy, 4 Ir. Ch. Re. & De Gex, 497. 199, see 204, 208 ; Pyler v. Fyler, 3 {d) Chalhn v. SMppam, 4 Hare, 555. Beav. 550. and see Barnes v. AddyjW. (e) Walker v. Symonds, 3 Sw. 1, N. 1873, p. 11 ; W. N. 1874, p. 38. see 66 ; and see Salway v. Salway, 2 [g) See Waring v. Waring, 3 Ir. Ch. R. & M. 218; Ex parte Ch-iffin, 2 Gl. Re. 331. & J. 114; Chugh v. Dixon, 8 Sim. 298 LIABILITY OF TEUSTEES [CH. XIV. S. 5. SECTION V. General laches. Executor imist pay testator's debts as soon as he has assets. After payment of debts and lega- cies executor must account for Trustees under bankruptcy must not neglect to pay diYidends. LIABILITY OF TEUSTEES TO PAYMENT OP INTEREST. 1. It may be stated as a general rule, that if a trustee be guilty of any unreasonable delay in investing the fund or trans- ferring 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 bOl (a) ; and in a suit establishing laches, will be decreed to pay personally the costs up to the hearing of a suit arising out of the laches (b). 2. An executor or administrator should discharge the testator's liabilities as soon as he has collected assets sufficient for the pur- pose, 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 (c). 3. After payment of debts and legacies, if the executor or ad- ministrator be guilty of laches in accounting for the surplus estate to the residuary legatee {d) or next of kin («), he will be charged by the Court with interest for the balance improperly retained. 4. So if the tntstees of a bankrupt's estate neglect to pay a divi- dend to the creditors (/), or the receiver of an estate do not move the Court in proper time to have the rents in his hands made pro- (cs) Wooclhead v. Marriott, C. P. Coop. Cases, 1837-38, 62 ; Turner v. Turner, 1 J. & W. 39 ; Stafford v. Fiddon, 23 Beav. 286 ; Hollingsworth V. Shakeshaft, 14 Beav. 492. But the court is not in the habit of giving in- terest on what may be found due for arrears of income, Blogg v. Johnson, 2 L. R. Ch. App. 225. (b) Tichner v. Smith, 3 Sm. & Gif. 42. (c) Dornford v. Dornford, as cited in Tebhs v. Carpenter, 1 Mad. 301 ; Hall V. Hallett, 1 Cox, 134 ; Turner v. Turner, IJ. & W. 39. {d) Forbes v. Ross, 2 Cox, 1 13; Seers V. Hind, 1 Ves. jun. 294 ; Younge V. Combe, 4 Ves. 101; Longmorev. Broom, 7 Ves. 124 ; Rocke v. Hart, 1 1 Ves. 58 ; Piety v. Stace, 4 Ves. 620 ; Ashhurnham v. Thompson, 13 Ves. 402; Raphael v. Boehm, 11 Ves. 92; S. C. reheard, 13 Ves. 407; S. C. spoken to, 11 Ves. 590 ; Dornford v. Dornford, 12 Ves. 127; Franklin y. Frith, 3 B. C. C. 433 ; Littlehales v. Gascoyne, 3 B. C. C. 73 ; Newton v. Bennet, 1 B. C. C. 359 ; Lincoln v. AlUn, 4 B. P. C. 553 ; Crackelt v. Bethune, 1 J. & W. 586; Tebbs v. Carpenter, 1 Mad. 290. (e) Hall V. Hallett, 1 Cox. 134; Perkins v. Baynton, 1 B. C. C. 375 ; Staclepoole v. Stackpoole, 4 Dow, 209, see 224, Heathcote v. Hulme, 1 J. & W. 122 ; Holgatey. Howarth, 17 Beav. 259. (/) Treves v. Townshend, 1 B. C. C. 384; In re Hilliard, 1 Ves. jun. 89; Hankey v. Garrett, 1 Ves. jun. 236. trustee or executor. CH. XIV. S. 5.] TO PAYMENT OF INTEREST. 299 ductive (a), they will be ordered to account for the money with interest from the time the breach of duty commenced. 5. And an executor or other person cannot excuse himself by No excuse that saying that he made no actual use of the money, but lodged it at executor did not his bankers (h), and to a separate account (c), for it was a breach «se the money. of trust to retain the money. 6. But, where an executor conceived himself to be entitled to Delay may be the residue, and the Court considered his claim to be just in itself, mistake of the 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 consequently disallowed (d). 7. Formerly it was held that an executor might employ the Formerly the assets in his trade, or lend them upon security, and he should not have used the be called upon to account for the profits or interest (e). And such assets. 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 (/). 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 ; and 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 one per cent. (g). 8. A distinction was afterwards taken between a solvent and an At least where insolvent executor ; that the former, as he might suffer a loss, ^ '^'^^ solYcnt. 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 (h). 9. And Lord Hardwicke drew another distinction ; that if an And where the assets used were not specifically (ffl) Foster v. Foster, 2 B. C. C. 616 ; 386. But see Stitton v. Sharp, 1 Russ. bequeathed. Hides V. Hicks, 3 Atk. 274. 146 ; Turner v. Maule, 3 De G. & (6) Younge v. Comhe, 4 Ves. 101 ; Sm. 497. Franklin v. Frith, 3 B. C. C. 433 ; («) Grosvenor v. Cartwright, 2 Ch. Treves v. Townshend, 1 B. C. C 384 ; Ca. 21 ; Linch v. Cappy, 2 Ch. Ca. 35 ; In reHilliard, 1 Ves. jun. 89 ; Daivson and see Brown v. Litton, 1 P. W. 140. V. Massey, 1 B. & B. 230 ; Browne v. (/) Seei?a Hare, 134 ; LeeY. Delane, Hare, 154 ; OasMlv Holmes, li'Ha.re, 1 De G. & Sm. 1 ; Merlin v. Blagrave, 438 ; Say v. Creed, 3 Hare, 455. 25 Beav. 134. 310 DISTRIBUTION OF THE TEUST FUND. [CH. XIV. S. 6. Authority from the cestui que trust to receive the money. Genuineness of the authority. Forgedmortgage, Cesttd que trust abroad. property, or assets of the testator or intestate. By the Amendment Act, 23 & 24 Vict. c. 38, s. 9, the application is required to be signed by counsel, and the Judge, where necessary, may require the attendance of counsel (a). 23. When the trustee is satisfied as to the parties rightfully entitled, he may pay the money either to the parties themselves, or to an 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 com- municated. 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. 24. The trustee must look well to the genuineness of the autho- rity, for if he pay to a wrong party it will be at his own peril. Thus where A., possessed of 1000^. Million Bank Stock, employed 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 ITorthington that the company must bear the loss : for " a trustee," he said, " whether a private person or body corporate, must see to the reality of the authority empowering 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 " (&). 25. Where a trustee lent money on a supposed mortgage, but which, in fact, had been forged by the trustee's own solicitor, and the trustee did not take all the precautions that he might have done (viz. by calling for a receipt under the hands of the mort- gagor for the money), it was held that the loss must fall on the trustee, and was not to be borne by the trust estate so as to fall upon the cestui que trust (c). 26. A cestui que tntst is often abroad, and then the trustee cannot be sure that at the time of payment under the power of attorney the cestui que trust is alive, and if he were dead the power of attorney would be at an end. If, however, the cestui que trust give to the trustee a written direction by deed or other- wise to pay money to a particular person, any payment made under such written direction, until it be revoked, and the revoca- (ffl) See^»si, c. 22. s. 2. (i) Aaliby v. Blackwell, 2 Eden, 299 ; Sloman v Banlc of England, 14 Sim. 475 ; Eaves v. Ilickson, 30 Beav. 136 ; Sutkin V. WMers, 12 L. E. Eq. 373 ; and see Harrison v. Pryse, Barn. 324 ; Exparte Joliffe, 8 Beav. 168. (c) Bostocky. Fhyer, 1 L. R. Ch. 26; 35 Beav. 603 ; and see Hopgood v. Parkin, 11 L. R. Eq. 75 ; SutUm v. Wildo-s, 12 L. R. Eq. 373. CH. XIV. S. 6.] DISTEIBUTION OF THE TEUST FUND. 311 tion come to the knowledge of the trustee, would be binding on the cestui que trust's executors («). A convenient course in cases of this kind is to transmit the money to a Bank abroad, making it payable to the order of the cestui que trust; but where the cestid que trust is unable to receive his money in person, his direction should be obtained before any particular mode of remit- tance is adopted. Now, by Lord St. Leonards' Act, 22 & 23 Vict. c. 35, s. 26, a trustee paying under a power of attorney is expressly exempted from liability, notwithstanding the death of the person who gave the power of attorney, provided the trustee did not know of such death at the time of payment (6). 27. If a legacy to a wife be a small sum, as under 50/., and the Letters of husband survives her, the Court orders payment to him without taking out letters of administration to the wife (c) ; and, on the other hand, where the wife has survived, the Court has ordered a smaU sum, as a legacy of 13/. to which the husband was entitled, to be paid to the widow, without taking out administration to the husband (d). But the Court refused to order payment to the husband, without letters of administration to the wife, of a sum of 80/., and remarked that the husband was not liable after the wife's death for her debts contracted before marriage, and that the fund would get into a wrong channel (e). And where a mar- ried woman was entitled to a small sum under 50/., representing real estate, the Court ordered it to be paid to her without a deed of acknowledgment (/). It is presumed that a trustee acting in a similar manner under similar circumstances, would be protected by the Court. 28. A testamentary guardian has, by Act of Parliament (12 C. payment to an 2 c. 24), the " custody, tuition and management of the infant's ™fant. goods, chattels, and personal estate," but this is not considered as authorizing a trustee to pay to the guardian a capital sum to which the infant is entitled. But where an infant cestui que trust re- presented himself to be of age, and induced the trustee to pay him, it was held that as the infant was old enough to comroit a fraud, (a) See Fancev. Farace, 1 Beav. 605; p. 65; Hinings v. Hinings, 2 Hem. Harrison v. Asher, 2 De G. & Sm. 436 ; & Mill. 32 ; King v. Isaacson, 9 W. E. Kiddill V. Farnelt, 3 Sm. & Gif. 428. 369. _ (6) But where the title of the person {d) Callendar v. Teasdale, 3 W. R. giving the power determines with his 289. life, as in the case of a husband claiming (e) Re Cabel, 3 W. R. 280, reversing in right of his wife, the difficulty seems S. C. 3 W. R. 84. insurmountable. See Be Jones, 3 Drew. (f) Knapping v. TomUnson,'W. N. 679. 1870, p. 107; In Be Clarke's Estate, (c) Be Jones Trusts, 1866, W. N. 13 W. R. 401. 312 DISTRIBUTION OF THE TRUST FUND, [CH. XIV. 9. 6. Lunatic. Payment to a partner, Payment to a single trustee. Overpayment. Repayment to executor. the trustee was not liable to him over again when he came of age (a), 29. The mere appointment by the Court of the committee of the estate of a lunatic, would not justify a trustee in paying trust- money, to which the lunatic is entitled, to the committee of his estate, in the absence of any special power to receive conferred upon him by the Court, 30. It is the practice of the Court in administration suits, where a debt is owing to a firm jointly, to pay the amount to the sur- viving partners without the concurrence of the representatives of the deceased partners, and the Court could scarcely hold a trustee responsible for acting on the same principle. But the conciuxence of the representative should not be dispensed with unless there be some good reason (5). 31. The Court will not, in the exercise of its discretion, except under special circumstances (c), pay out money to a single trustee who has survived his co-trustees (d) ; and a trustee out of Court would do well to throw all the protection he can about a trust fund ; but it must not be inferred that he would not be safe in pay- ing to a single surviving trustee, for payment to a surviving trustee for sale is of constant occurrence. 32. If a trustee or executor has in error made an overpayment to a cestui que trust or legatee, he has a right to recoup himself out of any other interest in the trust fund of that cestui que trust or legatee (e). 33. The Court will not generally, in favour of an executor, make an order on a legatee to refund personally (/) ; and it cer- tainly will not make an order to refund to an executor who volun- tarily and in spite of expression of doubts on the part of a legatee has made overpayments to the latter {g) ; and the Court will not, it seems, at the instance of an executor who is liable to a creditor compel a fiw chaser from a legatee to refund (A). But an executor who has been made to pay a creditor, and has under his control a legacy appropriated by him as such, but not actually paid over, (N, S,) 724 ; Re Roherts, 9 W. R, 758 ; and see Baillie v. McKewan, 35 Beav. 183 ; Re DicUon's Estate, 3 I. R. Bq. 344 ; and note to s. 32 of Trustee Act, 1850, post. (e) Livesey v. Livesey, 3 Russ. 287 ; Dibhs V. Ooren, 11 Beav. 483. (/) Downes v. Bulloch, 25 Beav. 54. {g) Bate v. Hooper, 5 De G. M. & G. 338. {h) Noble V. Brett, 24 Beav. 499. (a) Overton v. Banister, 3 Hare, 503 ; and see Wright v. Snowe, 3 De G. & Sm. 321 ; Nelsony. Stacker, 4 De G. & J. 458. (6) Philips V. Philips, 3 Hare, 289. (c) Re Courts of. Justice Concentra- tion (Site) Act, 1865,W. N. 1867, p. 148. In Clark V. Fenwick,W. N. 1873, p. 38, the Court ordered a sum of cash, the ac- cumulation of income, to be paid to three out of four trustees, the fourth trustee being abroad. (d) Re Dickinson^s Trust, 1 Jur, CH. XIV. s. 6.] DISTRIBUTION OF THE TRUST FUND. 313 has been allowed to throw the debt upon the legacy (a), but is disentitled to his costs of obtaining relief (&). 34. A creditor who is not barred by the Statute of Limitations, or to whose debt the statute is not pleaded, may recover assets from a legatee to whom they have been erroneously paid by the executor (c), but not from purchasers for value, as from persons claiming under a marriage settlement {d). 35. A cesHi que trust may, notwithstanding the Statute of Limitations, if there has been no improper laches, recover from another cestui que trust an overpayment erroneously made to him by the trustee (e), and residuary legatees, plaintiffs in a suit, have been ordered to refund to unpaid particular legatees (/). 36. Where a trustee had paid to wrong parties upon the evi- dence of certificates which had been forged by one of the cestuis que trust, the Court not only compelled repayment by the wrong parties of what each had received, but also ordered the cestui que trust who had forged the certificates, to make up to the parties rightfully entitled, to the rehef of the trustee, what should not be repaid {g) ; and in suits against trustees for breaches of trust, the Court has ordered a tenant for life who was overpaid by the breach of trust, to pay back to the trustees without the institution of another suit for the purpose (h). 37. If one of several residuary legatees receives only what is his fair share at the time, the subsequent wasting of the assets will not entitle the other residuary legatees to call upon him to refund ; for if the executor renders his accounts to a residuary legatee and pays him his share, what right or business has such residuary legatee to interfere further in the matter of the administration of the estate ? He cannot file a bill for the administration of it, and were he to do so, he would probably have to pay the costs. If so, why is he to suffer for the laches and neglect of the other residuary legatees, who have not required the executor to account to them or to pay over the balance' in his hands or due from him {i). 38. On the final adjustment of the trust accounts it is usual for Rights of creditora. Rights of cestuis que trust. Overpayment through mis- conduct of a cestui que trust. Settlement with one residuary- legatee. Release. (o) Noble V. Brett, 24 Beav. 499. (6) S. C. (No. 2), 26 Beav. 233. (c) Fordham v. WuUis, 10 Hare, 217. (d) Dilhes v. Broadmead, 2 Giff. 113; 2 De Gr. P. & Jon. 566 ; and see Ridg- way v. Newstead, 3 De Gex. F. & J. 474. (e) Harris v. Harris (No. 2), 29 Beav. 110. (/) Prowse V. Spurgin, 5 L. R. Eq. 99. {g) Eaves v. Hichson, 30 Beav. 136. [h) Hood V. ClapJiam, 19 Beav. 90 and see Baynard v. Woolley, 20 Beav 583 ; Davies v. Hodgson, 25 Beav. 177 Griffiths V. Porter, 25 Beav. 236. As to overpayment to a. feme coverte whose anticipation is restrained, see Moore V. Moore, 1 Coll. 54. (i) Peterson v. Peterson, 3 L. K. Eq. Ill : see 114. 314 DISTRIBUTION OF THE TRUST FUND. [CH. XIV. S. 6. the trustee, on handing over the balance to the parties entitled, to req[mre from them an acknowledgment that all claims and demands have been settled (a). 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 prac- tice it is usual to require a release under seal, for although an acquittance of this kind may be opened by the cestui que trust on showing fraud, concealment, or mistake, it is primd facie a solemn, simple, and valid defence, and throws on the relessor the heavy onus of displacing it (&). In strict right, however, a trustee in the absence of special circumstances cannot insist upon a re- lease under seal (c). But it has been held that an executor, though he cannot insist on a release from a pecuniary legatee (d), yet on the estate being wound up, has a right to a release from the residuary legatee (e). Kingj). MuUins. In one case (/) where the trust was by parol for A. for life, and on her death for B. and C, and 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 A., B., and C, or whether he was right in refusing, unless they executed a release under seal, Vice-Chancellor Kindersley decided that the trustee was entitled to a release on the grounds, 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 stiU living. These reasons are not satisfactory. The circum- stance that the trust was by parol, and therefore obscure, might have been an excuse for not paying at aU., or ground for demand- ing 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 A., B. and C. were admitted to be the only cesttm que trust, and their concurrence in the receipt was equivalent to a reduction into possession. In another case, V.-C. Wood observed, that every trustee had a right to have some sort of a discharge, perhaps not a release, (a) See v. Oshorne, 6 Ves. 455; 303 ; Re Cater's Trust, 25 Beav. 366 ; but query if the release spoken of was FoUgno^s Mortgage, 32 Beav. 131. not a conveyance. {d) Re Fortune's Trust, 4 I. R. Eq. (6) See Fowler v. Wyatt, 24 Beav. 351. 232. (e) Kingy. MuUins, 1 Drew. 311. (o) Chadwicls v. Heathy, 2 Coll. 137; (/) King v. Mullins,Yic,e- Chancellor Fulton V. Gilmour, Hill on Trustees, Kindersley, 21st Dec. 1852, MS. ; 1 604 ; Re Wrighfs Trust, 3 K. & J. Drewry, 308. 421 Warter v. Anderson, 11 Hare, CH. XIV. S. 6.] DISTEIBDTION OF THE TRUST FUND. 315 unless the trust was created by an instrument under seal (a). But no such distinction has ever yet been made, and V.-C. Kindersley^ as we have seen, required a release because the trust was by parol. 39. The trust fund is not unfrequently transferred from the From trustees trustees of an old settlement to the trustees of a new settlement, *° trustees. and the trustees of the old settlement insist on a general release before they will part with the fund, whUe, on the other hand, the trus- tees of the new settlement feel a reluctance to give more than a simple receipt. The requisition of the trustees of the old settlement has usually been complied with, but perhaps it could not be en- forced (&). Of course the trustees of the new settlement cannot be called upon to enter into any covenant of indemnity. 40. As the party to benefit by a deed is, in general, the one to Expense of the prepare it, the release will be drawn by the soKcitor of the trustee, ^^l*^'^^^- Another reason would be that the trustee has the necessary documents in his possession. The expense must be paid out of the trust fund. 41. When a trustee pays money under the direction of the Order of the Court, he is indemnified by the order itself, and is not entitled to any release from the parties (c). It would be impossible to hold a trustee answerable for an act not done by himself but by the Court. It is the duty, however, of the trustee to fully inform the Court of all the material facts within his knowledge, and if he improperly withheld them he would be made responsible for the results of his suppression of facts. 42. By 10th and 11th Vict. c. 96, entitled "An Act for better lo&ii Vict, securing trust funds and for the rehef of trustees," it is enacted : °' ^^' I. That all trustees, executors, administrators, or other persons having in their hands any monies belonging to any trust whatever, or the major part of them, shall be at liberty on filing an affidavit shortly describing the instrument creating the trust, to pay the same into the Bank of England, to the account of the particular trust, subject to the order of the Court of Chancery, and that all trustees or other persons having any annuities or stocks of the Bank of England, of the East India Company, or South Sea Com- pany, or any Government or Parliamentary securities standing in their names or in the names of any deceased persons of whom (a) Re Wrights Trust, 3 Kay & J. Knatchhull v. Fearnhead, 3 M. & Cr. 421 ; and see Re Cater's Trust, 25 126 ; David v. Prowd, 1 M & K. 209 ; Beav. 366. Sawyer v. Birchmoi-e, 1 Keen, 401 ; (6) Rs Cater's Trusts, 25 Beav. 366. Smith v. Smith, 1 Drew. & Sm. 384; (c) See Waller v. Barrett, 24 Beav. Bennett v. Lytton, 2 Johns. & Hem. 413 ; Gillespie v. Alexander, 3 Russ. 155 ; Williams v. Headland, 4 Giff. 137 ; Underwood v. Haiton, 5 Beav. 495 ; England v. Lm-d Tredegar, 35 39 ; Farrell v. Smith, 2 B. & B. 337; Beav. 256; Lownds v. Williams, W. FktcUr V. Stevenson, 3 Hare, 370 ; N. 1871, p. 82. 316 DISTRIBUTION OF THE TRUST FUND. [CH. XIV. S. 6- they shall be personal representatives, upon any trust, or the major part of them, shall be at liberty to transfer or deposit such stocks or securities into or in the name of the said Accountant- General (a), with his privity, in the matter of the particular trust subject to the orders of the said Court, and in every such case the receipt of one of the cashiers of the said Bank for the money so paid, or 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 persons for the money so paid, or the stocks or securities so transferred or deposited. II. That such orders as shall seem Jit shall from time to time be made by the Court of Chancery in respect of the trust monies, stocks, funds or securities so paid in, transferred and deposited as aforesaid, and for the investment and payment of any such monies, or of any dividends or interest on any such stocks or securities, and for the transfer or delivery out of any such stocks and securities, and for the administration of any such trusts generally upon a petition to be presented in a summary way ; and service of such a petition shall be made on such persons as the Court shall direct; and every order made upon any such petition shall have the same effect as if the same had been made in a suit regularly instituted ; 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 Court may direct any snch suit or suits to be instituted. The decisions upon this important Act, and the general orders relating to it, will be found in the Appendix. 12 & 13 Vict. 43. This Act 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. But by 12 & 13 Vict. c. 74, it was enacted, that where monies, annuities, stocks, or securities were vested in persons as trustees, executors, admini- strators, or otherwise, and the major part of them were desirous of transferring the funds into Court under the Trustee 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 concurrence of the rest, and might make an order on the necessary parties to permit such a transfer. Payment to 44. By 18 & 19 Vict. c. 124, s. 22, any trustee or other person official trustees of leaving stock or money in his hands for a charity may, by an order of the Board of Charity Commissioners, transfer the stock or pay the (a) Now the Paymaster-General. See .85 & 36 V. c. 44, ss. 4, 6. CH. XIV. S. 6.] DISTRIBUTION OF THE TRUST FUND. 317 money to the Official trustees of charitable funds, and such payment or transfer will be an indemnity to the person paying or transferring. 45. By 30 & 31 Vict. c. 142, s. 24, trust funds not exceeding Payment into 5001. in amount or value may, if money, be paid into the Post Office Savings Bank of any county court town, in the name of the registrar of such Court, or, if stock or securities, may be transferred into the joint names of the treasurer and registrar of such Court. 46. Trustees who are also executors may be embarrassed as to Protection the distribution of the trust fund, not merely by the difficulty in tfra "^g"'^^ ascertaining who are their cestuis que trust, but by reason of the possible existence of paramount claims on the part of creditors or others. To meet this difficulty provision was made by Sir George Turner's Act. Turner's Act (a) for directing a reference to the Master, upon motion or petition of course, to inquire whether there were any outstanding debts or liabilities affecting the estate of any deceased person, and for enabling the personal representative to distribute the estate subject to the result of the inquiry, without the cost of a general administration under the direction of the Court; and by a more recent enactment the benefit of these provisions may be obtained by summons at chambers (6). 47. By Lord St. Leonards' Act (c) even the necessity of an applica- Lord St. Lec- tion to the Court under that of Sir George Turner is in most cases ^^^' •'^'^'■ rendered unnecessary, it being thereby in substance enacted that executors and administrators, after giving such notices for creditors and others to send in their claims as would have been given by the Court of Chancery, may at the expiration of the time named in the notices proceed to distribute the estate, without being liable for any claim of which they shall not have had notice at the time of distribution (d). 48. By 28 & 29 Vict. c. 99, administration suits and suits for the jurisdiction of execution of trusts and proceedings under the Trustees' Eelief ^o^"^'? Courts. Act, or the Trustees Acts, may be instituted in the County Courts where the value does not exceed 500^ (e). (a) 13 & 14 Vict. c. 35, ss. 19-25. sert advertisements in the London (b) 23 & 24 Vict. c. 38, s. 14. Gazette, as well as in local papers, (fl) 22 & 23 Vict. c. 35, s. 29. Wood v. Wightman, 13 L. R. Eq. 434. [d) Sums a,ppropriated by executors (e) The County Courts^ Acts Amend- and retained by them as trustees are ment Act, 30 & 31 V. c. 142, s. 8, monies distributed and cease to be enables parties to apply at chambers assets. Clegg v. Rowland, 3 L. R. Eq. for transfer of a suit pending in Chau- 368. Executors to entitle themselves eery, affecting property not exceeding to the protection of the act, must in- bOOl. to a County Court. 318 Settlement of leaseholds does not per se imply a direction to CHAPTER XV. THE DUTIES OF TRUSTEES OF RENEWABLE LEASEHOLDS. Upon this head we propose — I. To examine the preliminary question, in what cases the obligation to renew is imposed by the settlement. II. 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. 1. It might naturally be supposed, that, from the very cir- cumstance of the leaseholds being of a renewable character, a settlement of them to several persons in succession would per 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 re- newable, observed, "The cases in which the nature 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 tlu 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, " subject to the payment of all fines, and as they became due yearly and for every year " (d). However, as the interest given is in its nature capable of renewal, the 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 " (e) ; but on the remainderman's con- (a) See White v. White, 4 Ves. 32. (b) Nightingale v. Laivson, 1 B. C. C. 443. (c) White V. White, 4 Ves. 32, per Lord Alvanley ; S. C 9Ves. 561, ^er Lord Eldon ; Stone v. Theed, 2 B. C. C. 248, per Lord Thurlow. {d) Capel V. Wood, 4 Russ. 500. (c) Stone V. Theed, 2 B. C. C. 248, per Lord Thurlow. CH. XV. J RENEWAL OF LEASES. 319 tributing to the fine, shall be regarded as a trustee, and shall hold the renewed interest upon the trusts of the settlement {a). 2. Will the interposition of a trustee sufficiently indicate an Whether a direo- intention of obliging the tenant for life to renew ? " In a devise impUed by the to trustees" says Lord Hardwicke, " If cestui que trust for life be interposition of ' J ' 2. _ a trustee. 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 something must he done for a renewal, though nothing is mentioned " (h). Lord Alvanley on one occasion alluded to the point, but said he was not called upon to decide it (c). In HulTces v. Barroiv (d), where the devise was to trustees upon trust to permit one to receive the rents for life, with remainders over, " subject to the payments of the rents and performance of the covenants reserved and contained, or to he reserved and contained, in the present or futiore leases, whereby such premises were or should he held, and also all taxes, fines, and expenses attending the premises," it was held that the obli- gation of renewing the lease was imposed by the will. And in Lock V. Loch, («), where a testator had devised a college lease of twenty-one years to his wife for life, remainder to her son, she paying 10/. per annum to the son during her life ; it was ruled, that, as the testator contemplated the continuance of the lease during the life of the wife, she was bound to renew. These, how- ever, were cases accompanied with special circumstances, and it has since been decided by Lord Plunket, in Ireland, that a settle- ment with the mere interposition of a trustee does not impose an obligation to renew (/). 3. Where leaseholds of this kind are made the subject of a mar- ^vhether implied riage settlement, it may be argued, that, as aU the parties who ™tfi^™*f^^ have any interest given them are purchasers, the enjoyment of the tenant for life should be consistent with that of the other sub- (a) Nightingale V . Lawson, 1 B. C. C. 417, before the same Judge, it is not 440; Stone v. Theed, 2 B. C. C. 248, clear whether his Lordship did or not per Lord Thurlow ; Coppin v. Ferny- consider the will as creating an obliga- hough, 2 B. C. C. 291 ; Fitzroy v. tion to renew, but it would rather Howard, 3 Russ. 225. appear that he did. The remainder- (6) Verney v. Verney, 1 Ves. 429. man was held not liable to contribute (c) W/iite V. White, 4 Ves. 33. towards the renewal fines in favour of (_d) Taml. 264. the tenant for life, except as respected (e) 2 Vern. 666. certain fines paid subsequently to (/) O^Ferrall v. O'Ferrall, Lloyd & 1819, as to which the remainderman Goold, Rep. temp. Plunket, 79. In submitted to contribute. See pp. 454 Trench v. St. George, 1 Dru. & Walsh, —456. 320 RENEWAL OF LEASES. [CH. XY- Implied in arti- cles for a settle- ment. Of discretionary renewals. 23 & 24 Vict. 0. 145. sequent takers. But in Lawrence v. Maggs{a), the case of a marriage settlement witli trustees interposed, but without any mention of renewals, Lord ISTorthington was apparently of opinion that the tenant for Hfe was not bound to renew. 4. If renewable leaseholds be upon marriage articled to be settled, the Court wiQ, in executing the settlement, insert the proper directions for renewals. This, it seems, was directly determined in Gfraham v. Lord Londonderry (b) ; and the case of Lawrence v. Maggs, before Lord Northington, was cited before Lord Thurlow in Pickering v. Vowles (c), as establishing the same doctrine ; but it appears by the report taken from Lord Northing- ton's own MS. that the bar were mistaken in this {d). However, Lord Thurlow himself seems to have entertained that opinion, for in the same case of 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." 5. 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 (e). 6. By a recent Act, trustees (under instruments of trust exe- cuted since the 28th day of August, 1860, the date of the Act) of leaseholds renewable by contract, or custom, or usual practice are authorised in the exercise of their discretion, and, if so required by any person beneficially interested, are bound as a duty, to use their best endeavours to renew ; but the Act is not to apply, where, by the terms of the settlement or will, the person in possession for his life or other limited interest, is entitled to enjoyment without any obligation to renew the lease, or to contribute to the expense of renewal ; and the Act enables the trustees to pay the expense out of any (a) 1 Eden, 453. Search has been made for this case in E.L. through several years,but the decree has not been found. See LordMontfortY. Cadogan, 17 Ves. 488 S. C-. 19 Ves. 638 ; Trench v. St. George, 1 Dru. & Walsh, 417. (6) Cited Stone v. Theed, 2 B. C. C. 246. (c) 1 B. C. C. 197. The cause does not appear in R. L, (d) 1 Eden, 453. («) Milsington v. Mulgrave, 3 Mad. 491, 5 Mad. 472 ; Mortimer v. Watts, 14 Beav. 616 ; and see Verney v. Ver- ney, 1 Ves. 430 ; Harvey v. Harvey, 5 Beav. 134 ; Luther v. Bianconi, 10 Ir. Ch. Re. 203. CH. XV.] RENEWAL OF LEASES. 321 monies in their hands held upon similar trusts, or to raise the same mortgage (a). 7. By another Act, also passed 28th August, 1860, where any 23 & 24 v. estate or interest under any lease or grant from an ecclesi- astical corporation, is vested in a person as trustee, whether expressly or by implication of law, with a power to raise money for procuring a renewal, or where such a power is vested in any person, it is made lawful for such person to raise money for the purpose of purchasing the reversion or otherwise enfranchising the property (&), and it has been held that this enactment confers a power not only to raise the money, but also to effect the purchase or enfranchise- ment (c). But this will not authorise the trustees to make any arrangement with the reversioners which wiU disturb the relative rights of the tenant for life and the remaindermen under the settle- ment, and where it was proposed to surrender part of the leaseholds in consideration of a release of the reversion of the rest of the lease- holds, and the interests of the tenant for life would suffer by the arrangement, the Court had no power, without the consent of the tenant for life, to give effect to the proposal, though beneficial on the whole (d). II. We next proceed to inquire in what manner the fines for How lines on renewals are to be levied by the trustees. levied!^' *° ''^ Upon this subject we shall advert. First, to the case where the settlor himself has specifically marked out the fund from which the fines are to be raised, and Secondly/, to the rules adopted by the Court, where the settlor himself has omitted to declare any intention. First. Where the fund for the fines is pointed out. 1. If there be an express trust to provide the fines for renewals How to be levied out of the " rents, issues, and profits," and the leaseholds are ?"* °* " ''™*^' , . issues, and pro- terms of years not determinable on lives, so that the times of fits," wiiere tlie 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 constitute a fund sufficient for the purpose (e). 2. If the trust be to levy the fines for renewal out of the " rmits. Fines to be levied out of {a) 23 & 24 Vict. c. 145, ss. 8 & 9. tenant for life, the Court made the rents and profits, (6) 23 & 24 v. c. 124, s. 20. order, HolUer v. Burne, 16 L. E.Eq. or by mortgage. (c) Hayward v. Pile, 5 L. R. Ch. 163. App. 2]8^er Lord Hatherley. (e) Lord Montfort v. Lord Cadogan, [d) Hayward v. PiU, 5 L. R. Ch. 17 Ves. 485; S. C. 19 Ves. 635; see App. 214. But in another special case Earl of Shaftesbury v. Duke of Marl where there was an absolute trust for borough, 2 M. & K. 121 ; Blake v. renewal, overriding the interest of the Peters, 1 De G. Jon. & Sra. 345. Y leases axe for years. 322 RENEWAL OF LEASKS. [CH. XV. issues, and profits, or by mortgage,'' it was held in a case before 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 forthcoming (a), 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 (&). However, in the later case of Jones v. Jones (c), where the trustees were empowered to levy the fines " by and out of the rents, issues, and profits, or by nwrtgage, 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 mort- gage would be oppressive to the remainderman, declined to give any opinion whether the trustees might not, had they exercised their discretion, have determined upon whom the burthen should fall ; but as the trustees had not exercised their discretion, it was held that the Court could adjust the onus amongst the parties according to the equitable rule, viz. in proportion to their actual enjoyment, as soon as it could be ascertained {d). And in Greenwood v. Evans (e), Reeves v. Creswick (/), and Ainslie v. Harcourt {g), where the fines were to be raised out of the rents, issues, and profits, or by mortgage, the Court in like manner adopted the principle of throwing the onus on the successive tenants of the estate, in proportion to their enjoyment. In the two first cases the leaseholds were for lives, and in the last the leaseholds were partly for lives and partly for years, 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 instrument, 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 ordinary cases. But if the trust be to pay the renewal fines by and out of " the annual rents, issues, and profits," with a power, if the money (a) Milsintown y . Earl of Portmore, (c) 5 Hare, 440. 5 Mad. 471 ; and see Milles v. Milles, (d) Jones v. Jones, 5 Hare, 440. 6 Ves. 761. (e) 4 Beav. 44. (6) 5 Mad. 472; and see Earl of (/) 3 Y. & C. 715, as corrected from Shaftesbury v. Duke of Marlborough, Reg. Lib. ; see note Ig), p. 297 2 M. & K. 121, 123. io) 28 Beav. 313. CH. XV.] RENEWAL OF LEASES. 323 wanted for renewal be not produced, to raise it by mortgage, the onus will faU. upon the tenant for life (a). 3. If the trust be to raise the fines for renewal out of the " 7'ents, issues, and profits," and the leaseholds are either for lives or for years determinable on Hoes, 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. 4. But the expression " rents, issues, and profits " often stands by itself, without any sufficient indication aliunde that annual rents are 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. In Stone v. Theed (h). Lord Thurlow held that the annual rents only were applicable. In Allan v. Backhouse (c) Sir T. Plumer considered that the trustees might sell or mortgage, and that the tenant for life and remainderman must contribute in the usual proportions, and this decision was affirmed on appeal by Lord Eldon (d). In Shaftesbury v. Marlborough (e) Sir J. Leach observed upon the conflict between the preceding cases, and followed the authority of Lord Thurlow. The decisions in Playters v. Abbott (/) and Townley v. Bond{g) must be viewed as resting only upon the special wording of the instruments which were under con- sideration. In Greenivood v. Evans (h), Jones v. Jones {%), Reeves v. Cres- wick (k), and Ainslie v. Harcoiwt (I), the trustees were empowered to levy the fines from the 7'ents, issues, and profits, or by mortgage. (a) Solley v. Wood, 29 Beav. 482. (J) 2 B. C. C. 243 ; see the case stated from Reg. Lib., with some re- marks, in Jones v. Jones, 5 Hare, 451, note (a). (c) 2 V. & B. 66. {d) Jac. 631. (e) 2M. &K. 111. (/) 2 M. &K. 97. (g) 2 Conn. & Law. 393. {h) 4 Beav. 44. (i) 5 Hare, 440. {k) 3 Y. & C. 715. It is stated in the report that " there were no funds provided for the purpose of renewal by the testator's will ;" from which it might be supposed that the will was altogether silent upon the subject, but Mr. Shapter, Q.C., who had occasion to consult the Reg. Lib., has obligingly furnished me with the following extract from the will : " It shall be lawful for my said trustees, and the survivor of them, and the heirs, executors, adminis- trators and assigns respectively of such survivor to renew, or use their or his endeavours to renew, the leases for the time being of such part of my said estates as shall be accustomably renew- able from time to time and as often as occasion shall require, and for that purpose to make such surrenders of the then leases, or any renewed leases, as shall be requisite and necessary in that behalf, and by and out of the rents, issues, and profits of the premises, the leases whereof may be so renewed, or by mortgage thereof, to raise so much monies as shall be sufficient for paying the several renewal fines and other necessary charges for such renewals." {I) 28 Beav. 313. y2 How to be levied when the leases are for lives. Whether rents and profits mean annual rents. Stone V. Theed. Greenwood v. Evans, &c. 324 RENEWAL OF LEASES. [CH. XV. Eesult of the cases. Of raising the fines by way of insurance. Power to charge freeholds for raising fines. and the Court apportioned the burthen amongst the successive tenants, according to their enjoyment. The result appears to be that where the direction is to raise the fines out of "the rents, issues, and profits," simply, the Court may be compelled, by the express language of the instru- ment, to throw the fines upon the annual rents, but will lean strongly against such a construction, and where the trustees are empowered to raise the fines out of " the rents, issues, and profits, or by mortgage," it wiU hold the discretion to apply only to the temporary means of raising the fund, and will apportion the bur- then according to the general rule. 5. On a reference to the Master by Sir J. Leach, how a fund for payment of fines on the renewal of leaseholds for lives, where the fines were to be paid from the annual rents, could best be secured, the Master proposed in bis 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 (a). Upon this arrangement we must remark that the lives of the cesiuis 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 a right to a proportional 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 acting upon it at his own discretion. 6. Where freeholds and leaseholds for lives are limited to the same uses, it is usual, from the difficulty of mortgaging leaseholds 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 created by the settlement, 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. {a) Earl of Shaftesbury v. Dulce of Marlborough, 2 M. & K. 124 ; and see Greenwood v. Evans, 4 Beav. 44. CH. XV.] RENEWAL OF LEASES. 325 7. If a portion of tlie annual rents and profits be destined by who shall have the settlor to defray the expenses of renewals, then, should it tious'where^ happen from the unwillingness or incapacity of the lessor that no renewal cannot renewal can be obtained, the sums which would have been raised will be regarded as a charge which fails of taking effect, and will merge for the benefit of the tenant for life (a). 8. If a trustee (b), or tenant for life, in the situation of a '^^° ^""^^ <=om- ^ ^ . pensate the trustee (c), fail in his duty to apply the given fund, the remainder- remainderman man may call for a compensation from such trustee, or tenant for ^^%gg ° madiT''^^ life, or their assets. But when, by the permission 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 pri- marily answerable to the remainderman, yet the tenant for life, who has had the actual pernancy, must make it good to the trustee (d). 9. And where the leaseholds were annually renewable for 0^ ^^'^^ °* 1 1 1 n T T under-leases. twenty-one years, and the custom had been tor the lessee annu- ally 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). Secondly. It often happens that renewable leaseholds are de- How fines to be vised to trustees with a direction, either expressed or implied, to airection bv'the keep the leases continually renewed, but without any declaration settlor. of intention out of what fund the settlor meant tlie expenses to be levied. 1. Where this is the case, the tenant for life and remainderman Where paid by may possibly agree to contribute towards the fine out of their own remainderman °'" 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 princi- ples adopted by the Court may be compelled between the tenant for life's estate and the remainderman at the tenant for life's (a) Moores v. Hodges, 27 Beav. 625 ; 17 Ves. 485 ; S. C. 19 Ves. 635 ; and Richardson v. Moore and Tardiff y. see WadleyY. Wadley,2 Coll. 11. Robinson, cited Colegrave v. Manhy, 6 (c) Coleyrave v. Manhy, 6 Mad. 72 ; Mad. 82, 83, and reported 27 Beav. S. C. 2 Russ. 238. 629 ; In re Money's Trusts, 2 IJrew. & {d) LordMontfortv. Lord Cadogati, Sm. 94. But see Re Wood's Estate, 10 ubi supra; Townley v. Bond, 2 Conn. L.E.Eq.572. ^en Colegrave y. Manhy, & Laws. 403, 406, per Sir E. Sugden; 6 Mad. 86, 87, 2 Kuss. 252; Bennett and see Wadleyy. Wadley, 2 Coll. 11. V. Colky, 5 Sim. 181, 2 M. & K. 231 ; (e) Milles v. MiUes, 6 Ves. 761 ; and Browne v. Browne, 2 Giff. 304. see Earl Covsley v. Wellesley, 1 L. li. (6) LordMontfort v. Lord Cadogan, Eq, 656 ; S. C. 35 Beav. 640. 826 RENEWAL OF I,EASES. [CH. XV. Mortgage by- trustees. Old rule of contribution. Rule of keeping down the interest on the fine. decease, and either party advancing the fine will have a lien on the renewed lease for the amount expended beyond his propor- tional part. If tenant for life and remainderman will neither jointly, nor will 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 appor- tionment must be made in like manner. However, a mortgage, where neither the tenant for life nor remainderman will make the advance, is more easily to be suggested than to be carried into effect, 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 to the Court, except where the difficulty is met by the provisions of the Act before referred to (b). 2. The old rule of contribution was, that the tenant for life should advance one-third, and the remainderman two-thirds (c) ; but the question was put by Lord Thuiiow, " Is a tenant for life at the age of ninety-nine, whose title accrued in possession when he was ninety-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 " (d). 3. Lord Alvanley adopted the rule («), (and from the case of Laivrence v. Maggs it would seem that Lord ISTorthington had before acted upon the same principle (/) ), 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 burthen, 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 (a) See Bucleerklge v. Ingram, 2 Ves. jun. 666 ; Earl of Sliaftesbury v. Duhe of Marlhorough,^ M. & K. 121 ; Allen V. Backlwuse, 2 V. & B. 72. ih) 23 &24 Vict. c. 145, s. 9 ; anU, p. 321. (c) Earl of Shaftf.sbury v. Duke of Marlborough, 2 M. & K.'ll?, per Sir J. Leach; Lock v. Loch, 2 Vera. 666, K. L. 1710, B. fol. 120; Verney v. Verney, 1 Ves. 428 ; Limbroso v. Fran- da, citeii ib.; Gralmmy. Lord London- derry, cited Stone v. Tlieed, 2 B. C. C. 246 ; and see Howell v. Walley, 1 Ch. Rep. 218 ; Ballet v. Sprainger, Pr. Ch. 62 ; Cornish v. Mew, 1 Ch. Ca. 271. {d) See White v. While, 9 Ves. 555. (e) Buckeridgev. Ingram, 2 Ves. jun. 652, see 666 ; White v. White, 4 Ves. 24, see 33. (/) 1 Eden 453, see 455. CH. XV.J EENEWAL OF LEASES. 327 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 " («). 4. It might be thought reasonable that the proportion of the Court will not expense to faU upon the tenant for life should be regulated by his tive calculations. actual age and probable duration of life ; but it has been said that accident might render such a course unjust to the one party or the other, according as the tenant for life happened to live a longer or shorter period than was allowed by the calculation (&). 5. The rule now in operation was first clearly laid down by Present rule of Lord Thurlow in Nightingale v. Zawson (c), a case, said Lord Eldon, contribution, who was one of the counsel in it, to which, from the intricacy of the subject, the reports have failed to do justice (d). The circumstances may be briefly stated as follows : — A widow. Nightingale v. tenant for life of a term which had twelve years to run, renewed Dawson. for a further term of twenty-eight years, to commence 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 remain- derman should contribute to the fines. The following points were resolved by Lord Thurlow, after very anxious, frequent, and grave consideration of the subject (e), and have ever since been acquiesced in by the Courts. a. " That, as the widow had lived nine years after the expira- Proportions to tion of the twelve, leaving nineteen years to run of the twenty- tenantffOT liftf eight, the Master ought to take the sum paid by her for the re- and remainder- newal 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 yeq,rs was worth, and the latter was -the proportion to be paid by the remainderman" (/). (Upon which resolution Lord Eldon thus (a) White v. White, 9 Ves. 560. (c) 1 B. C. C. 440. (6) Earl uf Shaftesbury v. Duke of (d) White v. White, 9 Ves. .556. Marlborough, 2 M. & K. 119, per Sir (e) See White v. White, 9 Ves. 560. J. Leach; and see Bennett v. Colley, (/) See Coppin-v. Fernyhough, 2 B. 2 M. & K. 234. ' C. C. 291 ; Barnard v. Heaton, cited man. 328 RENEWAL OF LEASES. [CH. XV. Kind of interest. Rate of interest. Rate after the death of the tenant for life. Case of tenant for life having had no enjoy- ment. Risk of losing the contribution. comments : — " It was first considered," he said, " wlaat the inte- rest 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 Thurlow determined that the remainderman took that interest in the re- newed term which was ultra so much of the renewed term as expired in the lifetime of the person who renewed, and the value of that interest he made the remainderman pay " (a). ) h "That as to the kind of interest to be allowed, simiile inte- rest 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 " (h). c. " That as to the rate of interest, in computing compound interest, you go upon the idea that the interest is paid upon the exact day and immediately laid out ; but as this was impossible, it would be sufficient to compute interest at 4 per cent." (c). d. " That such interest was only to be paid till the widow's death, for after that her executors had the demand upon the remainderman, and it became a common debt, and must carry simple interest only " (d). e. " With respect to the second renewal, as the widow had not lived to enjoy any part of that term, her executors were entitled to the whole of the expenses, with interest to be computed on the same principle as before " (e). 6. In this case, it will be observed, the tenant for life had dis- bursed the fine, and the payment being a charge upon the pro- perty, 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 contri- bution 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 con- WMe V. White, 4Ves. 29; Playters V. [Abbott, 2 M. & K. 108 ; Earl of Shaftesbury v. Duhe of Marlborough, 2 M. & K. 118; Lanauzev. Maloiie, 3 Ir. Ch. Re. 354. (a) White v. WldU, 9 Ves. 558. lb) See White v. White, 4 Ves. 35, 36 ; /S. C. 9 Ves. 557, 558 ; Bradford V. Brovmjohn, 3 L. E. Ch. App. 711. (c) See Giddings v. Giddings, 3 Kuss, 260. {d) See Giddings v. Giddings, 3 Russ. 260 ; Bradford v. Brownjohn, 3 L. R. Ch. App. 711. (e) Coppin v. Ferrnyhough, 2 B. C. C. 291. CH. XV.] RENEWAL OF LEASES. 329 tribution 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 to is to make the tenant for life give security for the sum which may eventually be due " (a). 7. There occurs, also, this further difficulty, viz. how to apply ^g"^'^*'^?,™^^ *° the principle to the case of leaseholds for lives. The new cestui que leaseholds for 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 remain- derman to contribute nothing, because he took no benefit ? If the remainderman paid the fine, is the tenant for life to con- tribute nothing, because he can excuse himself under the same plea? 8. From the nature of leaseholds for lives it seems difficult to discover any other principle of adjustment than one of the fol- lowing : — First, That the tenant for life and the remainderman should contribute according to their chance of 'benefit at the time of tlie 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 original cestui que vie, and determining on the death 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 qite vie after the death of the tenant for life. In the proportion of these two values would be the respective contributions. Secondly, That the reniainderman s proportion should be regu- lated by the actual benefit derived. Thus, if the new cestui 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 cestuis 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 ; and in such a case the tenant for life would be a gainer. Thus the tenant for life might sometimes be a gainer, sometimes a loser : the remainderman {a) See White v. While, 9 Ves. 558, Marlhorowjh, 2 M. & K. 122. 559 ; Earl of Shaftesbury v. Duhe of 330 RENEWAL OF LEASES. [CH. XV. would never either gain or lose, but would pay the exact value of the interest which he actually took (a). Thirdly, That, vice versd, the tenant for life's proportion should be regulated by the actual benefit derived, and that the contingent loss or gain, as the case might be, should fall upon the corpus of the property, that is, upon the remainderman. 9. In Reeves v. Oreswick (b), where leaseholds for lives were devised to trustees iipon 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 enjoyment 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 cestuis que vie named in such lease, and the period of her enjoyment of the property under each corresponding renewed lease being in like manner the joint dura- tion of her life, and those of the new cestuis que vie, or the longest liver of them ; the difference between the values of the estates for these two periods gave the benefit derived by the tenant for life from the renewals in question ; and the residue of the increased value of the property expressed the benefit derived from the re- newals 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 thereupon appeared to fall to the share of the tenant for life, was directed to be insured upon her own life for the purpose of providing, upon her decease, for the payment of a corresponding 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 him and the remainderman, or only of that part of the principal which fell to the share of the tenant for life. It will be seen also from this statement, that the Court made an apportion- (a) See Lord Eldon's remarks in (J) 3 Y. & C, 715. See as to this White V. White, 9 Ves. 559, which case, note {k), 323 supra. however, are very obscurely worded. CH. XV.] EENEWAL OF LEASES. 331 ment according to the speculative benefit, a course which the Court has in other cases disclaimed except for the purpose 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 was perhaps understood, though it does not so appear from the report, that the decree was to be without preju- dice to an ultimate adjustment. In Jones v. Jones (a), before Vice-Chancellor Wigram, involving Jones v. Jones, 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 ulti- mately apportioning the fines was fully considered, and the im- portance of the subject may justify a somewhat lengthened extract from the judgment. " The rule," said the Vice-Chancellor, " is, that the parties are to pay in proportion to their enjoyment, by which I understand 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, he will enjoy the estate during his own life, and when the actual period of his enjoyment is ascertained, his estate will have a lien upon the residue of the term for any over- payment which may have been made. The case is one of much greater difficulty 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 remain- derman, the tenant for life may enjoy the estate during his whole life without bearing 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 per- haps be avoided by requiring the tenant for life to give security, but there is a practical difficulty 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 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, 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 (a) 5 Hare, 440. 882 RENEWAL OF LEASES. [CH. XV. for an amount calculated upon the assumption that his life will 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. It appears to me proper to declare that each party is to bear the burthen of the renewal in the proportion of his actual enjoyment of the estate. There wiU be a direction for the tenant for life to keep down the interest, and a reference to ascertain what proportion of the fine was properly payable by him. This inquiry is necessarily by anticipation. There will then be a reference 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 approved as sound, 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 ultimately derive from the new life (a). It must be observed, however, that Jones v. Jones leaves un- touched the case which creates the greatest difficulty, viz., where by the death of the new cestui que vie in the lifetime of the tenant for life no benefit from the renewal accrues either to the tenant for life or to the remainderman. Nor does it appear to have been distinctly perceived by the Court that the renewal of leaseholds for lives being essentially matter of speculation, it is impossible to regulate the contribution of either tenant for life or remainderman according to the value of his actual enjoyment, without e converso making the remainderman or the tenant for life take upon himself the risk of the renewal proving profitable or unprofitable in its ultimate results ; and further, that in order to make each party bear the burthen of the renewal in the proportion of his actual enjoyment, it would be necessary to await the death not merely of the tenant for life but also ofthe cestuis que vie, a course which would be extremely inconvenient, and, it is conceived, contrary to the general practice of the Court. In Harris v. Harris (6), copyholds held for three lives, were settled on A. for life with remainders over, and two of the cestuis (ffl) Huddlestone v. Whelpdale, 9 (6) Harris v. Harris (\o 3) 32 Hare, 775. Beav. 333. > \ ■ i^ CH. XV.] RENEWAL OF LEASES. 33c que vie having died, A. put in two new lives at his own expense. A. died in the lifetime of the original cestui que vie, so that A. in event had no benefit from the renewal, and the whole fine was ordered to be repaid to A.'s personal representative. But it might happen that the two new lives would also die in the lifetime of the original cestuis que vie, and then the remaindermen also would have no benefit from the renewal. The Court, therefore, must have assumed that the speculative gain or loss was to fall on the re- maindermen. 10. Where the legal estate of renewable leaseholds is devised Tenant for life without the interposition of a trustee, but the testator at the same '"^'girded as a ^ trustee. time directs, either expressly or by implication, that the leases shall be renewed, the tenant for life is then himself a trustee {a), and as such is compellable to apply for renewals (V), but ought before applying for a renewal to consult the remainderman (c). 11. It has been said, that if from the threats or acts of the Tenant for life tenant for life there appears the intention of suffering the lease renew"° '^ to expire, the Court would appoint a receiver of the estate to provide a fund for the renewal (d) ; and that if the tenant for life has already allowed the period for renewal to pass, the rents and profits may be impounded for either procuring a renewal (e), or finding the remainderman a compensation (/). 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 will survive to the remainderman, the amount of the injury done to him cannot be ascertained (jf). 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 Qi). 12. The fines, fees and expenses of the admission of new trustees Admission fines, to copyholds must be borne by the tenant for life and remaindermen ™ copyholds, in proportion to their respective interests, according to the principles which regulate the renewal of leaseholds. Thus a testator devises copyholds to A. and his heirs upon trust for B. for Hfe, with re- mainder to C. in fee. A. pays a fine on his admission and dies. (a) White v. White, 5 Ves. 555. 225 ; and see Lord Montfort v. Lm-d (i) Lock V. Lock, 2 Vern. 66tJ ; and Cadogan, 17 Ves. 490. see White^Y. White, 4 Ves. 24. (g) Bennett v. CoUey, 5 Sim. 181 ; (c) White V. White, 5 Ves. 555. S. C. 2 M. & K. 225 ; ITams v. Harris, {d) See Bennett v. Colley, 2 M. & K. (No. 3), 32 Beav. 333. 233. W Bennett v. Colleij, 5 Sim. 181, 2 (e) See S. C. 5 Sim. 192. M. & K. 225. (/) S. C. 5 Sim. 181 ; 2 M. & K. 334 EENEWAL OF LEASES. [CH. XV. His 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 life of that trustee. The burthen must 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 assumption that the will or settlement contains no express directions how the fines are to be raised. (a) Carter Y. SmbriyM,2Q Beav. 374 ; 108 ; Bull v. Birlcheclc, 2 Y. & C. Ch. and see Playters v. Abbott, 2 M. & K. Ca. 447 ; Jones v. Jones, 5 Hare, 461. 335 CHAPTER XVI. DUTIES OP TEUSTEBS TO PRESERVE CONTINGENT REMAINDERS. 1. Trusts of this description are at present of much less frequent occurrence than they were formerly, and the reason is easily ex- plained. 2. As the law stood before the recent Acts, which will be noticed Object of the presently, the objects of a strict settlement (where there was no l^^ old^law." limitation to trustees to preserve contingent remainders), were liable to be defeated in the two following ways : In the first place, as at that time the contingent remainder was extinguishable by the surrender or merger of the particular estate in the inheritance (a) if lands were limited to A. for life with remainder to his unborn children, with remainder to B. ; A. might surrender his life estate to B., or B. might release to A., or A. and B. might join in a conveyance of the fee simple to C, and so in each case the contingent remainder was squeezed out, and if issue were afterwards born, they had no remedy at law or in equity. Again, the intention of the settlor was that the estate should remain in the family as long as the law permitted, and that on the death of the tenant for life it should devolve on the person who happened at the time to stand next in the series of limitations, but in fact when the eldest son attained twenty-one he was enabled, with the concurrence of his father in making a tenant to the prceci^pe to bar all the subsequent remainders ; and thus, on the majority of the eldest son, the estate became the absolute property of the father and son, and the interests of those in remainder were sacrificed, except so far as the father and son might choose to give them effect. 3. To obviate these results settlements were usually penned in (a) Also by forfeiture. But see now 8 & 9 Vict. c. 106, s. 8. 336 TRUSTEES TO PRESERVE CONTINGENT REMAINDERS. [CH. XVI. Case of the legal estate for life in tlie trustee. Case of the legal estate in the tenant for life. Efeect of the E'ines and Keco- veries Act upon trusts to preserve contingent re- mainders. one of the two following modes : either, First, The legal estate was 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 termor upon trust to preserve the contingent limita- tions, and on his death to other uses in remainder ; or to the use of trustees and their heirs during the life of the parent in trust for him, and on his death to other uses in remainder ; or. Secondly, The settlement was 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 the contingent limitations, and on his death to other uses in remainder. 4. In the first form of settlement the object in view, by vesting the freehold in the trustees, was to preserve the contingent limitations from being destroyed by the surrender or merger of the particular estate, which would have been practicable had the free- hold been limited to the parent himself, and also to prevent the barring of the entail and the aUenation of the estate for purposes not authorised by the spirit of settlement. 5. In the second form it was the duty of the trustees as before to preserve the contingent limitations, but as the freehold in pos- session was vested in the parent the trustees had no power to prevent a recovery by the father and son as soon as the latter came of age, but if the tenant for life committed a forfeiture (as by feoffment in fee in order to defeat the contingent remainders), it was then the duty of the trustees to enter and so vest the free- hold in possession in themselves, and it was then their further duty, as in the first form, though the settlor himself might not have contemplated such a purpose, not to concur in putting an end to the settlement, except where such interference was prudent and proper (a). 6. The law upon the duties of trustees to preserve contingent remainders has recently undergone great alteration. By the 15th section of the Fines and Eecoveries Act (J) it is declared, that every tenant in tail, whether in possession, remainder, contingency, or otherwise, shall have power to dispose 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 tlie settlement. (a) The duties of trustees to preserve contingent remainders with reference to the old law have been omitted in this edition, but will be found in the earlier editions. (i) 3 & 4 Will. 4. c. 74. CH. XVI.J CONTINGENT EEMAINDEES. 337 7. Under the old law, the key of the settlement was in the hands operation of the of the person who was owner of the freehold in possession ; but now, °^'^ '''^• by the 32d section of the act, any settlor entailing lands may appoint one or more persons in esse, not exceeding three and not being aliens, to be protector or protectors 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 under the settlement any estate for years determinable on the dropping of a life 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 woiold have been mime^- had he not disposed of his interest, is constituted the protector of the settlement. But, by the 27th section, no dowress, bare 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 praecipe, shall be a bare trustee, such trustee during the continuance of the estate conferring the right to make the tenant to the praecipe 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 consent as a breach of trust. 8. Under the provisions, therefore, of this Act, as regards settle- Operation of the ments made since the passing of the Act, a bare trustee cannot be "^'^ ^^' protector in any case. 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 in a Court of equity for the exercise of his discretion. But, a bare trustee who is protector under that section can insist on retaining the legal estate only so long as the purposes of the trust exist, that is, so long as according to the rules of the Court of Chancery he is required to be a trustee. Therefore, where there was a devise of lands to trustees upon trust for testator's daughter during her life, for her separate use, without power of anticipation, with remainder to the use of her children as tenants in common in tail with remainders over, it was held that the testator's daughter, having become dis- coverte and being sui juris, could compel a conveyance by the trus- tees of their legal estate (a). (a) Buttanshaw v. Martin, Johns. 89. Z 338 TRUSTEES TO PEESERVE CONTINGENT REMAINDERS. [CH. XVI. 7 & 8 Vict. c. 76. 8 & 9 Vict. o. 106. Remarks upon the limitation to preserve contingent remainders. Contingent re- mainders may still be defeated by determina- tion of life estate in due course. 9. By 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. 10. But this sweeping provision was repealed by 8 & 9 Vict, c. 106, s. 1 ; and in Heu thereof it was enacted (by s. 8), that a contingent remainder should be deemed capable of taking effect, notwithstanding the determination by forfeiture, surrender or merger of any preceding estate of freehold, in the same manner in all respects as if such determination had not happened. 11. In consequence of this enactment it is now unnecessary to make use of any machinery for preserving contingent remainders from destruction by the forfeiture, surrender, or merger of the pre- ceding estate ; and therefore, if an estate be limited to the use of A. for life, with remainder to Ids unborn children, the contingent limitations cannot be defeated. 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 Hfe, as, in cases of waste by the tenants for life, it would be the duty of the trustees to interfere as protectors of the re- maindermen's interest (a). 12. As contingent remainders are still liable to be defeated should the preceding life estate determine, in due course, before they become vested, the limitation of an estate pur autre vie adequate to support the contingent remainders is still in many cases a matter of con- siderable importance. Thus if an estate be limited to A. for hfe, with remainder to the unborn children of B., or to the children of B. who should attain 21, here the contingent remainders, if B. survive A., would require support by a limitation of the estate to trustees after the death of A. until the children of B. should come into existence, or until a child should attain 21. (a) Perrotl v. Pcrrott, 3 Atk. 94, per Lord Hardwicke ; Garth v. Cotton, 1 Ves. sen. 556, per eundem. 339 CHAPTER XVII. DUTIES OF TRUSTEES FOB RAISING PORTIONS. The subject of portions is of so extensive a character, that to exhaust it would require a treatise by itself All that can be attempted in a single chapter is a brief summary of the law upon the pouits of most usual occurrence in practice. We propose in the first section to inform trustees xvlio are their Who are cestuis que trust, or in other words who are to be regarded as portionists — a question that appears simple enough in itself, and yet involves a multitude of cases which can only be reconciled by the most refined distinctions. The principal struggle has been where and under what circumstances an eldest son is to be included amongst or excluded from the designated class. But further, the question ivho are portionists, involves the inquiry when or at what time portions, which are regulated by peculiar principles, are vested, aud again whether, though the corpus be not vested, the children may not be entitled to maintenance, and again, even if portions may have become vested, it remains to be asked whether they may not have become divested on the doctrines of ademption and satisfaction — doctrines which open a wide field of controversy, and are to some extent left stiU in an unsatisfactory state. In the second section we shall explain (and this may be com- Amount to be pressed within much narrower bounds) what is the amount to be '^^i^^<^- raised, both as regards the priacipal sum and interest, and also as to costs. In the third section we shall have to consider at what time the When to be portions ought to be raised, and more particularly when portions ^^^^^ are charged on reversionary interests, for then either the estate must suffer by raising the portions at a sacrifice in prcesenti out of an interest to take effect in future, or else the portionists must be left destitute until the reversion falls into possession. Lastly, in the fourth section we shall offer some practical remarks Mode of raising, as to the best mode of raising the portions as whether by sale or mortgage, or a fall of timber, or out of mines, or in what other manner. z 2 340 DUTIES OF TllUSTEES FOK KAISING PORTIONS. [CH. XVII. S. 1 . SECTIOlSr I. WHO ARE TO BE EEGABDED AS POETIONISTS. Settlement on eldest son. General rule. Time of distribu- tion. Under this head we shall inquire (A). Who are meant by younger children where the estate charged is settled on an " eldest " child. (B). Who are meant by younger children where the estate charged is not settled on an " eldest " child. (C). At what time the portions vest. (D). Of ademption and satisfaction. (A). Who are meant hy younger children where the estate charged is settled on an " eldest " child. 1. "The Court in the case of portions," observed Sir G. Turner, " seems to have regarded rather the purpose than the words of the instrument. In some of the cases, indeed, the Court seems almost to have carried into effect the purpose of the instrument in opposi- tion to the words, and although in the late cases more weight has been given to the terms of the instrument, there can be no doubt that in cases of this nature, very great attention must be given to the purpose of the instrument " (a). 2. In the lirst place then, let us see in what cases an eldest child actually will be regarded as a younger child constructively, or, (which is the same thing), in what cases a younger child wiU be deemed the eldest chUd. " Every child," said Lord Hardwicke, " except the heir," {i. e. ex- cept the one who takes the estate) " is considered in equity as a younger, and eldership, not carrying the estate along with it, is considered not such an eldership as shall exclude," viz. from sharing in the portions provided for younger children. " It would be hard, that the right of eldership should be taken away, and yet not have the benefit of a younger child " (b). 3. If, therefore, before the period fixed for distribution of the por- tions, the estate shifts either by the original limitations or by appoint- ment under a power contained in the settlement from the eldest child to a younger child, the younger child so taking the estate is treated as (a) Remnant v. Hood, 2 De G. P. & (b) Duke v. Doidge, 2 Ves. Sen. 203, J. 413 ; approved by V.-C. Wood, note. Davies v. Huguenin, 1 H. & M. 743. CH. XVII. S. 1.] DUTIES OF TRUSTEES FOE RAISING PORTIONS. 341 the eldest («), and the eldest child losing the estate is deemed a younger child (6). Thus in the leading case of Ghadwich v. Dolman (c), a father on Chadwiok v. his marriage settled an estate to the use of himself for life with remainder (subject to a jointure) to the use of trustees (upon trust within six months after his decease to raise 4,000^. for younger children's portions as the father should appoint, or in default of appointment to be divided amongst the younger children), with remainder to the use of the first and other sons in tail. There were several children of the marriage, viz. Humphrey the eldest, and Thomas, John, Lewis, Ann, and Dorothy. By a deed dated in 1686 the father appointed the 4,000^., giving 2,600Z. part thereof to Thomas the second son on the occasion of his marriage, and after this Humphrey the eldest son died in his father's lifetime without issue, and thereupon the father appointed the 2,600^. amongst his younger children other than Thomas. On the death of the father the estate devolved on the second son Thomas, and then the question arose whether the first or the second appointment was good, or in other words whether Thomas was entitled to the 2,600/. as well as the estate. The Lord Keeper said he admitted that Thomas at the time of the appointment was a person capable of taking, and was a younger child within the power, but that this was a defeasible appointment, not from any power of revoking or upon the words of the appointment, but from the capacity of the person. He was capable of taking at the time of the appoint- ment made, but that was sub modo and upon a tacit or implied condition, that he should not afterwards happen to become the eldest son and heir, so that he had as it were only a defeasible capacity. And it was, therefore, adjudged, that Thomas who took the estate, was not also entitled to the 2,600/. 4. In this case the second son by succeeding to the estate and so Eldest son taking becoming the eldest was deprived of any share in the portions for '^^^'^'^ °* younger younger children, and no claim appears to have been put forward on behalf of Humphrey the eldest son to stand in the place of a younger son. But it has since been settled that under such cir- (a) Davies v. Huguenin, 1 H. & M. of special circumstances. In Leake v. 730 ; Re Bayley's Settlement, 9 L. K. Leake, 10 Ves. 477, the doctrine of Eq. 491 ; Terynham v. Webh, 2 Ves. Chadwiok v. Dolman, 2 Vern. 528, Sen. 198 ; Stanhope v. Collingwood, would seem to have been applicable, 4 L. E. Eq. 286; S. C. nom. Colling- though it was not applied. The ques- woodv. Stanhope, 4 L. R. Eng. & Ir. tion was not discussed. App. A3;Broadmeadv.Wood,lB.C.C. (h) Duke\.Doidge, 2Ves.Sen. 203, 77 ; Savage v. Carroll, 1 B. & B. 265; note. Simpson v. Frew, 5 Ir. Ch. Re. 517 ; (c) 2 Vern. 528. Jermyn v. Fellows, For. 93 was a case 342 DUTIES OF TEUSTEE3 FOR RAISING PORTIONS. [CII. XVII. S. 1. Eldest daughter a younger child. Eldest son may be a younger son. cumstances the eldest son, even though he died in his father's life- time, and sustained up to his own decease the character of eldest son, but never eventually came into possession of the estate, is entitled to be treated as a younger son, and to share with the other portionists. Thus in Davies v. Huguenin (a), the estate was settled on J. Davies and his wife successively for life, remainder to the children as he should appoint, and subject as aforesaid to the use of a trustee for 500 years for raising portions for younger children ; remainder to the first and other sons in tail. J. Davies had two sons, William the elder, and John Stanley the younger. William attained twenty-one and died in his father's lifetime, and thereupon J. Davies appointed the estate to John Stanley, and it was held that William's personal representative was entitled to a portion. Again in Ellison v. Thomas (b), the eldest son of E. E. C. was not tenant in tail but tenant for life onty, with remainder to his first and other sons in tail ; and yet it was held that the personal representative of this eldest son who died without issue male before coming into possession of the estate, was entitled to share in the portions provided for the younger children of E. E. C. 5. If an estate be settled on the first and other sons with a provision for younger children, an eldest daughter though the firstborn, is re- garded as a younger child (c). So if an estate be settled on the fii-st and other sons of A. with remainder to B. and there is a trust for raising portions for A.'s younger children, and A. has two daugh- ters only, so that the estate shifts over to B., both the daughters of A. are younger children and entitled to share the portions be- tween them (d). 6. The rule that a younger son who at the time of distribution takes the estate and so becomes the eldest son, is excluded from sharing in the portions, must be qualified by the condition that he takes the estate under the same settlement, or under some settlement incorporated into the portions' settlement, for other- wise he retains his rights as a younger son. Thus an estate was settled to the use of A. for life with remainder, (subject to A.'s wife's annuity) to the use of his first and other sons in tail, W. 245 ; per (a) 1 H. & M. 730. See Broadmead V. Wood, 1 B. C. C. 77 ; But see Re Bayley^s Settlement,^ L. E. Eq. 491. (6) 1 De G. J. & Sm. 18 ; 2 Drew. & Sm. Ill ; and see Collingwood v. Stanhope, 4 L. R. Eng. & Ir. App. 55 ; but see Gray v. Earl of Limerick, 2 De G. & Sm. 371. (o) Beale v. Beale, 1 P. cur. (d) Beale v. Beak, 1 P. W. 244 ; and see Butler v. Duncomh, 1 P. W. 448 ; Hall V. Luclcup, 4 Sim. 5 ; Emery v. England, 3 Ves. 232. CH. XVII. S. 1.] DUTIES OF TRUSTEES FOR RAISING PORTIONS. 343 with a trust for raising portions on the death of the wife for younger children, to be vested at twenty-one or marriage. A. had two sons, Henry the eldest, and George, and after the death of A. in 1842, but during the lifetime of A.'s widow, and therefore before the portions were raisable, Henry barred the entail and devised the estate to his brother George ; and it was held that on the death of A.'s widow in 1857, when the portions became raisable, George was entitled to share in the portions, though he was then the eldest son and was the owner of the estate, for he derived his title to it, not as eldest son under the settlement, but as devisee of his brother (a). 7. But if at the time of distribution the eldest son has not the Eldest son estate, but except for his own act (as in joining with his father estate." "'^ in defeating the entail and resettling the property) he would have had the estate, he is not allowed to plead the want of the estate and to claim as a portionist (6). 8. The doctrine of Chadwick v. Doleman has been said to apply Whether the rule only where the settlor is the parent or stands loco parentis ; but if paints or ^ '° this proposition were accepted literally, then if a testator devised persons loco an estate to A. a perfect stranger for life, with remainder to his first and other sons in tail, and created a term in the same estate for raising portions for the younger children of A., the second son of A., though, by the death of his elder brother without issue in A.'s lifetime, he succeeded to the estate, would also be entitled to share in the portions. Upon examination of the several authorities it will be found that at the most there are only a few dicta in support of the proposition suggested (c). Lord Hardwicke on the (o) Adams v. Beck, 25 Beav. 648 Sandeman v. Mackenzie, 1 J. & H. 613 Sing V. Leslie, 10 Jur. N. S. 794 Macoubrey v. Jones, 2 K. & J. 685 that on the death of the latter, Hum- phrey was the eldest son of T. Hall. It was held upon the construction of the will, that the 6000Z. was con- Spencery. Spencer, 8 Sim. 87. Pea- tingent until the dtath of J. Hewer, cocke V. Pares, 2 Keen. 689, must be and then vested in such persons as considered as overruled. were then the younger children of (J) Stanhope v. ColUngwood, 4 L. R. T. Hall, and as Humphrey was then Eq. 286 ; ColUngwood v. Stanhope, 4 the eldest he took nothing. This Ij. R. Eng. & Ir. App. 43. was the ground of the decision, (c) Thus in Hall v. Hewer, Amb. and therefore the question did not 203, a testator devised his real estate arise whether if Humphrey had pre- to John Hewer for life, remainder to viously acquired a vested interest, he John's first and other sons in tail, re- could have lost it by becoming the niainder to his daughters in tail, re- eldest son. Under no circumstances, raainder to Humphrey, second son of however, could he have become dis- T. Hall in fee. And the testator entitled, for there was no shifting of charged his estate with 6000Z. in trust the estate, which had never been given for the younger children of T. Hall, to James the eldest son, but to Hum- in case J. Hewer died without leaving phrey himself. The testator meant the issue. James the eldest son of T. Hall, estate and the portion to go together. died in the lifetime of J. Hewer, so 344 DUTIES OF TEUSTEE3 FOE RAISING POETIONS. [CH. XAai. S. 1. other hand not only applied the doctrine of Chadwick v. Doleman to the case, where a grandmother having a power over the settled The Court observed " There was no case where the Court had considered a younger child as an eldest, but be- tween parent and children, or those who stood in heo parentis." But this was merely a dictum. In Matthews v Paul, 3 Sw. 328 (and see Adams v. Adams, 25 Beav. 652 ; Adams v. Robarts, lb. 658), a testatrix bequeathed her Imperial annuities and five per cent, stock in trust, upon the termination of the Imperial annuities (which event occurred in May, 1819) for the children of her d-iughter Mary Paul, except an eldest son. Mary Paul had at the testatrix's death five children, viz. two sons, John and Wal- ter, and three daughters. John died before the termination of the annui- ties, so that on the occurrence of the latter event Walter was the eldest son, and the question was whether he was to share in the portions and it was ruled that he was not, for that as the time of distribution was the period for ascertaining who were to be included in the class, it must equally be the period for ascertaining who were to beaccZiwf^rf. Here there was no real estate in settle- ment at all, and therefore the principle of Chadwick v. Doleman did not come into question. The Court, however, during the argument observed, " The cases where this rule has been adopted have arisen on gifts by parents or persons in loco parentis. In general the estate passing to the eldest son has been in the power of the persons making the provision for the younger children, and the same instrument has comprised the estate and the provision. Has the rule ever been applied to por- tions given by a stranger, who merely contemplated the chance of propei'ty descending to the eldest son, as repre- sentative of the family?" In Lincoln v. Pelham, 10 Ves. 166, (and see Bowles v. Bowles, lb. 177) the circumstances were somewhat similar. Lady Pelham gave a residuary fund in trust for Frances Pelham for life, and after her death for the younger chil- dren of the testatrix's late daughter, Catherine, Duchess of Newcastle. At the date of the will there were three children living of Catherine, viz. Ijord Lincoln, Thomas, and John. Lord Lincoln died in the testatrix's lifetime, and Thomas contended that as he was a younger child at the date of the will, though not at the death of the tes- tatrix, he was entitled to a share. Lord Eldon disallowed the claim, and con- sidered that the general description of younger children was not equivalent to naming the younger children living at the date of the will, but meant younger children for the time being, and added, that " whatever was the principle as to iparents or persons in loco parentis, it had no application here, for though the grandmother was executing a pur- pose, which as to this kind of doc- trine might be considered parental, (the purpose of providing for the younger branches, of other persons certainly, but in a sense her family) yet she thought that her daughters were sutficiently provided for, so as to make it unnecessary to consider them objects of her care," 10 Ves. 174. Here, again, there was no dis- pute as to the effect of the shifting of any estate, but it was simply a ques- tion of construction, who were the persons meant by the description of younger children. In Scarishrich v. Lord Shelmersdale, 4Y.&C.Excheq.Eq.ll6, JusticeMaule said, "It is tobe observed that it is only in cases of provision made by parents or persons standing loco parentis, that courts of equity give this forced con- struction to the word ' younger.' In cases of gifts by strangers courts of equity, as well as courts of law, con- strue the word according to its literal import, as laid down by Lord Hard- wicke in Hall v. Hewer. The distinc- tion is founded on the consideration, that in the one case the party giving or settling is regarded as doing an act which he was under a moral, though not a legal obligation to perform,where- as in the case of a gift by a mere stranger, no such obligation exists, "&c. In iSandenian v. Mackenzie, 1 John. & Hemm. 613, Mrs. Chisholm, a widow with three children (Alexander the eldest, who was in possession of the Chisholm estates subject to his mo- ther's jointure, Duncan, and Jemima), CH. XVII. S. 1.] DUTIES OF TRUSTEES F,OE RAISING PORTIONS. 345 estate, appointed portions to her younger grandchildren (a) ; but he also applied it where the settlor was an uncle, and this not because he considered the uncle as standing loco parentis, but on general principles (h). " Where," he said, " a provision is made hy a, father either by will or settlement for younger children, an elder un- provided for shaU be deemed a younger, and the ground is that every branch of the family should be provided for, the Court not considering the words elder or younger. The question then is, whether there exists any difference where the settlement is made by a father's brother to a collateral relation, a nephew, &c., and he laid it down broadly that every child except the heir is considered a younger, and that eldership which does not carry the estate along oumstances may fairly be presumed to provide for the whole of his family, and younger children would in such an instrument naturally be taken to mean those who should not otherwise be provided for. But the moment you extend the doctrine to other cases where the provision for younger chil- dren is made by some person in loco parentis, not by marriage settlement but by some independent deed,you have an extremely different case to deal with. When the rule is laid down thus broadly, it includes cases where the effect of it may be to render it impossible, for a second son marrying in his father's lifetime, to make any jointure or settle- ment, except on a contingency. Still the cases, to whatever extent they may go, have not been carried beyond those where the donor is if not a parent, at any rate in hco parentis. No authority goes so far as to apply the rule to a person, not a relative of those for whom provision is made, and not having any interest in the family es- tate. But here Sir Thomas Ramsay had nothing to do with the family or the estate." The substantial ground for the Court's decision in this case was that the younger child (who was de- clared entitled to the portions though he also took the estate) did not take the estate by any title derived from the persons who created the portions. And see Cooper -v. Cooper, 8 L. R. Ch. App. 813. (a) Lord Teynham v. Wehh, 2 Ves. Sen. 198 ; as to a grandfather stand- ing loco parentis, see Farrer v. Barker, 9 Hare, 737 ; Swallow v. Binns, 1 K. & J. 417. (6) Duke V. Doidge, 2 Ves. sen. 203, note. married Sir Thomas Ramsay, and by the settlement made on the marriage, Sir T. Ramsay settled lOjOOOl. upon himself and wife suc- cessively for life, with remainder to the then present children of Mrs. Chis- holm (except Alexander) equally at twenty-one ; and if none of such younger children of Mrs. Chisholm should attain twenty-one, then in trust for Alexander. Sir T. Ramsay died in 1830, and Lady Ramsay in 1859; Alexander died in his mother's life-time in 1838, and therefore Duncan came into possession of the Chisholm estates. All the three children attained twenty- one. The question was whether Dun- can, though he had succeeded to the Chisholm estates, was entitled to share in the 10,000Z. portions, and it was held that he was entitled, and Sir W. P. Wood in delivering judgment, made some important observations. " I should have been glad," he said, " if the doctrine had been confined to the class of cases in which it originated, where a settlor by marriage settlement makes provision for his family gene- rally, limiting the estate to the eldest son in tail, giving the usual powers for jointures and portions (though, even when this is not done, the son might still make any provision he pleased on attaining his majority) and then going on to charge the settled estate in favour of younger children. In such cases it is reasonable enough to regard the limitations for younger children as intended for the benefit not merely of those who happened to be younger children at the time of vest- mg, but of those who might fill that cha- racter when the fund should come into possession. A settlor under such cir- 346 DUTIES OF TRUSTEES JfOE RAISING PORTIONS. [CH. XVII. S. I. with it is not such an eldership as will exclude from sharing in the portions." From this judgment may be inferred the principle, that where the settlor (whether a parent, or standing in loco parentis, or a stranger) settles an estate upon a particular family, and means to provide for all the family by limiting the estate to one and portions to the others, there no one of them shall under the same settlement take the estate and a portion also, but in such cases the Court will, if necessary, disregard the strictly literal meaning of the words eldest and younger, and carry out the substantial intention. General rule. ' 9^ xhis point however remains to be settled, and the only general rule to be laid down at present is that where the settlor is the parent or stands loco parentis, and portions are provided for younger children, and the estate upon which the portions are charged devolves (before the distribution of the portions) on one of the children, under the same settlement or under a settlement incorporated into it (a), there the words " eldest chUd " and " younger children " are capable of what has been called " a prodigious latitude of construction,'' viz., an eldest may be treated as a younger, and a younger as an eldest ; but that where portions are provided for younger children, and the estate either does not devolve before the distribution of the portions on any of the children, or does not so devolve under the settlement creating the charge or a settlement incorporated into it by recital or otherwise, there the words " eldest child " and " younger children " receive their ordinary and natural interpretation. Where no one is (B). Who are meant hy younger children wJiere the estate charged made an eldest ^^ ^^^ ^^^^^^j ^^ ^^ „ ^^^^^ ;, ^^^_ 1. We now proceed to the cases where a settlor provides portions for younger children generally, without the ingredient that one is to take the estate and the others to have the charge. Here the ordinary rules of construction apply, and " eldest " is taken to mean the eldest actually, and "younger" to mean the younger actually, and the time for ascertaining who is eldest and who are younger is not the period of distribution but the period of vesting. Thus in Adams v. Adams, (l) Sir W. Curtis the father of Emma Adams, bequeathed 6,000Z. to trustees in trust for Emma Adams for life, and after her decease " in trust for the children born or to be born of Emma Adams, who, not being an eldest or only son for the time being," should as to sons attain twenty-one, or as to daughters attain twenty-one or marry, in equal shares. Emma (a) See Stanhope v. Collingwood, 4 Paul, 3 Sw. 328 ; Lvddon v. Ellison, L. R. Eq. 280 ; Collingwood v. Stan- 19 Beav. 565. But see Re Rioers' hope, 4 L. R. Eng. & Ir. App. 43. Settlement, W. N. 1870, p. 259. (6) 25 Beav. 652; Matthews v. son. CH. XVII. S. 1.] DUTIES OF TRUSTEES FOE RAISING PORTIONS. 347 Adams died in 1857, and there were eight children. Henry- William the eldest attained the age of twenty-one in 1826, and died in 1854, in the lifetime of his mother. George the second son attained twenty-one in 1828, and at the death of his mother was the eldest son. The question was whether the words " eldest son " meant eldest at the time of the first portion vesting, or eldest at the time of its falling into possession ; that is, whether George was or not entitled to a share. The M. E. adopted the principle laid down by Sir T. Plumer, viz., that there cannot he two periods, one for ascertaining who compose the class to take, and the other for ascertaining who are to be excluded (a) ; and that as George was not the eldest son when he attained twenty-one, he took a vested interest, and that the interest being once vested there was nothing to devest it, except to a limited extent by the attainment of vested interests by the other younger children. 2. To the general rule that the eldest son in these cases is to Exceptions, be ascertained not at the time of distribution but at the time of vesting, there may be exceptions as in Livesey v. Livesey (b), with reference to which the M. R. observed, " a testator may say ' I do not intend any child to take a share unless at the period of distribution he shall fulfil the condition of not being an eldest son.' In Livesey v. Livesey the class was to be ascertained when the youngest child attained twenty-one, and there was a direction that the son who was or should become an eldest son should not take anything under the devise or bequest, and consequently the person who filled the character of eldest son at that period could not take. Unless the testator has said, ' I do not intend a person to take any interest who at the time of distribution fills the character of eldest son,' I think the character of eldest son is to be ascertained when the interest becomes vested " (c). (G). At what time the portions vest. 1. In every well drawn settlement whether by deed or will. General rule aa the period of vesting is clearly expressed upon the face of the to'^'^^ting. instrument itself, and the usual period is as to sons at twenty- one, and as to daughters at twenty-one or marriage, with a declaration that the portions are not to be payable until after the death of the tenants for life, unless with their consent. It often happens, however, that the -language of the instrumBnt is contradictory or inconsistent, or in some way ambiguous, and in order not to defeat the probable intention a peculiar and important (a) Maitliews v. Paul, 3 Sw. 328. (c) 25 Beav. 656. (6) 13 Sim. 33 ; 2 H. L. 419. 348 DUTIES OF TRUSTEES FOK RAISING PORTIONS. [CH. XVII. S. 1. canon of construction has been established; and it is this — Where a parent or a person standing loco parentis provides portions for children, the strong presumption is that he means to provide por- tions for all such children as may live to require it, i.e. for sons who attain twenty-one, and daughters who attain twenty-one or marry. If, therefore, the language of the instrument be uncertain but is capable of the construction, that sons at twenty-one and daughters at twenty-one or marriage shall take a vested interest, the Court will so decide it by force of the presumption. Thus in Howgrave v. Oartier (a) a fund was vested in trustees upon trust for Peter for life, subject to 200^. pin-money to Eliza- beth his intended wife, and if Elizabeth should die before Peter, " without leaving any child or children, or leaving such they should aU die under twenty-one," then to pay any sum not exceeding 3,000Z. as Elizabeth should appoint. But in case Elizabeth sur- vived Peter then in trust for Elizabeth for life, and after the decease of the survivor in ease there should happen to be any child or children of their two bodies living, who should attain twenty-one, then in trust for such child or children attaining twenty-one as Elizabeth should appoint, or in default as Peter should appoint, and in default among such children equally. Peter died leaving EKzabeth his widow and two children, John and Mary. Elizabeth appointed the fund be- tween John and Mary, and then John having attained twenty-one died in the life-time of his mother, and then Elizabeth died leaving Mary her only child. The question was whether Mary, as the only child who survived her mother, was not absolutely entitled to the whole fund, to the exclusion of John who had died in her lifetime. Sir W. Grant observed, " If the settlement clearly and unequivocally makes the right of a child to a provision depend upon its surviving both or either of the parents, a Court of Equity has no authority to control that disposition. If the settlement is incorrectly or ambiguously expressed, if it contains conflicting and contradictory clauses, so as to leave in a degree uncertain the period, at which, or the contingency, upon which, the shares are to vest, the Court leans strongly towards the construction which gives a vested interest to the child, when that child stands in need of a pro- vision, usually as to sons at the age of twenty-one, and as to daughters at that age or marriage." And after commenting upon the various clauses contained in the settlement he came to the conclusion, that John was entitled to the share appointed to him. So in Swallow v. Binns (F), Nathaniel Binns made a voluntary (a) 3 V. & B. 79. (6) 1 K. & J. 417. CH. XVII. S. 1.] DUTIES OF TRUSTEES FOR RAISING PORTIONS. settlement by ■which a trust fund was limited to himself for life, with remainder to his son George Binns for life, and after his decease in trust "for all and every of the children of the said George Binns, which might be living at the time of his decease" to be equally divided, and the shares of sons to vest at twenty-one, and of daughters at twenty-one or marriage. Had the settlement stopped there those children only who survived George would have taken, but then followed other inconsistent limitations, namely, If any child being a son died under twenty-one, or being a daughter died under twenty-one unmarried, the share of such child was to survive to the other or others ; " and in case all such of the children of the said George Binns as were sons should die under twenty- one, and all such of them as were daughters under that age with- out having been married," then the trust fund was to be held in trust for other persons. Nathaniel died in 1822 and George in 1851, having had six children, all of whom attained twenty-one but two of them died in his lifetime, and the question was whether such two were entitled to share with the four who survived George. Vice-Chancellor Wood observed, "The rule applies not only to settlements but also to the case of a will, so far as it provides for children towards whom the testator places himself in loco parentis. In this case the grandfather is providing for his children and grand- children in such a manner, as throughout to place himself, with regard to the grandchildren, in the position of one who is per- forming a father's part, and providing what are expressly stated to be portions in one part of the settlement, and what, without that expression, would, I apprehend, be regarded as portions for his several grandchildren. The canon of construction to which I have re- ferred may be thus stated : That whereas in the case of ordinary instruments an express estate thereby limited cannot be enlarged, except by necessary inference, yet, upon instruments of this description, there is an implication of law arising upon the instru- ment itself, subject of course to any expressions to the contrary, that it is the intention of any person who places himself in loco parentis to provide portions for children or grandchildren, as the case may be, at the period when those portions will be wanted, namely upon their attaining the age of twenty-one years, or (as is usually provided in the case of daughters) upon their attaining twenty-one or marriage ; and that such portions shall then vest whether the children do or do not survive their parents. It is thought to be an unnatural supposition that the circumstance of such children or grandchildren predeceasing their parents, should 349 350 DUTIES OF TEUSTEES FOR RAISING PORTIONS. [CH. XVII. S. I. Presumption overcome by the language. Where portional fund has to be created. have been contemplated as depriving them of the whole of the portion intended for their benefit. What the Court has said is this, that you do not require a necessary implication to arrive at tlie conclusion, that all children, vi^ho being sons attain twenty-one, or being daughters attain that age or marry, were intended to take, irrespectively of the question whether they survive their parents or not, and that if you find upon the face of the settlement a clause which renders it doubtful whether it was intended that all such children should take, or that those only should take who might survive their parents, the Court leans strongly in favour of the previous supposition namely, that the probable intention of a person making a settlement would be in favour of the vesting at such fixed period, independently of the question of survivorship. On the other hand the rule is not one of arbitrary construction ; the Court does not go out of its way by a forced construction to raise this implication ; it must find an implication upon the natural and plain construction of the words in the settlement." And the Vice-Chancellor applying these principles to the case before him, came to the conclusion that the two children who predeceased George their father were entitled to shares. The general principles laid down in the two foregoing examples have been approved and acted upon in numerous other cases (a). 2. But strong as the presumption is in favour of portions vesting in children at an age when they require it, yet if the language of the instrument be clear and unambiguous, that the vesting of portions in sons who attain twenty-one or in daughters who attain twenty-one or marry is to depend on some contingency, as the event of their surviving their parents, the Court cannot contradict the written instrument (&). 3. A distinction must also be made between those cases where the portional fund exists or is to be raised at all events, so that the question relates only to the distribution of the fund, and those cases where the fund itself is to be called into existence upon a contingency, so that the latter contingency leavens all the portions and makes them all contingent. (a) Emperor v. Bolfe, 1 Ves. sen. 208 ; Powis v. Bm-dett, 9 Ves. 428 ; Remnant v. Hood, 27 Beav. 74 ; Perfect V. Curzon, 5 Mad. 442 ; Torres v. Franco, 1 R. & M. 649 ; Woodcock v. Dorset, 3 B. C. C. 569 ; Hope v. Lord Clifden, 6 Ves. 499; {Bythesea v. Bythesea, 23 L. J. Ch. 1004). (J) Re Wollastoii's Settlement, 27 Beav. 642 ; Jeffery v. Jeffery, 17 Sim. 26 ; Bradley v. Powell, Rep. t. Talbot, but doubted by Lord Hardwicke, in Tunstall v. Bracken, 1 B. C. C. 124, note ; Fitzgerald v. Field, 1 Russ. 430; Bright V. Rows, 3 M. & K. 316; SMp- per V. King, 12 Beav. 29 ; Whatford V. Moore, 7 Sim. 574 ; Farrer v. Bar- leer, 9 Hare, 737 ; and see Worsley v. Granville, 2 Ves. sen. 333. CH. XVII. S. 1.] DUTIES OF TRUSTEES FOK RAISING PORTIONS. 351 Thus in Hotchkin v. Humfrey {a) a term of 500 years was created in trust that " in case the husband should leave one or more younger children that should be living at the decease of the survivor of the husband and wife," the trustees were to raise portions for " such younger children," the same to be paid to daughters at the age of eighteen, or marriage, and to sons at twenty-one ;" and should there be no such son or daughter then the term to cease. There were four children of the marriage who attained twenty-one, but two only survived both parents. Was the portional fund to be divided between the four or given to the two who survived ? Sir T. Plumer said, " If the children who died before the surviving parent are to be considered as having taken vested interests, it must follow that a vested interest was given on a contingency. Can that be ? When a fund is contingent the shares to be paid out of it must be contingent. If all the children had died before the surviving parent, the fund would not have been raisable, and therefore till such parent's death it was uncertain and contingent whether it could be raised. The intention appears to me, therefore, to have been to provide only for such children as should survive the surviving parent." 4. Where the settlement is silent as to the vesting of the portions, where vesting the Court has to fall back upon general principles, and Remnant v. ^y the°settle- Hood (h) is an important case upon this head. A testator men*, devised his estate to Samuel Thorold for life, with remainder to his first and other sons successively in tail, with remainder to his first and other daughters successively in tail, and enabled the tenant for life to charge 2,000Z. for the portions of his younger children. S. Thorold accordingly upon his marriage charged 2,000^. to be raised within three months from his decease in favour of his younger children, but gave no directions as to the time of vesting. There was issue of the marriage a son and six daughters ; the son died an infant in the father's lifetime, so that on the death of the father the eldest daughter became tenant in tail in possession. Two others of the daughters died infants in their father's lifetime, and the three remaining daughters married and attained twenty-one and two of them survived the father, but the other died in his lifetime. It was conceded by the counsel that the infants who died in the father's life would take nothing, though L. J. Knight Bruce entertained a doubt (c). But as to the one who attained (a) 2 Mad. 65 ; anrl see Swallow v. (6) 2 De G. P. & J. 396. Binns, 1 K. & J. 426 ; Fitzgerald v. (c) See lb. 403. Field, 1 Euss. 430. 252 DUTIES OF TRUSTEES FOR RAISING PORTIONS. [CH. XVII. S. 1. twenty-one and died in the father's life, it was contended that the portion as a charge upon land had by the death of the portionist before the time for raising it sunk for the benefit of the estate. It was ruled, however, to the contrary, and the deceased child who had attained twenty-one and married was held entitled to partici- pate. Lord Justice Turner who applied himself to the points raised with his usual care, observed, " There are three periods at which the portions may have been intended to vest ; the period of the birth of the children, the period at which they would require their portions, (which according to the ordinary habit in such cases as evidenced by the usual course of settlement would be at twenty- one, or as to the daughters on marriage), and the period of the death of the parents. Looking both to the language and to the purpose of this instrument, I see nothing which in any way im- ports that the portions were not intended to vest during the lives of the parents, and to adopt the period of the death as the time of vesting would be to deprive the provision of that certainty which it must, I think, fairly be taken to have been the object of the settlement to secure. It would render the interests of the children contingent upon their surviving their parents, and deprive them of the means of making any certain provisions for their families during the whole of their parents' lives. This is a result against which the Court has struggled and successfully struggled in many cases, and I think therefore that we should not be justified in adopting this period as the time of vesting, in the absence of anything on the face of the instrument indicating that it was so intended. Between the other two periods it is not as I have said necessary for us to decide, but I think it right to state that I lean to the opinion, that in this particular case the true period of vesting was at twenty-one, or as to the daughters on marriage. The consequence of holding the portions to vest at the birth would be that the share of children dying in early infancy would go to the parent, thus contravening the purpose of the settlement, by giving to the father what was intended for the children, and the Court in these cases seems to have regarded rather the purpose than the words of the settlement (a)." General rule. 5. Upon the authority of these and other cases it may be con- sidered as established, that unless there be something special in the instrument (&), the portions of the younger children, whether they {(l) The whole of the judgment well (e) See Em-l Rivers v. Earl Derby, deserves a perusal. 2 Vera. 72. CH. XVII. S. l.J DUTIES OF TRUSTEES FOE RAISING PORTIONS. 353 survive the tenant for life or not will not vest in sons unless they attain twenty-one, or in daughters unless they attain twenty-one or marry {a) ; and that the shares of sons who attain twenty-one and of daughters who attain twenty-one or marry will vest absolutely, so as not to be devested by subsequent death in the lifetime of the tenant for life (&). 6. Where portions are expressly made to vest in sons at twenty- Vesting of . . , , r J J portiona. one and m daughters at twenty-one or marriage, if any son or daughter die before that period the share sinks into the estate (c), even though the instrument direct the interest on the portion to be applied during minority towards that child's maintenance {d). 7. Several cases, however, seem to have made good the exception Where raisabie that where no time is named in the settlement for vesting, and the portions are to be raised, not out of the corpus, but out of the annual rents and profits, and the rents and profits have begun to be available for the purpose, then the portionist takes a vested in- terest though he dies in infancy («). The portion must as a whole be either vested or not vested and cannot be intermittent, and there- fore as the trust to raise the portion has commenced it must go on. (D). Of Ademption and Satisfaction. — The question who are por- tionists involves the doctrine of Ademption and Satisfaction, and we propose briefly to state the leading principles. 1. The nature of Ademption and Satisfaction may be best illustrated Ademption and by instances. A father by his will bequeaths 1,000^. to a daughter, ^^*isf'»cti°^- and after the date of the will he settles 1,000/. upon the same daughter upon the occasion of her marriage, and dies without having altered his will. Here the father owing a debt of nature to his daughter (/), had originally intended to satisfy the obligation by a bequest in his will, but before the will takes effect the marriage occurs, and he makes the like provision for her by act inter vivos. In such a case the Court presumes that the father did not mean to bestow two portions upon the daughter at the expense perhaps of his other (a) Bruen v. Bruen, 2 Vern. 439 ; (c) Jennings v. Looks, 2 P. W. 276; S. C. Pr. Ch. 195 ; Edgeirorth v. Edge- Boycot v. Cotton, \ Atk. 552. worth, Beat. 328; Worry. Warr, Pr. {d) Hubert v. Parsons, 2 Ves. sen. Ch. 213; Hinchinbroke v. Seymour, 1 261. B. C. C. 395 ; Teynkam v. Webb, 2 («) Evelyn v. Evelyn, 2 P. W. 659 ; Ves. Sen. 209 ; Davies y.Huguenin, 1 H. Cowper v. Scott, 3 P. W. 119 ; Earl of & M. 730, see 743 ; and see Evelyn v. Rivers v. Earl of Derby, 2 Vern. 72. Evelyn, 2 P W. 659, and the cases (/) See Watson v. Earl of Lincoln, there cited ; Tunstal v. Bracken, 1 Amb. 326 ; Pym v. Lockyer, 5 M. & B. C. C. 124, note; Mayhew v. Middle- Cr. 34 ; Poioel'v. Cleaver, 2 B. C. C. ditch, 1 B. C. C. 162. 516; Cooper v. Cooper, 8 I^. R. Ch. {b) Davies \. Huguenin, 1 H. & M. App. 813. 730 ; Macoubrey v. Jones, 2 K. & J. 684. A A 354 DUTIES OF TRUSTEES FOE EAISING PORTIONS. [CH. XVII. S. 1. children, but to substitute the one portion for the other. Equity therefore holds that the subsequent (a) advance is an ademption of the legacy. " Where," said Lord Eldon, " a parent or person stand- ing loco parentis gives a legacy as a portion and afterwards upon marriage or any other occasion calling for it, makes an advance in the nature of a portion to the child, that will amount to an ademp- tion of the gift by the will, and this Court wUl presume he meant to satisfy the one by the other " (b). Ademption therefore, is where the will precedes and the settlement follows. If again a father by act inter vivos settles or covenants to settle 1,000^. on the marriage of his daughter, and afterwards either by act inter vivos (c) or by wUl gives 1,000^. to the same daughter, here the Court leaning against double portions precludes the daughter (in the absence of evidence to the contrary) from taking both the marriage portion and also the subsequent gift or legacy, and puts her to her election which one of the two she wiU prefer {d). Satisfaction therefore, is where the settlement precedes and the gift or legacy follows. It might have been wise, as observed V.-C. Wood, if the rule had never been applied where the settlement is anterior to the gift or wiU, as the testator or donor might well be said to know what had been previously done (e). But the law is established otherwise, and in general terms Satisfaction may be defined to be the donation of a thing with the intention that it is to be taken either whoUy or in part, in extingrdshment of some prior (legal) claim of the donee (/). Persons loco 2. The doctrine of Ademption and Satisfaction applies only as between parents (whether father or mother) (g), or persons loco parentis on the one hand and children on the other. The doctrine does not hold as between strangers (h) or as between husband and wife (i), or as between brothers, or as between grandfather and grandchild, or as between uncle and nephew, or as between any other relatives than as above. But a brother may by his conduct (a) A gift prior to the will is no 2 R. & M. 251 ; Brum y . Bruen, 2Vern. ademption, unless it be specially eon- 439. tracted for. See Taylor \. Cartwright, (e) Dawson v. Dawson, 4 L. R. Eq. 14 L. R. Eq. 176. 51.3 ; per V.-C. Wood. (h) Trimmer v. Bayne, 7 Ves. 515. (/) Chichester v. Coventry, 2 L. R. (c) Jesson v. Jesson, 2 Vern. 255 ; Eiig. & Ir. App. 95, per Lord Romilly. Thomas v. Kemeys, 2 Vern. 348. ('i.2percur.; Chichester v. Coventry, 2 L. R. Eng. & Ir. App. 96 pei- cur. ; and see Barret v. Beckford, 1 Ves. sen . 520 ; Masters V. Masters, I P W. 423; Cooper V. Coopei; 8 L. E. Ch. App. 819. (/) Ch-avev. Lord Salisbtiry, I Bro. C. C. 425. (g) Holmes v. Holmes, 1 Bro. C. C. 555. CH. XVII. S. 1.] DUTIES OF TfiUSTEES FOE RAISING POETIoUS. 357 SO much money as when added to the powder works would make up the sum of 10,000/. The amount in money required to make up the sum of 10,000/. was in fact an ordinary legacy, and was there- fore applied in satisfaction of the marriage portion (a). 6. A legacy will not be adeemed by a subsequent advance if the intention 1 J • expressed, latter be eccpressed to be in satisfaction of some other and quite different claim, as of a legacy under the will of a former testator (6), or if the subsequent advance be for a particular purpose, as to buy furniture (c). 7. Legacies to a child are always regarded as portions unless it be Legacies and otherwise expressed (d), and so are all advances inter vivos by a "* ''^^'^^^■ parent to a child unless the instrument itself shew (as some- times happens) that the second gift was alio intuitu and not meant as a portion («). But where the subsequent advance is of less amount than the previous legacy, it was for some time doubtful what would be the effect — whether the advance would adeem the whole legacy (/), or whether the doctrine of ademption would be excluded altogether, or whether it would be an ademption -pro tanto or to the extent of the advance. It has now been settled that under such circumstances the subsequent advance will be an ademption pro tanto, so that the child can claim only the balance of the legacy {g). 8. A share of a testator's residuary estate is regarded as a Residue, legacy to the amount of the share, and therefore if a testator be- queaths his residuary estate amongst his children and afterwards makes an advance in favour of a child, such advance, if it equal or exceed the amount of the share, will be an ademption of the whole share, and, if it be of less amount, will be an ademption of that child's share of the residue ^?'o tanto (h). So if a parent make a provision for a child in his lifetime and afterwards bequeaths a residue to the same child, the amount of the residue will be aii absolute or partial satisfaction to the amount of the residue {i). 9. It has been argued that where a testator gives a legacy to a child Codieii. (a) Bengmighv. Walker, 15Ves. 507. Piatt v. Piatt, 3 Sim. 512. (6) Baugh v. Bsed. 3 B. C. C. 192. [g) Pym v. Lockyer, 5 M. & Cr. (c) Pobinsony. Whitley,dYes. 577. 29; Kirk v. Eddowes, 3 Hare, 509; (d) Ex parte Pye, 18 Ves. \b\,per Ex parte Pye, 18 Ves. 151, per Lord Lord Eldon ; Shudal v. Jekyll, 2 Atk. Eldon ; Montefiore v. Guedalla, 1 De 518; per Lord Hardwicke; Pym v. G. F. & J. 100, ^er Campbell C. Lochyer, 5 M. & Cr. 35 ; Ellison v. (Ji) Dawson v. Daicson, 4 L. K. Cookson, 1 Ves. jun. 107, per Lord Eq. 504 ; Montefiore v. Guedalla, 1 Thurlow. De GJ-. F. & J. 93 ; Stevenson v. Masson, (e) Baugh v. Reed, 3 B. C. C. 192 ; 17 L. R. Eq. 78 ; and see Smith v. Monck V. Monck, 1 B. & B. 298. Strong, 4 B. C. C. 493 ; Freemantle v. (/) Hartop V. Whitmore, 1 P. W. Bankes, 5 Ves. 79. 681 ; Ex parte Pye, 18 Ves. 151 ; (i) Thynne v. Qlennall. 2 H. L. C. DUTIES OF TRUSTEES FOE RAISING PORTIONS. [CH. XVII. S. 1. Slight difiereiioe.=!. and then makes an advance, and then by a codicil republishes the •will, the original legacy shall be restored. But the Court has held the true construction of the codicil to be that the will is to have the effect which it would have had if the codicil had not been made except as altered by the codicil, and that as the double provision would not have taken place had the codicil not been made, it wUl not be set up by the codicil (a). 10. As a child's portion is commonly settled upon the chUd for life with remainder to the issue, with a limitation in the case of a daughter to her husband for life, the Court regards the limitations to the issue, and in case of a daughter the limitation of the life estate to the husband as parts of the provision for the child, so that not only the Ufe estate of the child, but also the interests of the children and husband are brought into the account as parts of the advance to the child (6). If a father covenant to settle on his daughter and her children and then make a bequest to her children, this is a satisfaction of the covenant as regards the children of the daughter (c). But if a father upon the marriage of his son covenant to settle a fund upon him and his wife and children, and in consideration thereof the father of the wife makes a settlement at the same time, and then the father of the son bequeath a share of his estate to the son, the legacy to the son though a satisfaction of the son's interest, under the father's settlement, is not a satisfaction of the interest of the son's children {d). 11. The Court from its leaning against double portions will not allow slight differences in the limitations to rebut the presump- tion, and by slight differences are meant such as, in the opinion of the judge, leave the two provisions substantially of the same nature (e). The cases upon the subject have generally arisen with reference to ademption (/), but the rule applies also to 131 ; Montefiore v. Guedalla, 1 De G. P. & J. 103,iJej- L. J. Turner; Rich- man V. Morgan, 2 B. C. C. 394. (ffl) Booker v. Allen, 2 R. & M. 270, see 300 ; Lloyd v. Harvey, lb. 310 ; Monck V. Monch, 1 B. & B. 298 ; and see Roome v. Roome, 3 Atk. 181. (6) Kirk v. Eddowes, 3 Hare, 509. Read the important observations of V.-C. p. 521 ; Piatt v. Piatt, 3 Sim. 503 ; and see Campbell v. Camjibell, 1 L. K. Eq. 383. (c) Campbell v. Campbell, 1 L. R. Eq. 383 ; Piatt v. Piatt, 3 Sim. 503. {d) McCarogher v. WMeldon, 3 L. R. Eq. 236. (c) Weall V. Rice, 2 R. & M. 268, per Sir J. Leach. (/) Earl of Durham y . Wharton, B Oh & Fin. 146; 3 M. & K. 472; 5 Sim. 297 ; Twisden v. TvAsden, 9 Ves. 427, per Lord Eldon; Trimmer v. Bayne, 7 Ves. 515. per Lord Eldon ; cited with approbation, Powys v. Mansfield, 6 Sim. 561 ; Powys v. Mansfield, 3 M. & Cr. SI 4., per Lord Cottenham ; Weall v. Rice, 2 R. & M. 251; Plait v. Piatt, 3 Sim. 503; Monck V. Lord Monck, 1 B. & B. 304, per cur. ; Lloyd v. Harvey, 2 R. & M. 310 ; Sheffield v. Coventry, 2 R. & M. 317 ; Hartopp v. Hartopp, 17 Ves. 184 ; Stevenson v. Masson, 17 L. R. Eq. 78. CH. XVII. S. l.J DUTIES OF TRUSTEES FOR RAISING PORTIONS. 359 satisfaction (a). In the case of a debt (as distinct from a por- tion) said Lord Cottenham, small circumstances of difference between the debt and the legacy are held to negative the pre- sumption of satisfaction, but in the case of portions small circum- stances are disregarded. Thus it is, that a smaller legacy is not held to be in satisfaction of part of a larger debt, but it may be satisfaction pro tanto of a portion (b). However, the differ- ences in the limitations may be so great as to negative the pre- sumption of satisfaction in case even of portions (c). If a father covenant on the marriage of his daughter to pay a sum by way of portion, and then by his will bequeaths to her a share of his residuary estate, but by the same will gives directions for payment of his debts, the presumption of satisfaction is negatived by the direction for payment of debts, and then the portion is raised as a debt, while the daughter is also allowed to claim a share of the residue (d). But if a testator direct payment of his debts and gives a share of his residuary estate to a daughter and then makes an advance to her upon her marriage, the presumption of ademption is not nega- tived, by the direction for payment of debts in the previous will (e). Where a father is a debtor, not morally but actually to his child, as for money advanced by the child or on any other account, a bequest by the father to the child is no satisfaction, where it would not be a satisfaction as between the- father and a stranger (/), but what would be a satisfaction as between strangers, wUl also be a satisfaction as between father and child (g) 12. A contingent legacy bequeathed by a father wUl not be a satisfac- Contingent tion of a vested interest in the child under a previous settlement (7i). legacy 13. A stranger may indirectly derive advantage from the doctrine of strangers may be ademption, as where a testator gives a legacy to the child, and the benefitted, residue to strangers, and then in his lifetime advances the child beyond the amount of the legacy. Here the ademption of the legacy swells the quantum of the residue for the benefit of the residuary legatees. (a) Clarh v. Seioell, 3 Atk. %%,per 336; 2 H. & M. 149; Lethhridge v. Lord Hardvvioke ; Thynne v. Olengall, Thurlow, 15 Beav. 334 ; Paget v. Gren- 2 H. L. C. 131 ; Campbells. Campbell, fell, 6 L. E. Eq. 7 ; AlUyn v. Alleyn, 2 1 L. R. Eq. 383 ; Sparhes v. Cator, Ves. sen. 37. 3 Ves. 530; and see Hartopp v. Har- [e) Dawson y. Daivson, 4 L. R. Eq. topp, 17 Ves. 191. 504. (J) Thynne v. Glengall, 2 H. L. C. (/) Tolson v. Collins, 4 Ves. 483. 131. [g] Edmunds v. Lov^, 3 K. & J. (c) Coventry v. Chichester, 2 De G. 318. J. & S. 336 ; 2 L. R. Eng. & Ir. App. (/;) Bellasis v. Uthwatt, 1 Atk. 42(5 ; 71 ; 2 H. & M. 149. Hanbury v. Hanhury, 2 B. C. C. 352 ; {d) Chichester v. Coventry, 2 L. R. Chichester v. Coventry, 2 L. R. Eng. Eng. & Ir. App. 71 ; 2 De G. J. & S. & Ir. App. 96, per Lord Romilly. 360 Ademption and satisfaction dis- tinguished. DUTIES OF TRUSTEES FOE HAISING POKTIONS. [CH. XVII. S. 2. This arises not from the application of the doctrine, but in spite of it, and therefore, where a testator bequeaths his residue equally be- tween his wife or a stranger, and his child, and then advances the child in his lifetime, here the advance is not brought into account so as to augment the residue for the benefit of the wife or stranger, but the wife or stranger can claim only the moiety of the actual residue (a). 14. Ademption and satisfaction are often confounded, but one broad distinction between them must not be lost sight of Where the vrill precedes and the settlement follows, the settlement is an actual extinguishment of the claim under the wiU. But where the settle- ment precedes and the will or gift foUows, here as the settlement created a legal obligation or vested a legal right by act inter vivos, the subsequent testamentary disposition cannot annul it, but all that equity can do is to put the parties entitled under the legal obligation or legal gift, to their election. Thus a testator bequeaths a lOOOZ. to his daughter, and afterwards on the daughter's marriage settles 1000/. upon her. Here the will is considered as revoked, and the claims under the will are actually extinguished. If on the other hand, a father covenants on the daughter's marriage to settle 1000/. upon her and afterwards by wiU bequeaths 1000/. to the daughter, here the legal obligation under the settlement remains, and the daughter if she chooses may insist on her claims under the settlement. But if she does so, the Court will not also allow her to claim under the wiU, or in other words the Court puts her to her election (6). SECTION II. WHAT AMOUNT IS EAISABLB UNDER THE HEAD OF PORTIONS. This question arises as to capital and interest, and maintenance money, and costs. Capital. 1. As to the amount of capital to be raised, the instrument itself generally prescribes the sum with sufficient exactness, according to the common form now adopted in settlements, the amount gradua- ting according to the number of children, i. e. a certain sum if there (a) Meinertzhagen v. Walters, 1 L, R. Ch. App. 670. (6) Chichester v. Coventry, 2 L. R. Eng. & Ir, App. 90,/)e)- Lord Romilly ; Thomas v. Kemeys, 2 Vern. 348; Copley V. Copley, 1 P. W. 147 ; Byde V. Byde, 2 Eden, 19. CH. XVII. S. 2.] DUTIES OF TRUSTEES FOK RAISING PORTIONS. 361 be only one younger child who takes a vested interest, an increased sum if there -be two such children, and a larger sum stiU if there be three or more such children. 2. Occasionally the settlement has been so ambiguously expressed Ambiguity, with reference to the events contemplated, that recourse to the Court has become necessary. Thus in Hamming v. Griffi.th (a) the trust was that if there should be one younger child the trustee should raise 8,000/., and if two younger children 12,000/., and if three or more younger children 15,000/., the said portions to be paid as the husband and wife or the survivor should appoint, and in default of appointment the portions to vest in sons at twenty-one and in daughters at twenty-one or marriage, and the settlement contained powers of maintenance and advancement out of the portions after the death of the parents, or in their life time with their consent. There were three younger children, but two of them died in infancy ; and the question was whether the one who attained twenty- one was entitled to the 8,000/. or the 15,000/. Sir J. Stuart said, "It seems clear enough that if there should be three or more younger children, during the infancy of the three children the trusts for raising the 15,000/. were to have an operation and might be resorted to for the purposes of advancement and main- tenance. If so, how can anything which has happened since the three younger children were born, reduce the trust for raising 15,000/. to a trust for raising 8,000/. only' which was to be raised expressly, and in terms, in the event of there being only one younger child ? " and the surviving portionist was declared entitled to the 15,000/. 3. The right to interest and the rate of it, and the time from Interest, which it is to be calculated, should all be specified in the settle- ment, but in the absence of any express direction, a portion like any other sum of money charged on land, wUl carry interest with it by implication from the time when the capital ought to have been raised (6), and this interest will in England be at 4 per cent, (c) ; and in Ireland at 5 per cent (d). But if the settle- ment while it is sUent as to the interest on the portions, expressly and carefully and with all necessary circumstantiality provides for the interest on all the other charges, the presumption arises (a) 2 Giff. 403. 199; affirmed 15 L. J. Ch. N. S. 63. (b) Evelyn v. Evelyn, 2 P. W. 669, (d) Purcell v. Purcell, 1 Conn. & L. per cur. ; Hall v. Carter, 2 Atk. 358, 371 ; and see Young v. Waterparh, 13 per cur. ; Earl Pomfret v. Lord Sim. 199 ; Denny v. Denny, 14 L. T. Windsor, 2 Ves. Sen. 4S,l,per cur. 854, (N. S.) (c) Young v. Waterpark, 13 Sim. 362 DUTIES OF TRUSTEES FOE RAISING PORTIONS. [CH. XVII. S. 2. Out of rents. Interest given, though portion not Tested. Maintenance. Kate of interest. that interest on the portions was intentionally excluded, and the Court considers'the general rule as inapplicable (a) 4. In the rare case where the portions are to be raised not by sale or mortgage out of the corpus of the estate, but out of the annual rents and profits, the Court looking to the hardship of allowing the interest to accumulate for years against the income, raises the capital only and gives no interest (5). 5. Where there is the relation of father and child, or of a person standing loco parentis and a child, the natural duty and therefore the presumed intention of providing for the child is so strong as to have led to the establishment of peculiar principles. Some of these have already passed under review, and another is this : A legacy given to a stranger and payable at the age of twenty-one carries no interest in the meantime, but a legacy to a child being an infant (c) and payable at twenty-one, if maintenance be not otherwise provided for the child {d), carries interest with it (e) from the death of the testator, and not as in ordinary legacies from the expiration of one year from the testator's death (/). So a portion charged on land in favour of a child, whether made payable at a particular age or without any direction as to payment, will carry interest with it from the death of the testator. But as the rate of interest is discretionary, the Court has not considered itself bound by the general rule of 4 per cent., but has regulated itseK by the circumstances of each particular case. The application of these principles will be best understood by the following instances. In Warr v. Warr {g) a father charged the estate with portions for younger children " to be paid at such time as the trustees should appoint for their better maintenance and preferment." There were three younger children, a son and two daughters. The son was apprenticed to a sea captain and a sum paid by the trustees for his outfit ; the two daughters attained twenty-one and received their portions. The son died under age before the trustee had named any day for payment of his portion. It was ruled that the son's portion was not to be raised as he had not lived to want it ; but it was " agreed that all the children were to be maintained out of («) Clayton v. Earl of Glengall, 1 Dr. & W. 1 ; S. C. 1 Conn. & L. 311. (6) Ivy' V. Gilbert, 2 F. W. 1.3; Evelyn v. Evelyn, 2 P. W. 659. But see Ravmliill v. Dansey, 2 P. W. 179. (o) Raven v. Waite, 1 Sw. 553. (d) Mitchell v. Bower, 3 Ves. 287 ; Long V. Long, ib. 286, note ; Wynch v. Wynch, 1 Cox. 433. (e) See CricJeett v. Dolby, 3 Ves. 16; Raven v. Waite, 1 Sw. 557 ; Beck ford V. Tobin, 1 Ves. sen. 308; Hill v. Hill, 3 V. & B. 183 ; Tyrrell v. Tyrrell, 4 Ves. 1 ; Chambers v. Goldwin, 11 Ves. 1 ; Lowndes v. Lowndes, 15 Ves. 301. (/) Gary v. Aslmv, 1 Cox, 241; Mole V. Mole, 1 Dick. 310. {g) Pr. Ch. 213. CH. XVII. S. 2.] DUTIES OF TEUSTEES FOE EAISING POETIONS. 363 the trust estate, they having no maintenance in the mean time, and what had been employed for putting out the younger son was to come out of the trust estate." In Staniforth v. Staniforili (a) an estate was settled on the father and mother successively for life, with remainder in default of issue male to trustees for a term of five hundred years in trust to raise 1,000?. for the daughters' portions, but no time was appointed for payment. The father died without issue male, leaving a daughter who filed her bill, living the mother, to have the 1,000?. raised. The M. E. held : 1. That by the failure of issue male the term had arisen, though not to take effect in possession until the death of the mother. 2. That the portion vested in the daughter in the life-time of the mother (the daughter it is presumed having attained twenty- one) ; and 3. That no time being appointed for the payment of any portion, nor any maintenance in the meantime, she was entitled to a reasonable maintenance not exceeding the interest of the portion from the death of the father, or at the least from such time as the portion might have been raised by sale. Beo2 V. Beal (&) was this : An estate was settled on the father and mother successively for life with remainder to the father's brother in tail, &c. and a power to charge portions was limited to the father. He appointed the sum of 2,000/. for his two daughters, payable at eighteen or marriage, but without saying after the death of his wife, and then died. The two daughters who were under eighteen filed their bill in the lifetime of the mother, to have interest for their portions until raisable. Lord Harcourt decreed that they should have interest at 3 per cent, until they were twelve years old, and then 4 per cent, until the portions were raisable. Being dissatisfied with the rate of interest they had the case reheard before Lord Cowper, who said he thought the former decree very tender in the provision thereby made, and that it was rather a recommendation to the mother to make them that allowance than a decree to charge her jointure therewith, but that since they were not satisfied, he must now give them no more than what in strict justice they could demand, and that since the portions were not payable till eighteen or marriage he could not charge the jointress with interest thereof in the meantime, but that as the reason for postponing the pay- ment till eighteen was in favour of the jointress, she ought to inain- tain them out of the profits of her jointure lands. In Harveg v. Harvey (c) as a testator charged all his real and per- (a) 2 Vera. 460 (c) 2 P. W. 21. (6) Pr. Ch. 405. 364 DUTIES OF TRUSTEES FOE RAISING PORTIONS. [CH. XVII. S. 2. General rule. Costs. sonal estate with 1,000?. a-piece to all his younger children payable at twenty-one, but gave no directions as to maintenance in the mean- time. The younger children during their infancy filed their bill to be allowed interest or maintenance. The M. R. said that in this case the Court would do what in common presumption a father if living would, nay, ought to have done, which was to provide necessaries for his children, but a Court of Equity would make hard shifts for the provision of children, as where the younger children were left destitute and the eldest an infant, the Court would make such a liberal allowance to the guardian of the eldest, as that he might thereout be enabled to maintain all the children. And for the same reason the Court would likewise take a latitude in this case, and that since interest was pretty much in the breast of the Court, though the will was silent with regard to that, yet it should be presumed that the father who gave these legacies in- tended they should carry interest if the estate woiild bear it, for every one must suppose it to have been the intention of the father that his children should not want bread during their infancy, but that where the estate appeared to be small, the Court in whose discretion it always lay to determine the quantum of interest, had ordered the lower interest. 6. It will be collected from the preceding cases that portions pro- vided for children have this peculiar quality, that whether made pay- able at a certain age or not, they are so far contingent as not to be raisable, but to sink into the land, where the children do not live to want their portions, that is, where the children being sons do not attain twenty-one, or being daughters do not attain that age or marry ; but that on the other hand portions are so far considered vested as to carry with them such a rate of interest or such allowance as the Court may deem necessary for their reasonable maintenance. 7. As regards the costs of raising portions the general rule as to charges applies, that is, the costs must be thrown on the estate, and the portions bear no part of them (a), and of course under the head of costs will be included all charges and expenses properly in- curred. (o) Michell v. Michell, 4 Beav. 549 ; Trafford v. Ashtm, 1 P. W. 415. Foley. OH. XVII. S. 3.] DUTIES OF TKUSTEES FOB RAISING PORTIONS. 365 SECTION III. AT WHAT PERIOD THE POETIONB ABE EAISABLB. 1. We have next to inquire at 'wha.t period the portions are to be Portions out of raised, and upon this subject the great contest has been whether '^^■^^''^i°"^- they shall or not be raised while the security created for the purpose is still reversionary. The cases are unusually numerous and extremely conflicting, and the only result to be obtained is that the question must be decided by the "penning of the trust," or in other words, that if the instrument be unequivocal in itself as to the actual intention of the parties, the Court must carry out the intention whatever may be the consequential inconvenience. A sale or mortgage must necessarily be made at a disadvantage when the security is reversionary, but if the meaning be clear it must be done. We cannot better explain the principles by which the Court is now regulated, than by a statement of the two leading authorities. 2. In Codrington v. Foley (a) a testator devised an estate to trus- Coriringtou v. tees for ninety-nine years from the testator's decease, remainder to Lord Foley for life, remainder to other trustees for 1,000 years, to commence from the death of Lord Foley, for raising 30,000Z. for portions of younger children, remainder to the first and other sons of Lord Foley in tail. The trusts of the term of ninety-nine years were for applying the rents with the proceeds of the timber in discharge of certain incumbrances. Lord Foley died in 1793, leaving an only son, and a daughter who became Mrs. Codrington. Mr. and Mrs. Codrington filed their bill to have the 30,000/. raised, and it was objected that the trusts of the term of ninety-nine years were still in operation and unsatisfied, and that the 1,000 years term was consequently reversionary both at law and in equity, and while so reversionary it could not be sold or mortgaged, to the great injury of the tenant in tail. Lord Eldon came to the conclusion that the 30,000/. must be raised, though the term for raising it was reversionary, and after reviewing the opinions of Lord Cowper, Lord Macclesfield, Lord Hardwicke, Lord Talbot, LordThurlow, and Lord Alvanley upon the subject (6), he proceeded, " Upon this general state of the doctrine of the Court, it appears to me that the proper rule is what Lord Talbot states — that the raising (a) 6 Ves. 364. (6) The whole judgment well de- serves a perusal. 366 DUTIES OF TRUSTEES FOE EAISING PORTIONS. [CH. XVII. S. 3. or not raising must depend upon the particular penning of the trust, and the intention of the instrument. I do not think the Court ought to be eager to lay hold of circumstances. The Court ought to hold an equal mind whilst construing the instrument, and I cannot agree with what is stated in Stanley v. Stanley (a) that very small grounds are sufficient. If they are sufficient to denote the intention, they are not small grounds. If they are not sufficient to denote the intention, the Court does not act according to its duty by treating them as sufficient, thereby disappointing the true intention of the instrument. The rule upon the whole depends upon this, whether it was the intention attending to the whole of it, that the portion should or should not be raised in this manner. If there be nothing more than a limitation to the parent for life, with a [reversionary] term to raise portions at the age of twenty-one or marriage, and the interests are vested and the contingencies have happened at which the portions are to be paid, the interest is payable and the portions mtist he raised, in the only manner in which they can be raised, that is, by mortgage or sale of the reversionary term" (6). 3. In Godrington v. Foley the term for raising the portions was reversionary upon another term, the trusts of which were unsatisfied : but in the case of Smyth v. Foley (c) it was reversionary upon the life estate of the father, and yet the same result followed. Smyth V. Foley. Thus an estate was limited by settlement upon marriage to E. Chambers for life, remainder to M. E. his wife for life in bar of dower, remainder to trustees for 500 years, remaiader to the first and other sons successively in tail, and the trusts of the term were declared to be by sale or mortgage or other means to raise 4,000^. for the younger children, the portions " to be paid " at their respec- tive ages of twenty-one years, and of daughters at those ages or marriage ; and upon further trust " until the same portions should become payable as aforesaid, to raise a competent yearly sum out of the rents and profits," for maintenance and education, with a power " after the decease of Eichard Chambers, or in his lifetime with his consent," to raise moneys for advancement. There were six children of the marriage, three sons and three daughters, all of whom attained twenty-one. After the death of M. E. Chambers the wife, but in the lifetime of E. Chambers, the younger children filed their bill to have the 4,000^. raised. Baron Alderson in giving judgment laid down the following rules : That First, where a term is limited in remainder to commence in possession after the death (a) 1 Atk. 549. (c) 3 Y. & C. Ex. 142. (i) 6 Yes. 379. CH. XVII. S. 3.] DUTIES OF TRUSTEES FOR RAISING PORTIONS. 367 of the father^et if the trust is to raise a portion payable at a fixed period, the child shall not wait for the death of the father before the portion is raised, but at the fixed period may compel a sale of the term (a). Secondly. Where the period is not fixed by the original settlement, but depends on a contingency, the rule applies as soon as the contingency happens (6). Thu'dly. Where not only the period but the class of children, in favour of whom the por- tions are to be raised, depends on a contingency (as when it is limited to take effect in case the father dies without issue male by his wife), there also on the contingency happening by the death of the wife without issue male, the portions are raisable imme- diately, and the term is saleable in the lifetime of the father (c). The Judge then expressed his entire concurrence in the principles laid down by Lord Eldon (viz. that the intention must be collected from the whole settlement taken together) and finding an express direction that the portions were to be paid at twenty-one or mar- riage, and that the settlement contained nothing at variance with that construction, he decreed the portions to be raised by sale or mortgage of the reversionary term. 4. Such are the general rules by which the Courts now profess to General rule and be governed. We must however, add the caution that when the ^^°^P*^°"^- grounds upon wliich the Court acted in any case are not sufficient to warrant the decision upon a fair construction of the instrument itself, and independently of any arguments based on the incon- venience of burdening the estate, such case cannot at the present day be relied upon as an authority. And particular and special cases have occurred in which the Court has refused to raise the portions out of a reversionary term. Thus in Gorhett v. Maidwell (d) the estate was settled upon marriage on Thomas for life, remainder to trustees for 500 years, remainder to the heirs male of the body of Thomas by his intended wife, " and if he died without issue male by his intended wife, and there should be one or more daughters which should be unmarried or unprovided for at the time of his death," then to raise portions (a) Sandys v. Sandys, 1 P. W. 707 ; (c) Hebhlethwaite v. Cartwright, For. Hellier v. Jones, 1 Eq. Ca. Ab. 337 ; 30 ; Oreaves v. Mattison, 1 Eq. Ca. Bacon v. Clerk, Pr. Ch. 500 ; Stanley Ab. 336 ; Ravenhill v. Dansey, 2 P. V. Stanley, 1 Atk. 549 ; Conway v. W. 180 ; Smith v. Evans, Amb. 633 ; Conway, 3 B. C. C. 267 ; Brome v. Staniforth v. Staniforth, 2 Vern. 460. Berkley, 2 P. W. 486, j>er cur. ; Cotton In other cases the contingency did not V. Cotton, 3 Y. & C. Ex. 149, note. occur. See Worsley v. Granville, 2 (5) As -where the portions are to Ves. sen. 331 ; Hall v. Hewer, Amb. vest at such times as the father shall 203 ; Corbett v. Maidwell, 1 Salk. 159. appoint and he has not yet appointed. {d) 1 Salk. 159. 368 DUTIES OF TRUSTEES FOE RAISING PORTIONS. [CH. XVII. S. 3. for the daughter or daughters payable at eighteen or i^arriage with maintenance in the meantime. The wife died without issue male but leaving a daughter who married, and she and her husband filed their bill to have the portions raised during the father's life. The Court refused the relief asked on the ground that the portion was contingent on the daughter being unmarried and unprovided for at the father's death a contingency which had not yet happened. In Butler v. Duncomh (a) the marriage settlement limited the estate to George for life, remainder to Mary for life, remainder to the first and other sons in tail male, remainder to trustees for 500 years upon trust, that the trustees should "from and after the commencement of the term " raise portions for the younger children payable at twenty-one or marriage ; remainder to George in fee. George died, leaving a daughter the oidy issue, who married, and then she and her husband filed their bUl to have the portion raised in the lifetime of the mother. But the Court de- clined to make any such order, as the trust was to raise the por- tion from and after the commencement of the term, which meant the commencement in possession, and that this implied a negative, viz. that it was not to be raised before. In Brome v. BerkUy (h) the marriage settlement was to George for life, remainder to the wife for life for her jointure, remainder to the first and other sons in tail, remainder to trustees and their heirs to raise portions for daughters, payable at twenty-one or marriage with maintenance in the meantime, " the first payment of the maintenance money to be made at such half-yearly feast as should next happen after the estate limited to the trustees should take effect in possession." The husband died leaving no issue but a daughter who attained twenty-one, and filed her bill in the mother's lifetime, to have the portion raised. Lord King dis- missed the bUl on the ground that the maintenance was not to be raised until the estate of the trustees came into possession, and " it was absurd to say that the portion should be raised first, and the maintenance money paid afterwards." In Stevens v. Dethick (c) the estate was limited to Dethick for life, remainder to his wife for life, remainder to his first and other sons in tail, remainder to trustees for 500 years to raise portions for daughters payable at twenty-one or marriage, with a direction that the daugh- ters should have maintenance out of the premises comprised in the (a) 1 P. W. 448; and see Church- (c) 3 Atk. 39; and see Reynolds Y. man v. Harvey, Amb. 335. Meyrich, 1 Ed. 48. But see Cotton v. (6) 2 P. W. 484. But see Cotton v. Cotton, 3 Y. & C. Ex. 149, note. Cotton, 3 Y. & C. Ex. 149, note. CH. XVII. S. 3.] DUTIES OF TRUSTEES FOE KAISING PORTIONS. 369 term " and that the residue of the rents, issues and profits above such yearly maintenance should in the meantime, tUl the portions be- came payable, be received by such persons as should be entitled to the reversion expectant upon the determination of the said term." Lord Hardwicke considered the latter clause to show an intention, that the maintenance money and therefore also the portion itself was not to be raised until the term feU into possession. He therefore dismissed the bill filed by the only daughter after the death of her mother, but in the lifetime of her father. In Massey v. Zloyd (a) the estate was limited to trustees for 999 years upon trust for the wife for her life, and after her decease upon trust to pay an annuity to the husband, and to apply the residue of the rents during the husband's life, as the wife should appoint, (a power which was executed) and on the death of the survivor of the husband and wife to raise 15,000Z. for younger children's por- tions, and subject as above the estate was settled on the first and other sons in tail. The wife died, and it was held that the portions were not raisable during the life of the husband. The case was a very special one, but the argument that chiefly prevailed was based upou the fact that all the rents, issues, and profits during the life- time of the husband had been expressly disposed of otherwise. 5. Hitherto we have adverted only to the question whether por- tions shall be raised, while the term charged with them is stiU re- versionary. But tliere are also other circumstances affecting the portionists personally, which have a material bearing upon the inquiry at what time the portions are to be raised. 6. If a specific sum be given to A., payable at her age of twenty- Time of raising one, or day of marriage, the money cannot be raised until the special'caBes. interest has become vested ; for should the fund on which the money raised is invested prove deficient, the portionist might stOl have recourse to the estate (&). 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 that the trustees were not authorised, when one child 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 (e). But from the manifest convenience of raising the portions at once, it seems the Court will lean to that construction where anything appears upon the instrument to (a) 10 H. L. 248 ; 11 Ir. Eq. Eep. (6) Dickenson v. Dickenson, 3 B. C. 429; 12 Ir. Eq. Re. 298. C. 19. (c) WynUr v. Bokl, 1 3. & S. 507. B B 370 DUTIES OF TRUSTEES FOE RAISING PORTIONS. [CH. XVII. S. 4. warrant such a course. Thus the trustees of a marriage settle- ment were directed, after the death of the husband, to levy and raise by mortgage, sale, or other disposition of the estate, if there should be more than three chUdren, the sum of 10,000^. for their portions, the shares of the sons to be vested m, 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 he made until soms one of the portions should become pay- able. Four of the children had attained twenty-one and three were under age : and the Vice-ChanceUor said, " In this settle- ment there is a clause that no mortgage is to be made untU some one of the portions shall become payable. The whole 10,000^. must therefore be raised at once. It is objected that some of the shares may become diminished in amount : the answer to that is, that the Court considers the investment in the 3 percent. Con- sols as equivalent to payment. If there is any rise in the funds the children under age will have the benefit of it " (a). SECTION IV. IN WHAT MODE THE POETIOKS AEB TO BE RAISED. Where an estate is settled subject to portions, the presumed in- tention, is that the portions should impede as little as possible the devolution of the property in the main channel of the limitations. Moral duty requires that some support should be secured for the younger children, but this should be done at as little sacrifice as circumstances will allow to the family consequence as repre- sented by the eldest son. Modes cif raising 1. In raising portions, therefore, it is p?"im£^ /acie Undesirable to por ions. ^^^^ ^^^ p^^j. ^£ ^j^g estate. So recourse should rather be had to levying the required amount by a side wind, as by the produce of mines or a fall of timber ; or, if this cannot be done, then by a mort- gage rather than by an absolute disposition, for though a mortgage is usually accompanied with a power of sale, so that eventually the property may pass into the hands of a stranger, yet until actual sale the owner under the settlement has the opportunity of paying off the charge from his private means. In every case, however, (a) Gillibrand v. Goold, 5 Sim. 149. CH. XVII. S. 4.] DUTIES OF TRUSTEES FOR KAISING PORTIONS. 371 the language of the instrument must govern. If portions be simply charged on an estate, either expressly or by implication, (as where a charge is implied from a power limited to the portionist of distraining for non-payment {a) ), the money may be raised by mortgage or sale as in the case of any other charge. 2. A trust to raise the portions by mortgage will not authorise a ^Vhere a sale is sale, but if the trust be to levy the amount by mortgage or otherwise, a power of sale is implied (&). If the trust be to raise the charge by and out of the rents or by such other ways and means ex- cept a sale as the trustees may think proper, not only a sale is prohibited but a mortgage also which may lead to an absolute dis- position, as it enables the mortgagee by foreclosure to get possession of the estate (c). 3. If the portions be raisable by and out of the rents and profits 0"' «* income or by mortgage, here the words are ambiguous, and are capable of the construction that the trustees have an option of levying the portions either out of the income or Out of the corpus, and so of throwing the onus at their discretion either upon the tenant for life or upon the remainderman {d). But the Court would lean strongly against such a construction (e). In some cases the mean- ing is that the annual rents should be primarily charged, and that the deficit only should be raised out of the corpus. Thus where the trustees were to hold an estate during the minority of the devisee, and to raise portions ly and out of the rents and profits or hy sale or mortgage, and on the devisee attaining the age of twenty-one to pay the rents to him after payment of the portions, the Court said that as the devisee on attaining twenty-one was to take such accumulated rents and profits only, as should remain after satisfying the portions, the testator intended that the rents and profits should be first applied, and that the balance only could be raised by sale or mortgage (/). 4. A more common case is where the portions are directed to be Out of rents, raised out of the rents and profits simply, and nothing more is said. Here if a definite time be fixed for payment of the portions, the ordinary and primd facie meaning of rents and profits is taken to be inconsistent with the direction for payment at a time cer- tain, and recourse is therefore had to the corpus by sale or mort- (ffl) Meynelv. Massey, 2 Vern. 1. («) See the cases refeiTed to, ante, lb) Tasker\. Small, 6 Sim. 625. p. 322. (c) Bennett v. Wyndham, 23 Beav. (/) Warier v. HuUMnson, ] Sk & S. 621 . ' 276 ; and see Okeden v. Okeden, 1 Atk. {d) See Hall v. Carter, 2 Atk. 354. 550. B B 2 372 DUTIES OF TRUSTEES FOE KA.ISING PORTIONS. [CH. XVII. S. 4. gage. But even if a definite time of payment be not an ingredient in the case, yet from the very nature of portions, as rents and profits without stint represent the whole estate, the Court assumes the jurisdiction of ordering a sale or mortgage («) ; and where there is no suit pending the trustees of an estate subject to such a charge may sell or mortgage, if they can find a purchaser or mortgagee, without the intervention of the Court (6). Out of annual 5. If, however, the clear intention be that annual rents and profits ren s on y. ^^^ ^^^ meant, the Court cannot break in upon the corpus ; and such is the case where the portions are directed to be raised expressly out of the annual rents (c) : or where it is evident from the whole context that by rents and profits were intended the annual rents (d). Out of rents or 6. In Bennett v. Wyndham.{e) where the trust was to raise the charge otherwise, except ^^^ ^f ^j^g rents and profits, or by such other ways and means except a sale as the trustees should think proper, the Court on the one hand collected an intention that annual rents and profits were meant, and on the other hand that the tenants for life were not to be deprived of all usufructuary enjoyment, and the Court adopted a middle course by holding that part of the rents should be impounded and part be handed over to the tenants for life, and referred it to chambers to inquire what proportion of the rents ought to be impounded, and what to be paid to the tenant for life. Mines and 7. In Offley V. Offley (/) a term was created for raising 10,000^. for daughter's portion, but the term was so short that the ordinary profits of the land would not raise above half the sum. There was an open coal mine in the land which the Court ordered to be wrought, with powers to the trustees to make soughs and drains as need should require, and Lord Commissioner Hutchins said that in such a case where the usual profits of the land would not raise the (a) Warhurton v. Warhurton, 2 Gaunt, 1 Coll. 577 ; Lingon v. Foley, Vern. 420; Sheldon v. Dormer, 2 2 Ch. Ca. 205; Mills v. Banks, 3 Vern, 310 ; Baines v. Dixon, 1 Ves. P. W. I . sen. 41 ; Hall v. Carter, 2 Atk. 358, (6) Bachhouse v. Middleton, 1 Cli. per Lord Hardwicke ; Backhmise v. Ca. 176, per cur. Middleton, 1 Ch. Ca. 173; Green v. (c) Anon. 1 Vern. 104; Solley v. Belcher, 1 Atk. 505 ; Trafford w Ash- Wood, 29 Beav. 482. tore, 1 P. W. 415; Countess of Shrews- (d) Mills v. Banks, 3 P. W. 1 ; bury V. Earl of Shrewsbury, 1 Ves. Wilson v. Halliley, 1 R. & M. 590; jun. 2M,per cur.; Okeden v. Okcden, Iry\. Gilbert, 2 P. W. 13; Evelyn v. 1 Atk. 550 ; and see Allan v. Back- Evelyn, 2 P. W. 659, see 666 ; Earl AoMse, 2 V. & B. 65; Bootlev. Blundell, of Rivers v. Earl of Derby, 2 Vern. 1 Mer. 233 ; Anon. 1 Vern. 104, in 72 ; Okeden v. Okeden, 1 Atk. 550. which it was said that rents and profits (e) 23 Beav. 521. could not receive this enlarged con- (/) Pr. Ch. 26. struction in a deed ; Garmstone v. timber. CH. XVII. S. 4.] DUTIES OF TRUSTEES FOE RAISING PORTIONS. 373 money appointed ivithin the time, the Court might order timber to be felled off the land to make up the amount. 8. If the trusts of a term be to " raise and levy from time to time Out of rents by a sum certain by, with and out of the rents and profits, by certain payments. annual payments or sums in each year and not otherwise," the portional sum to be raised is a charge on the annual rents and profits generally, and the estate is not discharged at the expiration of six years, though the rents and profits during that period were sufficient to raise it (a). 9. Where portions are raisable at different times as they are Mortgage of wanted, it is usual, as each portion is raised, not to mortgage the of the estate. entire estate charged, but a proportional part only. Thus if the portional sum be 6000/. divisible amongst three younger children, and secured by a term of 1,000 years, when the first 2,000/. is raised, the trustee of- the term mortgages an undivided third part oi the hereditaments comprised in the term, and when the second 2,G00Z. is raised another undivided third part, and when the remain- ing 2,000 is raised, the other undivided third part. The result of this is that each mortgagee takes the legal estate in the subject of the mortgage, whereas if the entire estate had been comprised in the first mortgage, the two other securities would have been equitable, and exposed to all the consequent risks. 10. By 36 & 37 "V. c. 66, s. 34, rule 3, all causes and matters for se & 37 v. u. 66. raising portions are to be assigned to the Chancery Division of the High Court of Justice. (o) Re Fwster's Estate, 4 I. R. Eq.l52, 374 CHAPTER XVIII. DUTIES OF TRUSTEES FOE SALE. The subject of trusts for sale may be conveniently distributed under three heads : 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 pur- chasers of the trust property. SECTION I. Trustees may sell without applying to the Court. THE GBNEEAL DUTIES OP TKUSTEES FOB SALE. 1. It need scarcely be observed that trustees for sale are autho- rised to enter into contracts without the previous sanction of the Court {a) ; but where a bill has been filed for the execution of the trust, that attracts the jurisdiction of the Court, and the trustees would not be justified in proceeding to a sale without the Court's sanction (6). Private contracts, therefore, after the institution of a suit, can only be entered into by trustees subject to the approbation of the Court, and a condition is commonly annexed that the con- tract shall be null and void, unless the sanction of the Court be obtained within a limited period. But cases have occurred where, from accidental circumstances, the sanction has not been obtained within the time, and then by the death of the purchaser the con- tract has dropped to the ground. The better mode would be to give liberty to the purchaser at any time after the expiration of the limited period, but before any confirmation by the Court, to deter- mine the contract. [a) Earl of Bath v. Earl of Brad- ford, 2Ves. 590, ^er Lord Hardwicke. (6) Walker v. Smallwood, Amb. 676 ; and see Raymond v. Webb, Ijofft. 66 ; Drayson v. Poeock, 4 Sim. 283 ; Cul- pepper, V. Aston, 2 Ch. Ca. 116, 223 ; and see further, infra. CH. XVIII. S. 1.] TRUSTEES FOR SALE. 375 2. A trustee for sale will remember that he is bound by his Must consult ■' ■ ■ tof que office to seU the estate under every possible advantage to his JjJ^ c"Xis cestui que trust (a), and in the case of several cestuis que trust, trust. with a fair and impartial attention to the interest of all the parties concerned (b). If trustees, or those who act by their authority, fail in reasonable diligence in inviting competition (c), or in the management of the sale, as if they contract under circumstances of haste and improvidence, or contrive to advance the interests of one party at the expense of another, they will be personally responsible for the loss to the suffering party (d) ; and the Court, however correct the conduct of the purchaser, will refuse at his instance to compel the specific performance of the agreement («). But if a trustee has once contracted to sell bond fide, a court of equity wiU not allow the contract to be invalidated because another person comes forward and is willing to give a higher price (/); and where there are two offers equally advantageous, one of which is preferred by a cestui que trust, it is not the duty of the trustees against their own opinion to accept the offer preferred by such cestui que trust {g). 3. In no case will the Court enforce the specific performance of a Where sale is a contract which amounts to a breach of trust {h). ^'"'^'''°- °"™'*- 4. The usual course is said to be for the cestuis que trust, who are Cestvhque trust the persons most interested in the matter, and who have the TOnditionaliy. strongest motives for obtaining the highest possible price, to enter into a conditional contract, and then to obtain the assent of the trustee, who, when he has satisfied himself that the sum proposed is the value of the property, sanctions a sale which is beneficial to his cestuis que trust (i). 5. A trustee for sale must inform himself of the real value Valuation of the of the property, and for that purpose, will, if necessary, employ P^°P^'^ ^^ some experienced person to furnish him with an estimate (k). (a) Downes v. Grazchrook, 3 Mer. 17 Ves. 394 ; White v. Cvddon, 8 CI. 20%, per Lord Eldon ; and see Malthie & Fin. 766. V. Edwards, 2 Coll. 480. (/) Harper v. Hayes, 2 Giff. 210, (6) Ord V. Noel, 5 Mad. 440, per reversed 2 De Gex, F. & J. 542. Sir J. Leach ; and see Anon, case, 6 (g) Selby v. Bowie, 4 Giff. 300. Mad. 11. (h) Wood v. Richardson, 4 Beav. (c) Ord V. Noel, 5 Mad. 440, per 176, per Lord Langdale ; Fuller v. Sir J. Leach; and see /harper V. ^ai/es, Knight, 6 Beav. 205; Thompson y. 2 Giff. 217. Blackstone, 6 Beav. 470 ; Bneeshy v. {d) See Pecliel v.Fowler, 2 Anst. 550. Thorne, 7 De G. M. & G. 399 ; Muc- (e) Ord V. Noel, 5 Mad. 440, per holland v. Belfast, 9 Tr. Cli. Re. 204 ; Sir J. Leach; Turner v. Harvey, Jac. Saunders v. Macheson, 1 W. N. 1866, 178, per Lord Eldon ; Bridger v. Rice, p. 400. 1 Jac. & Walk. 74 ; Morthck v. Buller, (i) Palairet v. Carew, 32 Beav. 568. 10 Ves. 292 ; and see Hill v. BucMry, (k) See Oliver v. Court, 8 Price, 376 TEUSTEES FOE SALE. [CII. XVIII. S. I. Eacli trustee responsible for the sale. What time allowed for disposing of the estate. Trust to sell within a limited period. If the property be sold at a grossly inadequate value, it is a breach of trust, which affects the title in the hands of the pur- chaser (a). 6. A trustee who takes no active part in the business cannot excuse himself by saying he had nothing to do with the conduct of the other to whom the management was confided; for where several trustees commit the entire administration of their trust to the hands of one, they are aU equally responsible for the faithful discharge of their joint duty by that one whom they have sub- stituted (b). 7. The trustees will be allowed a reasonable time for disposing of an estate, and though the instrument creating the trust direct them to sell " with all convenient speed," that is no more than is implied by law, and does not render an immediate sale impera- tive (c). On the other hand, if the trust be to sell " at such time and in such manner as the trustees shall think fit," this wiU not authorise the trustees as between them and their cestuis que trust to postpone the sale arbitrarily to an indefinite period. The trustees cannot by such postponement vary the relative rights of the tenant for life and remaindermen, and so interfere with the settlor's intention (d). If trustees for a length of time, as for twenty years, neglect without any sufficient reason to sell, they will be answerable for any depreciation, and be decreed to account for interest instead of rents (e). 8. If the trust be " with all convenient speed and withia five years " to sell the estate and apply the funds in pajonent 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 impute 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 (/). 165; Campbell y. Walker, 5 Yea. 6B0; Conolly V. Parsons, 3 Ves. 628, note ; Sugd. Vend. & Purch. 55, 11th edit. (a) Stevens v. Austen, 7 Jur. N. S. 873. (&) Oliver V. Court, 8 Price, 166, per Lord Chief Baron Richards ; In re Chetrtsey Market, 6 Price, 285, per eundem. (c) Buxton V. Btixton, 1 M. & C. 80 ; Garrett v. Noble, 6 Sim. 504 ; I'ry V. Fry, 27 Beav. 144 ; and see Fitzgerald v. Jervoise, 5 Mad. 25; Vickers v. ScoU, 3 M. & K. 500; Sculthorpe v. Tipper, 13 L. R. Eq. 232. {d) See Walker v. Shore, 19 Ves. 39i ; Hawkins v. Chappell, 1 Atk. 623. (e) Fry v. Fry, 27 Beav. 144; Pat- tenden v. Hobson, 1 Eq. Re. 28. (/) Pearce v. Gardner, 10 Hare, 287 ; and see Cuff v. Hall, 1 Jur. N. S. 973; De la Salle v. Moorat, 11 L. R. Eq. 8. CH. XVIII. S. 1.] TRUSTEES FOE SALE. 377 9. In a case where the trustees had endeavoured for some time Trustees for sale to sell, and not having succeeded, they agreed to execute a lease, ™^es!° ^^^ the Court, on a bill filed by the trustees, to compel specific per- formance, refused to decree the lease, as the trust for sale did not primd facie imply a power to grant leases (a). And so executors who are quasi trustees for sale, would, under special circumstances only, be justified in granting a lease (6) ; for such an act is not regularly within their province, and it is incumbent on the persons taking a lease from them to show that it was called for by the interests of the parties entitled to the property (c). 10. A trust for sale, if there be nothing to negative the settlor's Tnist for sale intention to convert the estate absolutely, will not authorise the ^j authorfsl'^a'^' trustees to execute a mortgage (d). But where an estate is devised mortgage. to trustees, charged with debts, and subject thereto, upon trust for certain parties, so that a sale, though it may be required, is not the testator's object, the trustees may, for the purpose 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 particular 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 as a conditional sale, as something within the power, and as a proper mode of raising the money" (/). 11. A testator devised an estate to trustees upon trust to apply winere the power the rents for fifteen years in payment of incumbrances charged cation of* the '^' thereon, and if, for any reason whatever, in the opinion of the trustees the pur- trustees a sale should become necessary, " they were authorised to question the sell." The purchaser objected that the amount of the incum- exercise of the ^ " discretion, brances would not justify a sale of the whole estate, but it was held that the power of sale depended on the opinion of the trus- tees, and the fact that they thought it necessary would be evi- denced by the conveyance (g). 12. A trust to raise money by mortgage will not authorise a A trust to mort- gage will not authorise a sale. (a) Evans v. Jackson, 8 Sim. 217. 396; Devaynes v. Robinson, 24 Beav. (6) Hachett v. M'Namara, LI. & Gr. 86. Rep. t. Plunket, 283. (e) Ball v. Harris, 4 M. & Cr. 264. (c) Keating v. Keating, LI. & G. (/) Stroughill v. Anstey, 1 De G. Rep. t. Sugden, 133. M. & G. 645; Page v. Cooper, 16 {d) Haldenhy v. Spoffortli, 1 Beav. Beav. 400. 390 ; Stroughill v. Anstey, 1 De G. M. {g) liendleshamy. Meux, 14 Sim. 249. & G. 635; Pagev. Cooper, 16 Beav. 378 TRUSTEES FOE SAI-E. [CH. XVIII. S. 1. sale, though the latter may be more beneficial to the estate ; and the Court itself has no jurisdiction to substitute a sale for a mortgage {a). Powers of sale. 13. It was held by V.-C. Kindersley, that in the absence of any special direction a mere power to mortgage does not authorise a mortgage with a power of sale, since how can a trustee who has not in himself even any power to seU give authority to another to sell (b). But according to V.-C. Malins a direction to trustees to raise money " by mortgage in such manner as they may think fit" authorises a mortgage with a power of sale (c), and according to the late M. R. a power to raise money by sale or mortgage justifies a mortgage with a power of sale {d). There is no doubt a confiict of authority. If a mortgage per se does not imply a power of sale, a direction to sell or mortgage wUl not carry the matter further, for the trustee has no power to delegate his authority to sell, and if the broad general principle be adopted that the power of sale is an ordinary incident to the mortgage, the logical result would be that a power of mortgaging alone authorises a mortgage with a power of sale. Of course where the Coiort has jurisdiction to raise money out of an estate, as for payment of debts, it may either direct a sale, or a mortgage with a power of sale (e), and an executor is, for the purposes of paying debts, regarded as the absolute owner, and may therefore either sell or mortgage or give a mortgage with a power of sale (/). redemptionV^° ^^- ^^ ^^ equity of redemption be vested in trustees for sale with a direction to apply the proceeds in discharge of the mort- gage and pay the balance to the settlor, the trustees, notwith- standing the direction to discharge the mortgage, may sell sub- ject to it (g). wiii°^t'authorise 1^. A power to trustees to sell wUl not authorise a partition, a partition. though whether a power to sell and exchange wiU do so remains at present doubtful (h). (o) Drake v. Wliitmore, 5 De G. & (c) Selby v. Cooling, 23 Beav. 418. Sm. 619. (/) CruiksliankY. Duffin,\Zh.B.. (6) Clarice v. Royal Panopticon, 4 Eq. 555 ; and see Earl Vane v. Big- Drew. 26 ; but see Russell v. Plaice, 18 den, 5 L. R. Ch. App. 6G3. Beav. 21 ; Leigh v. Lloyd, 2 De G. (g) Manser v. Dix, 8 De G. M. & Jon. & S. 330; 35 Beav. 455; Re G. 703. CJiawner's Will, 8 L. R. Eq. 569. Qi) Brassey v. Chalmers, 16 Beav. (c) Re Chawner's trust, 8 L. R. Eq. 223, 4 De G. M. & G. 528 ; Bradshaw 569. V. Fane, 2 ,Jur. N. S. 247 ; 3 Drew. (d) Bridges v. Longman, 24 Beav. 534. 27 ; and see CooJc v. Dawson, 29 Beav. 128. CH. XVIII. S. 1.] TRUSTEES FOE SALE. 379 16. In settlements of real estates a power of sale is usually given Effect of usual to trustees, to be exercised with the consent of the tenant for life, g'^ye^'ents''^ '" with a direction to lay out the proceeds, with all convenient 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 proceeding 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 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 the trustees 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 as between them and their cestuis que trust woidd 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 aU 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 to the new purchase leads to necessary delay. 17. It is also to be noticed where the lands have been charged Effect of the by the tenant for life under the Drainage Acts, that as the drainage Acta, sale can only be made subject to the charge, the exercise of the power will confer a benefit on the tenant for life, for before the sale he is bound by the acts to pay not only the interest on the charge, but also part of the principal, but after the sale he becomes under the settlement tenant for life of the whole proceeds. (a) MoHloch V. BulUr, 10 Ves. 308, (c) See Cowgill v. Lord Oxmantown, 309 3 y. & C. 369 ; Watts v. Girdlestone, (6) LordMahmy. Earl of Stanhope, 6 Beav. 188; Marshall v. Sladdm, 4 cited 2 Sug. Pow. 412. De Gex. & Sm. 468. 380 TRUSTEES FOE SALE. [CH. XVIII. S. 1. Sale at request of a party. Trustees for sale of a limited in- terest in an estate or of an aliquot part of an estate. Trust for sale survives. 18. Trustees for sale at the request and by the direction of another party, to be testified in writing, &c., cannot obtain a decree for specific performance without first proving that the con- tract was entered into at such request and by such direction, and that such request and direction have, either before or since the contract, been testified by the requisite writing (a). Nov if trus- tees have a power of selling or leasing at the written request of another, will the Court enforce a contract without such request, though it is alleged that there was part performance by the trustees and the person whose request was necessary, and that it is there- fore a case where a mere parol contract is sufficient (&). 19. If an estate be vested in trustees upon trust for A for life, and then to sell, the trustees have no power to sell during the life of A., however beneficial it may be to the parties interested in the trust (c). But if an estate be devised to A. for life, and after her decease to trustees upon trust to sell " as soon as conveniently may be after the testator's decease,'' the trustees, with the concur- rence of A., can make a good title (d) ; and if the tenant for life and the trustees in remainder sell for one entire sum, it has been held that the purchaser will get a good title, and the tenant for life and the trustees may agree as amongst themselves how the purchase money is to be apportioned, or if they cannot agree it will be apportioned by the Court (e). And generally trustees for sale of any aliquot part of an estate may join in a sale of the whole estate for one entire sum, and the purchase money, as amongst the respective owners, may be left to be apportioned as before (/). But a purchaser cannot be compelled to accept such a title if the separate interests of the cestuis que trust in such a joint sale be not brought to the sale with every advantage, or if the nature of the case be such that the purchase money will not admit of apportionment upon any intelligible principle (g). 20. Where an estate is vested in several trustees upon 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 (a) J dams v. Broke, 1 Y. & C. Ch. Ca. 627 ; Syhes v. Sheard, 33 Beav. 114; see the decree at the foot of the case ; and see Blackwood v. Borrowes, 2 Conn. & Laws. 459. (6) Phillips V. Edwards, 33 Beav. 440. (c) Johnstone v. Baber, 8 Beav. 233 ; Blacklow V. Laws, 2 Hare, 40 ; Mosley V. Hide, 17 Q. B. 91 ; Want v. Stalli- brass, 8 L. R. Ex. 175. (d) Mills V. Dugmore, 30 Beav. 104. (e) Clark v. Seymour, 7 Sim. 67, sed quaere. if) See M'Carogker v. Whieldon, 34 Beav. 107. (g) Rede v. Oahes, 32 Beav. 555; 10 Jur. N. S. 1246. CH. XVIII. S. 1.] TRUSTEES FOE SALE. 381 shall not be exercised by the survivors or survivor, for the execu- tion of a trust is not regarded in the same light as that of a power; but the presumption is that, as the estate, so the discre- tionary part of the trust passes to the survivors or survivor (a). The objection is sometimes taken that where there is a power of Though there be appointment of new trustees, and one of the trustees has died and appoint new a new trustee has not been substituted, the survivor is incom- trustees, petent to execute a valid conveyance. But 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 sub- stituted, remain in suspense (&), yet the clause, as usually penned in settlements, is considered by the Courts to be merely of a directory character (c). 21. In a mortgage to two persons to secure a joint advance with Power of sale in a power of sale to " them, their heirs and assigns," and one dies, the ^ ^°^ ^^^'^' survivor may sell {d) ; 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 convey- ance from the heir of the assign, is, together with such trustee, an assign within the meaning of the power, and can therefore sell (e). 22. By a recent Act, as to mortgages hj deed created since 28th 23 & 2i Vict. August 1860, and where the security does not speak to the con- °- ^*^- trary, any mortgagee, though his security contain no power of sale, may when the principal sum has been in arrear for twelve months, or the interest for six months, or there has been any default by the mortgagor in insuring, proceed to a sale, after six months' notice, and sign a valid receipt for the purchase money (/). 23. As a trustee, like any ordinary vendor, is bound to make Trustees must the purchaser a good title (g), it would be prudent before pro- tit^Z*^^"" ceeding to the execution of the trust, to take the opinion of counsel whether a good title can be deduced. Should the contract for sale be unconditional and the title prove bad, the purchaser in a suit for specific performance would have his costs against the trus- tee (/;-), though the trustee, where his conduct was excusable, might charge them upon the trust estate under the head of expenses. (a) Lane v. Dehenham, 11 Hare, J. 371 ; 7 De G. M. & Q. 594. 188. (/) 23 & 24 Vict. c. 145, ss. 11-16 ; (i) See Foley v. Wontner, 2 Jac. & and s. 34. Walk. 246. {g) 'White v. Foljambe, 11 Ves. 343, (c) See supra, p. 231. 345, ^er Lord El don ; and see M'Do- {d) Hind v. Poole, 1 K. & J. 383. nald v. Hanson, 12 Ves. 277. (e) Saloway v. Strawbridge, 1 K. & {h) Edwards v. Harvey, G. Coop. AO. 382 TRUSTEES FOR SALE. [CH. XVIII. S. 1. Timber. Minerals. 2,5 & 26 V. c. 108. Where the estate is settled the timber cannot be so) d separately. Implied recon- version. 24. If trustees have a power of sale only they cannot sell the estate separate from the timber standing upon it, though the tenant for life be without impeachment of waste, and might have cut the timber previously to the sale ; and a sale so effected is absolutely void {a), unless it be effected subsequently to August 13, 1859, when it may be confirmed by means of a recent legis- lative enactment (h). 25. It is conceived that no distinction exists between timber and minerals, for both until severed form an integral part of the pro- perty. And it was accordingly, before the late Act, decided that the surface could not be sold apart from the minerals (c). But now, by 25 & 26 Vict. c. 108, trustees and other persons {d) are authorised with the previous sanction of the Court of Chancery to be obtained on petition in a summary way («), to sell the surface separate from the minerals, and the minerals separate from the surface, and such sales for the time past, where they have not been the subject of litigation, either concluded or pending, are confirmed. 26. If lands be devised to trustees in trust to sell for payment of debts, and, subject to that charge, are given to A. for life with- out impeachment of waste, with remainders over, the trustees must 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 faU of timber, the tenant for life would have a charge upon the lands to the amount of the proceeds (/). 27. If a fund be subject to the ordinary trusts of a marriage settle- (a) Cholmeley v. Pcixton, 3 Bing. 207 ; 5 Bing. 48 ; S. C. nom. Cockerell V. Cholmeley, 10 Barn. & Ores. 654; 3 Kuss. 565 ; 1 Kuss. & My . 418 ; 1 CI. & Fin. 60. (6) 22 & 23 Vict. c. 35, s. 13. (c) Buckley v. HmveU,29 Beav. 546; as to sales under the Settled Estates Act, see Re Mallins, 3 Giflf. 126. In settling lands where tliere are minerals, it may be convenient to enable the trustees for sale " as to any of the premises under which minerals may lie, to sell the surface apart from the minerals, or to sell the minerals together with, or apart from the sur- face, and to grant or reserve such rights of way as in-stroke or out- stroke, and any other easements in, upon, over, or under any of the said premises as may be necessary or desi- rable for the winning, working, storing, selling, and carrying away of any such minerals." [d) And " other persons " has been held to comprise mortgagees. Re Beaumonts Mortgage Trusts, 12 L. R. Eq. 86 ; Re Willcinsoris Mortgaged Estates, 13 L. R. Eq. 634. [e) Where the power of sale is in the trustees, with the consent of the tenant for life, a petition by the trustees must be served on the tenant for life, but not on the remainderman. Re Pryse's Estate, W. N. 1870, p. 205, and the sanction of the Court being required for the protection of the beneficiaries, they must be served. Re Brown's Trust Estate, 9 Jur. N. S. 349 ; Be Palmer's Will, 13 L. R. Eq. 408. (/) Davies v. fVestcomb, 2 Sim, 425. CH. XVIII. S. l.J TRUSTEES FOE SALE. 383 ment, with a power of varying securities and of selling out any part thereof and investing the proceeds on a purchase of a freehold estate to be held " upon such trusts as will best and nearest cor- respond with the trusts thereinbefore declared" of the securities sold out (being trusts for the benefit of the parents and issue), and with a direction that the purchase to be so made shall be " deemed personal estate for all the purposes of the settlement and go accord- ingly," but without a general receipt clause, a trust for reconversion is implied, and the trustees can sell and sign a valid receipt {a). 28. The sale may be conducted by public auction or private con- Sale may be by tract, as the one or the other mode may be most advantageous, o"by*auctiont''' according to the circumstances of the case (6), and of course it is not an essential preliminary to a sale by private contract that the trustee should have previously attempted a sale by auction or even have inserted a public advertisement that the property was for sale (c). 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 the insolvent might sell a real estate by private contract, after an ineffectual attempt to dispose of it by auction (ff). And so, under the subsequent Insolvent Debtors' Act, 1 & 2 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 325^., and the assignees sold by auction for 310Z., the clause was held to be merely directory, and that the deviation from the resolution of the creditors did not, therefore, vitiate the sale (e). 29. The trustee cannot without responsibility delegate* the Sale nmpt not general trust for sale (/) ; but 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 cestuis que trust as he would have done for himself (g). But an agent for sale must not be allowed to receive the purchase money. (a) Tait v. Lathhury, 35 Beav. 112 ; Vict. c. 145. s. 1. and see Master v. De Croismar, 11 (c) See Davey v. Durrani, 1 De G. Beav. 184. & Jon. 535; and see Harper v. Hayes, (6) See Ex parte Dunman, 2 Rose, 66 ; Ex parte Hurly, 2 D. & C. 631 ' Ex parte Ladhroke, 1 Mont. & A. 384 2 Giff. 210; 2 De Gex. & J. 542. (d) Mather v. Priestman, 9 Sim. 352. Davey v. Durrani, 1 De G. & Jon. (e) Wright v. Maundsr, 4 Beav. 535. As to trusts created since 28 512 ; and see Sidebotham v. Barrington, Aug. 1860, the legislature has now 4 Beav. 110. enacted to this eflFect, unless the settle- (/) Hardioich v.Mynd, 1 Anst. 109. ment direct to the contrary; 23 & 24 (g) Ex parte Belchier, Amb. 218 ; 384 TRUSTEES FOR SALE. [CH. XVIII. S, 1. If the sale be by auction, proper advertisements must be given. Conditions of sale. Selling; in lots. Buying in. 30. If the trustee think a sale by auction the more eligible mode, he must see that all proper advertisements are made, and due notice given. It was ruled in an old case {a), 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 more recent cases an injunction has been granted, it being the clear duty of the trustee to procure for the cestuis que trust the most advantageous sale (6). 31. A trustee may sell subject to any reasonable 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 usual in penning a trust for sale to give express authority to the trustees to insert special conditions of sale ; and as to trusts created since 28 Aug. 1860, and where the settlement does not otherwise direct, trustees are now authorised by Act of Parliament to insert such special or other stipulations, either as to title or evidence of title or otherwise, as they may think fit («). But still this would be no warrant for the introduction of stipula- tions which are plainly not rendered necessary by the state of the title, and are calculated to damp the success of the sale. How- ever, trustees would, it is conceived, be justified in inserting a condition, now not uncommon, empowering the vendor, if unable or unwilling for reasonable cause, to remove the purchaser's ob- jection, to cancel the contract. Such a condition may be depre- ciatory at the sale itself, and yet beneficial in its results (/). 32. There is no rule to prevent the trustees from selling in lots, should the auctioneer or other experienced person recommend it as the most advisable course {g), and this liberty is now given by express enactment as to trusts created since 28 Aug. 1860, where the settlement does not direct the contrary (A). 33. Trustees of bankrupts cannot buy in at the auction without and see Ord v. Noel, 5 Mad. 438; Bossiter v. Trafalgar Life Assurance Company, 27 Beav. 377. (a) Pechal v. Fowler, 2 Anst. 549. (b) Anon. Case, 6 Mad. 10; Blen- nerhasset v. Day, 2 B. & B. 133. As to restraining a mortgagee from selling, see Matlhie v. Edwards, 2 Coll. 465; S. C. on appeal nomine Jones v. Mat- thie, 1 1 Jurist, 504 ; Jenkins v. Jones, 2 Giff 99. (c) Hobson V. Bell, 2 Beav. 17. (d) Wilhins v. Fi-y, 2 Eose, 375; S. C. 1 Mer. 268 ; Rede v. Oakes, 10 Jur. N. S. 1246 ; Dance v. Golding- ham, 8 L. R. Ch. App. 902. (e) 23 & 24 Vict. c. 145, s. 2. (/; Falkner v. Equitable Society, 4 Drew. 352. [g) See Co. Lit. 113a; Ordv. Nod, 5 Mad. 438 ; Ex parte Lewis, 1 Gl. & J. 69. [h) 23 & 24 Vict. c. 145, s. 1. CH. XVIII. S. 1.] TRUSTEES FOR SALE. 385- the authority of the creditors, and 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 lot (a). It may be thought perhaps that as trustees in bankruptcy act under a statute they have less discretionary power than belongs to ordinary trustees ; but in Taylor v. Tabrum (h) the same principle was applied to trustees in the proper sense of the word. By a recent Act, as to trusts created since 28 Aug. 1860, and where the settlement does not otherwise direct, trustees may sell at one time or at several times, and may buy in, or rescind a private contract, and resell without being responsible (c). 34. Trustees for sale may do all reasonable acts which they are Clearing the professionally advised are proper for the purpose of clearing the ^ ®" title and completing the sale (d). 35. Trustees for sale who are to stand possessed of the proceeds Succession duty. upon trust for one person for life with remainder to another, can, whether the sale be or not exercisable with the consent of the tenant for life or of the successor, i. e. the remainderman, give a good title to the purchaser free from succession duty ; for the duty attaches on the interest of the successor, i. e. the money in the • hands of the trustees who are responsible, and the sale is by a title which is paramount to the successor's interest ; and if the sale is to be by consent, the power of selling free from the duty is by the act not to be thereby prejudiced (e). So trustees for sale who are to stand possessed of the proceeds to pay legacies can pass the estate free from duty, for the succession duty does not attach where legacy duty is payable (/), and the legacy duty is not a charge on the estate, but is payable in respect of the proceeds in the hands of the trustees (g). (o) Ex parte Lewis, 1 Gl. & J. 69 ; (e) 16 & 17 Vict. c. 51, ss. 42, 44 ; and see Ex parte Buxton, id. 355 ; Ex see Harding v. Harding, 2 Giff. 597 ; parte Baldoch, 2 D. & C. 60 ; Mac parte Hohson v. Neale, 8 Excheq. 368 ; Earl Gover, 1 De G-ex, 349; Ex parte Howe -v. Earl of Lichfield, 2 11. R.Ch. TomUns, Sugd. V. & P. 815, 14 Ed. App. 155; Diigdalev. Meadows, 9 L. R. (J) 6 Sim. 281 ; see Ord v. Noel, 5 Eq. 212, affirmed on app. 6 L. R. Ch. Mad. 440; Conolly v. Parsons, 3 Yes. Ap. 501. 628, note. (/) As to leaseholds, see 16 & 17 (c) 23 & 24 Vict. c. 145, s. 1 &i2. Vict. c. 51, ss. 1 & 19. {d) Forshaic\.Higginson,ST>eGe'K, (g) 16 & 17 Vict. c. 51, s. 18. M. & G. 827. c a 386 Hardship. TRUSTEES FOR SALE. [CH. XVIII. S. 1. Letting into possession. Of " granting " in the operative part of the con- veyance. Covenants. 36. 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 all incumbrances, the Court would not compel the trustees to fulfil their contract, but left the parties to law (a), and the bill was dis- missed without costs (6). 37. The purchaser, after the contract, should not be let into pos- session of the estate until the completion of the sale by payment of the full purchase money (c). 38. Formerly in drawing the conveyance, the word "grant" being commonly (though erroneously) supposed to contain a war- ranty {d), the trustee, instead of " granting, bargaining, selling, and releasing," was often, from extra caution, made to " bargain, sell, and release," with the omission of the word " grant " (e). And stm, as formerly, in order to secure the trustees from the possi- bility of parting with any interest vested in them beneficially, or from being construed to guarantee anything beyond the powers, of their trust, it is not unusual to insert in the operative part of the instrument, the words " according to their estate and interest as such trustees." 39. A trustee cannot be compelled to enter into any other cove- nant for title than against incumbrances by his own acts (/). But it wotdd 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 beneiicial proprietors, and that the contract must, therefore, draw with it the usual incidents, and that the purchaser ought to have the benefit of the ordinary covenants. If the trust for sale is to be (o) Wedgwood v. Adams, 6 Beav. 600. (6) S. C. 8 Beav. 103. (c) Oliver v. Court, 8 Price, 166, per Chief Baron Richards ; see Browell V. Reed, 1 Hare, 434. {d) See Co. Lit. 384 a, note (4), Hargrave and Butler's edit. (e) See now 8 & 9 Vict. c. 106, s. 4. (/) White v. Foljambe, 11 Ves. 345, per Lord Eldon ; Onslow v. Lord Londesborough, 10 Hare, 74, ^cr Cur.; Worley v. Frampton, 5 Hare, 560 ; Stephens v. Hoiham, 1 Kay & Johns. 571 ; and Page v. Broom, 3 Beav. 36. This is carried to such an extent that, where a lessor grants a lease with a covenant for perpetual renewal, devi- sees in trust of the lessor, though bound to grant a new lease, are not bound to enter into a similar covenant. In these cases the Court has, in order to secure the lessee without making the trustees personally liable, declared the right of the lessee to a perpetual renewal, and directed the new lease to contain a recital of the old lease, and of tlie declaration of the Court in obedience to which the trustees pur- port to demise ; Copper Mining Com- pany V. Beach, 13 Beav. 478 ; Hodges v. Blagrave, 18 Beav. 405. So, if A. agrees to grant a lease to B. and B, dies, A. can compel the executors of CH. XVIII. S. 1.] TRUSTEES FOK SALE. 387 exercised with the consent of the tenant for life who joins in a sale, he must enter into the usual covenants for title (a). 40. Mortgagees with a power of sale are regarded as trustees, and Mortgagees' covenant only against their own acts (5). To the extent of their mortgage money they are beneficially interested, not however as owners of the estate, but only as incumbrancers entitled to a charge. 41. It was laid down by Lord Eldon, that assignees of bankrupts Attested copies -t ■ T -1 -1 If 1 i-ji 1 1 i and covenant were bound, in case they could not deliver up the title deeds, to for production. furnish the purchaser with attested copies and to covenant for production of the originals, the covenant to be confined to the period during which the assignees should continue in office (c). And trus- tees, where they retain the title deeds, are equally required to give attested copies, and covenant for production during the period of their own custody, giving at the same time all such right at law or in equity as they lawfully can to call for the production as against the holder for the time being (d). It is not easy to suggest a case where upon a sale by trustees the purchaser would not be entitled in equity (which would be sufficient) to call for the production of the deeds, but should there occur a case where the purchaser would B. to accept the lease, but the lease is so framed that the executors of B. are guarded against all personal liability ; Phillips V. Everard, 5 Sim. 102 ; Stephens v. Hotham, 1 Kay & Johns. 571 ; but in the latter case the V. C. added that if the lease were a beneficial lease claimed by the executors that would be a different case, and they must enter into full covenants, p. 580 ; and see Staines v. Morris, 1 V. & B. 12. (a) Earl Poulett v. Hood, 6 L. R. Eq. 116. (6) Sugd.Vend.&Pur.p.61,lledit. (c) Ex parte Stuart, 2 Rose, 215. (d) See Onslow v. Londesborough, 10 Hare, 74, Sugd.Vend. & Pur. 54, 13 edit. The following form would, it is con- ceived, be a proper covenant : "The said A. B., C. D,, and E. P., for themselves, their heirs, executors, and administrators, but so as not to render themselves, or any of them, or any of their heirs, exe- cutors, or administrators, liable under the present covenant, except so long as they or he respectively shall remain trustees or trustee, and shall as such hold or be entitled to the custody of the deeds and writings hereinafter mentioned, but so nevertheless as to bind so far as can lawfully be done, the holders for the time being of the said deeds and writings, do hereby covenant with the said G. H. his heirs and as- signs, that they Ihe said A. B., C. D., and JE. P., their heirs, executors, and administrators, shall and will at all times," &c. Mr. De Morgan has been kind enough to furnish me with the follow- ing form, settled by Lord Eldon's own hand, in a case where Lord Eldon and another were devisees in trust under a will : " Each of them the said John Earl of Eldon and E. S. Thurlow, as such devisees in trust as aforesaid, and for such period only as they or either of them, their or either of their heirs, executors, administrators, or assigns, shall have the custody or lawful power over such deeds, evidences and wri- tings, doth hereby for himself, his heirs, executors, and administrators, covenant, promise, and agree with and to the said J. P. his heirs, appointees, and assigns, so and in such manner as to bind, so far as is practicable all and every person and persons in whose custody the same deeds, evidences, and writings now are, or at any time here- after shall be, that," &o. CO 2 388 TRUSTEES FOR SALE. [cH. XVIII. s. i: Sale of lease- holds. Executor of lessee. Practice of the Court. Principle of the practice. not have such a right either at law or in equity, he could not be compelled to complete, but might claim to be discharged from his contract and be paid his costs, which would fall upon the trust estate or the trustees personally, according to the propriety or im- propriety of their conduct in proceeding to a sale without guarding themselves by an express condition. 42. In a sale of leaseholds by trustees who take by assignment they cannot, in any case, require from a purchaser a covenant of indemnity against a breach of the covenants ; for, as regards them- selves, they took the lease by a'ssignment without personally cove- nanting, 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 trus- tees 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 beneficial to the cestuis que trust, could they insert a condition in favour of a stranger, which might operate as a discouragement to purchasers (a). 43. Tire 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. 44. Subject to the effect of the Act to be mentioned presently, where a lessee's estate is in course of distribution under the direction of the Court, a portion of the estate is usually reserved for the purpose of forming an indemnity fund against the covenants of the lease (&), unless the risk be inconsiderable (c). But no indemnity is provided where the testator's estate is not liable, as where the testator himself was not a lessee, but the assignee of a lease and had entered into no covenants {cT). And if the executor has assented to the bequest un- conditionally, he is held to have waived his claim to indemnity (e). It is difficult to say upon what principle this practice of the Court is based. In some of the older cases the judges seem to have thought that it was to indemnify the executor. But as the distri- bution of the assets is made by the Court, and is not the act of the (a) S«e WilJcins v. Frt/, 1 Mer. 244 ; Garratt v. Larwefield, 2 Jur. N. S. 177. (i) Cochrane v. Robinson, 11 Sim. 378 ; Fletcher v. Stevenson, 3 Hare, 360 ; Dohson v. Carpenter, 12 Beav. 370 ; Hidding v. Bayer, 3 Mac. & Gor. 63.5 ; Brewer v. Pocock, 23 Beav. 310. (c) Dean v. Allen, 20 Beav. 1 ; Brewer v. Pncnclc, 23 Beav, 310 ; and see Rdlly v. Reilly, 34 Beav. 406. {d) Garratt v. Lancefield, 2 Jur. N. S. 177. N.B. It may be collected from the judgment that the ordinary- covenant to indemnify had not been entered into by the testator on the occasion of the assignment to him. [e) ShadboUv. Woodfall, 2 Coll. 30 ; and see Smith v. Smith, 1 Drew. & Sm. 384, CH. XVIII. S. l.J TEUSTEES FOR SALE. 389 executor, it is impossible to maintain that the executor can be per- sonally liable for the debt. The only risk to which he could be exposed would be the expense of obtaining an injunction in equity against proceedings at law. In other cases the fund is said to be set apart out of regard to the interests of the lessor. But if the lessor can prove by way of claim in the suit, why, should the Court protect one who will not protect himself; and if he cannot prove in the suit (a), it seems anomalous that the Court, while it refuses to hear the lessor on the subject of his interest, should deal with the assets behind his back in respect of such interest. The whole doctrine, said V. C. Kindersley, is in a very unsatisfactory state, and does not seem to be founded on sound principle (b). By Lord St. Leonards' Act (22 & 23 V. c. 35, s. 27), where an 22&23V. u. 35 executor has satisfied all accrued liabilities under a lease, and has set apart a fund to answer covenants for expenditure of fixed sums on the property (which wotdd not include rents) and assigns the lease to a purchaser, he may distribute the assets without being personally liable to the lessor, who however, may still foUow the assets in the hands of the recipients. The practice of the Court for the future has not yet been set- Practice since tied (c), but it is presumed that where a lease is sold under the ^ ^ ' direction of the Court, and all existing liabilities have been satis- fied, and provision made for future fixed sums covenanted to be laid out on the property, the Court will not think it necessary to protect a lessor, who, as the legislature has now pronounced, can- not under such circumstances claim protection out of Court. In other cases the law will remain as it was, and the general principle would appear to be, that the Court should, (not by way of indem- nity to the executor, except as to costs for restraining legal pro- ceedings, but ex debito justitice to a hond fide, future creditor) set apart a fund where it plainly appears that future liabilities will arise, and that the whole estate itself is not a sufiicient security, and the devisee of the lease cannot give adequate security either by personal undertaking or otherwise. 45. In the assignment of a chose, in action, the trustee may be Assignment of a required to give a power of attorney to receive the money and to chose in action. (a) See King v. Malcott, 9 Hare, (c) Smith v. Smith, 1 Drew. & Sm. 692 ; Be Haytor Granite Company, 1 384. In Beilly v. Reilly, 34 Bear. 406, L. R. Eq. 11 ; Smith v. Smith, 1 Drew, the Court after a lapse of eight years, & Sm. 387. and no claim having been made, dis- (&) Smith V. Smith, 1 Drew. & Sm. tributed the fund which had been set 387. apart for an indemnity. 390 TRUSTEES FOB SALE. [CH. XVIII. S. 1. Sale by mort- gagee. Whether the cestuis que trust should be parties. Receipt of money by solicitor or agent. sue in his name, but this should be accompanied by a proviso, that no action or suit shall be commenced unless the assignor consent, or unless the assignee tender a sufBicient indemnity (a). 46. In a mortgage accompanied with a power of sale, the mort- gagee, who is a quasi trustee, can under the power make a title to the purchaser without the concurrence of the mortgagor (I) ; and a clause in the mortgage deed that the mortgagor shall, if required, be a party to the conveyance, is considered a contract for the ex- clusive benefit of the mortgagee, and not as imposing the neces- sity of procuring the mortgagor's consent to the sale (c). And it does not vitiate the sale, that part of the purchase money is left on mortgage of the estate, but the mortgagee is answerable for the whole amount to the mortgagor (d). 47. If the trustees have a power of signing discharges for the purchase money, the cestuis que trust need not necessarily be made parties to the conveyance (e) ; but as trustees are 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 (/). 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 previously inquiring wJio are beneficially interested, and in what proportions, whereas it is a common pro- ceeding 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 adjudication {g). 48. Trustees, as between them and the purchaser, are not bound to receive the purchase money personally, but may give a written or other express authority to their solicitor or agent to receive it on their behalf (A.). But payment to a solicitor or agent without a written or other express authority from them, will be no dis- (a) Ex parte Little, 3 Moll. 56. (i) Corder v. Morgan, 18 Ves. 344 ; Clay V. Sharpe, cited id. 346, note (h) ; Alexander v. Crosbie, 6 Ir. Eq. Eep. 518. (c) Corder v. Morgan, 18 Ves. 347, per Sir W. Grant. {d) Davey v. Durrant, 1 De G. & J. 536. (e) See Binhs v. Lord Bokeby, 2 Mad. 227. (/) See In re London Bridge Acts, 13 Sim. 176. (g) Wdkeman v. Duchess of Rutland, 3 Ves. 233, 504 ; affirmed in D. P. 8 B. P. C. 145 ; Colstm v. Lilley, 3 May, 1855, V.-C. Stuart at chambers ; Wy- man v. Carter, 12 L. R. Eq. 309 ; Re Williams's Estate, 5 De G. & Sm. 515 ; Coiterellv. Cotterell, 2L.Rep.Eq. 330; and see Loyd v. Griffiths, 3 Atk, 264 ; Freeland v. Pearson, 7 L. R. Eq. 246. {h) Robertsony. Armstrong,28Bea,v. CH. XVIII. S. 1.] TRUSTEES FOR SALE. 391 charge {a). However, if the money has been put into a channel by which it may reach the hands of the vendor, and the vendor by his agent delivers a receipt for it to the purchaser, the vendor cannot afterwards throw the loss of the money on the purchaser (6). 49. When trustees seU by auction, the auctioneer is their agent, Deposit money, and the trustees will be answerable if they improperly trusted him, or be guilty of any unnecessary delay in recovering the deposit from him (c). 50. Trustees for sale for payment of debts are of course bound Trustees bound to ^ •' answer enquiries. at any time to answer inquiries by the author of the trust, or the persons claiming under him, as to what estates have been sold and what debts have been paid (d). 51. When the affairs of the trust have been finally settled, the Custody of trustees wiU be entitled to the possession of the vouchers as their discharge to the cestuis que trust ; but the cestuis que trust will have a right to the inspection of them (e) ; but not to copies with- out paying for them. 52. The land is discharged so soon as the fund has been ac- Land discharged tually raised, even though the proceeds may be misapplied, and ^j3^™°°^^ do not reach their proper destination. The remedy of the parties aggrieved is against the trustees personally, without any lien upon the estate (/). And if a legacy be charged on land (either by the creation of a term or without a term), on the insufficiency of the personal estate, and the personal' estate was originally suffi- cient, but becomes insufficient by the devastavit of the executor, the land is discharged {g), unless the devisees of the land are also the persons by whose default the insufficiency arose Qi). 53. The effect of an administration suit upon a trust for sale is BfEectof adminis- that the trustees do not lose their powers, but must exercise them ^'^^■tio'^ ='"*• under the direction of the Court, and if they have a legal power of sale they can execute it with the sanction of the Court for the purpose of passing the legal estate. But the power, though exer- cised under the eye of the Court, must of course be pursued as (a) Re Fryer, 3 Kay & J. 317 ; and Hutchinson v. Massareene, 2 B. & B. see Viney v. Chaplin, 2 De G-ex. & 49 ; and see Omerod v; Hardman, 5 Jon. 468. Ves. 736 ; Dunch v. Kent, 1 Vern. 260; (6) West V.Jones, 1 Sim. N. S. 205. Culpepper v. Aston, 2 Ch. Ca. 115; (c) See Edmonds v. Peahe, 7 Beav. Harrison v. Cage, 2 Vern. 85 ; Hep- 239. worth V. Hill, 30 Beav. 476. (d) Clarhe v. Earl of Ormonde, Jac. [g) Richardson v. Morton, 13 L. R. 120, per Lord Eldon. Eq. 123. But see contra. Re Massey, (e) lb. per eundem. 14 Ir. Rep. 355. {/) Anon. 1 Salk. 153; Juxson v. (h) Humble v. Humble, 2 Jur. 696; Brian, Pr. Ch. 143 ; Carter v. Bar- Howard v. Chaffers, 2 Drew. & Sm. nardiston, 1 P. W. 505, see 518; 236. 392 trustees' receipts. [oh. xviii. s. 2. strictly as if there were no suit, and though the trustees may be able to pass the legal estate, yet in equity no good title will be conferred as against a cestui que trust who was not a party to the suit, or otherwise bound by the exercise of the power. Trustees for sale, with a power of signing receipts, can, if there be no suit, convey the estate, and sign a valid discharge for the pur- chase money, but if the Court and not the trustees sell the estate, the purchaser would not acquire a good title as against any cestui que trust who was not a party to the suit or not bound by the order. These observations must not be taken to interfere with the legal power of an execidor even after decree to deal with the general per- sonal assets of the testator (a). SECTION II. THE POWEE OP TRUSTEES TO SIGN DIBCHAEGES FOB THE PUECHASB MONEY. The power of trustees to sign discharges for the purchase money resolves itself into two questions : — First : Are the trustees justi- fied in making the sale at all ? 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 a sale ? Trust for salefor 1. If a testator devise an estate to trustees and direct a sale of it for payment of debts on the insuffiiiency of the personal assets, the trustees ought not to dispose of the realty, until it appears that 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 investigating the accounts, he is not to be prejudiced should it prove eventually that the per- sonalty is sufficient (&). All that could reasonably, and which perhaps would be required of him, is, that he should apply to the executor, where the trustee does not sustain that character, and ask if the necessity for the sale has arisen. However, a purchaser is prevented in such a case from dealing exclusively with the trustee out of Court, where a suit has been instituted for the admi- nistration of the estate (c). (a) Berry v. Gibbons, 8 L. R. Ch. Cfreetham v. CoUon, 11 Jur. N. S. 848 ; App. 747. but see Fearne's P. W. 121. (6) Culpepper v. Aston, 2 Ch. Ca. (c) Culpqyper v. Aston, 2 Ch. Ca. lib, per Lord Nottingham; Keane v. 116, 2iZ, per Lord Nottingham; and Sobarts, 4 Mad. 3b6,per Sir J. Leach ; see WalJcer v. Smallwood, Arab. 676 ; Co. Lit. 290 b, note by Butler, sect, and supra. 14; Shaw v. Borrer, 1 Keen, 559 j payment of debts. CH. XVIII. S. 2.] TKU3TEES' EECEIPTS. 393 But if a testator give not the estate but a power of sale only to Power of sale on his trustees, and that conditional on the insufficiency of the per- p°rsonaf esfate. sonal estate, then the purchaser must at his peril ascertain that the power can be exercised (a). 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 eQ[uity, as the purchaser had no opportunity of discovering the true state of things, will not allow his title to be impeached. 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 assumed execution of it. 2. A purchaser is not bound to ascertain whether more is offered Case of selling for sale than is sufficient to answer the purposes of the trust : for ^^^^^ requires. how is the purchaser to know what exact sum is wanted, without investigating the accounts ? And if the sale be by auction the vendors, the trustees, cannot tell d priori what the property will fetch. Besides, the trustees are entitled, as incident to their office, to raise their costs and expenses (6). 3. But where a testator directed, on the insufficiency of his per- Pierce v. Scott. sonal estate, a sale in the first instance of estate A., and should that not answer the purpose, then of estate B., and the trustees, fifteen years after the testator's death, contracted for the sale of B. first, and then filed a bill for specific performance, alleging the existence of debts, and that A. was already in mortgage, or other- wise charged to the full value, the Court, considering it was un- likely 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 (c). Secondly. Supposing the sale to be proper, is the purchaser bound to see to the application of his purchase money ? We must here advert in limine to some important recent enact- Lord St. Leo- ments. By Lord St. Leonards' Act, 22 & 23 Viet. c. 35, s. 23, it is ^'■'^'^' ^°*- declared that " the bond fide payraent to and the receipt of any person to whom any purchase or mortgage money shall he payable upon any express or implied trust shall effectually discharge the person paying the same from seeing to the application or being (a) Culpepper v. Aston. 2 Ch. ' Ca. 301 ; Thomas v. Townsend, 16 Jur. 221 ; Dike v. Richs, Cro. Car. 335 ; 736. S. C. Sir W. Jones, 327. (c) Pierce v. Scott, 1 Y. & C. 257. (6) Spalding v. Shalmer, 1 Vern. 394 trustees' receipts. [CH. XVIII. s. 2. Lord Cranworth's Principle of re- quiring a pur- chaser to see to the application of his purchase money. Power to sign a receipt is a ques- tion of title. answerable for the misapplication thereof, unless the contrary shall be expressly declared by the instrument creating the trust or security." It will be observed, 1. That the Act applies not to all monies subject to a trust, but only to monies arising from sales and mortgages and subject to a trust. 2. That the language of the section, more particularly of the latter part of it, is in the future tense, so that the enactment wUl probably be held not to be retro- spective. If future settlors are to have the option of excluding the operation of the Act, it should not affect prior settlors who had no such option. 3. As regards trusts or mortgages created by instru- ments since the date of the Act (13th August, 1859) it would seem that to the extent of sale monies and mortgage monies the whole doctrine in equity of seeing to the application of money has been swept away. It cannot be said that where A. is trustee for B. the money is payable to B. and not to A., and that therefore the clause shall not apply, for the doctrine of equity is that the money is payable to A., but the purchaser or mortgagee is bound to see it properly applied by A. By Lord Cranworth's Act, 23 & 24 Vict. c. 145, s. 29, it is enacted that " The receipts in writing of any trustees or trustee for any money payable to them or him by reason or in exercise of any trusts or powers " shall be good discharges ; but by section 34, the operation of the Act is confined to instruments executed after its passing, viz., after 28th August, 1860. As the clauses in these Acts are not retrospective, it is necessary to consider generally and apart from legislative enactment the power of trustees for sale to sign receipts. 1. As a general rule, 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 pa3Tnent or transfer to the true 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 dis- charge the purchaser ; but in equity B. and C, the cestuis que trust, are the rightful proprietors, and A. is merely the instrument for the execution of the settlor's purpose, and the receipt, therefore, to be effectual, must be signed by B. and C. (a) ; and the power of the vendor to sign a discharge for the purchase money is a question not of conveyance but of title (&). (a) See Weaiherby v. St. Giorgio, 2 Hare, 624. (6) Forbes v. Peacock, 12 Sim. 521. OH. xvm. s. 2.] trustees' receipts. 395 2. Such is the primd facie rule in trusts ; but in every instance The rule con- it is liable to be controlled and defeated by an intention to the intention of the contrary collected from the instrument creating the trust, whether settlor. that intention be expressed or implied. 3. The former is the case, if the settlor direct in express terms Either expressed. that the receipts of A., the trustee, shall discharge the purchaser 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. The words in a power of attorney, " to sign discharges in the name of the assignor or otherwise, and to do all other acts as the principal might have done," have been held to carry such a direc- tion (a) where not controlled by a subsequent receipt clause tend- ing to negative that intent (6). But the receipt clause has not always been liberally construed ; as where trustees were entitled to receive a sum of stock with a power of varying securities, a receipt signed for cash was held to be no discharge, though the Court said that had there been any indication of an intention to exercise the power of varying securities for which cash would be required, the decision might have been different (c). It would have been more satisfactory had the Court held that as the trust fund in the hands of the trustees in the shape of cash did not necessarily imply a breach of trust the receipt was suf&cient. 4. In what cases a power of signing receipts is implied, has Or implied, never been satisfactorily ascertained. However, two principles appear to be the basis upon which most of the distinctions taken by the Courts have been founded. 5. First. In the creation of a trust for immediate sale, it is Direction to sell implied, that a legal and equitable discharge for the purchase implies power in ^ ' ^ ^ c ^ some one to sign (a) Binks v. Lord Roheby, 2 Mad. insurance companies in such cases is, discharges at 227 ; see 238, 239 ; Deshm-ough, v. that after paying upon the equitable *^"^e of sale. Harris, 5 De G. M. & G. 439. In title they might incur costs pend- this case L. C. Cranworth considered ing an action upon the legal title. that an assignment of a policy by way However, a defendant may now plead of mortgage vests a power of signing an equitable defence at law ; and if receipts in the mortgagee from the driven into equity for an injunction he nature ofthe case, and independently of would recover his costs in the suit. any express power of signing receipts, See further Ottley v. Gray, 16 L. J. for the possession of the policy is evi- Ch. 512 ; Curton v. Jdlicoe, 14 Ir. Ch. dence that something is due, and the Re. 180. A late Act has enabled the Insurance Company cannot be expected assignee of a policy to bring an action to take the account between mortgagor in a court of law. 30 & 31 V. c. 144, and mortgagee. Of course it would be s. 1. And see 36 & 37 V. c. 66. otherwise if the company had express (&) Brasier v. Hudson, 9 Sim. 1. notice that the mortgage had been (c) Pell v. De Winton, 2 De Gex & satisfied. The difficulty felt by the Jon. 13. SQ-ft TEUSTEES RECEIPTS. [CH. XVIII. S. 2. Balfour v. Wellaud. Case of infancy. As to eestuis que trust out of the jurisdiction. money shall be signed hy some one at the time of the sale. There can be no conveyance of the estate without payment of the money, and there can be no such payment without a complete dis- charge. Should the settlor have contemplated a sale at a time when, as he must have known, the eestuis 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 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 i7nmediately defined. 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 dis- tributed. If the sale might take place at a time when the distri- bution 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). So where A. devised certain lands to his children, some of whom were infants, " the same to be sold when the executors and trustees of his will 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 " (5). As to eestuis que trust who, after the date of the instrument, 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. (a) Balfour v. Welland, 16 Ves. 151, see 156. (6) Sowarsby v. Lacy, 4 Mad. 142 ; Lavendar v. Stanton, 6 Mad. 46 ; and see Breedon v. Breedon, 1 E. & M. 413; Cuthbert v. Baker, Sugd. Vend. & Purch. 842, 843, 11th edit. CH. XVIII. s. 2.] trustees' receipts. 397 6. Secondly. If a sale be directed, and the proceeds are not Where trust is simply to be paid over to certain parties, but there is a special purch^emonev trust annexed, the inference is, that the settlor meant to confide it is implied that the execution of the trust to the hands of the trustee, and not of apply it. the purchaser, and that the trustee therefore can sign a receipt {a). An opinion of Mr. Booth shows that even in his time regard Mr. Booth's was had to the nature of the trust in exempting the purchaser "P^'^^""- from liability. A testator had directed his trustees to sell and invest the proceeds upon the trusts thereinafter mentioned, and then gave his wife an annuity of 50^. a year, for her Hfe, 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 all that wiU be incumbent on the purchaser to see done wiU be to see that the trustees invest the purchase money, in their names, in some of the public stocks or funds, or on Government securities, and in such case the purchaser wiU 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 (&). 7. To the principle under consideration is referrible the well- Trust to pay known rule, that a purchaser is not bound to see to the application "^ehts. of his money where the ,^ trust is for payment of debts generally; for to ascertain who were the creditors, and what is the amount of their respective claims, is matter of trust involving long and in- (a) Doran v. Wiltshire, 3 Swans. The question in that case arose upon 699 ; Balfour v. Wetland, 16 Ves. 157; the construction of a will which gave Wood V. Harman, 5 Mad. 368 ; Locke to the tenants for life the like powers V. Lomas, 5 De G. & Sm. 326. See of selling and exchanging as were con- Glynn v. Locke, 3 Drur. & War. 11; tained in a settlement referred to, and Ford V. Ryan, 4 Ir. Ch. Rep. 342. In in which were, not only powers of sale Cox V. Cox, 1 Kay & John. 251, Vice- and exchange, but also a power of Chancellor Wood held, that a power signingreceipts, and theVice-Chanoel- of signing receipts was by no means lor was of opinion that the powers of one inserted as of course in legal in- sale and exchange only, without the struments, but often excluded, and power of signing receipts, were inoor- when excluded, was never implied, ex- porated by reference, cept under very special circumstances. (6) 2 Cas. and Op. 114. 398 TEUSTEES' RECEIPTS. [CH. XVIII. S. 2. Scheduled debts or legacies. Late Assets Act. tricate accounts, and requiring the production of vouchers, which the purchaser would have no right to require (a). So if the trust he for payment of a particular debt named, and of the testator's other debts (6). So if the trust be for payment of debts and legacies, the purchaser 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 aU liabilities in respect of the legacies (c). 8. But if the trust be for payment of particular or scheduled debts only (d), or of legacies only (e), then, as there is no trust to be executed requiring time or discretion, but the purchase money is simply to be distributed amongst certain 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 stiU bound to see to the application of his money, though by 3 & 4 W. 4, c. 104, the real estate of all persons deceased since the 29th of August, 1833, is liable, in the hands of (a) Forbes v. Peacock, 11 Sim. 152 ; and see S. C. 12 Sim. 528 ; 1 Phill. 717 ; Stourghill v. Anstey, 1 De G. M. & G. 635 ; DowUng v. Hudson, 17 Beav. 248 ; Culpepper v. Aston, 2 Ch. Ca. 223 ; WatUna v. Cheeh, 2 S. & S. 205. per Sir J. Leach ; ATion. Mose. 96 ; Hardvnch v. Mynd, 1 Anst. 109 ; Johnson v. Kennett, 3 M. & K. 630, per Lord Lyndhurst ; Rogers v. Skilli- come, Amb. 189, per Lord Hardwicke ; Walker v. Smallwood, id. 677, per Lord Camden ; Barker v. Duke of Devon- shire, 3 Mer. 310 ; Ahbot v. Oihhs, 1 Eq. Ca. Ab. 358; Binks v. Rokehy, 2 Mad. 238,^er Sir T. Plumer ; Dunch V. Kent, 1 Vern. 260, admitted ; Elliott V, Merryman, Barn. 78 ; Smith v. Guyon, 1 B. C. C. 186, and cases cited, ib. note ; Ithell v. Beane, 1 Ves. 215; per Lord Hardwicke ; Lloyd v. Bald- win, ib. 173, per eundem ; Dolton v. Hewen, 6 Mad. 9 ; Ex parte Turner, 9 Mod. 418, per Lord Hardwicke ; Gosling v. Carter, 1 Coll. 644 ; Eland V. Eland, 1 Beav. 235 ; S. C. 4: M. & Cr. 420 ; Jones v. Price, 11 Sim. 557 ; Currer v. Walkley, 2 Dick. 649, cor- rected from Eeg. Lib. 3 Sugd. Vend. & Purch. 168, 10th ed. (6) Robinson v. Lowaler, 17 Beav. 592 ; 5 De G. M. & G. 272. (c) Rogers v. Skillicorne, Amb. 188 ; Smith V. Guyon, 1 B. G. C. 186; Jebh V. Abbott, and Benyon v. Gollins, 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. 654, note (a) ; WaMns v. Cheek, 2 S. & S. 205, per Sir J. Leach ; Eland v. Eland, 1 Beav. 235 ; per v. Aston, 2 Ch. Ca. 223. (e) Johnson v. Kennett, 3 M. & K. 930 ; flora v. JIo)-n, 2 S. & S. 448. CH. XVIII. s. 2.] trustees' receipts. 399 the heir or devisee, to the payment of debts generally, whether by specialty or simple contract (a). 9. And even where the estate is subjected by the testator to a Where, notwith- trust for payment of debts generaUy, the purchaser wiU not be oHebtlth^pM! indemnified by the receipt of the trustee if there be any collusion chaser must see between them (b) ; or if the purchaser have notice from the in- of ^ig money, trinsic 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), and these doctrines, it is conceived, are not affected by the clauses in Lord St. Leonards' and Lord Cranworth's Acts, which apply only to bond fide payments. 10. And if the purchaser is dealing with trustees at a great Purchase from distance of time, and when the trust ought long since to have been lenwh of'time* executed, 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). But where twenty-seven years had elapsed, and the beneficiaries subject to the charge had been let into possession, and the purchaser asked if there were any debts and the vendors declined to answer, it was held that the vendors could make a good title (/). 11. As the exemption of the purchaser from seeing to the appli- Power of signing cation of the purchase money depends as a general rule upon the tion^o/intention settlor's intention, the question must be viewed with reference to ?* ^'^^ "^^^^ o* ^^ the date of the instrument, and not as affected by circumstances which have subsequently transpired {g). 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 bound to see to the application of themoney in payment of the legacies Qi). 12. In Forbes v. Peacock (i), a testator directed his debts to be Forbes v. (a) Horn v. Horn, 2 S. & S. 448. Phill. 717 ; Devaynes v. Robinson, 24 (6) Rogers v. Shillicorne, Amb. 189, Beav. 93 ; Sabin v. Heape, 27 Beav. ^er Lord Hardwicke ; Eland y. Eland, 553; McNeillev. Aton, 2 Eq. Ee. 21. 4 M. & Cr. A21,per Lord Cotteiiham. (/) Sabin v. Heape, 27 Beav. 553. (c) WatUn V. Cheek, 2 S. & S. 199 ; (g) See Balfour v. Wetland, 16 Ves. Eland v. Eland, 4 M. & Cr. 427, ^er 156; Johnson v. Kennett, 3 M. & K. Lord Cottenham ; Burt v. Trueman, 631 ; Eland v. Eland, 4 M. & Cr. 428. 6 Jur. N. S. 721 ; and see StroughillY. (h) Johnson v. Kennetf, 3 M. & K. ^?w%, 1 DeG. M. &G. 648; Colyer 624, reversing S. C. 6 Sim. 384; V. Finch, 5 H. L. Cas. 923. Eland v. Eland, 4 M. & Cr. 420 ; {d) Lloyd V. Baldwin, 1 Ves. 173- Page v. Adam, 4 Beav. 269 ; Stroug- (e) Stroughill v. Anstey, 1 De G. M. hill v. Anstey, 1 De G. M. & G. 635. & G. 654, i)er Lord St. Leonards; and (i) 11 Sim. 152 ; 12 Sim. 528; 11 see Forhea v. Peacock, 11 Sim. 502 ; M. & W. 637 ; 1 Phill. 717; see Stroug- 12 Sim. 528 ; 11 M. & W. 637 ; 1 hill v. Anstey, 1 De G. M. & G. 650. 400 TEUSTEES' RECEIPTS. [CH. XVIII. S. 2. ;paid, and gave the estate to his wife, (whom he appointed his executrix) for life, subject to his debts and 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 appUed in a manner showing that they were intended to pass through the hands of the executors, and the tes- tator 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 a 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 appli- cation of his purchase money. The V.-C. observed, " 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 hy 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 applied " (6). It is evident that this doctrine was not in accordance with former decisions, and the cause was carried upon appeal to the Lord-ChanceUor, when the decision below was reversed (e). Lord Lyndhurst said, " 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 circum- stances, 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 seU not only for the payment of debts, but also for the purpose of distribution 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 (a) 12 Sim. 537; see Saiire v.//eape, (c) 1 PhiJl. 717; see Stroughill v. 27 Beav. 553. Ansiey, 1 De G. M. & G. 653 ; Matlier (i) 12 Sim. 542. v. Norton, 16 Jur. 309. CH. xvm. s. 2.] trustees' receipts. 401 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 application of the purchase money ? I apprehend not." Lord St. Leonards, with reference to the same important case, observed, " When a testator by liis will charges his debts and legacies, he shows that he means to entrust liis 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 receipt and application of the money, and not to throw any obligation at all upon the purchaser or mort- gagee. That intention does not cease because there are no debts. If a trust be created for payment of debts and legacies, the pur- chaser or mortgagee should in no case (in the absence of fraud), be bound to see to the application of the money raised." And his Lordship added, " as to Forbes v. Peacock it is quite a mistake to suppose that that was a trust executed at a distance of twenty-five years from the time when it arose, for it was executed at the time when it did arise, which happened to be twenty-five years after the death of the testator " (a). If a trustee have authority to invest the trust fund with a power Power of varjang of varying securities, but without an express power of signing i^vestment^"'^ °* receipts, it is implied from the nature of the trust that he shall sign receipts (b) ; and if he be authorised to invest on security simply without power of varying securities he can sign receipts, for he cannot prevent the borrower from paying off the money, and who but the trustee can receive it back (c). Indeed a power of invest- ment has been held to carry with it a power of varying the secu- rities («?). 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 pur- chaser to take a title which depended on that question (e). The power of signing a receipt in such cases turns 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 the mortgage money is paid off is implied. (a) StrougUll v. Anstey, 1 De G. M. {d) Re Cooper's Trust, W. N. 1873, & G. 653, 654. p. 87. (6) Loch V. Lomas, 5 De G-ex & Sm. (e) Hmison v. Beverley, Sugd. Vend, 326. & P. 848, 11th edit. (c) Wood V. Harman, 5 Mad. 368. D D 402 TKUSTEES' RECEIPTS. [CH. XVIII. S, 2. Power of sale j^ power of signing receipts is not implied in a power of sale and exchange (a). Charge of debts. 13. The Case 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, seems to require particular examina- tion. 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 has administration of the personal assets, should, by virtue of an implied power, seU the real estate for payment of the debts ; but no such rule ever existed, and we proceed, there- fore, to ascertain, as far as we can, by what principle the Court is guided. Devise to trustees „. If a testator charge his real estate with debts, and then devises with a charge of . , • i t ■ i j- i debts it to trustees upon certam trusts, which do not provide tor a sale or perhaps even negative the intention of conferring a power of sale, can the trustees give a good title to a purchaser ? It is clear that the trustees and the executor together can sell (6), and the ques- tion 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 ? V. 0. (late L. J.) K. Bruce seemed, on one occasion, to think that the cases of Shaw V. Borrer and Ball v. Harris might have been decided on this footing (c), and some recent cases lean in the same direc- tion {d). 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 JDoe 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 (e). Have the executors then an equitable power, and is the trustee who has the legal estate bound (a) Cox V. Cox, 1 Kay & J. 251. executors to receive the money. The (6) 6haw V. Boi-rer, 1 Keen, 559 ; question to whom the money should Ball V. Harris, 8 Sim. 485; 8. C. 4 be paid was not adverted to in the Myl. & C. 264 ; Page v. Adam, 4 argument, nor does it appear to whom Beav. 269 ; and see Forbes v. Peacock, it was paid. 11 Sim. 152 ; 12 Sim. 628; 11 M. & (c) Gosling v. Carter, 1 CoU. 649. W. 630 ; 1 Phill. 717 ; Sahin v. Heape, (d) See Eobinsony. Lowater, 17 Beav. 27 Beav. 553. In Shaw v. Borrer, 592 ; 5 De G. M. & G. 272 ; Eids- the trustees and executors were co- fortJi v. Armstead, 2 K. & J. 333; plaintiffs, and the prayer of the bill was, WrigUy v. Sykes, 21 Beav. 337; that the purchase money might be paid Storry v. Walsh, 1 8 Beav. 568 ; Colyei- to the executors. This, if done by the v. Finch, 5 H. L. Gas. 905 ; HodUn- order of the Court would indemnify the son v. Quinn, 1 Johns. & Hemm. 310 ; trustees; but it did not follow that the Greetham v. Colton, 34 Beav. 615. trustees, on the completion of the sale (e) Doe v. Hughes, 6 Exch. Eep. out of Court, could have allowed the 231. CH. XVIII. S. 2.] TKUSTEES' RECEIPTS. 403 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 them- selves. Apparently they were decided on the familiar principle that in a Court of equity there is no difference between a charge of debts and a trust for payment of debts (a), and that the trus- tees 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 all 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 circumstance, however, may be easUy accounted for, as trus- tees of the will are almost invariably appointed executors also, and where that is not the case, the purchaser naturally requires the concurrence 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 bond fide 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 (6), or of the characters of trustee and personal representative being combined, but in others that fact has been passed over in silence as a mere accident, and the Court has relied on the general doc- trine that a trustee of the estate charged with debts could seU and sign a valid discharge for the purchase money (c). In Doe v. Hughes (d), 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 Ux parte Turner (e), where the estate had been given subject to (a) Elliott V. Merryman, Barn. 81 ; that Harris (the trustee), who had the Ex parte Turner, 9 Mod. 418 ; Jenkyns legal fee, was competent to mortgage V. Hiles, 6 Ves. 654, note (a) ; Bailey that estate to any person who would V. Ehins, 7 Ves. 323; Ball y. Harris, advance money for the benefit of the 4 Myl. & C. 267 ; Wood v. White, 4 testator's estate," 8 Sim. 497 ; and it Myl. & C. 482 ; Commissioners of is equally clear that Lord Cottenham Donations v. Wyhrants, 2 Jones & Lat. was of opinion that Harris was a 197. trustee for payment of debts ; 4 M, & (J) See Shaiu v. Borrer, 1 Keen, Cr. 267. 559 ; Forbes v. Peacock, 12 Sim. 537; (c) See Ball v. Harris, at the pas- and see V.-C. K. Bruce's remarks sages referred to in the preceding note; upon Shaw v. Borrer, -anA Ball v. Forbes v. Peacock, 12 Sim. 546. Harris, in Gosling v. Carter, 1 Coll. {d) 6 Exoh. Eep. 231. 649. But in Ball v. Harris, the V.-C. (e) 9 Mod. Rep. 418; and see Colyer of England observed, " It is manifest v. Finch, 5 H. L. Cas. 922. D D 2 404 trustees' receipts. [ch. XVIII. s. 2. debts, but no express trust was created for the purpose, he observed, " Where a devise is general ' in trust ' or ' subject to pay debts,' the devisee may sell or mortgage, but he must pay the money to the creditors of his devisor ; but if he do not, the mort- gagee 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 equitable assets, as it is where it is accompanied with a trust, the creditors who have not specific liens upon the land ought to come in equally, and pari i^assu. 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 impUed by the charge, sell the estate, and sign a receipt for the purchase money, it would seem to follow that they cannot allow the proceeds to be paid to the executor as not being the proper hand to receive (a), the executor in that character having no privity with the real estate. The necessity of requiring the concurrence of the personal representative would often lead to practical inconvenience, 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 ad- ministration ; 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 will, would not succeed to the power of the executor, which should be borne in mind as of some importance in considering whether the sale is substantially that of the executor or of the trustee who takes sub- ject to the charge. Should the neat point ever call for a decision, it will probably be held that the trustee, without the concurrence of the executor, can give a good title (5). Lord St. Leo. By Lord St. Leonards' Act (22 & 23 Vict. c. 35, s. 14) where nards' Act, (a) See Gosling v. Carter, 1 Coll. (J) The recent case of Hodhinson v. 660, where V.-C. Knight Bruce says, Quinn, 1 Johns. & Hem. 303, when " If payment ought to be made to one, closely considered, will be found to it is not, necessarily, a good payment aftord little aid towards solving this to make that payment to one and question ; and see Cook v. Davson, another." 29 Beav. 126 ; 3 De Gex, F. & J. 127. CH. XVIII. S. 2.] TEUSTEES' RECEIPTS. 405 by a will coming into operation after 13th August 1859, a testator charges real estate with the payment of debts, or any specific legacy or sum, and devises the estate so charged to trustees for the whole of his estate or interest, and makes no express provision for raising the debts, legacy, or sum, the devisees in trust may sell or mort- gage ; and by s. 15, the power is continued to all persons taking the estate so charged by survivorship, descent, or devise ; and by s. 17, purchasers and mortgagees are not bound to inquire whether such powers " have been duly and correctly exercised by the person or persons acting in virtue thereof." Where debts are charged, of course a purchaser or mortgagee under these powers is not bound to see to the application of his money, and where a specific legacy or sum is charged, if the above enactments do not per se confer a power of signing receipts, the purchaser or mort- gagee is exempted from seeing to the application by the 23rd section of the same Act (a). The 18th section declares that the Act shall "not extend to a devise to any person or persons in fee or in tail, or for the testator's whole estate and interest, charged with debts or legacies, nor shall it affect the power of any such devisee or devisees to sell or mortgage as he or they may by law now do." To make this section consistent with the 14th, the " devise " referred to in the 18th section must mean a beneficial devise, and " devisee or devisees " a beneficial devisee or devisees, and the inference would seem to be that, in the view of the framer of the Act, no legislative assist- ance was needed in the case of a beneficial devise subject to a charge. Indeed the concluding words of the section seem almost tantamount to a declaration of the legislature that beneficial devisees subject to a charge have power to sell or mortgage, which is the case we next proceed to consider. y8. If a testator charge his debts and devise the estate subject Devise to a per- to the charge to A. and his heirs not upon trusts but for his oivn ^^^'a'^^^'^'^^f use, can the beneficiary in this case make a good title ? The debts, answer to the question last discussed is an answer also to this, for if where the express trust negatives the intention of conferring a power to sell 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 sell, a, fortiori the devisee can, who is fettered by no such restriction. In both (a) See also 23 & 24 Vict. c. 145, s. 29. 406 TRUSTEES EEOEIPTS. [CH. XVIII. s. 2. Charge of debts where there is no devise of the estate. 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 effect 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 " (6). It is clear that the devisee can, where he also fills the character of executor, make a good title (c), and in some of the cases the Court did not in terms rely on the characters being combined {d), 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 (e) it was said that in a devise to trustees, subject to a charge of debts, the trustees could seU; 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 can sign a receipt for the purchase money (/), 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, wordd be a trap for purchasers should the Court now refuse to uphold a purchase from a devisee only. Considering the declaratory words contained at the end of the 18th section of Lord St. Leonards' Act, it may now, it is con- ceived, be safely assumed that a purchaser from a devisee subject to a charge of debts, will without the concurrence of the executor acquire a good title. y. If a testator charge his debts on the real estate, and does not devise the estate at all, but allows it to descend to the heir, can the heir sell and sign a receipt for the purchase money ? It appears (a) Bailey v. EUns, 7 Ves. 323. (6) Commissioners of Donations v. Wyhrants, 2 Jon. & Lat. 198. (c) Elton V. Harrison, 2 Swan. 276, note; Elliot v. Mcrryinan, Barn. 78; Dolton V. Young, 6 Madd. 9 ; Johnson V. Kennett, 6 Sim. 384; 3 Myl. & K. 624 ; Eland v. Elcnd, 1 Beav. 235, 4 Myl. & C. 420; Page v. Adam, 4 Beav. 269 ; Corser v. Cartwright, 8 L. R. Ch. App. 971. {d) Elliott y. Merryman, Dolton v. Young, Johnson v. Kennett, Eland v. Eland, uhi sup-a; Colyer v. Finch, 5 H. L. C. 905, 922. (e) Doe V. Hughes, 6 Exch. Rep. 231. (/) See the cases cited in note {a), p. 403, supra. CH. XVIII. s. 2.] trustees' eeceipts. 407 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 a trustee by implication for payment of debts (a) ; he can pass the legal estate, but he could not sign the 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 (i.e., independently of Lord St. Leonards' Act, to be mentioned presently), for otherwise the charge of debts amounts to a direction for a Chancery suit ? (6). The legal question arose in Doe V. Hughes (c) before the Court of Exchequer, and the Court held that a charge had no operation at law hut must he enforced in equity. Tlris decision has been found much fault with. The Master of the Eolls said that before the case in the Exchequer he had considered the law to be that a charge of debts gave the executors an implied power of sale (d) ; for otherwise, it is argued, 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 he sold (without naming the person), and the fund is to be distributed 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 («). By analogy to this, where there is no direction to sell, but only a charge of debts, this last, though an umh-a 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 of the title by the purchaser, the person in whom the legal estate is vested wiU, as being a trustee for the executor, be compellable to convey as the executor directs, and if he refuses, the legal estate may be vested in the purchaser by the aid of the Trustee Acts (/). In Gosling v. Garter (g), Vice-Chan- (a) See Gosling v. Carter, 1 Coll. Beav. 337 ; Storry v. Walsh, 18 Beav. 650, (where the V.-C. said that the 568 ; Satin v. Heape, 27 Beav. 553 ; intention to be collected was, that the Hodkinson v. Quinn, 1 Johns. & Hem. heir at law should have nothing to do 309 ; Cook v. Dawson, 29 Beav. 123 ; with it) ; Rohson v. Flight, 34 Beav. 3 De Gex, P. & Jon. 127 ; Gh-mlliam 110, 5 N. E. 344; 8. C. on appeal, 4 v. Colton, 34 Beav. 615; Hamilton v. De Gex Jon. & Sm. 608 ; Doe v. Buchmaster, 12 Jur. N. S. 986. Hughes, 6 Exch. Eep. 231 ; Forbes v. (e) Forbes v. Peacoch, 11 M. & W Peacoch, 11 Mee. & W. 637, 638. 630; Tylden v. Hyde, 2 Sim. & St. (6) See Robinson v. Lowater, 5 De 238; Benthamy. Wiltshire, ^'M.&AA. 44. G. M. & G. 275. (/) See Re Wise, 5 De Gex & Sm. (c) 6 Exch. Rep. 223. 415 ; Hodkinson v. Quinn, 1 Johns. & [d) Robinson v. Lowater, 17 Beav. Hem. 303. 601 ; and see Wrigley v. Sykes, 21 (aripassu it, and no fraud be found, the Court cannot interfere to compel the admission of any particular creditor (a). 14. If the trustees have a power of enlarging the time and advertise to that effect, but do not exercise the power, and so exclude a person who desires to come in, but coiild not do so before the day named in the deed, the creditor wiU be relieved in equity (&). 15. If there be trustees for pajrment of debts and legacies, and subject thereto upon trust for A. for life with remainder over, and the Court has taken an account of debts and legacies, and declared A. eatitled to the possession, who is put into possession accordingly, it is not competent for the trustees afterwards to make an admis- sion of some further debt, and to resume the possession in order to discharge it (c). 16. If the debtor agTce behind the back of the general credi- tors, to give an extra benefit to one particular creditor, such agreement is a fraud upon the general creditors, and illegal and void (d^. II. As to the order of payment. 1. Where the trust is created by will, the direction generally is for payment of " debts and legacies." As regards the administra- tion 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 explicitly declared it, meant the creditors to precede, and the Courts accord- ingly (rather straiaing a poiat, that a man might not " sin ia his grave ") have now indisputably established that creditors shall have the priority (/). 2. As amongst the creditors themselves, the Court acts upon the (a) Wain v. Egmmt, 3 M. & K. 445 ; Drever v. Mawdesley, 16 Sim. 511. (6) Raworth v. Parker, 2 Kay & Johns. 163. (c) Underwood v. Hatton, 5 Beav. 36. {d) Mare v. Sandford, 1 Giff. 288. (e) Hixon v. Wytham, 1 Ch. Ca. 248 ; Gosling v. Dorney, 1 Vern. 482 ; Anon. 2 Vern. 133 ; Powell's case, Nels. 202 ; Wolestoncroji v. Long, 1 Ch. Ca. 32 ; and see Walker v. Meager, 2 P. W. 552. (/) Greaves v. Powell, 2 Vem. 248; 302, Eaithby's ed. ; Bradgate v. Rid- lington, Mose. 56 ; 1 Eq. Ca. Ab. 141, pi. 3 ; Walker v. Meager, 2 P. W. 550 ; Martin v. Hocyper, Rep. t. Hard- wicke, by Ridg. 209; Whittm v. Lloyd, 1 Ch. Ca. 275 ; Foh/s case, 2 Preera. 49 ; Kidney v. Coitssmaker, 12 Ves. 154, per Sir W. Grant ; Peter v. Bruen, cited 2 P. W. 551 ; Lloyd v. Williams, 2 Atk. Ill, ^e?- Lord Hard- wicke. OH. XX. S. 3.] TRUSTEES FOE PAYMENT OF DEBTS. 459 well-knowii principle that " equality is equity," and, therefore, whe- ther the trust be created by deed (a) or will (&), the specialty debts in the absence of express directions to the contrary wiU have no ad- vantage over simple contract debts, but all wiU be paid in rateable proportions ; and, of course, the trustees will not be allowed to break in upon the rule of equality by first discharging their own debts (c). 3. It was formerly ruled, that where a testator charged his free- Specialty cre- hold estate with debts, and the estate subject to the charge <^*°™- descended to the heir, the specialty creditor had precedence, for it was argued that he had his remedy at law against the heir inde- pendently of the will, and therefore ought not to be put on a level with those taking under the wOl (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, and then there are no legal assets in consideration of equity, and the bond creditor may be enjoiaed from pursuing his legal right. And on these grounds it has been decided that specialty debts are not entitled to a preference (e). 4. It was also thought at one time, that if the estate charged Case of trustee with the debts was to' be administered by the executor, the testator cutol 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 executor should not be united in the same person without confusion, and so it has since been determined (g). But where the trust was expressly to pay the settlor's debts " according to their priority, nature, and spe- cialty," a bond-debt with interest was payable before a simple con- tract debt (h). But now all debts of persons who may have died on or after 1st January, 1870, are Tpujahle pari passu. (a) Wolestoncroft v. Long, 1 Ch. Ca. Lindegrem, 2 B. C. C. 94 ; Hargrave 32 ; Hamilton v. Houghton, 2 Bligh, v. Tindal, cited Newton v. Bennet, 187,per-LordEldon; Child v. Stephens, 1 B. C. 0. 136, note. 1 Vern. 101. (/) Gfirling v. Lee, 1 Vera. 63 (b) Wolestoncroft v. Long, 1 Ch. Ca. Cutterback v. Smith, Prec. Ch. 127 ; 32; Anon. 2 Ch. Ca. 54; &c. Bickhamv. Freeman, ih. 136; Masham (e) Anon. 2 Ch. Ca. 54. v. Harding, Bunb. 339 ; Foly's case. Id) FremouU v. Dedire, 1 P. W. 2 Freem. 49. 429 ; Young v. Dennett, 2 Dick. 452 ; (g) Prowse-v. Abingdon, 1 Atk. 482 ; Blatch V. Wilder, 1 Atk. 420 ; Allam Newton v. Bennet, 1 B. C. C. 135 ; V. Heber, Str. 1270 ; S. C. W. Black. Silk v. Prime, ib. 138, note -,8.0.1 22 ; and see Plunket v. Penson, 2 Atk. Dick. 384 ; Lemn v. Okeley, 2 Atk. 290. 50 ; Barker v. Boucher, 1 B. C. C. 140, (e) Shiphard v. Lutwidge, 8 Ves. note. 26 ; Pope V. Gioyn, cited ib. 28, note ; Qi) Passinghamv. Selby, 2 Coll. 405. Bailey v. Ekins, 7 Ves. 319 ; Batson v. 460 TRUSTEES FOE PAYMENT OF DEBTS. [CH. XX. S. 3. Unclaimed Dividends. Interest not al- lowed on simple contract debts. The trust deed does not make the debts specialties. 5. If there be a remnant of unclaimed dividends left in the hands of the trustees, it does not belong to the trustees for their own benefit, but wOl be divisible amongst the unpaid creditors who do claim (a). III. As to allowance of interest. 1. Whether the trust be created by deed (b), or wOl (c), and though the fund has been making interest {d), the trustees will not be justified in paying interest upon simple contract debts not carrying interest; and a fortiori, this is the case where interest is expressly directed as to some particular debts (e). Where the trust was hy 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 deed, and there was nothing to prevent their suing the debtor after the execution ; and no consideration was given to the debtor by charg- ing the land and discharging the person " (/). Even where the debts did in their nature carry interest, and the direction in a will was to pay " the debts owing by the testatrix's brother at the time of his death," but forty years had elapsed since the death of the brother, so that the interest if allowed woiild have amounted to more than double the principal, the Court thought the direc- tion could not have been intended to include interest as well as principal {jj). 2. It was once suggested by Lord Abinger that " if a man exe- cute 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 " Qi) ; and it was held in some old authorities, that even in a deed to which the creditors ivere not parties, or in a trust created by will for payment of debts, the creditors were to be regarded as (a) Wildy. Banning, 12 Jur. (N.S.) 464. (6) Hamilton v. HougTiton, 2 Bligh, 169, see 186; Car v. Burlington, 1 P. W. 228, as corrected in Cox's ed. ; Barwell v. Parker, 2 Ves. 364; Shirley v. Ferrers, 1 B. C. C. 41 ; and see Steivart v. Noble, Vern. & Soriv. 536 ; Creuze v. Hunter, 2 Ves. jun. 165; S. C. 4B. C. C. 319. (c) Lloyds. Williams, 2 Atk. 108; Stewart v. Nolle, Vern. & Scriv. 528 ; Dolman v. Priiman, 3 Ch. Re. 64; Nels. 136 ; Freem. 133 ; Bath v. Brad- ford, 2 Ves. 588,2'«»' Lord Hardwicke; and see Tait v. Northwich, 4 Ves. 816. Boihorrdy v. Fairfax, 1 P. W. 334, note ; Maxwell v. Wetienhall, 2 P. W. 26 ed. by Cox, are overruled. (d) Shirley v. Ferrers, 1 B. C. C. 41 ; but see Pearce v. Slocombe, 3 Y. & C. 84. (e) Jenkins v. Perry, 3 Y. & C. 178. (/) Hamilton v. Houghton, 2 Bligh, 186 ; and see Baj-wellv. Parker, 2 Ves. 364 ; Bath v. Bradford, ib. 588. (g) Askew v. Thompson, 4 K. & J. 620. (A) Jenkms v. Parry, 3 Y. & C. 183. CH. XX. S. 3.] TRUSTEES FOE PAYMENT OF DEBTS. 461 mortgagees and were entitled to interest (a) ; but the doctrine in these cases has long since been overthrown, and it is apprehended that the distinction taken by the Chief Baron cannot at the present day be supported (6). 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 " (c). But this dictum also is not in conformity with the law as now established, and cannot be maintained (d). 3. But where A. and B. assigned theiv joint propejiy to C, D., and Pearce v. E. upon trust, in the first place to pay the Joint debts at the expira- tion of a year from the date of the assignment, and then as to a moiety to pay the separate debts of A., and at the end of a year sufficient assets were reaUsed 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 per cent, before the separate creditors were paid their principal. The separate creditors would otherwise try to impede the general settlement, in order that, in the mean time, they might enjoy the interest from the joint creditors' fund (e). 4. Of course the creditors may stipulate for payment of interest. Creditors may- or the settlor, if so minded, may insert such a direction (/). But interest? °^ a trust for payment of specialty and simple contract 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 {g). 5. Specialty debts, though actually released by a creditors' deed. Specialty debts. 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 trust for payment of {a) Maxwell v. WeUenhall, 2 P. W. 27 ; Car v. Burlington, 1 P. W. 229. (6) Barwell v. Parker, 2 Ves. 364. It must be borne in mind, however, that the practice of the Court of Chancery gives simple contract credi- tors a right to interest from the date of the decree O'lt of any surplus assets after paying all debts, and the interest of such as by law carry interest ; see Order XLII., Rule 9, of Consolidated Orders. (c) Barwell v. Parher, 2 Ves. 364. {d) Stone v. Van Heythuysen, Kay, 721 ; Clowes v. Waters, 16 Jur. 632. (e) Pearce v. Slocombe, 3 Y. & C. 84. (/) See Bath v. Bradford, 2 Ves. 588 ; Barwell v. Parleer, ib. 364 ; Steioart v. Noble, Vern. & Scriv. 536. (g) Tail v. Northioick, 4 Ves. 816. 462 TEUSTEES FOR PAYMENT OF DEBTS. [CH. XX. S. 3. Bond creditora not entitled to interest beyond the penalty. debts interest as well as principal must be taken into calculation to ascertain 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 the claim of a cestui que trust. And some principle of this kind appears to have been acted upon in the case of Car v. Bur- lington (a), 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 (&). 6. Bond creditors, it must be observed, will in no case be entitled to receive more for principal and interest than the amount of the penalty (c). (a) 1 P. W. 228, as corrected in Coi's ed. from Reg. Lib. (6) Bateman v. Margerison, 16 Beav. 477. (c) Hughes v. Wynne, 1 M. & K. 20 ; Anon. 1 Salk. 154 ; Clowes v. Waters, 16 Jur. 632. 463 CHAPTER XXI. THE DUTIES OF TEUSTEES OP CHARITIES. 1. Charities are either established by charter, as eleemosynary corporations, or are under the management of individual trustees. 2. Before entering upon the duties of trustees for charities, it Charities by may be proper to introduce a few preliminary remarks upon the subject of the Court's jurisdiction over charities established by charter. 3. On the institution of such a charity a visitatorial jurisdiction visitor, arises of common right to the founder, (whether the Crown 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 memhers of the society amongst themselves, and generally to superintend tlie internal government of the body, and to see that all rules and orders of the corporation are ohserved (&). The visitor must take as his guide the statues originally propounded by the founder (c) ; but so long as he does not exceed his proper province, his decision is final, and cannot be questioned by way of appeal {d). 4. With this visitatorial power the Court of Chancery has nothing Jurisdiction of to do : it is only as respects the administration of the corporate chancer^ over property that equity assumes to itself any right of interference (e). corporate bodies. 5. Upon the ground of this distinction between the visitatorial Informal election (a) Edm v. Foster, 2 P. W. 326, v. Todington, I Burr. 2QQ,per Lord resolved ; Attorney- General v. Gaunt, Mansfield ; Attorney- General v. Loch, 3 Swans. 148. 3 Atk. Ub, per Lord Hardwicke; (6) See Philips V. Bury, Skin. 47 S; Attorney- General v. Tfie Master of Attorney- General v. Crook, 1 Keen, Catherine Hall, Cambridge Jac. 392, 126; Attorney-General y. Archbishop per Lord Eldon. of York, 2 E. & M. 468 ; In re Bir- (e) See the observations of Lord mingham School, Gilb. Eq. Rep. 180, Corami&f.ion&c'Eyrsm Attorney- General 181. V. The Governors of the Foundling (c) Green v.Rutherforth, I Yes. 4:6d, Hospital, 2 Ves. jun 47. But Chief per Sir J. Strange ; id. 4:72, per Lord Baron Richards once observed, he had Hardwicke. been of counsel in the Foundling Hos- {d) St. John's College, Cambridge pital case, and he remembered some of 464 DUTIES OF TEUSTEES OF CHAEITIES. [CH. XXI. Mal-administra- tion. How property newly giTen is affected by the visitatorial power. Private founda- tion with a charter. 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 (a): but 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 appli- cation (&). 6. 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 domes- tieum — 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 (c). If a legal or equitable interest be given to a body corporate, and no sp>ecial piorpose 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 {d) : 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 corpo- ration in the light of an ordinary trustee, will determine all the same questions as would have fallen under its jurisdiction had the administration of the fund been intrusted to the hands of individuals (e). 7. Where a private person founds a charity, and then the Crown grants a charter, the presumption is that the Crown meant to carry the first men of the bar were not satis- fied with the decision ; In re Chcrtsey Market, 6 Price, 272. See also the observations of Lord Hardwicke in Attorney- General v. Lock, 3 Atk. 166 ; and see upon this subject generally Ex parte Berhliampstead Free School, 2 V. & B. 138 ; Tim Poor of Chelms- ford 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. 533, 539 ; Attorney- General v. Cor- poration of Bedford, 2 Ves. 505 ; 5 Sim. 578; Attorney- Generalv. Browne's Hospital, 17 Sim. 137; Attorney- Gene- ral v. Dedham School, 23 Beav. 350 ; Daucjars v. Bivaz, 28 Beav. 233. {a) Attorney - General v. Earl of Clarendon, 17 Ves. 491, see 498; Whiston V. Dean and Chapter of Bo- chester, 7 Hare, 532 ; Atlorney-Genrra] V. Dixie, 13 Ves. 519 ; Attorney-Gene- ral V. Middleton, 2 Ves. 327, see 330 ; Attorney- General v. Dulwich College, 4 Beav. 255 ; Attorney- Generalv. Mag- dalen College, Oxford, 10 Beav. 402 ; Attorney - General v. Corporation of Bedford, id. 505 ; In re Bedford Charity, 5 Sim. 578. (b) See Attorney- General v. St. Cross Hospital, 17 Beav. 435 ; Attorney - General v. The Governors of the Found- ling Hospital, 2 Ves. jun. 48 ; Attorney- General v. Earl of Clarendon, 17 Ves. 499. (c) Green v. Ruiherforth, 1 Ves. Sen. 472, per Lord Plardwicke. id) Id. 473, per eundem; Ex parte Inge, 2 E. & M. 596, ^.«»• (e) See Forshaw v. Higginson, 3 Jm: Cur.; Earl of Bath v. Bradford, 2 N. S. 476. Ves. 590, per Lord Hardwicke ; Cook 486 GENEEAL POWERS OF TRUSTEES. [CH. XXII. S. 1. the proceeds on mortgage, but if they have the mortgage ready- may take the value of the stock and hand it over to the mort- gagor (a). So trustees having a power to lay out a certaiji sum in the purchase of an annuity for A. B., may pay the sum to A. B. di- rect, without going through the form of purchasing the annuity (b). '^^P*"'*- 8. Where the legal estate is vested in trustees in trust for one person for life, with remainders over to others, it would be 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 whatever may be the legal liability of a legal tenant for life in respect of permissive waste (c), the trustee cannot (where there is no special clause of management) interfere with the possession of an equitable tenant for life who neglects to repair (d). Legal rights. 9. In other respects the rights in equity must, it is conceived, be governed by those at law. Thus a legal tenant for life may cut timber for the purpose of repairs (e), though he may not cut timber to sell it and apply the produce (/), or to repay himself Equitable rights, the outlay in repairs (ff) ; and similarly the trustee may, it is con- ceived, 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, are his own voluntary act, and do not arise from any obligation, and he cannot claim any charge for them upon the inheritance (h), nor will the Court at his instance direct lasting improvements to be made (i) ; 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 (a) See Pell v. De Winton, 2 De Gex (e) Co. Lit. 54 b. & Jon. 20 ; George v. George, 35 Beav. (/) Co. Lit. 53 6. 382. (g) Gower v. Eyre, G. Coop. 156 ; (6) J/csseenav.Car)-,9L. R. Eq. 260 and see Duhe of Marlborough v. St. (c) Powys V. Blagrave, 4 De Gex, John, 5 De Gex & Sra. 181. M. & G. 458, and cases there cited by {h) Hibbert v. Cooke, 1 S. & S. 552 ; Lord Cranworth ; Harnett v. Maitland, Caldecott v. Brorrni, 2 Hare, 144; and 16 M. & W. 257. Now by 36 & 37 see Bostock v. Blakeney, 2 B. 0. C. V. c. 66, where there is any conflict 653; Hamer v. Tilsley, Johns. 486; between the rules of Equity and the Dent v. Devt, 30 Beav. 363 ; Floyer v. rules of Common Law, the rules of Bankes, 8 L, R. Eq. 115; CHUilandv. Equity are to prevail. Crawford, 4 1. R. Eq. 35 ; lie Leigh's (d) Powys V. Blagrave, Kay, 495 ; Estate, 6 L. R. Ch. App. 887. 4 De Gex, M. & G. 448 ; and see He (i) Nairn v. Majoribanks, 3 Russ. Skingley, 3 M. & G. 221 ; Gregg v. 582. Coates, 23 Beav. 33. CH. XXII. S. 1.] GENERAL POWERS OF TRUSTEES. 487 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 (a), yet an extra- ordinary case would be requisite to create such exception (b). 10. A trustee holding an estate for the benefit of a person abso- improvements, lutely entitled, but incapable from infancy or otherwise to give directions, may make necessary repairs, but he must not go beyond the necessity of the case, as by ornamental improvements, or the expense will not be allowed (c). The trustees of a will were to permit the testator's son to have " the use and enjoyment " of a house, and were " empowered," during the son's " occupation," to make " repairs," and the late M. R. held that the trustees were to keep the house in a habitable state, but not to make ornamental repairs {d). Where a mansion house was dilapidated at the date of the testator's will, and he empowered his trustees " to keep all the buildings in good r&pair, and to make such improvements by draining, walling, building, liming or manuring, as they should think proper,'' the trustees had no power to rebidld the mansion house (e). But under a power to " improve the estate by erecting farm-houses and outbuildings, or by draining and planting," it was held that the trustees could erect agricultural cottages (/). And where the trustees of a term of 1000 years were specially autho- rised to keep the premises in good repair and " generally to super- intend the management" of the estate, the Court held that the words conferred a general power without limit, that is, according to the discretion of the trustees, and allowed the sums extended by them in erecting and repairing farm-houses and buildings, in draining, fencing, sinking wells, putting up pumps, constructing a bridge, and forming, repairing and altering roads (^). If trustees, without any special power to authorise it, lay out money in im- proving the estate, (as in building a villa upon ground intended to be building-ground, and which object they are advised will be promoted by the erection of the villa), they cannot justify the expenditure, but, on the other hand, the cestuis que trust cannot take the benefit and repudiate the whole outlay, but the trustees (a) Caldecott v. Brown, 2 Hare, 145, {d) Maclaren v. Stainton, M. R. per Sir J. Wigram ; and see Re Bar- March 14, 1866, MS. rington's Estate, 1 Johns. & Hem. 142. (e) Bleazard v. Whalley, 2 Eq. Re. (b) Dunne v. Dunne, 3 Sm. & Giff. 1093. 22 ; Dent v. Dent, 30 Beav. 363. (/) Lord Rivers v. Fox, 2 Eq. Re. (c) Bridge v. Brovm, 2 Y. & C. Ch. 776. Ca. 181; and see A ttorney- General \ . [g) Bowes v. Earl of Strathmore, 8 Geary, 3 Mer. 513 ; Gillilandv. Craw- Jur. 92. ford, 4 Ir. Eq. 35. 488 GENERAL POWERS OF TRUSTEES. [CH. XXII. S. 1. Land Improve- ment Act. Cutting timber. Trustees are authorised to oppose a bill in Parliament pre- judicial to cestuis que trust. will be Liable only for the loss to the estate (a). If the trust be to make repairs out of the rents, and the trustees borrow money to make the repairs, and then repay themselves out of the rents, they will not be allowed the interest on the money borrowed, for the trust was to apply the rents after they had accrued (6). 11. By the "Improvement of Land Act, 1864" (c), trustees in the actual possession or receipt of the rents or profits of lands are enabled by the 24th section to apply for and make, in conformity with the provisions of the Act, the several improvements men- tioned in the 9th section, such as drainage, reclamation of land, erection of farm buildings, planting, &c. 12. "Where an estate was devised to A. and his heirs upon trust to settle on B. for life, subject to impeachment of waste, remainder to C. for life, without 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 vreongful act ; and that the effect of it must be the same as if it had been done with the sanction of the Court " {d). And in a recent case (e) the Court seemed to think that a tenant for life, impeachable of waste, would not be chargeable with interest during his own life as to such timber feU'ed by him as the Court would have ordered to be cut, but that the onus would be on the tenant for life to make out that such was the case. 13. Conservators of public works and similar quasi trustees are authorised to apply the funds under their control in opposing a bill in Parliament, the effect of which if passed would be injurious to the interests confided to them. " Every trustee," said Lord Cotten- ham, " 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 " (/). (a) Vyse v. Fost&r, 8 L. E. Ch. Ap. 309. (b) Fazalcerley v. Culshaw, W. N. 1871, p. 101. (c) 27 & 28 Vict. c. 114. Extended by 33 & 34 Vict. c. 56, to building and improvement of mansions. {d) Waldo V. Waldo, 7 Sim. 261 ; and see Gent v. Harrison, Johns. 517 ; Earl Cowley v. Wellesky, 1 L. E. Eq. 656, (e) Bagot v. Bagot, 2 New R. 297. (/) Bright y. North, 2 Phill. 220; Queen v. Norfolk Commissioners of Sewers, 15 Q. B. R. 549 ; Attorney- General V. Andrews, 2 McN. & G. 225; Attorney -General v. Eastlake, 11 Hare, 205. CH. XXII. S. 1.] GENERAL POWERS OF TRUSTEES. 489 1.4. On the other hand, quasi trustees, such as those before Applications to 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 (a). 15. A trustee would, it is conceived, under special circumstances. As to insurance, and in due course of management, be justified in insuring the pro- perty (h) ; 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. But if an annuity and a policy on the life of the cestui que vie be made the subject of a settlement, it is implied that the trustee is to pay the premiums out of the income (c). A mortgagee is not regarded as a trustee ; and if, in the absence of any stipula- tion 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). 16. An executor is allowed a reasonable time for breaking up Breaking up the the testator's establishment, and a period of two months in one "biigiiraent case was considered not to be excessive (e). Executors, as a general rule, do not pay legacies until the expiration of one year from the testator's death ; but this is a rule of convenience ; and, therefore, if the assets be clearly sufficient for payment of debts and legacies, there is nothing to prevent the executors from discharging the legacies before the expiration of the year (/). 17. An executor may aiipropriate a legacy without the necessity Appropriation, of a suit, where the appropriation is such as the Court itself would have directed {g). 18. A trustee may expend sums of money for the protection and Maintenance. safety, or support, of a cestui que trust who is incapable of taking care of himself, but the more prudent course is to apply to the Court (h). (a) Attorney- General v. Andrews, 2 (c) Field v. Pickett, (No. 3), 29 Beav. McN. & G. 225 ; Vance v. East Lan- 576. cashire Bailway Company, 3 K. & J. (/) Angerstdn v. Martin, 1 Turn. & 50; Attorney- General v. Guardians of R. 241, per Lord Eldon ; Pearson v. the Poor of Southampton, 1 7 Sim. 6 ; Pearson, 1 Sch. & Lef. 1 2, per Lord Attorney - General v. Corporation of Redesdale ; and see Garthshore v. Nonuich, 16 Sim. 225 ; Stevens v. South Chalie, 10 Ves. 13. Devon Railway Company, 13 Beav. 48. (g) Hutcheson v. Hammond, 3 B. C. (6) Ex parte Andrews, 2 Rose, 412; C. 128, see 145, 148 ; and see Cooper and see Fry v. Fry, 27 Beav. 146. v. Douglas, 2 B. C. C. 231. (c) Darcy v. Croft, 9 Ir. Ch. Re. 19. (A) Duncomhe v. Nelson, 9 Beav. (d) Dohson v. Land, 8 Hare, 216; 211; and see Chester v. Rolfe, 4 De and see Ex parte Andrews, 2 Rose, G. M. & G. 798, and cases there 410 ; Phillips v. Eastwood, LI . & Goold, cited. t. Sugden, 289. 490 GENERAL POWERS OF TRUSTEES. [CH. XXII. S. 1. Out of interest. 19. If a legacy be left to an infant, and the Court, upon appli- 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 (a). In the case of Andrews v. Partington (&), Lord Thurlow refused to indemnify the trustee ; but the authority of that decision has been repeatedly denied, and may be considered as overruled (c). 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 main- tenance against the gross amount of the interest (d). Now by a recent Act, trustees under instruments of trust executed since the 28th August, 1860, holding property for an infant, either abso- lutely, or contingently on his attaining twenty-one, are expressly authorised to apply the income to which an infant is entitled (e) towards the maintenance and education of the infant, or to pay it to the guardian for that purpose (/). Out of principal. 20. Where the amount of the legacy is inconsiderable, as 100^., the Court would, in the absence of other means, direct maintenance to the child out of the principal itself {g) ; the executor, therefore, who, under similar circumstances, but without the authority of the Coui't, breaks in upon the capital, would not be liable, on the cestuis que trust's coming of age, to account for the expenditure (A). But where payments of this kind, which are not strictly authorised, are made by executors or trustees, and the propriety of them is 285; liable to be devested, the child is " entitled " to the interest which ac- crues before the limitation over takes effect. (/)' 23 & 24 Vict. c. 145, s. 26. ig) Ex parte Green, 1 J. & W. 253; Ex parte Chambers, 1 R. & M. 577 ; Ex parte Syrift, ib. 575 ; In Re Mary England, id. 499 ; Harvey v. Harvey, 2 F. W. 21 ; Ex parte Hays, 3 De G. & Sm. 485. In Re Howarth, 8 L. E. Ch. App. 415, the Lords Justices held that the Court had jurisdiction to order maintenance, where there were no other means, out of the corpus of an infant's freehold estate ; and in De Witte V. Palin, 14 L. E. Eq. 251, V.-C. Malins allowed maintenance to be raised by a charge on reversionary- property. {h) Barlow v. Grant, 1 Vern. 255; Carmichael v. Wilson, 3 Moll. 79 ; Bridge v. Brown, 2 Y. & C. Ch. Ca. 181, 189. (a) Sisson v. Shaw, 9 Ves. Prince v. Hine, 2C Beav. 634. (6) 3 B. C. C, 60. (c) See Sisson v. Sliaw, 9 Ves. 288 ; Maherly v. Turion, 14 Ves. 499 ; Lee V. Brown, 4 Ves. 369 ; Ex parte Dar- lington, 1 B. & B. 241 ; Gotham v. West, 1 Beav. 381. (d) Carmichael v. Wilson, 3 Moll. 79 ; Edwards v. Grove, 2 De Gex, F. & J. 210. (e) The infant must, it is conceived, be indefeasibly entitled to the income, though his title to the capital may be a. defeasible one ; or at all events he must be a member of a class, some or one of whom must take the fund ; see the cases cited in note (c), p. 493, infra. The case contemplated by the section under the words " contingently on attaining twenty-one," is where a fund is given to children with a limita- tion over on death under twenty-one, so that, the share being vested, though CH, XXII. S. 1.] GENEEAL POWERS OF TRUSTEES. 491 Maintenance where father aliye. questioned in a suit, and there is a deficiency of assets, the costs of suit will have priority over the allowances to the executors or trustees (a). Where the legacy was not more than 300^., Sir W. Grant determined that the trustee had 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 (6) ; but the case of Barlotu v. Grant, which is clearly to the contrary, must have escaped his Honour's recollection (c). The general rule is, however, not to break into capital for maintenance, and where the legacy is considerable, as 1000^., or the like, as the Court itself would most probably not order the application of part of the principal, the trustee would not be safe in exceeding of his own authority the amount of the interest [d). 21. Where the father of an infant is alive, trustees should, in granting maintenance, bear in mind that the Court never allows a father maintenance out of his children's property without a pre- vious inquiry as to his ability to maintain them himself («). The term ability, however, is relative to the position of the father and children ; and maintenance has been allowed to a father who had 6000^. a year (/). And an express declaration in the instrument of trust, or a previous contract, as in the case of a marriage settle- ment to which the father is a party, may confer on the father a right to have maintenance for his children out of the settlement funds {g). But the decisions in this respect have gone as far as can be justified upon principle Qi). 22. It was formerly much doubted whether after the death of the After death of father maintenance should be granted to the mother so long as she continued a ividoiv without an inquiry as to her ability {i). But it was ruled that where she had married again there should be no inquiry as to ability, the second husband being it was said, under no liability to maintain his wife's children (k). It has (o) Robinson v. Killey, 30 Beav. 520. (6) Walker v. Wetherell, 6 Ves. 473. (c) See also Prince v. Hine, 26 Beav. 636. id) Barlow v. Grant, 1 Vern. 265, per Lord Guildford ; Davies v. Austen, 1 Ves. jun. 247 ; jects. from any other parish, and the trustees upon consideration rejected the candidate from the specified parishes, 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 (cf). (a) BeancUrk v. Ashburnham, 8 (e) Brunsden v. Woolredge, Amb. Beav. 322; Cadogany. Earl of Essex, 507; Bennett v. Honeywood, id. 708; 2 Drewry, 227. Malion v. Savage, 1 Sch. & Lef. Ill ; (h) Boss V. Godsall, 1 Y. & C. (Ch.) Supple v. Lowson. Amb. 729 ; &c. 617. (/) WaUo V. Caley, 16 Ves. 206 ; (c) Costello V. O'Borhe, 3 I. R. Eq, Horde v. Earl of Suffolk, 2 M. & K. 172. 59 ; and see Powerscourt v. Poioers- (d) Livesey v. Harding, Taml. 460 ; court, 1 Moll. 616 ; Holmes v. Penney, Collins V. Vinivg, C. P. Coop. Rep. 3 K. & J. 103. 1837-38,472; Brophy \ . Bellamy, 8 h. (g) Re Beloved Wilkes's Charity,, 3 R. Ch. App. 798. McN. & G. 440. LL 514 CONTROL OF THE COURT OVER POWERS. [CH. XXII. S. 2. Reasons for exercise of the power. Powers not to be exercised nunc pro tunc. Fraud. Powers in case of charity. The Court will exercise a sur- veillance where the trustees are before it. 8. But though trustees invested with a discretionary power are not bound to assign their reasons for the way in which they exer- cise it ; yet, if they do state their reasons, and it thereby appears that the trustees were labouring under an eiTor, the Court will set aside the conclusion to which they came upon such false premises {a). 9. Where trustees have a discretionary power they must exercise their judgment according to the circumstances as they exist at the time, and they cannot, therefore, anticipate the arrival of the proper period by affecting to release it or by pledging themselves beforehand, as to the mode in which the power shall be executed in fidivro (6), 10. Of course there is sufficient ground for the interference of the Court, wherever the exercise of the discretion by the trustees is infected with fraud (c), or misbehaviour (<£), 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-fuud is outstanding upon any hazardous security (/). 11. And where the trustees of a chariiy were empowered to lease for three lives or thirty-one years, the Court expressed an opinion that the discretion might be controlled, if it appeared for the benefit of the charity that such a power should not be acted upon {g). 12. Where proceedings had been taken for controlling the dis- (a) Re Bdoved Wilkes's Chirity, 3 McN. & Gr. 448 ; King v. Archbishop of Canterbury, 15 East, 117. (6) Wetter v. Ker, 1 L. R. Scotch App. 11; and see Thotoher v. Key, 8 L. E. Eq. 408. (c) Attorney- General v. Governors of Harrow School, 2 Ves. 552, per Lord Hardwicke ; Pottery. Chapman, Amh. 99, per eundem ; Richardson v. Chap- man, 7 B. P. C. 318 ; French v. David- son, 3 Mad. 402, per Sir J. Leach Talbot V. Marshfield, 4 L. R. Eq. 661 and on appeal, 3 L. R. Ch. App. 622 Thacker v. Key, 8 L. R. Eq. 408. (d) Maddison v. Andrew, 1 Ves. 59, ^«r Lord Hardwicke; Attorney- General V. Glegg, Amb. b9>b,per eundem; Willis V. Childe, 13 Beav. 117 ; and see Re Wilkes's Charity, 3 Mac. & Gord. 440 ; and see Byam v. Byam, 19 Beav. 65. (ej Gude v. Worthington, 3 De Gex & Sm. 389. This was apparently the ground on which the case was decided, but the refusal of the trustees to act does not sufficiently appear on the report. And see Men-timer v. Watts, 14 Beav. 622 ; In re Sanderson's Trust, 3 K. & J. 497 ; Prendergast v. Pren- dergast, 3 H. L. Gas. 195; Palmers. Newell, W. N. 1872, p. 9 ; Benndt v. Wyndham, 23 Beav. 528; Chay v. Gray, 11 Ir. Ch. Re. 218, 13 Ir. Ch. Re. 404. (/) De ManneeUle v. Crompton, 1 V. & B. 359 ; Costello v. O'Rorke, 3 I. R. Eq. 172 ; and see Lee v. Young, 2 Y. & C. Ch. Ca. 532. (gr) Ex parte Berkhampstead Free School, 2 V. & B. 138. CH. XXII. S. 2.] CONTROL OF THE COUKT OVER POWERS. 515 cretion 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 informa- tion, but would still keep a hand over them " (a). 13. Where a suit has been instituted for the administration of After decree the trust, and a decree has been made, that attracts the Court's exercise even a jurisdiction, and the trustee cannot afterwards exercise the power special power . -ni/^ ■<• ii without the aanc- without the concurrent sanction 01 the Uourt : as it a trustee have tion of the Court. a power of investment he cannot make any investment without the approval of the Court (&) ; or if a trustee have a power of appointment of new trustees, he is not excluded from the right of nominatiag the person, but the Court must give its sanction to the choice (c). 14. But if a decree has not been made, then, as the plaintiff may Acts before dismiss his hill at any moment, the trustee must not assume that a decree wOl be made, but must proceed in all necessary matters with the due execution of the trust (d). It would not be prudent, however, except in formal matters, to act without first consulting the Court. It was held in one case, that the trustees had not exceeded their duty by appointing new trustees after the filing of the bill, as no extra costs had been thereby occasioned (e) ; but in another case it was said that the trustees ought, under the difficulties in which they were placed, to have considted 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 extra costs which had been occasioned were thrown upon the trustees personally (/). decree. 15. In concluding the subject of the powers of trustees we should Lord St. Leo call attention to the important enactment, 22 & 23 Vict. c. 35, s. 30, by which trustees may now apply by petition to any judge of the (a) Attorney- General v. Governors (d) See Williams on Executors, 891, of Harrow School, 2 Ves. 551. 4th edit. {b)BethellY.AbraMm,n h.R.Eq.2i. (e) Cafe v. Bent, 3 Hare, 245. (c) Webb V. Earl of Shaftesbury, 7 ( f) Attorney - General v. Clack, 1 Ves. 480; v. Roharts, 1 J. & W. Beav. 467; and see Turner v. Twriier, 251 ; Middlekm v. Reay, 7 Hare, 106 ; 30 Beav. 414 ; Talhot v. Marshfield, Kennedy v. Turnley, 6 Ir. Eq. Eep. 4 L. R. Eq. 661,3 L. R. Ch. App. 622; 399; Consterdine v. Consterdme, 31 Bethell v. Abraham, 17 J^. R.Eq. 24:. Beav. 333 ; Gray v. Gray, 13 Ir. Ch. Re. 404. L L 2 nard's Act. 616 CONTROL OF THE COURT OVER POWERS. [CH. XXII. S. 2. Amendment Act. Affidavits not allowed. Parties to be served. Court of Chancery, or by a summons upon a written statement to any such judge at chambers for the opinion or direction of such judge respecting the management or administration of the trust property. 16. By the Amendment Act, 23 & 24 Vict. c. 38, s. 9, the petition or statement is required to be signed by counsel, and the judge may require the attendance of counsel either in chambers or in Court (a). 17. In proceeding under this enactment there is no inves- tigation of the facts, but the correctness of the petition or state- ment is assumed, and if there be any sitggestio falsi or suppressio veri the order of the Court pro tanto is no indemnity to the trus- tee. No affidavits, therefore, ought to be filed, and the costs of them would be disallowed (b). The Court has jurisdiction in England, though one of the trustees be resident in Ireland (c). 18. What parties are to be served is in the discretion of the judge, and V.-C. Wood was of opinion that the proper course was not to serve the petition on any one in the first instance, but to apply at chambers for a direction as to the persons to be served {(£), and V.-C. Malins thought the question of service ought to be dealt with at the hearing of the petition (e). But V.-C. Kindersley said he would never allow a petition under the act to be brought on for the purpose of ascertaining who were to be served ; and that the petitioners must serve such persons as they thought proper, and state in the note at the end whom th^ had served, and that the V.-C. and the other judges had agreed upon that course (/). On a petition by the trustees where the beneficiaries were infants ab- solutely entitled, it was held that the infants need not be served {g). And on a petition by trustees for the opinion of the Court as to the propriety of certain proposed investments, it was held that no one need be served (/i). And so the Court dispensed with service on any party where the question submitted to the Court by trustees, (a) See observations of V.-C. Stuart in Re Dennis, 5 Jur. N. S. 1388, which may have led to this additional enact- ment. For the practice under the Act see General Order of the Court of Chancery, March 20, 1860. (6) Re Miiggeridge^s Trust, 1 Johns. 625; Re. MocketC s Will, ib. 628; Re. Barrington's Settlement, 1 Johns. & H. 142. (c) Re French's Trusts, 15 L. R. Eq. 68. (d) Re Muggeridge's Trust, 1 Johns. 625. (e) Re Cook's Trust, W. N. 1873, p. 49. (/) Re Greeris Trust, 6 Jur. N. S. 630. (g) Re Tuck's Trusts, W. N. 1869, p. 15. {h) Re French's Trusts, 15 L. R. Eq. 68. CH. XXII. S. 2.] CONTROL OF THE COUET OVEE POWEES. 517 was, whether they could make an advancement to a child out of a share to which the child was presumptively entitled (a). 19. As the Act does not give any right of appeal, it was not No appeal, &c. intended to authorise adjudications upon nice questions of law (6). The object of the Act was to procure for trustees at a small expense the assistance of the Court upon points of minor impor- tance arising in the management of the trust. Thus the Court, upon the petition of the trustees of a fund for the separate use of a married woman, a lunatic, has sanctioned the payment of the annual produce to the husband, whose income from property did not exceed 201., he undertaking to apply the same for the benefit of his wife and family (c). So the Court will advise trustees as to investment of trust funds, payment of debts or legacies, &c. {d) ; and whether trustees of a remainder can with propriety concur with the owner of the particular estate in the sale of the fee simple (e) ; and whether trustees can properly exercise a power of sale (/) or a power of advancement under the circumstances stated (^r) ; and whether calls on shares in companies should be borne by the tes- tator's general estate or the legatees Qi), &c. But the Court will not give an opinion under the Act upon matters of detail which cannot be properly dealt with without the superintendence of the Court and the assistance of affidavits, such as the laying out a particular sum on improvements {%) ; nor wUl the Court adjudicate upon doubtful points, the decision of which would materially affect the rights of the parties interested (k). {a) Re Larhen's Trust, W. N. 1872, (/) In Re Stone' s Settlement, W. N. p. 85. 1874, p. 4. (J) Re Machete s Will, 1 Johns. 628. [g) Re Kershaw's Trusts, 6 L. R. (c) Re Spiller, 6 Jur. N. S. 386. Eq. 322. [d] Re Lorens's Settlement, 1 Drew. (h) Re Box, 1 Hemm. & M. 552. & Sm. 401 ; Re Knowles' Settlement {{) Re Barrington's Settlement, 1 Trust, W. N. 1868, p. 233 ; Re Mur- Johns. & Hera. 142. ray's Trusts, W. N. 1868, p. 1 95 ; Re (k) Re Lorenz's Settlement, 1 Drew. Ttwk's Trusts, W. N. 1869, p. 15. & Sm. 401 ; Re Hooper's Will, 29 (c) Earl Poulett v. Hood, 5 L. R. Eq. Beav. 656 ; Re Evans, 30 Beav. 232 ; 1 16. Re Bunnett, 10 Jur. N. S. 1098. 518 CHAPTER XXIII. OF ALLOWANCES TO TRUSTEES. Now that we have discussed the duties of trustees, and the extent of their powers, we may next enter upon subjects very closely inter- woven with the execution of the office, viz. : First, Allowances to trustees for their time and trouble ; and Secondly, Allowances to trustees for actual expenses. SECTION I. ALLOWANCES FOB TIME AND TEOUBLE. General rule. 1- ^^ is an established rule in general, that a trustee shall have iio 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 di£S.culty 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 wUl accept the trust or not (a). The true ground, however, is, that if the trustee were allowed to perform the duties of the of&ce, and to claim compensation for his services, his interest would be opposed to his duty ; and, as a matter of prudence, the Court wOl not allow a trustee or executor to place himself in such a false position (6). (a) Robinson v. Pett, .3 P. W. 251, v. Sutkm, 2 Atk. 406, per Lord Hard- per Lord Talbot ; Gould v. Fleetwood, wicke ; Bonithon v. Hockmore, 1 Vern. cited ib. note (A) ; How v. Godfrey, 316, &c. Rep. t. Finch, 361 ; Brochsopp v. (6) New v. Jones, Exch. Aug. 9, Barnes, bM.3,A.^Q; Ayliffey. Murray, 1833, cited 9th Jarm Preo. SZ%, per 2 Atk. 58 ; In re Ormsby, 1 B. & B. Lord Lyndhurst ; and see Burton v. 189, per Lord Manners ; Charity Corp. Wookey, 6 Mad. 368. CH. XXIII. S. 1.] ALLOWANCES FOR TROUBLE. 519 2. And the rule applies not only to trustees in the strict and Executors, mort- proper sense of the word, but to aU who are virtually invested fommittees^of ' with a fiduciary character, as executors and administrators {a), lunatics, mortgagees (h), receivers (c), committees of lunatics' estates {d), &c. 3. But trustees for absentees of estates in the West Indies are Trustees of West allowed a commission for their personal care in the management "^ la es a and improvement of the property. However, if, instead of re- maining 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 (e). 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 Rate of commis- several Acts of Assembly : it was originally 10^, per cent, upon ^'°" '" Jamaica, the receipts, then 8^. per cent,, and since 6^. per cent. (g). But the intention of the Legislature was only that the rate should not exceed 61. per cent., not that under particular circumstances it might not be a great deal less (h). Mortgagees in possession of estates in Jamaica, are by the Act Mortgagees in referred to expressly prohibited from charging any commission, w^^t^i^^a* except what they may have themselves paid by way of commission estates. to a factor (i) ; and, without regard to statutory prohibition, mort- gagees in possession of West Indian property are under the same disability of charging commission as if the property were situate in this country (k). 4. An executor appointed in the Hast Indies and administering Executor in the in that country, and then returning to England, was, if called ^^' indies. (a) Scattergood v. Harrison., Mos. (c) In Re Ormsby, 1 B. & B. 189. 128; How V. Godfrey, Rep. t. Finch, [d) Anon, case, 10 Ves. 103; Re 361 ; Sheriffs. Axe, 4 Russ. 33. Walker, 2 Phill. 630 ; Re Westbroohe, (6) Bonithon v. Hochmore, 1 Vem. ib. 631. 31 6 ; Langstaffe v. Fenwick, 10 Ves. (e) Chambers v. Goldwin, 9 Ves. 273. 405; French v. Baron, 2 Atk. 120; (/) Forrest y. E lives, 2 Mer. 68. Carew V. Johnston, 2 Soh. &he{. 301; (g) Chambers v. Goldwin, 9 Ves. Arnold v. Garner, 2 Phil. 231 ; Mathi- 267. son V. Clarke, 3 Drewry, 3 ; Barrett v. {h) See S. C. id. 157. HariUy, 12 Jur. N. S. 426. Mort- (i) See S. C. 5 Ves. 837; 9 Ves. gagees were also disabled formerly by 268. the effect of the usury laws from claim- (k) Leith v. Irvine, 1 M. & K. 277 ; ing anything beyond their principal see Chambers v. Davidson, 1 L. R. and legal interest. P. C. 296. 520 ALLOWANCES FOE TROUBLE. [CH. xxin. s. 1. Where he has a legacy for Ma trouble. Constructive trustees. Express trustee has no allowance for management of a trade. upon in a Court of equity to render an account, allowed, a com- mission of 5 per cent, upon the receipts or payments, accord- ing to the practice of the Indian Courts. The appointment of an executor in the East Indies was 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 undertake the office at any cheaper rate (a). If an Indian executor after collecting part of the assets came over to this country, he was allowed a commission on those assets only that were collected by himself in India, and not on the assets subsequently collected by his agents and transmitted to this country, for the Courts here allowed the commission because the Indian Courts allowed it, and the Indian Courts allowed it on the ground of residence in India (6). An executor in India was only allowed the commission, where the testator himself had not left him a legacy for his trouble (c) ; but if the amount of the legacy was an inadequate compensation for the duties of the office, it seems the executor, so as he signified his resolution in proper time, might renounce the intended legacy, and take advantage of the commission (li). 5. A person who has carried on a business with another man's money under circumstances which make him liable to account for profits, will be allowed a compensation for his skiU and exertions in the management of the concern (e). 6. But a person will not be permitted, except under very special circumstances (/), to charge any thing for his manage- (a) Chetham v. Lm-d Audley, 4 Ves. 72 ; Matthews v. Bagshaw, 14 Beav. 123. To the latter case is appended the following note : — " The custom of allowing a commis- sion to executors and administrators in the presidency of Bengal has been abolished by Act No. VII., of 1849, of the Governor-General in Council. By that Act an Administrator-General has been appointed in place of the Ecclesiastical Registrar, with a reduced commission of 3 per cent, ou monies distributed or invested in manner therein provided. " By Act No. II., of 1850, the pro- visions of the above Act, with certain restrictions, are extended to the presi- dfiacies of Madras and Bombay, but the rate of commission to the public administrator is there to remain 5 per cent, until altered to 3 per cent, by the Governor and Council in each of these presidencies." (6) Campbdl v. Campbell, 13 Sim. 168 ; and see 2 Y. & C. Ch. Ca. 607. (c) Freeman v. Fairlie, 3 Mer. 24. (d) See id. 28. (e) Brown v. De Tastet, Jac. 284 ; and see Sir Samuel Romilly's argument in Crawshay v. Collins, 15 Ves. 225; and Wedderhum v. Wedderhum, 22 Beav. 84. To this principle must also be referred the decision in Brown v. Litton, 1 P. W. 140; 10 Mod. 20. (/) Forster v. Ridley, 4 N. R. 417 ; S. C. 4 De Gex, Jon. & Sra. 452. CH. XXIII. S. 1.] ALLOWANCES FOE TROUBLE. 521 ment of a trade or business, where he has been clothed in express terms with the character of a trustee or executor (a). 7. A solicitor or attorney who sustains the character of trustee Solicitors and will not be permitted to charge for his time, trouble, or attendance, attorneys, but only for his actual disbursements (b). Lord Lyndhurst ob- served, " It would be placing his interest at variance with the duties he has to discharge. It is said, the bill may be taxed, but 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 vigi- lance and guardianship of the executor or trustee : a trustee placed in the situation of a solicitor might, if 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 him- self, and if he were to employ another person " (c). 8. If a cestui que trust settle accounts with a trustee, who is a Settled accounts, solicitor, 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 {d) ; but if the cestui que trust had independent legal assistance, he is bound by the release (e). 9. The doctrine against professional charges by a trustee, who Purchaser, is 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 valuable consideration, if he had notice (/). 10. The rule against allowances to trustees is merely a general Allowance one in the absence of express directions to the contrary ; for there directed by the is no objection to the settlor himself directing compensation to the trustee for his services, either by the gift of a sum in gross, or by the allowance of a salary {g). 11. 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 {a) Stockenv. Dawson, 6 Beav. 371; {d) Todd v. Wilson, 9 Beav. 486. ^"*- Burden v. Burden, 1 V. & B 170 ; (e) Stanes v. Parker, 9 Beav. 385 ; Brocksopp V. Barnes, 5 Mad. 90. See Re Wyche, 11 Beav. 209. Marshall v. Holloway, 2 Sw. 432. (/) Goraley v. Wood, 3 Jones & Lat. (i) New V. JoTies, Excheq. Aug. 9. 678. 1833, 9 Jarm. Free. 338. See the {g) Webb v. Earl of Shaftesbury, 7 result of the various decisions stated Ves. 480 ; Bobinson v. Pett, 3 P. W. at p. 249, supra. 250, per Sir J. Jekyll ; Willis v. (c) New V. Jones, 9 Jarm. Free. 338. Kibble, 1 Beav. 559. 522 ALLOWANCES FOE TROUBLE. [CH. XXIII. S. 1. Amount of allowance not expressed. Contract for an allowance with the cestui qn€ trust. Terms of the contract must be fulfilled to the letter. though the management 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 (a). If the exe- cutor be wholly incapacitated, even by the act of God, from dis- charging the duties of executor (&), and d fortiori if the executor, being capable, do not act when there was nothing to prevent his acting (c) he cannot claim a legacy given to him for his trouble in the executorship (d), and an annuity limited to a trustee during the continuance of his office, cannot be claimed when the duties of the office have ceased by the absolute vesting of the property (e). 12. Where the settlor has directed a remuneration to the trustee, but has not declared the amount, a reference wiU be directed to settle the quantum nuruit, according to the circumstances of the case (/). 13. The trustee may also at the time of acceptiug the trust, contract for an allowance or remuneration for his services {g)\ but bargains of this kind are watched by the Court with great jealousy Qi), and must be freely made and not submitted to from pressure {i) ; and where the person about to become trustee and bargaining for remuneration is a solicitor, who is acting as such in the preparation of the instrument of trust which purports to confer the right of remuneration, there would seem to be consider- able difficulty in upholding the contract unless the client have in- dependent professional advice, or unless, at all events, the solicitor can show that the precise nature of the arrangement was distinctly explained, to the client (k). 14. Where the contract is valid originally, the conditions of it must be fulfilled to the letter, or the trustee is not entitled to his reward. An executor, who had no legacy, and where the execu- tion 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 g-uineas out of the trust money in their hands ; but the Court said all bargains of this kind ought to be discouraged, as tending to eat up the trust, and here the executor had died before (a) Baker v. Martin, 8 Sim. 25. (6) Re Hawkins' Trusts, 33 Beav. 570 ; Hanhury v. Spooner, 5 Beav. 630. (c) Slaney v. Witmey, 2 L. R. Eq. 418. (Ql) Re Hawkins'' Trusts, 33 Beav. 570 ; Hanhury v. Spooner, 5 Beav. 630. (e) Hull V. Christian, 17 L. R. Eq. 546. 115; and see WUlis v. Kibble, 1 Beav. 559. {g) Re Sherwood, 3 Beav. 338 ; Douglas v. Archbutt, 2 De G. & Jon. 148. {h) Ayliffe v. Murray, 2 Atk. 58. (i) Barretty. Hartley, \2 J nr.Qi.^.) 426. (/) Ellisonv. Airey,.l Ves. Ill, see {k) Moore v. Frowd, 3 M. & Cr. 48. CH. XXIII. S. 1 J ALLOWANCES FOR TROUBLE. 523 he had finished the affairs of the trust ; and so the plaintiff's de- mand was disallowed (a). 15. A trustee dealing with the Court, is at liberty, before accept- Contract for an ing the trust, to stipulate for any remuneration which the Court the°Court. "^"^ may choose to give him (&). But if he omit to contract with the Court before entering upon his duties, he will have great difficulty in obtaining compensation afterwards, and we may add that in no case will the Court remunerate a trustee for his trouble by permit- ting 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 (c). 16. During the continuance of the usury laws a mortgagee could Mortgagee. 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 {d). But after a long struggle certain special exceptions were established in favour of mortgagees not in possession of West Indian estates (e). 17. As a trustee will not be permitted to charge for his personal Employment of care and loss of time, it is but just he should be allowed on proper ^s^'^'^- occasions to call in the assistance of agents at the expense of the estate. 18. Thus a trustee, though he may not act as a collector himself Collector of rents, with a commission (/), may, if the case require it, appoint a col- lector of rents at a commission (jg). 19. As a man is not bound to be his own bailiff, if a trustee Bailiff, employ a skilful person in that capacity, the salary must be allowed Qi) ; at least the Court will grant that indulgence where the estate is at such a distance that the trustee must have ap- pointed a bailiff had the estate been his own (z). 20. An executor employed a person who had been his clerk to Attorney, transact some business for him relative to the testator's affairs, (a) Gould V. Fleeiwood, cited Bobin- (/) Nichohon v. Tutin, 3 K. & J. son V. Pett, 3 P. W. 251, note (A). 159. (6) Marshall v. Holloway, 3 Swans. (g) Davis v. Dendy (the case of a 452,453; Newport v. .Ban/, 23 Beav. mortgagee), 3 Mad. 170; Stewart v. 30 ; Brochsopp v. Barnes, 5 Mad. 90, Hoare, 2 B. C. C. 633 ; and see Wil- per Sir J. Leach ; and see Morison v. hmson v. Wilkinson, 2 S. & S. 237 ; Morison, 4 M. & C. 215. Be Westbroohe, 2 Phill. 631. (c) Bainbrigge V. Blair, 8 Beav. Qi) Bonithon v. Hockmore, 1 Vern. 588. See the observations of Lord 316 ; Chambers v. Gold-win, 9 Ves. Langdale, pp. 595, 596. 272, per Lord Eldon. (c?) See Chambers v. Goldwin, 9 (i) Godfrey v. Watson (as to a Ves. 271. mortgagee), 3 Atk. 518, per Lord (e) See the history of the struggle Hardwicke. detailed in Lord Brougham's judgment in Leiih v. Irvine, 2 M. & K. 277. 524 ALLOWANCES FOE TROUBLE. [CH. XXIIL S. 1. and the Master insisted it was the executor's own duty, and re- fused to allow the expense. But Lord Hardwicke said, " it was clear, that if an executor paid an attorney for his trouble and at- tendance 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 bill (a). Accountant. 21. 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 accountant, he is entitled to charge the trust estate with it under the head of expenses (6) Weiss V. Dill. 22. In Wciss V. Dill (c) the executor of a trader had employed an agent to collect debts, which were numerous and only paid after repeated applications, at a commission of 5 per cent. The Master had reduced the commission to 2 J 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 office 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 employment of agents : I have some doubt whether in this case the Master ought to have made any allowance, but with the allowance of 2^ per cent, the executor must be content." The observations of Sir J. Leach might seem at first either to cast doubt upon the general right of a trustee to employ salaried agents in fitting cases, or to establish a distinction between the collection of debts and the col- lection of rents, but it cannot be supposed that his Honour in- tended to reverse his previously expressed views on the general principle {d), and there seems no ground for any such distinction as that adverted to. The decision in substance was, that the Court declined to overrule the Master's opinion on the question of quantum. (a) Macnamara v. Jones, 2 Dick. 587. (6) New V. Jones, Exch., Aug. 9, 1833, cited 9 Jarra. Free. 338; Hen- derson V. M'lver, 3 Mad. 275. (c) 3 M. & K. 26 ; and see Giles v. Dyson, 1 Stark, N. P. C. 32; Hopkin- son V. Boe, 1 Beav. 180 ; Day v. Croft, 2 Beav. 488. {d) See Wilkinson v. Wilkinson, 2 S. & S. 237. CH. XXIII. S. 2.] EXPENSES OF TRUSTEES. 525 SECTION II. ALLOWANCES TO TEUBTEBS POK EXPENSES. 1. Though a trustee is allowed nothing for his trouble, he is General rule, allowed everything for his expenses out of pocket (a). " 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 aU the charges and expenses incurred in the execution of the trust " (6). Even where trustees had been wrongfully appointed but acted bond fide, and believed themselves to have been duly ap- pointed, they were allowed their costs, charges, and expenses, not- withstanding the defect of title (c). 2. A trustee will be entitled to be reimbursed his travelling Travelling expenses (d), provided they be properly incurred (e). expenses. 3. Trustees are justified in employing a solicitor for the better Employment of conduct of the trust (/). But the sums paid wUl, at the instance of the cesttois que trust, though not liable to taxation, be looked over and moderated {g). And trustees, if they employ one of themselves as solicitor, instead of engaging a third person, will be answerable for all the consequences, if they be misled by the pro- fessional advice of such trustee solicitor (7i). (a) How -v. Godfrey, Rep. t. Pinch, in force,) were to have " all just allow- 361; In re Ormsby, 1 B. & B. 190, ances," but trustees are equally en- per Lord Manners ; Hide v. Heywood, titled to all just allowances virtute 2 Atk. 126 ; Caffrey v. Darby, 6 Ves. officii. See Blackford v. Davis, 4 L. R. 497, per Sir W. Grant ; Godfrey v. Ch. App. 305. Watson, 3 Atk. 518, per Lord Hard- (e) Makolm v. 0' CallagJian, 3 M. wicke ; Feoffees of Heriots Hospital v. & C. 62 ; and see Bridge v. Brown, 2 Ross, 12 CI. & Pin. 512, bib, per Lord Y. & C. Ch. Ca. 181. Cottenham. (/) Afacnamara v. Jbwfis, Dick. 587. (6) Worrall v. Harford, 8 Ves. 8 ; [g) Johnson v. Telford, 3 Russ. 477 ; and see Dawson v. Clarke, 18 Ves. Langfm-d y. Malu)ny,2 Conn. ScIj. ill. 254; Attorney- General v. Mayor of (h) Alton v. Harrison (a legatee's Norwich, 2 M. & C. 424 ; Morison v. suit), and Poyser v. Harrison (a residu- Morison, 7 De G. M. & G. 214. arylegatee'ssuit),both which were con- (c) Travis v. Illingworih, W. N. solidated and heard before V.-C. Sir 1868, p. 206. J. Stuart on 6th and 8th June, 1868. {d) Ex parte Lovegrove, 3 D. & C. The testatrix, who died in 1851 , de- 763 ; and see Ex parte Elsee, 1 Mont. vised her real and personal estate to 1; Ex parte Bray, 1 Uose, Hi. These two trustees, Ingle and Harrison (the were cases of assignees who, by 6 G. 4, former a solicitor, the latter a manu- c. 16, s. 106, (the Bankrupt Act then facturer), upon the usual trust for sale 526 EXPENSES OF TKUSTEES. [CH. XXIII. S. 2. Fees to counsel. Extra costs. 4. So a trustee may give fees to counsel and shall have allowance thereof (a). 5. And if a trustee be sued by a stranger 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 (&) ; and if a trustee as defendant be ordered to pay the plaintiff's costs, he will, unless he has forfeited his right by some misconduct, be entitled as between him and his cestui que trust to be reimbursed the costs which he has paid, and also those which he has himself incurred (c) ; and conversion. And as to the residue after payment of legacies and annuities to invest upon sufficient securities in trust for a class of persons. The trus- tees lent 500Z. upon mortgage to one Thomley, and another 500/. to one Walker, and in 1853 Ingle died in- solvent. It afterwards turned out that both Thornley's security and Walker's security were second mortgages, and the whole money was lost. Ingle had been solicitor of the testatrix, and had made her will and acted as solicitor to the trust. The plaintiffs sought to make Harrison liable for the two sums of 500Z. each as lent upon insufficient security. Harrison declared on oath that the value of the mortgaged pro- perty, free from incumbrances, was personally known to him, and was far in excess of the loan, and that the loss had arisen not from the inadequacy of value, but from the defect of title, viz., in the two mortgages being second mortgages ; that when the advances were made he fully believed that in each case the security was a first mort- gage, and that he had relied as to the title upon the legal advice of Ingle, who had fraudulently represented the security as a fit and proper one ; that the trustees had a right to employ one of themselves as solicitor to the trust (though no professional profits could be allowed), and that Harrison was entitled to the same protection from the legal advice given by Ingle, as if the trustees had employed a third per- son as solicitor, who had approved the title on their behalf. However, the Vice-Chancellor ruled that two trus- tees, one of whom was a solicitor, were liable to all the consequences if they em- ployed one of themselves as such soli- citor, instead of calling in a thu-d per- son ; and his Honour put the case of a single trustee, a solicitor, and asked whether it could be contended that such trustee was not liable for the consequences if he acted without other professional advice, and his Honour decided that Harrison was made liable for both the sums lent. This point seems to have arisen for the first time, and the judgment of the V.-C. may be supported on principle ; for if two persons be appointed trustees, they ought in matters of title to take pro- fessional advice, and for that purpose to employ a competent solicitor ; but the selection of a proper legal adviser must be thi joint act of the two, and as a man cannot be judge in his own case, they cannot appoint one of them- selves to the office. A fortiori, if there be a single trustee, a solicitor, he can- not act himself as solicitor and claim the same protection as if he had ap- pointed another. When a settlor ap- points a person a trustee, who is also a solicitor, he does not, in the absence of any special direction, mean him also ^ to act as solicitor ; for a person may be a very good trustee and yet a very bad solicitor. The settlor selects his trustee, not because he is a solicitor or valuer, or fills any other scientific capacity, but because he is a person to be trusted with the property and capable of managing it with the aid of professional advice. (a) Gary, 14 ; Poole v. Pass, 1 Beav. 600. (6) Amand v. Bradburne, 2 Ch. Ca. 138 ; Ramsden v. Langley, 2 Vern. 636 ; and see Fearnes v. Young, 10 Ves. 184. (c) Lovat V. Fraser, 1 L. R. Sc. App. 37, per Lord Kingsdown. CH. XXIII. S. 2.] EXPENSES OF TRUSTEES. 527 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 (a) ; or were improperly insti- tuted by himself (b) ; 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 cestui 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 excessive (c) ; and the trustee Interest not wiU not be allowed interest on the costs, though at the time he paid them he had no trust monies in his hands (d). 6. Even a specific remuneration given by the testator to his Allowance for trustees for their services in the trust is no reason for excluding remuneratron'^for them from the usual allowance for expenses. A testator bequeathed trouble. 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 in 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 employ a collector, they were entitled to the annuity. A provident owner might well employ a collector in such a case, and the labour of such a collection could not be im- posed on the trustee " («). 7. A regular account of the expenses should invariably be kept ; Amount of but where this has not been done the Court has ordered a reason- "^^P^"^^^- able allowance to be made in the gToss, 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 (a) Caffrey v. Darby, 6 Ves. 497. of the trust, they can only be re- (6) Peers v. Ceeley, 15 Beav. 209 ; covered from the trustee personally, Leedham v. Chawner, 4 K. & J. 453. and are not chargeable as between the (c) Jdhnson v. Telford, 3 Russ. 477; solicitor and the cestui que trust. Allen V. Jarvis, 4 L. R. Ch. App. 616. {d) Gordon v. Trail, 8 Price, 416. As to the right of the cestui que trust But if he pays off a debt carrying in- to obtain a taxation as against the terest, he stands in the place of the solicitor, see Re Drake, 22 Beav. 438 ; creditor in respect of interest. In re Be Dickson, 3 Jur. N. S. 29, and cases Bealdh Park Estate, 15 L. E. Eq. 43 ; there cited ; Re Dawson, 28 Beav. Finch v. Pescott, 17 L. R. Eq. 554. 605; iJe Press, 35 Beav. 34; i?e£rot<;?i, (e) Wilkinson v. Wilkinson, 2 S. & 4 L. R. Eq. 464, in which it was held, S. 237 ; and see Webb v. Earl of that the costs are to be taxed as be- Shaftesbury, 7 Ves. 480 ; Fountaine v. tween solicitor and client ; but that if Pellet, 1 Ves. jun. 337. not proper having regard to the nature 528 EXPENSES OF TRUSTEES. [CH. XXIII. S. 2. Extraordinary outlay. Expenses a lien on the trust estate. in Hethersell v. Hales (a) the trustee put in a general claim for 2500^., apparently an average estimate of the expenses he had in- curred in the trust. " The Court," says the reporter, " took some time to deliberate what was iit 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, seUihg 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 2500?., yet would not allow but 2000/., which the trustee was to have." 8. As it is a rule that the cestui qtie trust ought to save the trustee harmless from all damages relating to the trust, so within the reason of the mle, 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 (&). So where a trustee employed a bailiff to fell some trees, and the woodcutter allowed a bough to fall on a passer by, who was injured, and recovered damages from the trustee, it was held that as the trustee had meant well, had acted with due diligence, and had employed a proper agent to do an act which was within the sphere of the trustee's duty, and the agent made a mistake, the trustee was entitled to charge the damages on the trust estate (c). 9. The expenses incurred by a trustee in the execution of his office are treated by the Court as a first charge or lien upon the estate, and the cestid que trust or his assign cannot compel a con- veyance in equity without a previous satisfaction of the trustee's just demands (d), and in a suit for the administration of the fund in respect of which the expenses have been incurred, the lien of the (a) 2 Ch. Rep. 158. (6) BaUh V. Hyham, 2 P. W. 455, per Lord King ; and see Attorney- General V. Mayor of Norwich, 2 M. & C. 424 ; Attorney- General v. Pearson, 2 Coll. 581; Quarrell v. Beckford, 1 Mad 282 ; Sandon v. Hooper, 6 Beav. 246 ; Bi-ight v. North, 2 Phill. 216 ; James v. May, 6 L. R. Eng & Ir. App. 328. (c) Benett v. Wyndham, 4 De Gex, P. & J. 259. [d) See Ex parte James, 1 D. & C. 272; Hill v. Magan, 2 Moll. 460; Norwich Yarn Company, 22 Beav. 143; Ex parte Chippendale, 4 De G. Mac. & G. 19 ; Re Exhall Coal Company, 35 Beav. 449 ; Oliver v. Osborn, W. N. 1867, p. 246; Me Layton's Policy, "W. N. 1873, p. 49. CH. XXIII. s. 2.] EXPENSES OF TRUSTEES. 529 trustee will be paid even before the costs of suit (a). But the Void deeds, trustee of a void trust deed cannot charge his expenses as against persons who establish the invalidity of the deed (6) ; though he wiU be allowed for improvements (c). There will be no lien for expenses incurred by trustees in respect of an act done in excess of their powers, and therefore in breach of their duty (cQ. And the Court has refused to give effect to a trustee's lien by a foreclosure decree, or a sale which would be tlie destruction of the trust itself; but the Court has gone as far as it could by delivering the deeds into his custody and prohibiting any disposition of the property without previous discharge of the trustee's lien (e). In TroU v. Dawson, 1 P. W. 780, 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." But the decision in this case was reversed in the House of Lords ; and hence the inference has been drawn that a trustee gives credit for the ex- penses, not to the estate, but to the person of the cestui que trust, and that the assignee 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, 7 B. P. C. 266, and the circumstances were briefly these : — An eighth of the proprietor- ship of the province of Carolina had been conveyed in 1684 to Amy in trust for four persons. The whole equit- able 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 between 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 proprietor- ships, 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 had been made to Amy for his services generally, and XKirticularly 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 office, 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 pro- prietorship had been accepted and acted upon. It was under these cir- cumstances that ]jord Macclesfield directed a conveyance of the estate, subject to the payment of Amy's ex- penses ; but on appeal to the House of Lords the decree below was re- versed. The question appears to have been, not whether Amy's expenses, due from the assignor, were a lien upon the estate, but whether the grants made to Amy had not been accepted by him as a full compensation. (a) See Morison v. Morison, 7 De Gex, M. & G. 226 ; Re Exhall Coal Company, 35 Beav. 449. (6) Smith v. Dresser, 1 L. Eep. Eq. 651 ; 35 Beav. 378. (c) Woods y.Aaiton, W. N. 1866, p. 207. {d) Leedham v. Chawner, 4 K. & J. 458 ; in which case the Court held that there was no lien even as against a cestui que trust who knew and approved of the proceedings, but otherwise re- mained passive. (e)Z)arfev.VriMiamso«, 25 Beav. 622. M M 530 EXPENSES OF TRUSTEES. [CH. XXIII. S. 2. Lien does not 10. Although the trustees themselves are creditors upon the trust trustee3*°agent3. ^^^^ f°^ ^^^ amount of their expenses, the persons who are employed by them as solicitors, surveyors, &c., have no such lien. And the law is so settled, notwithstanding an express declaration by the settlor that the trustees shall m 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 quce taciie insunt nihil operatur. It would be a mischievous 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 administration (a). Sectis it therehe a H. But a solicitor in accounting for his receipts to the trustees to employ a par- Diay Set off his costs (h). And expositive direction to the trustees to ticular agent. employ a particular person as auditor or receiver, and allow him a proper salary, wUl constitute a trust in his favour, and, of course, give him a claim against the trust fund (c). But if a testator merely recommend or express a desire that his trustees should employ him as receiver, the question is, whether the words used amount to a trust, or only to an expression of opinion and advice : and to dis- cover the meaning, the Court examines the provisions of the will, and if it finds that, to consider the words as a trust would be incon- sistent with the general character of the wiU, which assumes that the administration of the estate is to be unfettered by such a trust, the Court comes to the conclusion that the words were meant only by way of suggestion (jl). Trustee's agents 12. Vice versA, the agent of a trustee is accountable to the not accountable employer Only, the trustee, and not to the cestui que trust (e) ; and tmst. a bUl by cestui que trust against the trustee and his solicitor, alleging improper payments out of the trust fund by the trustee to the soUcitor, is demurrable by the solicitor (/). But under the special provisions of tlie Solicitors' Act {g), cestuis que trust may, (a) Worrall v. Sarford, 8 Ves. 4, 559 ; Finden v. Stephens, 2 Phill. 142 ; see 8; Hall v. Laver, 1 Hare, 571; Knott v. Co«e€, 2 Phill. 192. Feoffee's of Heriofs Hospital v. Ross, (e) Myler v. Fitzpatrick, 6 Mad. 12 01. & Fin. 507 ; Francis v. Francis, 360, per Sir J. Leach ; Attorney -Oene- 5 De G. M. & G. 108. ral v. Earl of Chesterfield, 18 Beav. (6) Re Sadd, 34 Beav. 650. 596 ; and see Langford v. Mahony, (c) Williams v. Corbett, 8 Sim. 349 ; 2 Conn. & Laws. 317 ; Lockwood v. Hihhert v. Hibbert, 3 Mer. 681; Consett Abdy, 14 Sim. 441 ; Keane v. Robarts, V. Bell, 1 Y. & C. Ch. Ca. 569. 4 Mad. 350. (rf) Shaw V. Lawless, 1 L. & G. t. (/) Maw v. Pearson, 28 Beav. 196. Sugd. 154; reversed 1 Dr. & Walsh, (V) 6 & 7 Vict. c. 73, s. 39. 512;5C1.&F.129; LI. & G. «. Plunk. estates. CH. XXIII. S. 2.] EXPENSES OF TKUSTEES. 531 at the discretion of the Court, obtain an order to tax the bill of the solicitor employed by the trustee (a), and generally cestuis que trust may proceed against an agent where he has not confined him- self to the duties of an agent, but by accepting a delegation of the whole trust (h), or by fraudulently mixing himself up with a breach of trust (c), has himself become a trustee by construction of law. 13. Monies voted by Act of Parliament for the public service, are Monies in hands not trust funds in the hands of the Secretaries of State for any par- ^igx^. ticular individual, but for the general purposes of the office. The persons employed by them therefore, have no lien which they can enforce in equity (d). 14. If a person be trustee of different estates for the saiiw cestuis Trust of two que trust under the same instrument, and he incurs expenses on account of one estate in respect of which he has no funds, it is presumed that he may apply to their discharge any money which has come to his hands from any other of the estates ; but he woiild not be justified in mixing up claims under one instrument of trust with those under another («). 15. If the trust estate fail, the trustee may then file a biU against How expenses the cestui que trust on whose behalf and at whose request he acted, to recover from him personally the amount of the money ex- pended (/) ; and the rule applies to the case of a cestui que trust under coverture, to the extent of any property settled to her separate use, and where her anticipation is not restrained {g) ; and generally trustees acting with the sanction of their cestuis que trust and not exceeding their powers, may call upon their cestuis_ qite trust per- sonally to reimburse them any necessary outlay (h) ; and in a late case it was held that a trustee who, in that character had incurred (a) As to the circumstances under Morgan v. Stephens, 3 Giflf. 226 ; which the Court will direct taxation at Hardy v. Caley, 33 Beav. 365. the instance of a cestui que trnst, see {d) Orenville-Mwray v. Earl of In re Drake, 22 Beav. 438; Re Dick- Clarendon, 9 L. li. Eq. 11. son, 3 Jur. N. S. 29, and cases there (e) Price v. Loaden, 21 Beav. 508. referred to ; and Be Dawson, 28 Beav. {/) Balsh v, Hyham, 2 P. W. 453 ; 605. Exparte Watts, 3 De G. Jones & Sm. [h) Myla- V. Fitzpatrick, 6 Mad. 394; In re Southampton Imperial Hotd 360 ; and see Pollard v. Downes, 1 Eq. Company, W. N. 1872, p. 53. Ca. Ab. 6; Leey. Sanhey, 15 L. R. (jg) Buttery. Cumpston, TL. E. Eq. Eq. 204. 16. (c) See Fyler v. Fyler, 3 Beav. 550 ; (A) Ex parte Chippendale, 4 De G. Alleyne v. Darcey, 4 Ir. Ch. Ee. 199 ; M. & G. 19, see 54 ; Re Exhall Coal Portloch V. Gardner, 1 Hare, 606; Company, W. N. 1867, p. 244; Re Ex parte Woodin, 3 Mont. D. & D. Universal Banking Corporation, W. N. 399 ; Attorney- General v. Corporation 1868, p. 63 ; James v. May, 6 L. E. of Leicester, 7 Beav. 176 ; Pannell v. Eng. & Ir. App. 328 ; and see Hem- Hurley, 2 Coll. 24t ; Bodenham v. ming v. Maddoek, 9 L. E. Eq. 175. recoverable where no trust estate. Hoskyns, 2 De Gex, Mao. & Gor. 903 ; M M 2 532 EXPENSES OF TRUSTEES. [CH. XXIII. S.2. Claim of expenses against a cestui que tnist per- sonally. Funds out of which expenses payable. Exoneration of personalty. a legal liability, might call upon the eedui que trust in equity to give an indemnity against the liability before any actual loss had accrued (a). 16. But the trustee can establish no claim to reimbursement either against the cestuis que trust personally, or against the trust estate, where he has incurred the outlay not in the strict line of his duty, and without either the request or the implied assent of the cestuis que trust (&). 17. Questions occasionally arise respecting the proper fund for payment of expenses. In one case (c) 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 make that fund priwMrily liable for costs of administration. In a subsequent case Lord Langdale appears to have arrived at a different con- clusion {d) ; but the late Master of the Rolls and Sir J. Stuart followed the authority of Sir J. Leach (e). Where the trust was for "payment of debts, testamentary aud other expenses and legacies under the will " (/), and where the trust was to pay " funeral and testamentary and legal expenses " {g), and where the trust was " for payment of debts, funeral expenses, and the costs and charges of proving and attending the execution of the will, and the several trusts therein contained " (h), it was held that the words included costs of administration. 18. Where a testator bequeathed " a leasehold house and all other his personal property " to his wife (so that she was specific legatee of the house and inferentially of the personal estate), and then devised his real estate to be sold, the proceeds to be applied in " payment of funeral and testamentary expenses and debts," and the " residue " to be invested, it was held that the funeral and testamentary ex- penses and debts were thrown upon the real estate in exoneration of the personal estate, but that the costs of the special case for (a) Phene v. CfiUan, 5 Hare, 1, see pp. 9, 13 ; and see lie Soiiihampton Imperial Hotel Company, W. N. 1872, p. 53. (6) Leedham v. Chawner, 4 K. & J. 458. In Collinson v. Lister, 20 Beav. 368, where the advances were not proper, tho M. E. said, " No assets cirist out of which the executor could seek for payment, and of course, it could not be contended that the plain- tiffs (who were the cestuis que trust) were liable to repay the advances." (c) Brown v. Groombridge, 4 Mad. 495. (rf) Wilson \. Heaton, 11 Beav. 492. (e) Stringer v. Harper, 26 Beav. 585; Linlm/ v. Taylor, 1 Giff. 69; Webb V. De Beauvoisin, 31 Beav. 573 ; Gilbertson v. Gilbertson, 34 Beav. 354 ; Hill V. Challinor, W. N. 1867, p. 139. (/) Webb V. De Beauvoisin, 31 Beav. 573. (g) Coventry v. Coventry, 2 Drew. & Sm. 470. (h) Alsop V. Bell, 24 Beav. 451, see p 469. CH. XXIII. S. 2,] EXPENSES OF TKUSTEES. 533 taking tlie opinion of the Court were not " testamentary expenses," and therefore fell upon the personalty {a). 19. A trust in a will of real and, personal estate to pay out of Trust to pay 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 therefore 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 (b). (o) Gilhertion v. Gilbertson, 34 Beav. (b) Lord Brougham v. Lord Poulett, 354. 19 IJeav. 119 ; and see Sanders v. Miller, 25 Beav. 154. 534 CHAPTER XXIV. HOW A TRUSTEE MAY OBTAIN HIS DISCHABGE FROM THE OFFICE. How the trust may be relin- quished. We shall conclude the subject of the Office of Trustee by con- sidering in what manner he may divest himself of that character. The only modes by which he can accomplish this object are the following : First, He may have the universal consent of all the parties interested ; 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 application to the Court. Trustee may- retire with consent of cestuis que trust. A II must concur. Cestuis que trust not sui juris. Not in existence. I. By consent. 1. As no cestui que trust who concurs in a breach of trust by the trustee can afterwards call him to account for the mischievous consequences of the act, it follows, that where all the cestuis que trust, being sui juris, lend their joint sanction to the trustee's dis- missal, they are precluded from ever holding him responsible on the ground of delegation of his office (a). 2. But the trustee must first satisfy himself that all the cestuis 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). 3. And the cestuis que trust who join must be sui juris, not femes covert or infants, who have no legal capacity to consent. But a feme covert is considered to be sui juris as to her separate estate where there is no restraint against anticipation (c). 4. 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. II. A trustee may retire by virtue of a special power contained in the original instrument. (a) Wilkinson v. Parry, 4 Euss. 276, per Sir J. Leach. (6) See mpra, p. 435, note (e). (e) See infra, ch. xxvi. s. 6. CH. XXIV.] APPOINTMENT OF NEW TRUSTEES. 535 1. The person who creates the trust may mould it in whatever Trustee may retire n ' power. form he pleases, and may therefore provide, that on the occurrence '^'^ "^'^ "" ^^ * of certain events and the fulfilment of certain conditions, the ori- ginal trustee may retire, and a new trustee be substituted (1). 2. The form of power (a) most commonly in use is, that in case Usual form of the trustees appointed by the instrument of trust, or to be appointed ^^^ power. under the power, or any of them, shall " die or be abroad for twelve calendar months, or be desirous of being dischm-ged from, or refuse, decline, or become incapable (6) to act in the trusts," it shall be lawful for the cestui que trust to whom the power may be given, or (as the proviso is frequently worded) for the surviving or continu- ing trustee (c), 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 in the settlement. 3. It often happens that in a settlement there are several sets of Several sets of trustees — a term of 99 years for instance is vested in A. and B., and a term of 500 years in C. and D., and there is a limitation to E. and F. for the life of a person, with powers of sale and exchange, &c., and then a power of appointment of new trustees is given to " the surviving or continuing trustees or trustee." If A. die who can appoint in his place ? Is the power in B. as the survivor in that (o) The best modern forms did contain (c) The best forms provide that a the additional words, " or by the Court refusing or retiring trustee shall, if of Chancery or other competent avihor willing to execute the power, be deemed rity" in order to obviate the break in to be a continuing trustee. As to the chain of trusteeship which would the object of this addition, see p. 547 otherwise have been occasioned by a infra. Sometimes the power is given resort to the Court, but the addition is to the surviving, continuing, or other now unnecessary ; see 23 & 24 Vict, trustee, an addition which has been c. 145, s. 27. found useful in practice. See Lord (b) " Unfit " may be usefully added ; Camoys v. Best, 19 Beav. 414. see p. 543in/5-a. (1) Every instrument where there is a continuing trust of an active character, should, of course, until a recent Act, have contained a power of appointment of new trustees, but, singularly enough, Lord Thurlow omitted to insert one in his own will, of which Lord Eldon and two others were named trustees. The defect was supplied by a private Act of Parliament, 15th June, 1809 (49 G. 3. cap. clxxv.), by which power was given to the Court of Chancery, in case any of the three trustees " should die, or be desirous of being discharged from, or should refuse, or decline, or become incapable to act in the trusts," to appoint a new trustee in a summary way upon petition. 536 APPOINTMENT OF NEW TRUSTEES. [CH. XXIV. Lord Cranworth'a Act. Two trustees in place of one. Whether a new trustee is actually such until trans- fer of the estate to him. particular trust, or in B., C, D., E. and F. jointly as the survivors of the trustees en masse ? This doubt has occasionally in practice led to expense, which might easily have been avoided by a few words in the power declaratory of the intention, as by limiting the power to " the surviving or continuing trustees or trustee of the class in which any such vacancy or disqualification shall occur." 4. A recent act provides against the omission of a power of appointment of new trustees in any instrument of trust, and also against defects in the power, by enacting generally, by the 27th section, that " whenever any trustee, either original or substituted, and whether appointed by the Court of Chancery or otherwise, shall die, or desire to be discharged from, or refuse or become unfit or incapable to act," it shall be lawful for the person nominated for that purpose by the instrument creating the trust, or if there be no such person, or he be unable or unwilling to act, then " for the sur- viving or continuing trustees or trustee for the time being, or the acting executor or administrator of the last surviving and con- tinuing trustee, or for the last retiring trustee, by writing, to appoint any other person or persons to be a trustee or trustees," and the Act gives the usual directions for vesting the trust estate (a), and the following section makes the Act apply to the case of a trustee dying in the testator's lifetime. But it will be observed that the Act does not provide for the case of a trustee going abroad, and it cannot be safely assumed, until a decision, that the word " refuse " was meant to include a disclaimer, (for a disclaiming trustee never was a trustee (b) ), and its operation is, by the 34th section of the Act, restricted to instruments inter vivos executed after the passing of the Act (28th August, 1860), and to wills and codicils made, confirmed, or revived after that date. It has been held that the donee of the power under this Act can appoint two trustees in the place of an only trustee appointed by the settlor's will (c). 5. The words contained in the ordinary form, which expressly confer all powers on the new trustee before the estate has been conveyed, show that a doubt has been felt by the profession, whether in the absence of these words the powers could be exercised until after conveyance, and the late Vice-Chancellor of England, in a (a) 23 & 24 Vict. c. 145, s. 27. (6) In Viscountess D'Adhemar v. Bertrand, 35 Beav. 19, it was assumed that a disclaiming trustee was within the Act, and it was held that an ap- pointment of a new trustee by the continuing trustee under the Act did not take away the general jurisdiction of the Court to appoint in proper cases an additional trustee ; and see Re Jack- son's Trusts, W. N. 1868, p. 65. (c) Re Breary, W. N. 1873, p. 48. mott. CH. XXIV.] APPOINTMENT OF NEW TRUSTEES. 537 case where the words referred to did not occur, but there was simply a power of noraination 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). But in a more recent case Noble v. Mey- before the late Master of the Eolls (6), where A. and B. were appointed trustees of a settlement, 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 3000^. in the hands of trustees of another settlement) to C. and D., who filed their bill without their cestuis qite 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 appointment of trustees was incomplete ; but the Master of the Eolls held that, whether A. had acted or not, his disclaimer was a wish to retire, and that C. and D. were duly appointed, and were entitled to call for payment of the trust fund : that the appointment of new trustees, and the conveyance of the trust property to them were two distinct and separate matters, and that the transfer could only take place when the appointment was complete ; and that various difficulties would arise from holding that the transfer of the trust fund was necessary to perfect the appointment. And in a subsequent case before the late Master of the EoUs where was the usual power of appointment of new trustees, with a direction for the conveyance of the trust estate, and the donee of the power appointed a new trustee in the place of a deceased trustee, but the trust estate was not conveyed, and the surviving trustee and new trustee then sold the estate and signed a receipt for the purchase money, it was held that the purchaser acquired a good title (c). It would appear, therefore, that at the present day an actual conveyance of the legal estate, unless the power be specially worded, is not essential to the valid appointment of new trustees. 6. Should the trust estate consist of Bank Annuities, or other Mode of vesting property transferable in the books of any company, then by one and the same deed the donee of the power may nominate 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 (a) Warhurton v. Sandys, 14 Sim. (5) Nobkv. Meymott, 14 Beav. 471. 622. (c) Welstead v. Colvile, 28 Beav. 537 trust estate. 538 APPOINTMENT OF NEW TRUSTEES. [CH. XXIV. after the execution of the deed the stock may be transferred into their joint names accordingly. If the trust estate consist of chattels real, or other personal estate legally assignable, two deeds, until a recent Act, were necessary. By the first, the old trustee assigned the chattel interest to A., and then A., by indorsement, re-assigned it to the old and new trustees as joint tenants. But now, by Lord St. Leonards' Act 22 & 23 Vict. c. 35, s. 21, a person may assign chattels real and other personal property assignable at law to him- self and another, so that in such cases for the future one deed will be sufficient (1). 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 machinery than a simple conveyance under the Statute of Uses ; for the old trustee may convey the lands to the joint use of himself and the new trustee, and the statute will operate to transfer the possession. But in settlements which invest the trustees with poivers, the estab- lished form of the proviso has been thought to occasion 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 may be vested in the old and new trustees to the uses, trusts, intents, and purposes of the settlement." Now the meaning obviously is, that, as by the settlement an estate to preserve contingent re- mainders, or, it may be, some other interest, was limited to the trustees who are armed with the powers, should either of the trus- tees die, &c., and a new trustee be appointed, such estate pur autre vie, or other interest, should be transferred to the old and new trustees jointly. But the practitioner ex majori cauteld, attached to the words, the possible, however improbable construction, that on the appointment of a new trustee the whole settlement should be re-opened, and that the fee-simple should ab integro be conveyed to the old and new trustees to all the same uses, &c. as were declared by the original deed. For accomplishing this object it was neces- sary that two instruments should be prepared. By the first, the new trustee was nominated by the donee of the power, the old uses of the settlement were absolutely revoked (the proviso, it was said, (1) The Act does not authorise an assignment by a person to himself (as by an executor to himself as legatee), nor by himself and another or others to himself, as by two co-executors to one of them as trustees, for in the first case he has the legal estate already and a declaration will shift the equitable interest, and in the second case so far as he has not the legal estate in himself the other or others can assign it or release it independently of the Act. The operation of the Act is limited to property assignable at law, for mere equitable interests shift according to the intention, and no legislative interference was required as to them. CH. XXIV.] APPOINTMENT OF NEW TRUSTEES. 539 implying an authority for that purpose), and the use was appointed to A. and his heirs, and the estate and interest vested in the old trustees was assured unto and to the use of A. and his heirs, by way of conveyance. When this had been effected by one deed, and A. had become seised, or was supposed to have become seised, of the inheritance in fee-simple, he then, by conveyance, which was in- dorsed on the former deed, reconveyed the premises to the old and new trustees 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 seisin to serve the uses should be vested in the old and new trustees jointly, then a power of revocation was implied, and the direction was complied with. If the settlor had no such intention, then there was no implied power of revocation, and the affected exercise of it was a nullity, and the conveyance hy the old trustee, and the reconveyance to the old and new trustees served only to pass the actual and vested interest. These notions are now treated as old-fashioned and the prevalent and better opinion is, that a simple conveyance from the old trustee to the use of the old and new trustees will be sufficient {a). 7. By 33 & 34 Vict. c. 97, the appointment of a new trustee stamps on requires a 10s. stamp, and " every instrument and every decree or ^PPoint™ent of order of any Court, or of any commissioners, whereby any property on any occasion, except a sale or mortgage, is transferred to or vested in any person, is chargeable with duty as a conveyance or transfer of property. Provided that a conveyance or transfer made for effec- tuating the appointment of a new trustee, is not to be charged with any higher duty than 10s." 8. It must be carefully ascertained by the trustee that the Trustee must see circumstances under which he retires from the trust are precisely contempiatoAhe those which the settlor contemplated in the terms of the proviso ; precise case. for if the case be not warranted by the power, the trustee who resigns will be made responsible for all the mischievous con- sequences, just as if he had delegated the office. 9. And a trustee on retiring must be careful not to part with the Retiring trustee control of the fund before the new trustee has been actually ap- SetiorTo/thT™' pointed, for if he transfer it into the name of the intended new appointment. trustee and by some accident the appointment fails to be com- (a) See Sug. Powers, 884, note (1), (c) Lord Foley v. Commissioners of 8th ed. ; 3 Davidson's Preced. vol. 3, Inland Revenues, 3 L. K. Eq. Exch. p. 521, and vol. 4, p. 609, 2nd ed. 263. (6) 24 & 25 V. c. 91, s. 30. 540 APPOINTMENT OF NEW TRUSTEES. [CH. XXIV. pleted, he still remains a trustee and will be answerable for the trust fund {a). But on the other hand, if the old trustee obstinately and perversely, without any sufficient reason, reftise to transfer the fund to new trustees duly appointed, he will be visited with the costs occasioned by his wilfulness (6). Sharp J,-. Sharp 10. It is somewhat surprising, considering the frequency of this power, how few questions until lately arose upon its construction. In Sharp v. Sharp (c), heard in the Court of Queen's Bench, the terms in which the power was expressed were as follows : — " 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 in- capable to act in the trusts, it shall be lawful for the survivors 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 circumstancs, been effec- tually exercised, and it was determined in the negative. Lord Tenterden said that by the word " survivor " he understood merely the trustee " continuing to act ;" for it was 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 was the object of his confidence, should have the power of associating with himself some other person : but it would be giving a much larger construction to the words than they fairly imported, if the trustees, in the event of the whole class declining to act, were to nominate such other persons as they might think fit. Mr. Justice Bayley observed, that the word " either " was not uselessly introduced : that it was 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 : that the testator might have had good reason for confining the power to the care of one trustee, for he might 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 the words were to be read as if they were " both or either,'' the case would be different ; for if both the persons should decline to act, the testator might naturally object to their delegating their trust to (a) Pearce v. Pearce, 22 Beav. 248. (c) 2. B. & A. 405. (6) Re Wise's Trust, 3 I. R. 599 CH. XXIV.] APPOINTMENT OF NEW TRUSTEES. 541 other persons, and might then have thought it better that his property should be left to the care of a Court of eq[uity : that under the words of the power the testator meant by the word " acting " to designate those who had taken upon themselves to perform some of the trusts mentioned in the will, and that he did not contemplate one who in limine refused to act : that the word " survivor " must therefore mean the "continuing" trustee, as contradistinguished both from those who might refuse to act and those who might be desirous to discontinue acting, 11. If one trustee disclaims, may the continuing trustee appoint another, or do the words of the power, " if any trustee shall refuse or decliiie" apply, not to the case of a disclaime?-, but only to a refusal after having acted ? 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 rule where 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 disclaiming trustee, the power did not contemplate such a case. However, 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 dis- claimer, it is not meant that they do not also apply to a sub- sequent refusal. At all events, therefore, the direction for the transfer of the estate is not nugatory {a). 12. On the other hand, it has been doubted whether the words "refusing" or " declining" may not refer exclusively to disclaimer, and have no application to the case of a trustee who after having accepted the trust refuses to act any longer in it. This proposition is also thought to be untenable (5), though some recent cases have an opposite tendency (c). 13. It has been held that a payment of the trust fund into Court, under the Trustee Relief Act, stamps the trustee with the character of a " refusing or declining trustee" (d). " Refusing or declining " incluiles " disclaiming." " Refusing" or " declining" means also after having acted. Payment into Court is " de- clining." (a) In re Roche, 1 Conn. & Laws. 306 ; Wahh v. Gladstone, 14 Sim. 2 Mitchell V. Nixon, 1 Ir. Eq. Rep. 155 Crook V. Ingoldshy, 2 Ir. Eq. Rep. 375 Viscountess D'Adhemar v. Bertrand, 85 Beav. 19. (6) Travis v. Illingworth, 2 Drew. & Sm. 344. (c) See Re Woodgate's Settlement, and Re Armstrong's Settlement, 5 Week. Rep. 448. {d) Re Williams's Settlement, 4 K. & J. 87. 642 APPOINTMENT OF NEW TRUSTEES. [CH. XXIV. Power to exeontors and administrators. Death of the trastee in the tes- tator's lifetime. Morris v. Preston. 14. If a power of appointing new trustees be given to a person, his executors and administrators, and the donee of the power dies, having appointed three executors, one of whom renounces, the acting executors can exercise the power (a). 15. Suppose a testator to appoint two trustees with the usual power of appointment of new trustees, and a trustee dies in the testator's lifetime, can the surviving trustee appoint a new trustee ? The late Vice-Chancellor of England in one case expressed a doubt upon it (5), and in a subsequent case decided in the negative (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 a new trustee in the place of one who predeceased the testator {cl). 16. In Morris v. Preston (e), the proviso was, that " in case of 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 husband and wife or the survivor should, with the consent of tlie surviving co-trustee or co-trustees, nominate and appoint a new trustee or trustees, and that upon such nomination or appointment the sur- viving 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 argument, — a circumstance, much to be regretted, as a judgment from Lord Eldon would have thrown great light upon the subject. However, (a) Earl Granville v. McNeile, 7 Hare, 156. The Reporter speaks of the third executor as " declining," but renuntiation is meant, as assumed by the judgment, and expressly stated; 13 ,Iur. 252. It would seem, from the principle laid down by the Court, that, had the third executor declined only to act as executor without actual renuntiation, the judge would have arrived at the same conclusion. (6) Walsh V. Gladstone, 14 Sim. 2. (c) Winter v. Rvdge, 15 Sim. 596. {d) Be HadUy, 5 De Gex & Sm. 67 ; Nicholson v. WrigU, 26 L. J. Ch. 312, 8. C, nomine Nicholsony. Smith, 3 Jur. N. S. 313 ; Nolle v. Meymott, 14 Beav. 477. As regards the statutory power conferred by 23 & 24 Vict. c. 145, s. 27, the doubt is guarded against by express enactment ; see sect. 28. (e) 7 Ves. 547. CH. XXIV.] APPOINTMENT OF NEW TRUSTEES. 543 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 (a). 17. In another case, where two trustees had been appointed by Power to tenant the settlement, and the power was, " that if either of the trustees surviving or should die, or reside beyond seas, or become incapable or unfit continuing 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 he vested in the newly appointed trustee, jointly with the surviving or continuing trustee,'' upon the trusts of the settle- ment ; and one trustee died and the other became bankrupt ; on the suggestion by counsel that there was no surviving or con- tinuing trustee, and therefore the power was gone, the Lord Chan- cellor of Ireland observed, " That happens in many cases without the power being affected. The construction is not so straitlaced as all that" (&). 18. It was ruled in the same case, that a trustee who became Bankrupt trustee is " unfit " 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 within the description, for by " incapable " is meant personal incapacity and not pecuniary embarrassment (c). And a bankrupt, who has obtained a fii*st-class certificate, cannot be re- garded as unfit to be a trustee {d). 19. The Court held in one case that a trustee who went to Trustee resident reside permanently abroad, came within the description of a trus- '^ ^°'^ ' tee "incapable to act" («), but this seems scarcely in harmony with correct principle (residence abroad being rather a question of unfit- ness than incapacity), and cannot be reconciled with other autho- rities (/). And the Court has- since intimated an opinion that incapacity means personal incapacity {g). 20. If the power provide that if any one of three trustees become " unable " to "unable" to act, " the trustees or 'trustee for the time being, whether ^'^*" (a) In re Roche, 1 Conn. & Laws. see Re Bignold's Settlement Trusts, 308. 7 L. E. Ch. App. 223. (b) In re Roche, 1 Conn. & Laws. (/) Withington v. Withington, 16 306 ; 2 Drur. & War. 287. Sim. 104 ; Re Harrison's Trust, 22 L. (c) Re Watfs Settlement, 9 Hare, J. 69 ; and see Re Watfs Settlement, 106; Turner v. Maule, 15 Jur. 761; 9 Hare, 106; O'Reilly v. Alderson, 8 In re East, 8 L. R. Ch. App. 735. Hare, 104. (d) Re Bridgman,! Dr. &Sm. \(}i. (g) In re Bignold's Settlement Trusts, (e) Mennard v. Welford, 1 Sm. & 7 L. R. Ch. App. 223. Gif. 426 ; & C 1 Eq. Rep. 237 ; and 544 APPOINTMENT OF NEW TRUSTEES. [CH. XXIV. Temporary absence. Two trustees retiring, and ap- pointing a single successor. Single trustee retiring and appointing two to succeed. D'Almaine v. Anderson. continuing or declining to act," may appoint a new trustee, the two trustees who remain capable can appoint a new trustee in the place of a lunatic trustee (a). 21. If the settlement provide that a trustee shall cease to be such " on departing the United Kingdom from whatever cause or motive or under whatever circumstances," the clause nevertheless does not apply to a mere temporary absence with the intention of returning (6). 22. If there be two trustees of a settlement, and both be anxious to retire from the trust at one and tlie same time, they would not be justified in putting the property under the control of a single trustee appointed in their joint places (c). 23. And, vice versd, a single trustee, should he wish to retire, cannot 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 unnecessary machinery. The idea of the settlor may have been, that by increasing the number of the trustees the vigilance of each, individually, would be dimi- nished. " A great number," observed Lord Mansfield, " may not do business better than a smaller, and it would be attended with more expense " (d). 24. But the power may be so specially worded as to authorise the substitution of several trustees in the place of one or of one in the place of several. Thus, where a testator appointed two trustees, and directed " 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 more person or persons to be a trustee or trustees in 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," and the surviving trustee appointed tivo trustees in the room of the deceased trustee, the late Vice-ChanceUor of England (o) In re East, 8 L. E. Ch. App, 735. (6) Be Moravian Society, 26 Beav. 101. (c) HulTne v. Hulme, 2 M. & K .682. (d) -Rec V. Lexdale, 1 Burr. 448 ; Ex parte Davis, 2 Y. & C. Ch. Ca. 468 ; 3 Mont. D. & De (i. 304 ; and see In re Breary, W. N. 1873, p. 48. CH. XXIV.] APPOINTMENT OF NEW TEUSTEES. 545 held that such a case was immediately contemplated by the proviso (a). 25. And where the Court itself is appointing new trustees it Court does not does not at the present day, though doubts appear to have been original number, formerly felt on the point (6), consider itself bound to fill up the precise number only mentioned in the instrument of trust. It has added two new trustees to the two original trustees, (c), appointed (a) D'Almaine v. Anderson, V. C. Feb. 1, 1841, MS. ; and in Meinertz- hagen v. Davis, 1 Coll. 335, the special form of the power was held to autho- rise the appointment of three trustees in the place of two ; and in Emmet v. Clarke, 3 GifF. 32, three trustees were held to have been well appointed in the place of four ; and in Hillman v. Westwood, 3 Eq. Re. 142, the Court thought that two trustees could be ap- pointed in the place of one. In another case, not reported, the proviso was that " In case any of the several trustees therein named, or any new trustee or trustees to be appointed as thereinafter mentioned, should depart this life, or be desirous to be discharged from the execution of the aforesaid trusts, or should reside abroad or become inca- pable, or neglect or refuse to act in the trusts of fhe testator's will before the same should be fully performed, it should be lawful for the remaining sur- viving or only acting trustee or trus- tees, and he the said testator did thereby authorise him or them, by any instrument or instruments under his or their hand and seal, to be attested by two or more credible witnesses, to nominate and appoint any other fit person to supply the place of the (me so dying or desiring to be discharged, residing abroad, or neglecting or refu- sing to act thereunder; and thereupon on the happening of any of those events he or they should immediately cease to be such trustee as aforesaid, and be immediately released and discharged from such office; and when and as soon as any such new trustee or trustees shouldbe so nominated, substituted and appointed as aforesaid, all and singular the trust monies, stocks, funds, and securities, messuages, lands, tenements, and hereditaments in or upon which the same or any part thereof should or might for the time being be invested, should immediately vest in him or them, or the same should with all con- venient speedbe assigned, conveyedand assured so that the same should be- come vested in such surviving and con- tinuing and such new trustees, or sueh new trustees or trustee only as the case might require, and his or their heirs, executors, administrators, and assigns, in the same manner, and with the same powers, authorities, and directions as if he or they had been originally ap- pointed under that his will." There were five trustees, Elizabeth Byrom, Ashtou Johnson Byrom, Valentine Byrom, William Corrie, and George Orrod. V. Byrom, A. J. Byrom, and G. Orred died, and in March, 1831, Elizabeth Byrom and W, Corrie ap- pointed Henry Byrom in the place of V. Byrom, A. J. Byrom, and G. Orred. In July 1831, William Corrie died, and in May 1833, Elizabeth Byrom died, and on June 4, 1833, Henry Byrom appointed Emma Byrom in the place of Elizabeth Byrom. On June 6, 1833, Emma Byrom, as the remaining trus- tee, appointed Peter Ainsworih, Thomas Shaw Brandreth, and Edgar Corrie, in tlie place of Henry Byrom (then re- tiring), and of the said A. J. Byrom, V. Byrom, and George Orred, deceased. In an amicable suit between cestuis que trust and trustees for trying the validity of the appointments, it was declared by V.-C. Wigram, " that the appoint- ment of the defendants Emma Byrom, Peter Ainsworth, Thomas Shaw Bran- dreth, and Edgar Corrie respectively to be trustees under the will of Ashton Byrom, deceased, in the pleadings named, was valid and proper, and duly authorised by the power of appoint- ing new trustees contained in the said will." Corrie v. Byrom,N .-C. Wigram, 26 April, 1845, MS.; and see Re Breary, W. N. 1873, p. 48. {b) Devey v. Peace, Taml. 78. (c) Re Boycott, 5 W. R. 15. K N 546 APPOINTMENT OF NEW TKDSTEES. [CH. XXIV. Trustee should be within the jurisdiction. One of two trustees retiring, and appointment of the co-trustee. Appointment of one tru.stee in the place of several. four where the testator originally appointed three (a), three where the testator originally appointed two (b), and two where the tes- tator originally appointed one (c). In these cases the number has been increased, but if the original number was excessive the Court may also " reduce it. If, however, two were originally appointed, the Court for security will not, at least where money is concerned, substitute one only (d). 26. In general the new trustees appointed under a power 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 domicile was in America at the time of the marriage, the subsequent appointment of three Americans to be trustees was decided to be justifiable (e). 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 (/). 27. Should one of two trustees be desirous of retiring, of course he cannot do so without the substitution of another in his place {(/), and the power of appointment of new trustees would not authorise the appointment of the continuing trustee as sole administrator of the trust (h) ; for this would, in effect, amount to a relinquishment of the trust without the appointment of any successor (i). 28. A surviving trustee cannot be advised, (though it has been sometimes done), to vest the trust estate in himself, and a new 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. Still 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 several deceased trustees. And where a settlement constitutes three trustees with a power of appointment of new trustees in the usual form, and two die, the survivor should refuse to retire in favour of a single new trustee appointed in his place, for as the original settle- ment provided three trustees to execute the trust, the donee of the (a) Pknty v. West, 16 Beav. 356. (6) Birch v. Cropper, 2 De Gex & Sin 255 (c) Plenty v. West, 16 Beav. 356; Re TunstalVs Will, 4 De G. & Sm. 421. (d) Re Ellisoris Trust, 2 .Juv. N. S. 62 ; Porters Trust, 2 Jur. N. S, 349 ; and see Re Roberts, 9 W. R. 758. (e) Meinertzliagen v. Davis, 1 Coll. 335. (/) Guiberts Trust, 16 Jur. 852. {g) Adams v. Paynter, 1 Coll. 532. (h) Willcinson v. Parry, 4 Euss. 272. (i) Attorney -General v. Pearson, 3 Mer. 412, per Lord Eldon. CH. XXIV.] APPOINTMENT OF NEW TRUSTEES. 547 power should not execute the power partially, but should restore the original number (a). In a trust for sale, if this precaution were not observed, a purchaser on a sale by the new trustee might give trouble by objecting to the title (b). The strongest ground for sup- porting the sale would be, that probably many titles depend on the validity of such an execution of the power, and in recent cases, the appointment has been supported (c). Fieri non debuit, factum valet. Where the power in the will was " to appoint one or more new trustee or trustees in the room of the trustee or trustees so dying," and both trustees died, and the donee of the power appointed a single trustee in the place of both, the appointment was established (d). 29. If A. and B. be trustees, with a power of appointment of Rectification nf new trustees limited to "the acting trustees or trustee, or the bad appointment, executors or administrators of the surviving trustee," and then A. dies, and B. retires and appoints C. a trustee in his own place, and afterwards dies and appoints an executor, who as 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 appointment 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 (e). 30. It sometimes happens where the power of appointment of A surviving new trustees is limited to the " surviving or continuing trustee," ing two trastees that one trustee dies, and then the other wishing to retire proposes J" ^l^c place of ^ ^ ^ himself and the to appoint two new trustees at the same time in the place of him- deceased trustee, self and the deceased trustee. A doubt has however been suggested whether the word surviving must not be read as applicable only to an appointment in the room of a deceased trustee, and, as the word continuing cannot include retiring, the safer course is for the sur- viving trustee 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 (/). {a) See Barnes v. Addy, 9 L. R. Ch. [d) Wood v. Ord, M. R. 1st July, App. 244 ; but see Forster v. Abraham, 1793, M. S. 17 L. R. Eq. 351. (e) Miller v. Priddon, 1 De G. M. (6) See Earl of Lonsdale v. Beckett, & G. 335. 4 De Gex & Sm. 73 ; Meinertzliagen v. (/) See Nicholson v. Wright, 26 L. Davis, 1 Coll. 344. J. Ch. 312 ; S. C. nom. Nicholson v. (c) Re Pool Bathursfs Estate, 2 Sm. Smith, 3 Jur. N. S. 313. But see Pell & Gif. 169 ; Beid v. Reid, .30 Beav. v. Do Winton, 2 De G. & Jon. 17. 388 ; and see In re Fagg's Trust, 1 9 L. J. 175. X X 2. 548 APPOINTMENT OF NEW TRUSTEES. [CH. XXIV. Case of both trustees wishing to retire. Power to " other trustee." Power to "acting trustees." 31. And if there be two trustees, and a power of appointing new trustees be given to " the surviving or continuing trustees or trustee," it has been held that they cannot both retire at the same time, but that there must be two successive appointments as in the case last mentioned (a) ; and if there be three trustees with the like power and two die, and the surviving trustee wishes to retire, then he is not a continuing trustee, and therefore he cannot retire and appoint two others in the place of himself and a deceased trustee (h). 32. 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," ap- point four new trustees in the place of himself and three others (c). 33. Where persons are nominated 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 appointment 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 disclaim- ing, should accept the trust to the extent of exercising the power only, and should, by virtu.e of it, appoint new trustees (d) ; but it is conceived that trustees who availed themselves of the office for tlie purpose only of iatroducing other parties into the trust would be rather Power to the " said trustees." Appointment of a cestui que trust or near relative of cestui que trvst as trustee. refusing " than ■ acting " trustees, and that the exercise of the power, under such circumstances, would be nugatory, and might involve the outgoing trustees in serious liabilities. 34. The power of appointment is sometimes given " to the said trustees!' and then the question arises whether a sole survivor can appoint. It is conceived that " the said trustees " means the per- sons or person representing the trust for the time being under the settlement, and that the survivor can therefore exercise the power. 36. On a change of trustees it is not uncommonly proposed to appoint one of the cestuis que trust to that office, but such an arrangement is evidently irregular, as each cestui que trust has a right to insist that the administration of the property should be confided to the care of some third person whose interest would not (a) Stones v. Rowton, 17 Beav. 308 ; S. C. 1 Eq. Re. 427. (6) Travis v. Illingworth, 2 Drew. & Sm. 344. (c) Lc/rd Camoys v. Best, 19 Beav. 14. (d) See Slmrp v. Sharp, 2 B. & Aid. 415 ; and Be Hadley, 5 De G. & Sm. 67, where power was expressly given to a declining trustee. CH. XXIV.] APPOINTMENT OF NEW TRUSTEES. 549 tend to bias him from the line of his duty. Should a bill be filed for the removal of the cestui que trust, and the substitution of some indifferent person as trustee, the costs might be thrown upon the parties who had improperly filled up the trust (a). But it is pre- sumed that this rule affects the parties to the trust only, and that if a cestiii que trust who has been appointed a 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 (h). Cestuis que trust are not absolutely incapacitated from being trustees, as the Court itself under special circumstances appoints a cestui que trust a trustee (c). The ques- tion is merely one of relative fitness. A fortiori, the circumstance of near relationship to the cestui que trust creates no absolute dis- qualification for the oifice of trustee, though the late Master of the EoUs objected where it could be avoided, to appoint relatives as trustees (cZ). 36. The question is often asked, whether the donee of the power whether donee can appoint himself a trustee, and as no one can be iudge in his °^ power can '^'^ ' ■> ° appoint himseli own case such an appointment would be open to objection (e). trustee. Should the execution of the trust have been committed to trustees and the survivor of them, his executors and administrators, and the trustees die and the power of appointment is in the executor of the survivor, here it may be said that as by the terms of the trust the executor was declared to be a proper person to execute the trust, the executor has the settlor's warrant for the appoint- ment, of himself and another. It may still, however, be observed that the exercise of every power should be regulated by the cir- cumstances as they stand at the time, and that the limitation to executors a priori cannot dispense with the discretion to be applied afterwards. ■ 37. Where estates of a different description, or held under a of severing a different title, or limited upon different trusts, have been vested t^^teeship. in the same trustees by the settlor, and there is a single power of appointment of new trustees in the usual form, it is conceived that there is no authority for afterwards dividing the trust by the appointment of one set of new trustees to execute the trusts of the one estate, and a distinct set of new trustees to execute the (a) See Passingham v. Shei-horne, 9 Ex parte Conyheare'a Settlement, 1 W. Beav. 424. R. 458 ; Forster v. Abraham, 17 L. R. (6) See Reid v. Reid, 30 Beav. 388 ; Eq. 351. Forster v. Abraham, 17 L. R. Eq. 351. [d) Wilding v. Bolder, 21 Beav. 222. (c) Ex parte Clutton, 17 Jur. 988 ; (e) See aMe, p. 279. APPOINTMENT OF NEW TRUSTEES. [CH. XXIV. Direotorj- powers. Tenant for life disposing of his life estate. Trustee cannot retire in con- sideration of a premmm, or in favour of another who intends to commit a breach of trust. trusts of the other (a) ; and it has been held upon a petition under the Trustee Acts, that the Court has no jurisdiction lo make such an order (&). 38. 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 (c). 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 cmnpellcdile to elect (iir autre vie. 6. The doctrines of equity, as finally settled upon this principle, were as follows : — cc. For a good equitable recovery there must have been an equitcMe tenant to the praecipe, that is the beneficial owner (a) of the first equitable freehold must necessarily have concurred (b). /S. An equitable recovery was a bar to equitable only and not to legal remainders (c). y. An equitable recovery was not vitiated by the circumstance that the equitable tenant to the prcecipe had also the legal free- hold {d). S. An equitable remainder was well ban-ed, though it was vested in a person who had also the legal fee (e). 7. At the present day by the operation of the Fines and Eecoveries Act (/) 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 in tail of the legal estate. 8. A deed to bar the entail of an equitable interest in copyholds must, though not so expressly enacted, be entered on the court rolls within six calendar months from the date thereof {g). 9. An estate pur autre vie was not even at law within the statute de donis ; but a quasi entail (an estate of a most anomalous character) was introduced into legal estates, and was thence imported into trusts. The present doctrine of the Court appears to be this. a. If quasi tenant in tail in equity, with remainder over, be in pos- session, he may at any time by a simple conveyance, dispose of the absolute interest, as against the issue, and the remainderman, and may even bind them in equity by his contract. p. But if 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 precedent freeholder, as otherwise, though he may bind his issue, he cannot destroy the remainder. y. If lands held pur autre vie be limited to or in trust for A. and the heirs of his body with remainder over, the entirety of the estate is vested in A., and the issue and the remainderman stand in the (a) Penny v. Allen, 7 De G. M. & G. 425. (6) North V. Williams, 2 Ch. Ca. 64, per Lord Nottingham; Highway v. Banner, 1 B. C. C. 586 ; and see Wiokhamv. Wickham, 18 Ves. 418. . (c) Philips V. Brydges, 3 Ves. 128, per Lord Alvanley ; Salvin v. Thorn- ton, Arab. 585 -,8.0.1 B. C. C. 73, note. [d) Philips V. Brydges, 3 Ves. 126, per Lord Alvanley, 2 Ch. Ca. 49 Marwood v. Turner, 3 P. W. 171 Goodrich v. Brown, 2 Ch. Ca. 49 S. C. Freem. 180. (e) Philips V. Brydges, 3 Ves. 1 20 ; Robinson v. Comyns, Rep. t. Talb. 164, S. a 1 Atk. 172. (/) 3 & 4 Will. 4. c. 74. (g) Honywood v. Foster, 30 Beav. (No. 1) 1. CH. XXVI. S. 1.] ASSIGNEE BOUND BY EQUITIES. 575 light of mere special occupants, that is, they have no title jiore suo to any present interest, hut merely take the estate hy devolution where the owner has made no disposition. 8. A limitation in quasi entail of an estate pur autre vie has been commonly assimilated to an estate in fee-conditional ; but the natures of the two estates are not to be confounded. The tenant of a fee-conditional can only aliene after issue horn, but tenant in quasi entail ^Mr autre vie may dispose absolutely as above without refer- ence to the fact of there being issue or not («). II. The assignee of an equity is bound by all the equities As.signee bound rj. , • -, by all equiUes. anectmg it. ■' ^ 1. In order to understand the limits of the rule, it will be neces- sary before entering upon the cases to make a few preliminary remarks. If A. be possessed of a legal chose en action (b), as if he be obligee General obscrva^ of a bond and assign it m equity for valuable consideration, here at ^^°^ "P°" ^ the time of the assignment no equity existed in A. ; and yet as this case is confessedly within the operation of the rule, the maxim might perhaps be more accurately expressed by saying that the owner of an equity by assignment is bound by all the equities affecting what is assigned. Again, if A. having a debt due to him or being entitled to an equitable interest charge it in favour of B., the equity which remains in A. is the debt or equitable interest subject to the charge. If, therefore, A. afterwards assign the same subject matter to C, it might be thought that C. could take nothing more than the interest of A. subject to the charge. This, however, is not the case, for the priorities of B. and C. will be regulated by the better or inferior equities of the respective parties. The rule does not mean that the assignee of an equity shall be bound by all the equities affecting the assignor as between him and previous purchasers or incum- brancers under the assignor, but only by such as affect the assignor as between himself and his debtor and any persons not claiming under himself. The assignor can indisputably only give what he himself has, but as between two persons claiming through him a conflict of right may well arise. This will be better understood by the instances exemplifying the rule, to which we now proceed. (a) See the law upon this subject (6) Choses en action are now made collected by Lord St. Leonnrds in assignable if notice in writing be given Allen V. Allen, 1 Conn. & Laws. 427 ; to the debtor or trustee. See 36 & 37 and see Edwards v. Champion, 1 Eq. V. c. 66. s. 25, rule 6. Re. 419. 576 ASSIGNEE BOUND BY EQUITIES. [CH. XXVI. S. 1. Transfer of equit- able mortgage. Transfer of equit- able interest ob- tained by fraud. Trustee or cestui que trust debtor to trust estate. Debtor and creditor. Cavendish v. Geaves. 2. A person taking an equitable mortgage, with notice of a prior charge, transfers his mortgage to another who has no notice of the prior charge. The assignee is bound by the equity with which the assignor was affected (a). 3. A. mortgages or sells an equitable interest to B., which mortgage or sale is fraudulently obtained, and then B. transfers to C. Here C, whether he has notice of the fraud or not, takes subject to A.'s equity to have the mortgage or sale set aside (h). 4. A trustee or executor has a beneficial interest, but is a debtor to the trust or executorship, and then assigns his beneficial interest to a stranger. The assignee cannot claim the beneficial interest without discharging the debt (c). And a similar equity attaches upon an assignee from a cestui que trust (d). And where the assignor is a trustee or executor it is immaterial whether the debt to the trust or executorship was contracted before or after the assignment of the beneficial interest (e). But if the assignor did not hecome trustee or executor until after the date of the assign- nunt there is no equity against the assignee in respect of a sub- sequently incurred debt (/). If the assignor be a cestui que trust, the trustee after notice cannot create any new charge or right of set-off, as between him and the assignor, so as to bind the assignee (ff). 5. A creditor transfers his debt to a person who has no notice that part of it has been discharged. The assignee is nevertheless bound by the state of the accounts at the time of the assign- ment (h) ; and when the assignee does not give notice to the debtor of the assignment so as to dissolve the relation of debtor and creditor between the original parties, the assignee is com- pelled to allow the payments to the creditor subsequent to the assignment (t). 6. It was decided in the case of Cavendish v. Geaves (k) that the (a) Ford v. White, 16 Beav. 120. (6) Cockell V. Taylor, 15 Beav. 103; Barnard v. Hunter, 2 Jur. N. S. 1213; Daubeny v. Cochhurn, 1 Mer. 626 ; see 638 ; Parker v. Clarice, 30 Beav. 54. (c) Clach V. Holland, 19 Beav. 262 ; Barnelt v. Sheffield, 1 De G. M. & G. 371; Cole \. Muddle, 10 Hare, 186; Wilkins v. Sibley, 4 Giff. 442. {d) Priddy v. Rose, 3 Mer. 86; Willes V. Greenhill (No. 1), 29 Beav. 376; Stephens v. Venables (No. 1), 30 Beav. 626. [e] Hopkins v. Oowan, 1 Moll. 561 ; Morris V. Livie, 1 Y. & C. Ch. Ca. 380. (/) Irby V. Irby, 25 Beav. 632. (g) Stephens v. Venables (No. 1), 30 Beav. 625. {h) Ord V. WhUe, 3 Beav. 357; Smith V Parkes, 16 Beav. 115; Roll V. White, 31 Beav. 520 ; Be Natal In- vestment Company, 3 L. R. Ch. App. 355. (i) Norrish v. Marshall, 5 Mad. 475 ; and see Stocks v. Dobson, 4 De G. M. &G. 11. {k) 24 Beav. 163, see 173. CH. XXVI. S. l.J ASSIGNEE BOUND BY EQUITIES. ^'''' assignee is liable to the same equities as his assignor, not merely in respect of the actual payments, but in regard to the right of set-off. In that case the late M. E. laid down the following canons : a. If a customer borrow money from his bankers, and give a bond to secure it, and afterwards on the balance of his general banking account a balance is due to the customer from the same bankers, who are the obKgees of the bond, a right to set-off the balance against the money due on the bond will exist both at law and in equity. A If the firm be altered and the bond assigned by the original obligees to the new firm, and notice of that assignment be given to the debtor (a), and if, after this, a balance be due to him from the new firm (the assignees of the bond), then no right of set-off exists at law, because the assignment of the chose in action would be inoperative at law, and the obligees of the bond and the debtor on the general account are different persons ; but as, in equity, the persons entitled to the bond, and the debtors on the general account are the same persons, a right of set-off exists in equity, and the customer is entitled to set-off the balance due to him against the bond debt due from him. y. If the bond be assigned to strangers, and no notice of that assignment be given to the original debtor (the obligor of the bond), then his rights remain the same. Thus, if the assignment be made to the stranger before any alteration of the firm, then the right of set-off stm remains at law, where the obligees of the bond and the debtors on the general account are the same persons, and in equity also, if the matter of account be brought into Chancery, as the assignees of the chose in action would be bound by the equities affecting their assignors. 8. If notice of the assignment be given to the original debtor, no right of set-off exists in equity for the balance subsequently due by the bankers to the obligor ; because the persons entitled to the bond are, as the obligor knew, different persons from the debtors to him on the general account, with whom he had continued to deal. e. If the assignment of the bond be made to the new firm, with notice to the obligor, the new firm would, if debtors on the general account, be liable to the same rights of set-off in equity as if they had been the obligees. t If after the alteration of the firm and after the assignment of the bond to the new firm, with notice to the debtor or oblis'or, the bond be assigned by the new firm to strangers, and no notice (a) See as to this, 36 & 37 Vict. c. 66, s. 25. P P 578 ASSIGNEE BOUND BY EQUITIES. [CH. XXVI. S. 1. of that second assignment given to the obligor, then the rights of set-off still remain to him in equity as against the first assignees, of whose assignment he had notice, and the second assignees would in equity be bound by it ; because the assignees of the bond take it subject to all the equities which affect the asssignors. Set-off. 7. It may be observed that the right of set-off, though unknown to the common law, v/as recognised in equity previously to the statutory enactments on the subject. Thus where A. and B. were mutually indebted by simple contract dealings, and B. died also indebted to others by simple contract and to one by specialty, in such a case, though it was contended that if A. could set off his own debt, he was to that extent paid in full, in preference to the other simple contract creditors, and at the expense of the specialty creditor, yet a Court of equity presumed an agreement between A. and B. that such set-off should be had, and as B. in his lifetime could not have recovered from A. without the set-off, it held that the personal representative of B. was bound by the same equity (a). Autre droit. 8. Eecently the equity jurisdiction in respect of set-off has been chiefly, if not entirely, confined to cases where one or both of the cross demands is or are of an equitable kind (h). And it seems to be established that set-off wiU not be allowed even in equity where the mutual demands are between the parties in different rights, as if A. give a legacy to B., and appoint C. his executor, or executor and residuary legatee, B. may sue C. for the legacy, and C. cannot set-off a debt owing by B. to C. not as executor but in C.'s own right (c). But a defendant may make such admissions in his answer as to preclude himself from objecting to the set-off at the hearing {cl). However, an admission of assets for payment of the legacy will not have that effect («). A legacy to one of the mem- (a) Downltam v. Matthews, Pr. Ch. liability remained, and thus the legacy 580 ; see Jeffs v. Woods, 2 P. W. 128; was owing to one set of persons, viz., and see now 2 G. 2, c. 22 ; 8 Gr. 2, the assignees, and the debt/?-om ano- c. 24, s. 5. ther, viz., T. Boultbee. In Bell v. Bdl, {b) See now 36 & 37 V. c. 66, and 17 Sim. 127, it does not appear whether schedule, Rule 20. the creditor had or not proved under (c) Whitaker v. Rush, Amb. 407 ; the insolvency. If he had, the case Bishop V. Church, 3 Atk. 691 ; Free- could not be supported on the autho- 7nan v. Lamas, 9 Hare, 109 ; Chapman rity of Cherry v. Boultbee, but if he V. Derby, 2 Vern. 117 ; Medlicott v. had not it must stand or fall with that Bower, 1 Ves. 207. Cherry v. Boultbee, case. It is believed that in a subse- 4 M. & C. 442, which was questioned quent stage of the suit, V.-C. Kin- by V.-C. Wigramin i^Veema/i v.Lomas, dersley decided the other way. See 9 Hare, 115, turned on the facts that also Stammers v. Elliott, 3 L. E, Ch. C. F. Boultbee never proved her debt App. 195. eo as to make it a liability of the {d) Jones v. Mossop, 3 Hare, 568. assignees, and that T. Boultbee never (c) Freenum v. Lamas, 9 Hare, 109. obtained his certificate, so that his CH. XXVI. S. l.J NOTICE OF ASSIGNMENT. 579 bers of a firm may be set-off against a debt owing by the firm (a). But a legacy to a married woman, and assigned by lier under Malins' Act, cannot be retained by the executor as against the assignee in discharge of a debt by the husband to the testator's estate (b). III. Of Notice to the Trustee. 1. As between assignor and assignee notice to the trustee is not Notice, necessary for the completion of an assignment (c), even though the assignment be voluntary (d). Nor is notice necessary for the pur- pose of making the assignment effectual as against volunteers («), or as against persons claiming only a general equity under the assignor, such as a judgment creditor who obtains a charging order (/). But the omission of notice may be followed by very dangerous consequences by letting in the rights of others, viz. by the operation of the reputed ownership clause under the bankrupt laws (g), or the acquisition of priority by subsequent purchasers or incumbrancers. And for the protection of the trustee, if the title be a derivative one, and not that which appears upon the face of the instrument creating the settlement, and the trustee, having neither express nor constructive notice, pays upon the footing of the original title, he cannot be made to pay over again under the derivative title (h). 2. If the owner of an equitable interest in money or stock, or Priority of charRe generally of any chose in action, assign it to A., who gives no notice ^"1^ pnonty of of the transfer to the trustee or debtor, and then for valuable con- sideration to B., who having had no notice of the prior assignment when he advanced his money, gives notice of his own assignment to the trustee or debtor, in this case B. has priority over A. That a purchaser's notice will secure to him this advantage of priority, has been only settled in modern times. In Cooper v. Fynmore (i), Sir T. Plumer, V. C, 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 (Jc), and Loveridge v. Coo2oer (F), nine year* after, his (o) Smith V. Smith, 3 Giff. 263, see (e) Justice v. Wynne, 12 Ir. Ch. Re. 270. • 289 ; iJe Webb's Policy, W. N. 1867, (b) InreBatchelm;16L.'R.E holds. that where the legal estate could not be devised, the equitable estate in like manner must have been left to descend. However, it was decided by the Court, that even assuming the absence of any power to devise the legal estate [g), the owner of the equitable estate could pass it by will [h). Whether the wiU must have (o) Wagstaffv. Wagstaff, 2 P. W. Atixrrney- General v. Andrews, 1 Ves. 259,2'6r Lord Macclesfield ; Adlington 225 ; but see^nora. case, cited Wagstaff V. Cann, 3 Atk. \b\, per Lord Hard- v. Wagstaff, 2 P. W. 261. wicke ; Burgess v. Wheate, 1 Eden, (/) Greenhill v. Greenhill, 2 Vern. 224, i)6r Lord Mansfield. 679; Tuffiiell v. Page, 2 Atk. 37; (b) Hee Burgess Y. Wheate, Wagstaff Gibson v. Rogers, Amb. 93. Y. Wagstaff, ubi supra; Doev.Danvers, (g) As to the validity of a custom 7 East. 322. restraining surrenders to the use of a (c) See supra, p. 563. will, see Pihe v. White, 3 B. C. C. {d) Hussey v. Chills, Amb. 800 per 286, and note 1, lb. ; Doe v. Thompson, Lord Hardwicke. 7 Q. B. R. 897. (e) Ajjpleyard v. Wood, Sel. Ch.Ca. (h) Lewis v. Lane, 2 M. & K. 449 ; 42; Wagstaff V. Wagstaff, 2 P.W.258; Wilson v. Dent, 3 Sim. 385; but see Tuffnell V. Page, 2 Atk. 37 ; and .see Hussey v. Ch-ills, Amb. 299. CH. XXVI. S. 2.] DEVISE OF A TRUST. 595 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 sufficiently appear. But in a case of customary freeholds of which the legal estate could not be devised, Of customary (and customary freeholds are now regarded as copyholds (a) ), Lord Hardwicke held that the reason why the equitable interest in copy- holds could be devised by an unattested will, was because the legal estate of copyholds could be devised by an unattested will, and that as, in the case of customary freeholds before him, the legal estate could not be devised, the equitable interest could only pass by a will executed according to the Statute of Frauds (6). And d fortiori where a customary freehold, of which the legal estate was not devisable, was vested in a trustee upon such trusts as the cesttti que trust should by will " to be by him legally exe- cuted " appoint, it was held that the equitable interest could not be devised by a will not executed according to the Statute of Frauds (c). 0. By the late Wills Act (d), as to wills made on or after Late Wills Act. 1st January 1838, property, of whatever description, whether real or psrsonal, freehold or copyhold, legal or equitable, may be devised or bequeathed by a will in writing, signed by the testator in the presence of and attested by two witnesses, and by such a will only. 6. If, before this Act, a testator seised of an equitable estate in fee Revocation of had devised it, and then disturbed the equitable seisin by execu- wuisbyaiteration ' ^ . •^ of estate. ting a conveyance and taking back a new estate in the same property, the will was revoked in like manner as if the estate had been legal («) But if a testator had devised an equitable estate and afterwards taken a conveyance so as merely to clothe the equitable estate with the legal, or was party to a conveyance for merely changing the trustees, such conveyances were not a revo- cation of the prior will (/). Now by the late Wills Act, a subsequent disturbance of the seisin, either at law or in equity, does not revoke the will (g). (a) See omfc, p. 217. (c) Willany. Lanoaster,3Tinss.lOS. (b) Husseyy. Grills, Amh.300. The [d) 1 Vict. c. 26. whole argument in this case assumes (e) Loch v. Foote, 5 Sim. 618 ; JSarl that the will as opposed to the codicil of Lincoln's case, 1 Eq. Ca. Ab. 411 ; was executed according to the Statute S. C. Shower's P. C. 164. of Frauds, and yet the report states (/) Z)oe v. Pott, Doug. 684; Fullar- that the will was in writing, " but not to« v. Watts, cited Doug. 691 ; Parsons attested according to the Statute of v. Freeman, 3 Atk. 741 ; Dingwdl v. Frauds." The Eeg. Lib. does not ^s^mj, 1 Cox,427; Clough v. Clough, state whether the will was or not so 3 My. & K. 296. executed. Amb. Bliint's edit. (g) 1 V. c. 26, s. 23. Q Q 2 596 SEISIN OF A TRUST. [CH. XX\"I. S. 3. SECTION III. Equitable seisin. Casborne ( Scarfe. Possessio fratrU Marquis of Cholmondeley v. Lord Clinton. OF SEISIN AND DISSEISIN. 1. The term seisin is properly applicable to legal estates ; but 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. Scarfe (a), it was disputed, whether, 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 what- ever of the legal estate in the wife in the consideration of law. But 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 of an equitable seisin, both of which were in this case." 2. 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 by receipt of the rents and profits, 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 that if there had been such a receipt of the rents and profits as consti- tuted equitable seisin, the sister of the whole blood, as heir to the brother, would exclude the brother of the half blood (h). 3. The doctrines of the Court upon the subject of equitable dis- seisin cannot be better illustrated than by a statement of the well- known case of The Marquis of Cholmondeley v. Lord Clinton (c). The circumstances were briefly these : — George, Earl of Orford, conveyed certain manors and hereditaments to the use of himself for life, remainder to the heirs of his body, remainder as he should by deed or wiU appoint, remainder to the right heirs of Samuel Rolle, with a power reserved of revocation and new appointment. Some time after, the Earl executed a mortgage in fee, wMch ope- rated 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 (a) 1 Atk. 603 ; and see Parker v. Carter, 4 Hare, 41 3. {h) See now 3 & 4 W. 4. c. 106. (c) 2 Mer. 171 ; 2 J. & W. 1 ; and see Penny v. Allen, 7 De G. M. & G. 422. CH. XXVI. S. 3.] SEISIN OF A TRUST. 597 in the Earl himself, as the heir of Samuel RoUe 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 EoUe 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 bill 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 EoUe, for redemption of the premises, and an account of the profits. It was debated whether, as the legal estate was vested in the mortgagee, and the heir of Samuel Rolle had held the posession subject to a sub- sisting mortgage, the assign of the Earl's heir, to whom the equity of redemption 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, 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 transferred (a) : that the equity of redemption subsisted, and it must therefore belong to some one and could only belong to the original cestui que trust (h) : that the cestuis que tnist could only be barred by barring the trvistee (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 in the mean time. The cause was afterwards reheard on the equity reserved before Reheard. 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 rightfrd 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 — that there is no disseisin abatement or intrusion of a trust — that the possessor is only tenant at will, and may be dispossessed at any time by the trustee of the legal estate, and he has therefore only a precarious and permissive possession — that tortious possession can never be the foundation of an equit- able title («). But this reasoning," he continued, " proceeds on a (a) See Hopkins v. Hopkins,! Atk. (o) 2 Mer. 361. 590. {d) 2 J. & W. 1. (5) 2 Mer. 357—359. (e) lb. 153. 598 SEISIN OF A TRUST. [CH. XXVI. S. 3. 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 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 (a). As to the argument that a title in a Court of equity may be lost by laches, but cannot be transferred without the act of the party, the case is the same in this respect both in equity and law. 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. 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 (b). 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 outstanding, in an old term, for instance, to attend the inheritance, 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 enquiry in whom was vested the equitable title which originally existed when the old term was created " (c). Appeal to the On appeal to the House of Lords his Honour's decision was ouseo 01 s. g^£Qj,jjjg^^ g^jj(j ]^Q principle on which it proceeded was approved. Lord Eldon said, " He could not agree, and had never heard of such a rule as that adverse possession, however long, would not avail against an equitable estate : his opinion was, that adverse posses- sion 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 wm-ld it might to have the same effect " (d). (a) 2 J. & W. 155. (c) lb. 157. (i) 2 J. & W. 165, 156. id) 2 J. & W. 190, 191. CH. XXVI. S. 4.] MEEGER. 599 SECTION IV. OF MEKGBE. 1. At law merger is the necessary consequence of the union of General view. two estates in the same person in the same right, but in equity two estates without any intervening interest may meet in the same person in the same right without merger, and, on tlie other hand, though the estates are separated by an intervening interest, merger may take effect. The principle by which the Court is guided is the intention ; and in the absence of express intention, either in the instrument or by parol, the Court looks to the benefit of the person in whom the two estates become vested (a). 2. The chief importance of the doctrine of merger is with Purchase subject reference to charges. Thus, A., the owner of an estate subject ° ° '^^^^^' to a first incumbrance in favour of B. and a second incumbrance in favour of C, contracts to seU. the estate to D. Here, if the purchaser knows of both the incumbrances, he of course will not accept the title until they have been discharged. But should he have actual notice of the incumbrance to B. only, and take a con- veyance from A. and B. so as to extinguish the charge of the latter, this act (if by reason of his having constructive notice of C.'s incumbrance or otherwise the defence of purchase for value without notice is not available) lets in the incumbrance of C. as the first charge (5). If, on the other hand, the purchaser, being apprehensive of some outstanding incumbrance, take an assignment of B.'s security to a trustee for him in order that it may be kept on foot, then the charge does not merge in the fee-simple ; but should C take proceedings for raising his charge, the purchaser may protect himself by the shield of B.'s incumbrance as the first charge (c). 3. The same principle under difl'erent circumstances applies Purchase by where B., the first incumbrancer, buys up the interest of the ^ the^cW 'e''^ owner subject to the charge ; for if the charge be not kept on foot the incumbrance of C. will be let in, unless the defence of purchase for value without notice be applicable ((f). (a) Lord Co7apton\. Oxenden,1 Ves. see Dart, 839, 4tli edit. See also .4m- jun. 264; Forbes v. Moffatt, 18 Ves. derson v. Pagnzei!, 8 L. R. Cli. App. 180. 390 ; Horton v. Smith, 4 K. & J. 630. .(c) Watts v. Symes, 16 Sim. 646, [b) Toulmin v. Steei's, 3 Mer. 210; per V. C. Shadwell; Smith v. Phillips, Medley v. Horton, 14 Sim. 226 ; Parry 1 Keen, 699, p^ Lord Laiigdale ; V. Wright, 1 Sim. & Stu. 369, 5 Kuss. Parry v. Wright, 1 Sim. & Stu. 379, 142 ; Smith v. PhiVips, 1 Keen, 694 ; per Sir Jno. Leach. Brown v Stead, 5 Sim. 535 ; Moeatta {d) Parry v. Wright, 1 Sim. & S. V. Murgatroyd, 1 P. W. 193. As to 369; 5 Russ. 142; Garnett v. A- Greswold V. Marsham, 2 Ch. Ca. ^70, strong, 2 Conn. & Law. 458. rm- 600 MERGER, [CH. XXVI. S. 4. Purchaser may require the charge to be kept on foot. Mode of keeping charge on foot. Merger on a con- tingency. A trustee not ab- solutely neces- sary. Getting in a charge pending contract for pur- chase. Where the person who created the second charge buys up the first charge. 4. The vendor must not be put to extra expense by the form in which the purchaser wishes the conveyance to be made, and where the vendor is under a personal liability he may insist on being dis- charged from it, but with these qualifications the purchaser can insist on having charges kept up instead of being merged (a). 5. If the purchaser desire to keep his own charge on foot, he should take a conveyance of the equity of redemption to a trustee for himself, and the intention should be expressed on the face of the instrument, and if this be done the charge and the inheritance will both be sustained in equity so as to afford protection against any intervening incumbrance (b). 6. A purchaser may even have the charge assigned so as to keep it on foot in one event and merge it in another event, should the contingencies affecting the estate make such a course desirable (c). 7. The assignment should in prudence be made to a trustee, but if the purchaser have the equity of redemption conveyed to himself, yet if the intention to keep up the charge be clear, no merger will take place {d). 8. If a person contract only for the purchase ot an estate, and pays off a first charge with a view to the purchase but before the completion of it, no merger takes place, but the purchaser stands in the shoes of the first incumbrancer («). 9. The question of merger has been spoken of as one of inten- tion, but this principle must not be applied where a person has himself created two successive incumbrances aiid then buys up the first charge, for in this case the mortgagor when he creates the second incumbrance is under a duty to discharge the debt previously incurred, and though the second mortg-agee cannot compel him to do tins, yet if the mortgagor do discharge the first debt, the second incumbrancer, whatever may have been the intention, wiU have the benefit of it. Besides, in most cases a mortgagor in creating an incumbrance enters into a covenant for further assurance, and this, independently of any general equity, would, it is conceived, give the incumbrancer a right to call for the assignment to him of any interest in the estate subsequently acquired by the mortgagor. (a) Cooper v. Cartwright, 1 Johns. 679. (b) Bailey v. Richwdson, 9 Hare, 736 ; and see Holt v. Holt, cited 1 P. W. 374. (c) See Selsey v. Lake, 1 Beav. 146, 148. {d) See Davis v. Barrett, 14 Beav. 542; Forbes ». Moffatt, 18 Ves. 384; Earl of Clarendon v. Barham, 1 Y. & C. C. C. 688; Keogh v. Keogh, 8 I. R. Eq. 179. (e) Watts V. Symes, 1 De G. M. & G. 240. CH. XXVI. S. 4.] MERGER. GOl Although, therefore, the mortgagor take an assignment of the prior charge to a trustee for himself to the intent that the same may be kept on foot, yet ec[uity will not allow this as against the second incumbrancer (a). 10. This has been carried so far that where a mortgage was Otter v. Vaux. made with a power of sale, and then a second incumbrance was created, and then the mortgagor purchased under the power of sale in the first mortgage, it was held that by this means the second incumbrance was let in as the first charge upon the estate (&). It was clear that if the mortgagor had paid off the first mortgage and taken a re-conveyance, this would have enured to the benefit of the second mortgagee ; and the substance of the transaction was thought to be the same where the mortgagor took a re-conveyance from the mortgagee by the machinery of the power of sale : it was said that this gave the second incum- brancer a double security — first, the purchase money in the hands of the first mortgagee, and then the estate in the hands of the mortgagor ; but the answer was that the mortgagee could get no more than he was entitled to, viz., his principal money and interest (c). 11. It was observed by Sir William Grant ((f) that the cases Owner of a charge of Gresivolcl v. Marsham, (e) and Mocatta v. Murgatroyd (/) were ^^redemphon^ express authorities to show that one purchasing an equity of '^^^ ^'^^^ l^''* ^ . . a 1. J charge against an redemption could not set up a prior mortgage of his own, nor intervening in- consequently a mortgage which he had got in, against subsequent cumbrancer. incumbrances of which he had notice. Now a person who borrows money cannot be his own creditor, or set up an incumbrance of his own, as against his creditor {g) ; and if the vendor of the equity of redemption be himself personally liable for the charge, the pur- chaser will, as a general rule, be bound to indemnify him, but that one purchasing an equity of redemption cannot set up a mortgage of his own, or one which he has got in, as against incumbrances not created by himself, (a proposition not established by the authorities cited by Sir W. Grant (h) ), is, it is conceived, not law at the present day {i). If the first mortgage be paid off and (a) Otter v. Lord Vaux, 2 K. & J. [g) Watts v. Symes, 1 De G. M. & 657, i^er V. C. Wood. G. 2U,per L. J. Knight Bruce. (6) Otter V. Lord Vaux, 2 K. & J. {h) See Watts v. Syvies, 1 De G. M. 650. & G. 244 ; and Dart. V. & P. p. 839, (c) Otter V. Lord Vaux, 2 K. & J. 4th edit. 657. (i) See now Hayden v. Kirhpatrich, {d) Toulmin v. Steere, 3 Mer. 224. 34 IJeav. 645 ; Stevens v. MidSants (e) 2 Ch. Ca. 170. Railway Company, 8 L. R. Ch. App. (/) 1 P. W. 393. 1064. 602 MERGER. [CH. xxvr. s. 4.' extinguished, of course the second charge is let in ; but, subject to the equities flowing from the contract between the purchaser and his vendor, the first mortgage and the equity of redemption may be so vested in the same person as to keep the two separate, and so exclude tlie second incumbrance. Effect of keeping 12. It must be borne in mind that where the charge and the ° ■ inheritance do not merge, the person in whom they are vested has two distinct possessions, and in the absence of any indication of intention that the charge shall in equity wait upon and attend the inheritance, the charge will go to the executor and the inherit- ance to the heir {a). The question, therefore, is constantly arising as between the real and personal representatives, whether the two interests merged in the lifetime of the person entitled to both or were subsisting at the time of his death ; and the question of merger or non-merger is held to be an open one up to the death of a testator (6), and for the purpose of collecting the intention parol evidence is admissible (c). Euie where ^^- Where a person is entitled to a charge and to the inherit- charge and in- ance under the same instrument {d), or being first entitled to the hericance become , , ,, • j.i • n -i. i ■ / n united. charge subsequently acquires the inheritance as devisee («) or heir (/), or being first entitled to the inheritance acquires the charge by bequest {g), or by succession as next of kin Qi), in all these cases, in the absence of anything said or done by the owner of the charge and of the estate to show what his intention was {i), the Court presumes the charge to be merged or not according as (a) Belaney v. Belaney, 2 L. R. Ch. (g) Price v. Gibson, 2 Eden, 115. Ap. 138 ; 35 Beav. 469. The late (h) DmiMhorpe v. Porter, 2 Eden, M. R. observed that " If the testator 162; Lord Compton v. Oxenden, 2 had died intestate altogether, and the Ves. jun. 260. question had arisen between the heir (i) See Tyrwhitt v. TyrwliUt, 32 and the next of kin, I think the term Beav. 244, in which case the late M. R. would have gone to the heir." Is it observed, " The three tests usually ap- meant by this that a charge cannot be plied for the purpose of ascertaining kept up for the benefit of the next of whether the owner of the charge in- kin, but only for the benefit of persons tended that it should merge in the claiming under a will ? inheritance at the time when he became (h) Swinfen v. Svnnfen, (No. 3), 29 entitled to the absolute interest in the Beav. 199; and see Tyrwhitt v. Tyr- charges are: 1. Any actual expression whitt, 32 Beav. 244. of that intention ; 2. Where the form (c) Astley v. Milles, 2 Sim. 298. and character of the acts done are {d) Grice V. Shaw, 10 Hare, 76 ; only consistent with the keeping the Richards v. Richards, 1 Johns. 754. charge on foot ; and 3. Such an inten- (e) Forbes V. Moffatt, 18 Ves. 384; tion may be presumed when, though Earl of Clarendon v. Barham, 1 Y. & a total silence in all other respects C. C. C. 688 ; Davis v. Barrett, 14 pervades the matter, it appears that Beav. 542. it was for the interest of the owner of (f) Chester v. Willes, Amb. 246; the charge that it should not merge in Powells ■Morgan,'i'V&rn.9Q; Thomas the inheritance." v. Kemish, 2 Vern. 348. CH. XXVI. S. 4-.J MERGER. 603 merger would or not be for the owner's benefit. If, therefore, the owner would, as in the case of an infant previously to the late Wills Act, have had a larger testamentary power over the charge than over the inheritance (a), or if the merger would let in sub- sequent or competing incumbrances (6) of substantial amount (c), or the debts of the testator or grantor (d), the Court presumes the intention to have been that the charge and the inheritance, though both vested in the same person, should be kept distinct. But if it clearly appear that to keep the charge on foot could in no way benefit the owner it will merge (e). 14. Where a charge is paid off by a person owning an interest in Kule where the property charged, the quantum of interest which he owns is, in aThargS''''^ " the absence of direct evidence of intention, the chief guide in deter- mining whether merger takes place. If he be absolutely entitled the presumption is that he meant to free the property from the charge, if only partially interested the presumption is that he intended to keep it on foot. 15. Thus if the person paying off the charge be tenant in fee-simple. Tenant in fee- the presumption will be that the charge was meant to be merged (/) , a charee.^^"^^ °' unless the assignment of the charge was to a trustee in trust for the owner of the inheritance, his " executors, administrators and assigns," instead of his " heirs and assigns " (cf), or there were other circum- stances in the transaction sufficient to exclude the presumption (h). The mere fact of taking the assignment to a trustee for the person paying off, though a material ingredient in the question of intention, is not alone enough to keep the charge on foot (z). 16. If the person paying off the charge be tenant for life, the Tenant for life Court considers that as his interest ceases with his death, he could P,^yi"g off> charge, never have meant that the charge should be extinguished instead of enuring to the benefit of his representatives Qc) ; and the same (a) Powell V. Morgan, 2 Vern. 90 ; Swinfen v. Swinfen (No. 3), 29 Beav. Thomas v. Kemish, 2 lb. 345 ; Duke 199. ofCliandos v. Talbot, 2 P. W. 601. (/) Hood v. Phillips, 3 Beav. 513 ; (6) Forbes v. Moffatt, 18 Ves. 384; Pitt v. Pitt, 22 Beav. 294 ; Chmter v. Earl of C larendort y . Barham, \ Y . & Chmter, 23 Beav. 571; Siuinfen v. C. C. C. 688 ; Grice v Shaw, 10 Hare, Swinfen, (No. 3), 29 Beav. 199. 76; Richards v. Richards, 1 Johns. {g) Guntery. (?M?2ter, 23 Beav. 57 1 ; 754 ; Keogh v. Keogh, 8 I. R. Eq. 179. and see TyrwUtt v. Tyrwhitt, 32 Beav. (c) Richards v. Richards, 1 Johns. 244. 767. {h) Keogh v. Keogh, 8 1. R. Eq. 179. {cT) Davis V. Barrett, 14 Beav. 552 ; (i) Pitt v. Pitt, 22 Beav. 294 ; Hood Sing V. Leslie, 2 Hera. & Mill. 68. v. Phillips, 3 Beav. 513. (e) Price v. Gibson, 2 Eden. 115; {k) Pitt v. Pitt, 22 Beav. 294; DonistJiorpe v. Porter, lb. 162; Lord Burrell v. Earl of Egremont, '! Be^iv. Compton V. Oxenden, 2 Ves. jun. 2G3 ; 205 ; Redington v. Redington, 1 B. & 1>. 131 ; Fatdkner v. Daniel, 3 Hare, 217. 604 MEKGER. [CH. XXVI. S. 4. Tenant in tail in possession and of age paying off a charge. Special cases where charge has been kept on foot. Payment of charge and sub- sequent acqui- sition of fee. Mortgage by per- son who has bought up a charge. rule applies though the tenant for life be or become entitled (subject to remainders to his own issue which fail) to the ultimate reversion in fee (a). But even in the case of tenant for life, positive evidence may be given by parol that he meant to merge the charge (6). 17. As tenant in tail in possession, if of age, has an absolute power of disposition over the estate, subject to his compliance with certain forms, the presumption is, that if he pay off a charge he meant to merge it (c). 18. But if tenant in fee-simple, subject to an executory limita- tion over, which he cannot destroy (cf), or a tenant in tail under an Act of Parliament, who is incapable of acquiring the fee-simple (e), or tenant in tail in remainder during the existence of the tenant for life whose issue, if any, will be prior tenants in tail (/), pay off a charge, in all these cases, as the interest of the party required the charge to be kept on foot, the presumption is that such was the intention. And where a tenant in tail paid off a charge, with the intention of extinguishing it helieving himself to be tenant in fee- simple, and assuming that as the basis of the transaction, the Court considered on the ground of mistake that the tenant in tail had not merged the charge {g). 1 9. It seems to be settled that where a tenant for life or tenant in tail in remainder pays off a charge, and afterwards the fee de- volves on the tenant for life, or the remainder of the tenant in tail vests in possession, this subsequent union of the charge and the inheritance is not per se sufficient to rebut the intention previously shown to keep the charge on foot (h). 20. If a person having both a subsisting charge and the estate mortgage or convey the latter, without mention of the charge, of course the security carries with it all the mortgagor's interest, and as between the mortgagor and mortgagee there is a merger (i). If tenant in fee of an estate mortgage it to the trustees of his settle ■ ment to secure a fund to which he is absolutely entitled, subject to (a) Wyndham v. Earl of Egremont, Amb. 753 ; Trevor v. Trevor, 2. M. & K. 675. (b) Astley v. Milles, 1 Sim. 298. (c) St. Paul V. Dudley, 15 Ves. 173, per Lord Eldon ; Jones v. Morgan, 1 B. C. C. 206 ; Earl of Buckingham- shire V. Hohart, 3 Swans. 199 ; Keogh V. Keogh, 8 I. R. Eq. 179. {d) Drinlcwater v. Comhe, 2 S. & S. 340. (e) Shrewsbury v. Shrewsbury, 3 B. C. C. 120 ; S. C.l Ves. jun. 227; see Earl of BuckinghamsM7-e v. Hobart, 3 Swans. 200. (/) Wigsell V. WigseU, 2 S. & S. 364 ; Horion v. Smith, 4 K. & J. 624. (g) Earl of Buckinghamshire y Ho- bart, 3 Swans, 186 ; Kirkham v. Smith, 1 Ves. 258. (h) Trevor v. Trevor, 2 M. & K. 675; Wigsell v. Wigsell, 2 S. & S. 364 ; Hoi-ton v. Smith, 4 K. & J. 624. (i) Tyler v. Lake, 4 Sim. 351 ; Johnson v. Webstei; 4 D. M. & G. 474. CH. XXVI. S. 4] MEKGEK. 605 a life interest limited to liis wife, and then dies in the lifetime of the wife there can be no merger, for during the existence of the wife's interest the trustees could not without a breach of trust release the charge to him (a). 21. As charges are not unfrequently assigned like terms of years whether charges upon trust to attend the inheritance, it may be useful to add some ''f "^ ^ ™^'^.^ *° SittGnci LUG in- cautionary remarks. So far as the author is aware, there is no heritance. authority for saying that charges can be made to wait upon the inheritance like terms of years. No doubt charges, like heirlooms and other personalty, can be settled to a certain extent to run in the channel of realty, but can they be impressed with the nature of realty itself ? Thus A. buys an estate, and settles it by the purchase deed to the use of himself for life, with remainder to his first and other sons in tail, with remainder over to B., and suspect- ing secret incumbrances has a charge assigned to a trustee upon trust to attend the inheritance ; A. dies, leaving an only son, who shortly afterwards dies without issue, when the estate becomes vested in B. An incumbrancer now starts up, and the charge is raised. Who is to have the benefit of it ? Not, it will be said, A.'s real or personal representative, for by the trust he has parted with the absolute interest in favour of others, Not B., for how can personal estate go after an entail to a remainderman. The practice of assignment of charges, however is so prevalent that when the point comes to be decided, the Court may go the whole length of holding that charges can attend the devolution of real estate through all its changes, and that they are not barred, &c., and that though latent before, yet they resume their vitality when a secret incumbrance is disclosed. The point must at present be considered an open one. 22. Now by a recent Act, 36 & 37 V. c. 66, s. 25, Eule 4, " There 35 & 37 y. c. 66. shall not, from and after the commencement of the Act (2nd Nov. °- 25- 1874), be any merger by operation of law only of any estate, the beneficial interest in which would not be deemed to be merged or extinguished in equity." (a) Wilkes v. Collin, 8 L. R. Eq. 338. 606 DOWER AND CURTESY OF A TRUST. [CH. XXVI. S. 5. SECTION V. OF DOWEK AND CURTESY. Dower and cur- tesy of a trust. Freebcnch. What seisin re- quired to give curtesy. No curtesy where there is adverse possession. Executory trusts 1. A TRUST (a), or equity of redemption (b), of freeholds, was until the late Act (c) exempt from the lien of dower ; but was subject to the curtesy of the husband {d), unless the husband was an alien (e). 2. An equitable interest in copyholds (as the late Act does not apply to them) (/) remains as before not subject to freebench {g). 3. With respect to curtesy, as at law the wife, to entitle her husband to curtesy, must have seisin in deed of the freehold, the question arises whether in the instance of a trust, there must not be 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. 4. 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 (h). 5. 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 tail, the husband is entitled to curtesy, though no rent or interest may have been actually paid during the coverture (t). This proceeds on the principle that the laches of the trustees shall not prejudice the (a) Colt V. Colt, 1 Ch. Be. 254; Bottomley v. Liyrd Fairfax, Pr. Ch. 336; Attorney -General v. Scott, Rep. t. Talb. 138 ; Chaplin v. Chaplin, 3 P. W. 229 ; Shepherd v. Shepherd, Id. 234, note (D) ; Lady Radnor v. Rother- ham, Pr. Ch. 65, per Lord Somers ; Godwin v. Winsmore, 2 Atk. 525. The distinction taken by Sir Jos. Jekyll in Banles v. Sutton, 2 P. W. 700, between trusts created by the husband himself, and trusts originating from a stranger, has been overruled by subsequent cases ; see Curtis v. Curtis, 2 B. C. C. 630 ; D'Arcy v. Blake, 2 Sch. & Lef. 391 ; Burgess v. Wheate, 1 Ed. 197. (6) Dixon V. Saville, 1 B. C. C. 326 ; Reynolds v. Messing, cited 1 Atk. 604 ; Casborne v. Scarfe, 2 J. & W. 194. (c) 3 & 4 W. 4, 0. 105. (d) Chaplin v. Chaplin, 3 P. W. 234:,per Lord Talbot ; Att) Oshorn v. Morgan, 9 Hare, 432. (e) Lachton v. Adams, 14 Sim. 594. (c) 20 & 21 Vict. c. 57 ; see pp. 22, (/) Story v. Tonge, 7 Beav. 91 ; and 23 supra. see Box v. Box, 2 Conn. & Laws. 605. {d) Creed v. Perry, 14 Sim. 592; {g) 2 PhilL 731. Bean v. Syhes, ib. 593 ; Lachton v. {h) Box v. Jackson, 6 Jr. Eq. Rep. Adams, ib. 594 ; Hall v. Hugonim,, ib. 174 ; Williams v. Mayne, 1 Jr. B. Eq. 595 ; Bishop v. Colebrook, 16 Sim. 39; 519. 616 OF THE ESTATE OF A FEME [OH. XXVI. S. 6. Equitable chattels real of feme covert. Whether wife entitled to settle- ment out of equitable chattels real. Eesult of decisions, machinery be reduced into possession so as to be made disposable. However if a fund be settled on A. for life, and the remainder be appointed to the feme covert for her separate use, and her power of anticipation is not restrained, the tenant for life and feme covert in remainder can deal with the fund (a). 8. As regards the wife's equitable chattels real, the effect of marriage being, as a general rule, the same upon equitable as upon legal interests, it follows that, as the husband may assign the chattels real of the wife at law, so he may assign her trust of a term in equity (b), though it be merely a contingent interest (c) ; and, of course, without the concurrence of either the wife or the trustee, and without consideration. And this doctrine is not interfered with by the case oi Pur dew v. Jackson (d); for a trust of chattels real is not a chose en action, but a present interest — an estate in posses- sion («). If, however, the equitable interest in the chattel be such that it could not by possibility vest in the wife during the cover- ture, then, inasmuch as the legal interest of a similar kind could not be disposed of by the husband, he cannot dispose of the equit- able interest (/). 9. Wbether the doctrine regarding the wife's equity to a settle- ment extends to the equitable chattels real of the wife, has been much doubted. It was held in a late case, by Vice-Chancellor Wigram, as a result of the principles laid down by Lord Cotten- ham, in Sturgis v. Champneys {g), that even where the husband could dispose of the equitable chattel, the wife was entitled to a provision out of the equitable interest as against the assignee of the husband, for valuable consideration (h). The opinion of the Vice-ChanceUor himself was the other way, but he considered himself bound by the authority of the Chancellor in the case re- ferred to. 10. The result of these decisions is remarkable. Thus, a mort- (a) See Dudley v. Tanner, W. N. 1873, p. 75. (6) Reupe v. Atkinson, Bunb. 1 62 ; Mitford V. Mitford, 9 Ves. 99, per Sir W. Grant; Re Carr's Trust, 12 L. R. Eq. 609 ; Packer v. Wyndham, Pr. Ch. 418, 419, per Lord Cowper; Franco v. Franco, 4 Ves, *528, per Lord Alvanley ; Bullock v. Knit/hi, 1 Ch. Ca. 266,' per Lord Nottingham; Sanders v. Page, 3 Ch. Re. 223, per Cur. ; Macaulay v. Phillips, 4 Ves. 19, per Lord Alvanley ; Wikes's case. Lane, 54, ^e;' Barons Snigand Altham ; S. C. Roll. Ab. 343 ; Jewson v. Moul- son, 2 Atk. 421, per Lord Hardwicke ; Incledon v. Northcote, 3 Atk. 435, per eundem ; Clark v. Burgh, 2 Coll. 221. (c) Donne v. Rart, 2 R. & M. 360. {d) 1 Russ. 1. (e) See Mitford v. Mitford, 9 Ves. "98, 99 ; Holland's case. Style, 21 ; Burgess v. WheaU, 1 Eden, 223, 224; Box V. Jackson, 1 Drury, 84. (/) Duherly v. Day, 16 Beav. 33. Ig) 5 M. & Cr. 97 ; and see Wortham V. Pemberton, 1 De Grex & Sm. 644. (h) Hanson v. Keating, 4 Hare, 1. CH. XXVI. S. 6.] COVEET CESTUI QUE TRUST. 617 gage 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 en cvction, while as respects the assignment of a similar equitable interest, there would be an equity to a settle- ment in the wife. The difficulties of applying 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 Sturgis v. Ohanipneys, took the first, will now be retraced. 11. It is conceived that if the husband, or the assignee from him Effect of gettiujr of the wife's equitable term, can procure an assignment of the legal ^ifel^eqliiTable* estate from the trustee, the wife's equity to a settlement is at an term. end ; but the point is not touched by authority. The equitable interest of the wife in a chattel real is not a clwse en action, but an estate, and therefore, although, according to the principles laid down in Sturgis v. Champneys, the wife can claim an equity to a settlement out of such estate prospectively, yet until such claim is established, the right of the husband prevails. All arrears of in- come therefore which may have occurred before the claim, whether from an equitable estate in fee or for life, or a term of years, will be exempt from the equity to a settlement, and belong to the husband or his assignee (&). 12. If a judgment be acknowledged to A. in trust for a/eme sole, Estate by elegit and she marries, aud the conusee of the judgment sues out an ^j^„^covert^ 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 (c) ; 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 is raised by way of equi- table elegit (d). But a mere judgment, recovered by the wife before the coverture, is clearly a chose en action, and as such cannot be dis- posed of by the husband, except by actual reduction into possession (e). (a) Hill V. Ednwnds, 5 De Gex & W. 201, ^er Lord King. But this was Sm. 603 ; Clark v. Cook, 3 De Gex & before the case of Purdew v. Jackson, Sm. 333. 1 Russ. 1. (6) Be Carr's Trust, 12 L. R. Eq. {d) S. C. ib. 179. 609. (e) Fitzgerald v. Fitzgerald, 8 Com. (c) Lord Carteret v. Paschal, 3 P. B. R. 611. 618 OF THE ESTATE OF A FEME [CH. XXVI, S. 6. Mortgage term in trust for afeme covert. Wife's equitable interest in lands of freehold or inheritance. 13. And it has been held that a mortgage term in trust for the wife (a), or a term in trustees for raising a portion for her (b), 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 Aose en action of the wife is not disposable 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 to support the old authorities (c), but they are hardly conclusive, and a recent decision of the late Master of the Eolls, which was affirmed on appeal, has shaken the authority of the older cases {d). 14. The case of the wife's equitable estate in lands oi freehold or inheritance, presents in the main the same general similarity to the case of her legal estate in like lands, as has been noticed in respect of chattels real. Thus the husband without the wife can, in the case of the equitable as in that of the legal interest, convey an estate for the joint lives of himself and his wife (e), 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 Eecoveries Act, dispose of the equitable and of the legal interest ; and can bar an equitable entail as they might a legal entail, by deed inrolled in Chancery. 15. But according to Lord Cottenham's decision in Sturgis v. Champneys (/), the acts of the husband alone cannot affect the wife's equity to a settlement, where the interest of the wife can only be recovered through the medium of a court of equity (jf). The propriety of the decision in this case was questioned by the (a) Bates v. Dandy, 2 Atk. 207; Packer v. Wyndham, Pr. Ch. 412, see 418. ih) Walter v. Saunders, 1 Eq. Ca. Ab. 58 ; Incledon v. Nwthcoie, 3 Atk. 430, see 435 ; and see Mitford v. Mit- ford, 9 Ves. 99 ; Hore v. Becher, 12 Sim. 465. (c) Jones V. Gihhons, 9 "Ves. 407 ; and see Rees v. Keith, ll Sim. 388. {d) Dunconibe v. Qreenacre, 6 Jur. N. S. 987, 7 Jur. N. S. 175. (e) A s to the legal estate, see Robert - sonv. Norris, 11 Q. B. 916. (/) 5 M. & Cr. 97. (g) At law a husband during the coverture and before issue born has the estate for the joint lives of liim- self and his wife, but in her right only; and even after issue born he has no estate in his own right, for curtesy does not commence until the death of the wife, Jones v. Davies, 8 Jur. N. S. 592. Until the late Act, 8 & 9 Vict. c. 106, s. 6, a husband could not during the coverture have passed the legal estate for his own life, except by a conveyance which carried the fee torti- ously, as by a feoffment ; Co. Lit. 30, a. CH. XXVI. S. 6.] COVERT CESTUI QUE TfiUST. 619 late Lord Westbury (a). But after so long a lapse of time it is not likely that the principle of it will be shaken. It has accordingly been held that as regards an equitable freehold, that is, an estate to which a /eme covert is entitled in equity for her ovni life, she may proceed actively, and file a bill against the trustee of her bankrupt husband for a settlement of it upon herself (&). But she has no such equity against a purchaser, for value, from her husband, who at the time was supporting her (c). In short, the principles which govern the wife's equitable interest for life in realty, are the same as those which regulate the like interest of the wife in personalty (d). 16. As to the case of aii equitable fee simple or fee tail to which Equitable estates J. . . , , ,. . . - _ . -11 in fee simple or a feme covert is entitled, a distinction must be borne m mind be- fee tail. tween the husband's powers over a wife's personal, and over her real estate. The husband can get possession of the absolute in- terest of the former and make away with it; and therefore the Court settles the corpus on the wife and her children ; but as to realty, the husband has no power over the corpus, but can dis- pose only of the interest during the joint lives, or if there be issue, for his own life ; and as this limited interest is all that the husband or those claiming under him can deal with, and the hus- band has the curtesy in his own right, it is only the interest during the joint lives that requires to be settled. As to any ulterior interest, the Court has properly nothing to do with it. If the wife be tenant in fee, — why should the heir be disinherited in favour of the children ? and if the wife be tenant in tail, — why should the issue in tail and remainderman be defeated ? " In the case of the wife's real estate," observed V.-C. Wood, " she wants no pro- tection out of the corpus of that estate, for she cannot be deprived of it without her own concurrence, which the law requires to be given in such a manner as wUl protect her from her husband " (e). Wliere, therefore, the wife is tenant in fee or in tail ta equity, the claim of the wife stands on the same footing as where she is tenant for life in equity, and has been so dealt with accordingly (/). (a) See Gleaves v. Paine, 1 De Gex. (/) Wortham v. Pemherton, 1 De G. J. & Sm. 87. & Sm. 644 ; Durham v. Crackles, 8 (6) Barnes v. Rohinson, 1 New K. Jur. N. S. 1174. L. J. K. Bruce on 257; Sturgis Y. Champneys,6'M-.&Cv. one occasion observed, "We do not 97. touch the husband's possible tenancy (c) Tidd V. Lister, 10 Hare, 140 ; by the curtesy in the real estate of 3 De G-. M. & Q. 857 ; Stanton v. Hall, which we direct a settlement, and, so 2 Rus. & My. 175. far as I am concerned, for this reason, (rf) See ante, 614. that in my opinion we have not juris- (e) Durham \. Crackles, 8 Jur. N.S. diction to order any settlement which 1175. shall interfere with it ;" Smith v. Mat- 620 OF THE wife's [CH. XXVI. S. 6. Existence of an outstanding term. Getting in the legal estate. 17. 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 during the joint lives on a biU filed by her (a). And, indeed, wherever a plaintiff is obliged to come into a Court of equity he must submit to do equity though the estate of the wife is legal, as if a husband make an equitable mortgage of land of which his wife is seised at law, the mortgagee cannot obtain a legal mortgage or enforce his security without providing for the wife, if deserted or not maintained at the time of the equitable mortgage (6). 18. 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 tire same as in the case of an equitable term'of years before adverted to (c). Trusts for separate use of a feme covert. II. — Of the separate use. 1. The principle at common law is, that, as the husband under- takes the debts and liabilities of the wife, he is entitled, abso- lutely 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 en- joyment of any specific property {d) ; or a person may make a gift to the wife during the coverture, and shut out the husband's in- terference 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 trans- gressed, for the old rule was established for the benefit and pro- tection 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 questionable doctrine, though it may be said, that even in this case, there is no violation of the marital rights, for the property never vested in the feme herself, and the , 3 De G. M. & G. 153, From •which it might be inferred that a settle- ment subject to the curtesy might ex- tend beyond the joint lives ; but if the Court vmder special circumstances, has ever directed a settlement of the equitable fee on the wife and children, the settlement, as regards the children, must be viewed as the voluntary settle- ment of the wife, and not the judicial act of the Court. See GUavesy. Paine, 1 De Gex, J. & Sm. 87 ; Smith v. Mat- thews, 3 De G. P. & J. 139. (a) Wortham v. Pemherton, \ De Gex & Sm. 644. (6) Durhamw. Crackles, 8 Jur. N. S. 1174. (c) See ante, p. 617. {d) See Parkes v. White, 11 Ves. 228. CH. XXVI. S. 6.] SEPARATE ESTATE. 621 donor may limit any estate which the law does not refuse to re- cognise. The Court has also permitted the further anomaly of a restriction 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 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. 2. At the first introduction of the settlement to the separate use Not necessary it was doubted, whether, to accomplish the object, the interposi- -^^ ^n express tion of an express trustee was not necessary (a), but it has since trustee, been determined that this precaution may be dispensed with, for, rather than the intention shall be disappointed, the husband him- self shall be construed a trustee for the wife (h). 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 burthen of her incumbrances, he has priTnd facie a right to her property (c) ; but, provided the meaning be clear, the Court will execute the intention, though the settlor may not have expressed himself in technical language {d). 3. The marital claims will be defeated if the gift be to the wife what words will for her "separate use" («),or "sole and separate use" (/), or "solely for her own use " {g), (which is construed as separate use), or {a) Harvey v. Harvey, 1 P. W. 125 ; (e) Massy v. Rowen, 4 L. R. Eng. & Burton v. Pierpoint, 2 P. W. 78. Ir. App. 294, 299, & 300^56?- cur. (6) Bennett v. Davis, 2 P. W. 316; (/) Parleer v. Brooke, 9 Ves. 583 ; Parker v. Brooke, 9 Tes. 583 ; Rollfe Archer v. Boohe, 7 Ir. Eq. Rep. 478. V. Budder, Bunb. 187 ; Prichard v. (ff) Re Tarsly's Trust, 1 L. R. Eq. Atubs, Turn, and Russ. 222 ; Newlands 561 ; Adamson v. Armitaye, 19 Ves. v. Paynter, 10 Sim. 377 ; 4 M. & Or. 416 ; G. Coop. 283 ; Ex parte Ray, 1 408; Turnley Y. Kelly, "Wallis's Rep. Mad. 199 ; Ex parte Killick, 3 Moat. D. by Lyae, 311; Ai'cher\. Rooke, 7 Ir. & D. 480; Davis v. Prout, 7 Beav. Eq. Rep. 478. 288; Arthur v. Arthur, 11 Ir. Eq. (c) Ex parte Ray, Mad. 207, per Rep. 511; Lindsell v. Thacker, 12 Sir T. Plumer ; Wills v. Sayers, 4 Sim. 178 (the marginal note in the last Mad. 409, per eundem; Massey v. case is altogether erroneous) ; and see Parker, 2 M. & K. 181, per Sir C. Massey v. Parker, 2 M. & K. 181; Pepys ; Kensington v. Dolland, 2 M. v. Lyne, Younge, 562 ; but as to & K. 188, jper Sir J. Leach ; J/oore v. the latter case, see Tullett v. Arm- Morris, 4 Drew. 37, per V. C. Kin- strong, 4 M. & Cr. 403 ; and see Gilbert dersley. v. Lewis, 1 De G. Jon. & S. 39 ; Lewis (d) Darley v. Darley, 3 Atk. 399, v. Matthews, 2 L. R. Eq. 177. The per Lord Hardwicke ; Stanton v. Hall, word " sole " by itself is a word of 2 R. & M. 180, per Lord Brougham. equivocal and ambiguous meaning, and create a trust for separate use. 622 OF THE wife's [CH. XXVI. s. 6. " solely and entirely for her own use and benefit " (a), or for " her livelihood " (h), 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 hus- band " (/), or " not subject to his control " (^), or " for her own use and benefit, independent of any other person " (h), or " to receive the rents from the tenants while she lives, whether married or single," with a direction that no sale or mortgage should be made during her life (t) : for such expressions as these are considered in- consistent with the notion of any interference on the part of the husband. So, if the gift be accompanied with such expressions as " her receipt to be a sufficient discharge " (k), or " to be delivered to her on demand " (I) ; for in these cases the check put upon the husband's legal right to receive could only have been with the in- tention of giving the wife a particular benefit. So, if the gift be to the husband should he be living with his wife, but if separate then half to the husband and the other half to the wife " abso- lutely," for the context shows that by absolutely is meant for the separate use (m). What words not 4. But if the trust be merely " to pay to her," or " to her and her assigns " (w), or the gift be " to her use " (o), or " her own use " (p), or " her absolute use '' {q), or "in trust only for her, her takes its colour from the context. It (g) Bain v. Lescher, 11 Sim. 397. has been held in Ireland, in a recent (h) Margetts v. Ban-inger, 7 BimA82, case, affirmed on appeal by the House («) Ooulder v. Camm, 6 Jur. N. S, of Lords not to create j3(3r se a separate 113 ; 1 De G. Fish. & Jon. 146. use as a gift to a legatee, where at {k) Lee v. Prieaux, 3 B. C. C. 381 : the date of the will the legatee is a Woodman v. JSorsley, cited ib. 383 feme sole ; Massy v. Hayes, 1 Ir. Eep. Cooper v. Wells, 11 Jur. N. S. 923 Eq. 110. S. C. nom. Massy v. Rowen, In re Molyneux's estate, 6 Ir. Eq. 411 4 L. R. Eng. & Ir. App. 288. But and see Stanton v. Hall, 2 R. & M otherwise where the legatee is known 180. to the testator to be a married woman ; (l) Dixon v. Olmius, 2 Cox, 41 4. Hartford v. Power, 2 Ir.Rep. Eq. 204. [m) Shewell v. Dioarris, 1 Johns. (a) Inglefieldy. CogUan, 2 Coll. 247. 172. (6) Darley v. Darley, 3 Atk. 399, (n) DaHns v. Berisford, 1 Ch. Ca. per Lord Hardwicke ; and see Cape v. 194; Lumh v. Milnes, 5 Ves. 517. e, 2 Y. & C. 543 ; Ex parte Ray, (o) Jacobs v. Amyatt, 1 Mad. 376, n. 1 Mad. 208; but see Lee v. Prieaux, Wills v. Sayers, 4 Mad. 411 ; ATwn. 3 B. C. C. 383 ; Wardle v. Claxton, case, cited 7 Vin. 96. 9 Sim. 524, id. qu. (p) Johnes v. Lockhart, in note to (c) Tyrrell v. Hope, 2 Atk. 558. But Lee v. Prieaux, 3 B. C. 0. 383 ed. by this was in marriage articles, and un- Belt (this case is erroneously cited as der special circumstances, and must not an authority to the contrary in Lumb be taken to establish any general rule. v. Milnes, o Ves. 520, and Ex parte (d) Prichard v. Ames, T. & R. 222 ; Ray, 1 Mad. 207) ; Wills v. Sayers, Kirk V. Paulin, 7 Vin. 96. Secus 4 Mad. 409 ; iJoJerfa v. (Spicer, 5 Mad. probably if these words had occurred 491 ; Beales v. Spencer, 2 Y. & C. Ch. in a gift to a /erne sofe. Ca. 651; Darcey v. Croft, 9 Ir. Ch. (e) Atcherleyv.Ver-non, 10 Mod. 531. Re. 19. (/) Wagstaff v. Smith, 9 Ves. 520. (5) Rycroft v. Christy, 3 Beav. 238. CH. XXVI. S. 6.] SEPARATE ESTATE. 6.28 executors, administrators^ and assigns" (a), or, " to her, her heirs, and assi-gns, for her or their own sole and absolute use " (5), or " to pay into her own proper hands for her own use " (c), or " to pay- to her to be applied for the maintenance of herself and such child or children as the testator might happen to leave at his death" {d), there is no such unequivocal evidence of an intention to exclude the husband. 5. Where property was vested in the husband jointly with Husband made a another, as general trustees of the will, upon trust {inter alia), for trustee for the the wife, it was held not to be a gift to her separate use (e). Had the husband alone been appointed a trustee for the wife the deci- sion might have been different (/). 6. If a feme sole marry without having disposed of the property Eflect after mar- settled to her separate use, the limitation to the separate use will ^^se of the trust . -^ for separate use. on the marriage take effect. This doctrine is open to much ob- servation upon principle {g), but Lord Cottenham, in the cases of Tullett V. Armstrong, and Searhorongh v. Borman {h), anxious to prevent 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 in case of the feme's marriage. If a fund be given to a feme sole for her separate use, without the intervention of a trustee, and she sells out the fund and invests it in another form, and then marries, the separate use has been destroyed, and she is regarded as the owner of the new property in the ordinary way {i). 7. If property be settled, whether by deed or will, to the separate Effect of separate use of a /erne, and the separate use was meant to be confined to a use on second particular marriage, and the husband dies and the widow marries again, the second husband will not be excluded from his ordinary marital rights {k). The question simply is. What was the intention (a) Spirett v. Willows, 3 De G. Jon. (/) Ex parte Bdlby, uhi supra ; and & S. 293. see Darley v. Darley, 3 Atk. 399. (6) Lewis V. Mathews, 2 L. R. Eq. (g) Some observations upon this 177. subject will be found in the 3rd edit. (c) Tyler v. Lake, 2 R. & M. 183; p. 124. Kensington v. Dollond, 2 M. & K. 184 ; {h) 4 M. & C. 377 ; and see New- Blacklow V. Lavjs, 2 Hare, 48 ; but see lands v. Paynter, ib. 408 ; Russell v. Hartley v. Hurle, 5 Ves. 545, contra. Dickson, 2 Drur. & War. 138 ; Archer id) Wardle v, Claxton, 9 Sim. 524. v. Rooke, 7 Ir. Eq. Rep. 478. (e) Eoe parte Seilby, 1 Glj'n & J. (i) Wright v. Wright, 2 Johns. & 167 ; and see Kensington v. Dolland, H. 647. 2M. &K. 184. {h) Barton v. Briscoe, Jac. 603; Benson v. Benson, 6 Sim. 126 ; Knight marriage. 624 OF THE WIFES [CH. XXVI. S. 6. The wife's sepa- rate estate. General rule. Bill, Answer, Contract, &c. of the settlement or will ? So, if real or personal estate be devised or bequeathed to A., a married woman, for her sole and separate use independent of her husband B., the separate use applies only to the existing and not to any future coverture (a) ; but if the exclu- sion of any future husband was also in contemplation, it will be carried into effect (b) ; and if the separate use do extend to any marriage, present or future, even the arrears due to the feme at the time of subsequent marriage are protected from the after-taken husband (c). 8. Where property is settled to the separate use, the feme covert, unless her power of anticipation be restrained, may, without the concurrence of her trustees, unless the terms of the settlement require it (d), deal with the property directly and expressly, pre- cisely in the same manner as if she were a feme sole. But, at the same time, she will be protected against fraud, and therefore, a settlement procured from her by the husband, upon a false repre- sentation, will be set aside (e). 9. 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 ferae covert, acting with respect to her separate property, is competent to act in all respects as if she were a, feme sole " (/). 1 0. A feme covert, therefore, as regards her separate property, sues separately as plaintiff by her next friend, or without a next friend with the leave of the Court on giving security for costs (g), and may obtain an order to answer separately as defendant (h), and if out of the jurisdiction may be served with process by leave of the Court (i), may present a petition by her next friend, but not other- V. Knight, ib. 121 ; Jones v. Salter, 2 R. & M. 208 ; Moore v. Harris, 4 Drew. 33 ; Tudor v. Samyne, 2 Vern. 270 ; Sir E. Turner's case, 1 Ch. Ca. 307 ; 1 Vern. 7. And see Sanders v. Page, 3 Ch. Re. 224 ; Pitt v. Hunt, 1 Vern. 18 ; Howard v. Hooker, 2 Ch. Re. 81 ; Edmonds v. Bennington, cited Carleton v. Earl of Dorset, 2 Vern. 17. (a) Moore v. Harris, 4 Drew. 33. (J) Ashton V. M'Dougall, 5 Beav. 56 ; Be Gaffee, 7 Hare, 101 ; 1 Mao.& Gor. 541; Hau'kes v. Hubback, 11 L. R. Eq. 5; Me Molyneux estate, 6 I. R. Eq. 411. (c) Ashton y. M'Dougall, 5 Beav. 56 ; and see Neiolands v. Paynter, 4 M. & Cr. 418 ; England v. Downs, 6 Beav. 269. [d) Grigby v. Cox, 1 Ves. 518, per Lord Hardwicke ; Dowling y.Maguire, Rep. t. Plunket, 19 jJcrLord Plunket. (e) Knight v. Knight, 1 1 Jur. N. S. 618 ; and see Sharpe v. Foy, 4 L. R. Ch. App. 35. (/) Hulme V. Tenant, 1 B. C. C. 20. {g) 36 & 37 V. c. 66, Schedule Rule 15. {h) Jackson v. Haworth, 1 S. & S. 161 ; Macbryde v. Eykyn, W. K. 1867, p. 306; See Thompson v. Beaseley, 3 Eq. Ro. 59. (i) Copperthwaite v. Taite, 13 Ir. Eq. Re. 68. CH. XXVI. s. 6.] SEPARATE ESTATE. 625 wise (a), and with or without her husband (6), will be bound by a submission in her bill (c), or answer (d), or by a settlement of accounts (e), or by a contract for purchase (/), or sale (g), and may give away the chattels settled to her separate use by manual delivery (h), or may lend money to her own husband (i), or may demise land settled to her separate use when the lessee will be protected even at law under the equitable plea against intrusion by the holder of the legal estate (k), may dispose of her equitable interest in freehold estate settled to her separate use, without acknowledgment under the Fines and Recoveries' Act ([), and may be made a contributory under a winding-up order (m), and her declarations may be read in evidence against her (n), and she will be liable to an attachment for want of answer where she answers separately (o), and similarly for disobeying the order of the Court in a suit to which she is a party in respect of her separate estate (p), or her separate property may be ordered to be sequestered (q). 11. The Courts have further determined, that if, without any General engage - 7 ■ , p 1 /. J ment of a, feme direct or express reference to her separate property, a je7ne covert covert in writing, who has property settled to her separate use {r), profess to bind (a) Picard t. Hine, 5 L. R. Ch. App. 274. (6) Re Crump, 34 Beav. 570. (c) Allen V. Papworth, 1 Ves. 163. {d) Clerk v. Miller, 2 Atk. 379 ; Bailey v. Jackson, C. P. Cooper's Rep. 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 wliich the indentures related to her separate use for her life. The plaintiff moved for production, but it was ai-gued that the answer was the husband's and could not be read as an admission by the wife. However, the Court said though there was a logical difficulty, there was none in sub.stance: that if the wife claimed the benefit of the separate use she must take it with its disadvantages ; and ordered the pro- duction by the wife, and that the hus- band should permit her to produce : Cowdery v. Way, V.-C. K. B. 2nd Nov. 1843. And see Calloiv v. Howie, 1 De Gex & Sm. 531 ; Beeching v. Morphew, 8 Hare 129 ; Clive v. Carew, 1 Johns. & Hem. 207. (e) Wiltrni v. HUl, 25 L. J. Ch. 156. (/) Picard v. Hine, 5 L. R. Ch. App. 274. ig) Davidson v. Gardner, Sugd. Vend. & Purch. 891,11th edit. ; Stead v. Nelson, % Beav. 248 ; and see Harris V. Mott, 14 Beav. 169 ; Vansittart v. VansUtart, 4 K. & J. 70 ; Milnes v. Busk, 2 Ves. jun. 498. {h) Farington v. Parker, 4 L, R. Eq. 116. (i) Woodward v. Woodward, 3 De Gex, Jones &S. 672. {k) Allen v. Walker, 5 L. R.Excheq. 187. {I) Pride V. Buhh, 7 L. R. Ch. App. 64. (m) Re Leeds Banking Company, 3 L. R. Eq. 781, and see Butler v. Cumpston, 7 L. R. Eq. 16. (ra) Peacock v. Monk, 2 Ves. 193, per Lord Hardwicke. (o) Graham v. Fitch, 2 De Gex & Sm. 246 ; Taylor v. Taylor, 12 Beav. 271 ; Homey. Patrick(fio. 1), 30 Beav. 405, in which case M. R. observed that if the feme had not obtained or con- curred in the order to answer separately there might be a difficulty. (p) Ottway V. Wing, 12 Sim. 90. (q) Keogh v. Cathcart, 11 Jr. Eq. Rep. 280 ; and see oases cited ib. ()■) As to the power of a married woman to contract under 3 & 4 W. 4. c. 74, in respect of her real estate generally, see Crofts v. Middleton, 2 K. & J. 194 ; 2 Jur. N. S. 528 ; Pride V. Buhb,7 L. R. Ch, App. 64, s s 626 OF THE wife's [GH. XXVI. s. 6 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 (a), even to her husband (&), or join in a bond Math another, even with her husband (c), or sign a promissory note (d), or bill of exchange (e), or agree to take a leasehold house for a term of years (/), though she is not personally bound, yet her separate estate, if anticipation be not restrained (g), is liable. So, if she give a written retainer to a solicitor, it entitles him to have his costs out of her separate estate Qi), though the circumstance that the solicitor of a husband and wife has transacted business relating to the separate estate is not per se, sufficient to make that estate directly liable for the amount of his costs (i). And if she enter into a contract for the purchase of an estate, she may enforce it against the ven- dor, as it creates a valid obligation in respect of her property (k). And it is not necessary that the contract should expressly refer to the separate property, or that the vendor should know that the purchaser was a married woman (Z). In one case a feme executed a bond befoi-e 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 (pi). General engage- 12. It has been Stated that a feme covert makes her separate ments not m property liable by the execution of any ivritten instrument ; and to that extent there can be no C[uestion ; but the principles upon which the liability was held to attach were until recently involved (ffl) LiUia V. Airey, 1 Ves. jun. 277 ; (/) OaMon v. Frankum, 2 De Gex Norton v. Turvill, 2 P. W. 144 ; Pea- & Sm. 661 ; S. C. on appeal, 16 Jur. cock V. Monk, 2 Ves. 193, per Lord 607. Loughborough ; Tullett v. Armstrong, (g) Re Sykes's Trust, 2 Johns. & 4 Beav. 323, per Lord Langdale. Hem. 415. (6) Heatley v. Thomas, 16 Ves. 596. [h) Murray v. Barlee, 4 Sim. 82 ; (c) Heatley v. Thomas, 15 Ves. 696 ; 3 M. & K. 209. Stanfordv.Marshall,2 Atk. 68; Hulme (i) Callow \. Howie, 1 De Gex. & V. Tenant, 1 B. C. 0. 20. Sm. 531 ; and see Be Pugh, 17 Beav. (d) Bullpin V. Clarke, 17 Ves. 365; 336. Field V. Sowle,4,Kas&A\.2; Tullett v. (k) I)owUngv.Magmre,U.&.G.'Re-p. Armstrong, 4 Beav. 323, per Lord t. Plunket, 1 ; but see Chester v. Plait, h&ngd.alei FitzgMon Y. Blake, 3 Ir. Sugd. Vend. & Purch. 207, 14th Ch. Re. 328. edit. (e) Stuai-t V. Kirkwall, 3 Mad. 387 ; (l) Bowling v. Maguire, LI. & G. Coppin V. Gray, 1 Y. & 0. Ch. Ca. Rep. t. Plunket, 1. 205 ; Tullett V. Armstrong, 4 Beav. (m) Biscoe v. Kennedy, cited Hulme 328, per Lord Langdale; McHenry v. v. Tenant, 1 B. C. C. 17. Davies, 10 L. R. E.j. 88. CH. XXVI. S. 6.] SEPARATE ESTATE. 627 in much doubt. Thus it was considered by Lord Loughborough {a), Sir J. Leach (6), and the late Vice-Chancellor of England (c), that the separate estate of a feme covert was not subject to her general engagements, and this upon the notion that a feme covert could not contract, but that every dealing in respect of her estate was in the nature either of an appointment or of a disposition (d). How- ever, it is clear that a feme covert can, in respect of her separate use, contract (e), and that her written obligations are not to be viewed as appointments, and do not operate merely by way of disposition. The principles that govern the liability of a femes separate property have been very satisfactorily explained by Lord Brougham and Lord Cottenham. Lord Brougham observed, "At first the Court supposed that Lord Brougham's nothing could touch the separate estate but some real charge, as prln^cTpies' which* a mortgage, or an instrument amounting to an execution of a regulate the lia- power ; but afterwards the Court only required to be satisfied feme's separate that she intended to deal with her separate property. Thus if estate. 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. 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 in- debted without executing any written instrument at all (/). / awn I can -perceive no reason for draiuing any such distinction" (g). "A writing," says Lord Cottenham, "is operative upon a fe7ne's LordCottenham's view of the prin- ciples regulating (a) See Bolton v. Williams, 2 Ves. Plunket, 19 ; Master v. Fuller, 4 B. the liability of jun. 142, 150, 156; Whistler v. New- C. C. 19; Stead v. Nelson, 2 Beav. the separate man, 4 Ves. 145. 245 ; Bailey v. Jackson, C. P. Cooper's estate. (6) See Greatley v. NoUe, 3 Mad. Rep. 1837-8, 495 ; Francis v. Wigzell, 94 ; Stuart v. Kirkioall, ib. 389 ; 1 Mad. 261 ; Croshy v. Church, 3 Aguilar v. Aguilar, 5 Mad. 418 ; Beav. 489 ; Tulleit v. Armstrong, 4 Field V. Sotule,4: Russ. 114; Chester Beav. 323. v.PZaft,Sugd.Vend.& P. 207,14th edit. (/) It may be observed that the late (c) See Murray v. Barlee, 4 Sim. V.-C. of England while expressing his 82 ; and see Dighy v. Irvine, 6 Ir. Eq. opinion upon the hearing below, that Rep. 149. the general engagements of the feme (d) See Bolton v. Williams, 2 Ves. covert did not aifect the separate estate, jun. 150; Greatly v. Noble, 3 Mad. does not appear to have conceived 94; Stuart v. Kirkwall, ib. 389; that any distinction existed between a Aguilar v. Aguilar, 5 Mad. 418 ; written and unwritten obligation ; see Field V. Sowle, 4 Russ. 114. 4 Sim. 94. (e) See Owens v. Dickenson, 1 Cr. (g) Murray v. Barlee, 3 M. & K. hYh. hi; Dowling V, Maguire,'R<^'^. t. 223. s s 2 628 OF THE wife's [CH. XXVI. S. 6. Result of judg- ments of Lord Cottenham and Lord Brougham. separate estate, not by way of the execution of a power ; for it neither refers to the power, nor to the subject-matter of the power, nor, indeed, in many of the cases has there been any power exist- ing at all. Besides, if a married woman enters into several agree- ments of this sort, and all the parties come to have satisfaction out of her separate estate, they are paid pari passio ; whereas, if the instruments took effect as appointments under a power, they would rank according to the priorities of their dates. It has sometimes been treated as a disposing of the particular estate ; but it is not correct, according to legal principles, to say that a contract to pay is to be construed into a contract to pay out of a particular pro- perty, so as to constitute a lien on that property. The view taken of the matter by Lord Thurlow, in Hulme v. Tenant, {a), is more correct : viz. — If a married woman has power to deal with her separate property, she has the other power incident to property in general, namely, the power of contracting debts to be paid out of it. I observe that in Clinton v. Willes (6), Sir Thomas Plumer suggested a doubt whether it was necessary that the feme's en- gagements should be secured by writing. It certainly seems strange that there should be any difference between a contract in writing and a verbal promise to pay, when no statute requires it to be in writing. It is an artificial distinction not recognised in any other case " (c). The judgments of Lord Cottenham and Lord Brougham, before referred to, must be held to have clearly established that the dealings of a 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 distinction can be sus- tained between written and ve^-hal engagements. If a written promise to pay, as a promissory note, referring neither to the in- strument 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 trust, must have been in writing (f^) ; but so soon as it is admitted that the general engagement in ivriting binds, it seems impossible to resist the conclusion that a verbal general engagement must bind likewise. When it is attempted to imply a (a) 1 B. C. C. 16. (.6) 1 Sugd. Pow. 208 11. 63. (c) Owens V. Dickenson, 1 Cr. & Ph. (rf) See page 626 supra. CH. XXVI. S. 6.] SEPARATE ESTATE. 629 promise from mere acts of the feme, which may be construed as intended to bind either her husband or herself, there seems room for a distinction, but an exioress verbal promise and an express written promise to pay must, it is conceived, stand on the same footing. The late Vice-Chancellor Kindersley, upon this subject expressed Observations of himself as follows : — " It has not yet, indeed, been made the sub- respecting /me's ject of positive decision, that the principle embraces a feme's verbal verbal engage- engagements or cases of common assumpsit. Considering, how- ever, the opinions expressed and the reason of the thing, I think it very probable that when that question arises for decision, it will be decided in the affirmative " (a). But a verbal engagement will not bind the wife where the Statute Cases where of Frauds requires, in the case of &feme sole, an engagement in writing, gyj^eJf '^ ^'^' as if the feme covert were to undertake verbally to pay the debt of a stranger, or of her husband, who, for this purpose, is a stranger (&). It has even been held, in Ireland, that the general engagements of the wife .not in writing, cannot, by reason of the Statute of Frauds, be satisfied out of any interest in land settled to her separate use (c). But this seems to involve a confusion between special contracts, which, in the case of a feme sole, are required by the statute to be in writing, and general contracts, which, in the case of a. feme sole, are not required to be ia writing. In the latter case the remedy is against the feme sole personally, but, where the feme is covert, is not against the per- son, but the property. The satisfaction, therefore, decreed against the separate estate is not the specific performance of a special contract, but an equitable execution by way of legal process for working out the liability created by the general contract. 13. It has been considered that there is stiU another distinction. Whether separate viz., that, allowing the general engagements of the wife, whether ^ade liable by written or un^vritten, to bind her separate estate, yet, supposing operation of law . 1 e -\ -\ 1 • ■ _ in clear contra- the doctrine oi these cases to be founded on the intention to charge vention of the the settled property as implied by the circumstance that otherwise ™tention. the act would be nugatory, the same result will not follow where it was clearly not the intention of the feme to create any charge — where, in short, there was no contract either expressed or implied. (a) Vauglian v. Vanderstegen, 2 (b) Re Sykes's Trust, 2 Johns. & H. Drew. 183; and see Wright v. Chard, 415. 4 Drew. 673 ; Newcomen v. Hassard, (c) Burhe v. Tuite, 10 Ir. Ch. Re. 4 Ir. Ch. Re. 274; Blatchford v. 467; and see Shattock v. Shattock, 2 WooUey, 2 Drew. & Sm. 204; Shattock L. R. Eq. 192 ; Johmon v. Gallagher, V. Shattock, 2 L. R. Eq. 182 ; 35 Beav. 2 De G. P. & J. 514. 489. 630 OF THE WIFE S [Cll. XXVI. S. 6, Thus it was decided, tlmt where an annuity granted by a feme covert and charged upon her separate estate, had been set aside as void for want of compliance with the requisitions of the Annuity Acts, the separate estate was not liable to repay the consideration money (a) ; and the decisions to this effect have been cited, without disapprobation, by L. J. Turner (5). And where a married woman received rents claiming them as her separate property, but was in fact not entitled, Vice-Chancellor Kindersley held that the rents so received could not be recovered from her separate estate (c). 14. The Vice-Chancellor at the same time observed, "The doctrine (of the separate use) is now in a state of transition, and is not sole to all intents clearly established in aU its points ; but the modern tendency has A feme covert having separate estate is a, feme and purposes. True principle. been to establish the principle, that if you pid a married woman in the position of a feme sole in respect of her separate estate, that position must he carried to its full extent, short of making lier per- sonally liable " (d). To hold that a feme covert with property settled to her separate use is a feme sole to all intents and purposes, but with the remedy against the property only, would be a simple and convenient rule, and to this it is conceived the Court must ulti- mately come. 15. The principle, so far as the authorities have hitherto gone, is thus laid down by L. J. Turner. "To affect the separate estate there must be something more than the mere obligation which the law would create in the case of a single woman. What that some- thing more may be must depend in each case upon the circum- stances. What might affect the separate estate in the case of a married woman living separate from her husband, might not affect it in the case of a married woman living with her husband," &c. " In order,'' he continued, " to bind the separate estate by a general engagement, it should appear that the engagement was made with reference to, and upon the faith or credit of that estate, and the question whether it was so or not is to be judged of by the Court upon aU. the circumstances of the case '' («). These opinions have since been indorsed by the Court as a correct exposition of (re) Jones v. Harris, 9 Ves. 486; Aguilar v. Aguilar, 5 Mad. 414 ; and see Boltony. Williams, 4 B. C. C. 297; 8. C. 2 Ves. jun. 138. (i) Johmon v. Gallagher, 3 De G. P. & J. 513; and see Shattock\. Shat- toek, 2 L. R. Eq. 182 ; 35 Beav. 489. (c) Wright v. Chard, 4 Drew. 673. {d) Wright v. Chard, 4 Drew. 685. (e) Johnson v. Gallagher, 3 De G. F. & Jon. 515; see the principle approved and expanded by Sir R. T. Kindersley, V.-C, in lie Leeds Banlcing Company, 3 L. R. Eq. 787 ; and see the same principle approved by V.-C. Malius in Butler V. Cumpston, 7 L. R. Eq. 20 ; and by V.-C. in Ireland, in Hartford v. Power, 3 I. R. Eq. 602 ; and by Lord Hatherley in Picard v. Hine, 5 L. R. Ch. App. 274. CH. XXVI. S. 6.] SEPARATE ESTATE, 631 the law (a). And in a recent case Lord Justice James in further illustration of the subject observed, " The term general engagement is a misleading one. If it merely mean that goods sold to a married woman in the ordinary course of domestic life — that contracts ex- pressed to be made by her in respect of property not her separate estate, e. g. for buying or selling, or letting or hiring a house — do not necessarily impose a liability to be satisfied out of the separate estate which she may happen to have, in that sense and to that extent the proposition that her separate estate is not liable to her general engagements is quite correct. But that does not affect the rule, as laid down by Lord Justice Turner, as to general engagements, as to which it appears that they were made with reference to, and upon the faith or credit of, the separate estate. It would be very inconvenient that a married woman with a large separate property should not be able to employ a solicitor or a surveyor, or a builder or tradesman, or hire labourers or servants, and very unjust if she did, that they should have no remedy against such separate property " (6). 16. The inquiry now under consideration, involves the c[uestion Liability of estate how far a feme covert can commit a breach of trust for which her ^ake good her separate estate shall be made liable. Where the breach of trust breaches of trust. results in the loss of the very fund in which the /erne has an interest to her separate use, the Court treats her acts as amounting to a dis- position of the separate interest which she has power to bind (c). So if a, feme covert who is executrix or trustee has M'asted the trust estate, the ordinary right of retainer may be exercised against her separate estate under the same instrument {d). And the separate estate of a married woman under a settlement was held liable to make good the loss occasioned by her wrongfully selling absolutely a valuable chattel in which, under the same settlement, she had only a limited interest (e). And the separate estate has been made to answer a debt of the wife contracted before marriage (/) ; and by the recent Act(^), property belonging to 2. feme and settled by her to her separate use without power of anticipation, is liable to such a debt (A). (a) See London Chartered Banh of {d) Pemberton v. ikf ' Qill, 1 Drew. & Australia v. Lempriere, 4 L. Rep. Sm. 266; and see p. 576, sjjpra. P. C. 591 ; and see preceding note. (e) Clive v. Carew, 1 Johns. & Hera. (J) London Chartered Bank of Aus- 199. tralia v. Lempriere, 4 L. Rep. P. C. (/) Chubb v. Stretch, 9 L. R. Eq. 593. 555. (c) Crosby v. Church. 3 Beav. 485 ; (g) 33 & 34 Vict. c. 93, s. 12. Hanchett v. Briscoe, 22 Beav. 496. (h) Sanger v. Sanger, 11 L. R. Eq. 470. t;32 OF THE WIFE S [CH. XXVI. S. G, Nature of the relief against the separate estate. 17. Supposing a person entitled to establish his claim against the separate estate, the limits of his remedy appear to be these. He cannot file a bill against the fevu, 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 " (a). But the party aggrieved may file a bill against her and her trustees, (and the death of her husband, which puts an end to the separate use, either after the filing of the bill (b), or even before it (c), will not defeat the 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 rents of real estate, if there be no clause against anticipation, until the claim and costs have been satisfied {d). " 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 lier real estate, and that her trustees shall be obliged to apply personal estate, and rents and profits token they arise, to the satisfaction of such general engage- ment ; but this Court has not used any dire,ct 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 engagement 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" (e). But it is conceived that if in any case the instrument were so specially worded as to place the corpus of real estate also (a) Francis v^ Wigzell, 1 Mad. 262. (J) Field V. Sowle, 4 Russ, 112. (c) Heatly v. Thomas, 15 Ves. 596 but see Kenge v. Delavall, 1 Vern. 326 (d) Hulme V. Tenant, 1 B. C. C. 20 Standford v. Marshall, 2 Atk. 68 Murray v. Barlee, 4 Sim. 82 ; 3 M & K. 209 ; Field v. Sowle, 4 Russ. 112; Nantes y. Cm-roch, 9 Ves. 182; Bullpin V. Clarke, 17 Ves. 365 ; Jones V. Harris, 9 Ves. 492, 493, 497 ; Stuart V. Kirkwall, 3 Mad. 387. (e) Hulme v. Tenant, 1 B. C. C. 20, 21 ; and see Broughton v. James, 1 Coll. 26 ; Nantes v. Corrock, 9 Ves. 189. ('H. XXVI. S, (;.] .SEPARATE ESTATE. 633 at the separate disposal of the feme covert, the engagements of the wife would, upon principle, bind the whole interest settled to the separate use, whether corpus or income (a). 18. As the creditor proceeds not against the /eme covert person- Statute of Limi- ally, but against her separate property as a trust fund, it has been held, though not without a conflict of judicial opinion, that the Statute of Limitations does not apply and cannot be pleaded (5). 19. If there be a clause against anticipation as to any part, the Wlier.3 no power Court directs payment out of the feme's separate estate, except that part of which she has no power of anticipation (c). 20. In one case the Court refused to hold the JBanJc Annuities Stock settled to of a feme covert liable, as stock could not in the case of a person ^ separa e use. sui juris be taken in execution (d.) : but now that stock is available to the creditor (e), the distinction may be considered as obsolete. 21. As the process against the separate property of the wife in Assignment good her lifetime is in the nature of an equitable execution, it may like ^^amst creditor. an execution at law be defeated by a hond fide assignment to a purchaser or mortgagee (/). 22. After the death of the feme covert the creditor may file a bill Creditor suit for payment of his debt out of her separate estate (g); and Sir %me coven° W. Grant ruled that all the creditors, whether by specialty or simple contract, should be ^s.iA pari passu (h). But according to Lord Romilly the debts should be paid in order of priority {i). Two conflicting principles were in fact at work in different branches of the Court (k) : one was that the general engagements of the wife are charges on the separate property equivalent to so many assignments, and if so, the debts would be payable in order of date : the other was, that the general engagements are not charges, but create a liability, the remedy for which, if the feme were sole, would be against the person, but, as she is covert, there is no remedy against the person, but the law gives an equitable execu- tion against the property; and in this view the separate estate {a) See p. 638 and p. 654, note (b). (h) Anon. 18 Ves. 258 ; and .see (6) Norton v. Turvill, 2 P. W. 144 ; Johnson v. Gallagher, 3 De G. F. & J. Vaughan v. Walker, 6 Ir. Ch. Ee. 471, 520. 8 Ir. Ch. Re. 458. (i) Shattock v. ShaUock, 2 L. Eep. (c) Murray y. Barlee, A Sim. 95. Eq. 182. The decision in this case {d) Nantes v. Corroch, 9 Ves. 182. involved a sum of \il. 15s. only, so (e) 1 & 2 Vict. c. 110, s. 14. that of course there was no appeal. (/) Johnson v. Gallagher, 3 De G. {h) Compare Johnson v. Gallagher, F. & J. 520, per L. J. Turner. 3 De G. F. & J. 494, and ShaUock v. {£) See Owens v. Dickenson, 1 Cr. Shattock, 2 L. R. Eq. 182. & Phil. 48 ; Gregory v. Lockyer, 6 Mad. 90. 634 OF THE WIFE S [CH. XXVI. S. 6. Funeral ex- penses. Savings. Power of disposi- tion by will of separate estate. would be applicable as assets pari passu. Of these two principles the latter, is clearly the more correct one (a). 23. It has been doubted whether the funeral expenses of the wife should be thrown upon her separate estate (&). 24. The savings by a /erne covert out of her separate estate form part of it, and are equally at her exclusive disposal, or, according to the language of an early authority, " the sprout is to savour of the root and to go the same way " (c) ; and the same has been held with respect to savings out of a maintenance allowed on separa- tion ((f). But where a fund is settled to the separate use of a married woman and her anticipation is restrained, as the income when actually accrued is at her absolute disposal, any savings from the income, though invested by her in the names of the trus- tees of the original settlement, will not be subject to the fetter against anticipation which attached to the corpus whence the savings proceeded (e). Savings out of money given to the wife by her husband for household purposes, dress, or the like, belong to the husband (/). 25. Afenu covert has, as incident to her separate estate, a power to dispose of it, whether it be real or personal, not only by act inter vivos, but also by testamentary instrument in the nature of a will {g), and administration with the will annexed (where the exe- cutors die in her lifetime), will be granted not to her husband the survivor, but to her residuary legatees {h). And if ■A.fe'mc leave a will and make bequests, the usual course of administration will be observed. Thus, in the payment of her debts, the undisposed of interest will be first applied, then, general legacies, and, if there still be a deficiency, the specific legacies ii) ; and general legacies will, it is presumed, as in the ordinary case, caiTy interest, not from the death of the testator, but from the expiration of one year (a) See now the observations of the Court in London Chartered Bank of Australia v. Lempriire, 4 ]j. R. P. C. 594. (6) Q-regory v. Loclcyer, 6 Mad. 90. (c) Oore V. Knight, 2 Vern. 535; Molony v. Kennedy, 10 Sim. 254; Humphery v. Richards, 2 Jur. N. S. 432. (d) Brooke v. Brooke, 25 Beav. 347 ; and see Messenger v. Clarke, 5 Exch. 388. («) Butler V. Cumpston, 7 L. R. Eq. 16. (/) Barrack v. McCulloch, 3 K. & J. 114; see Mews v. Mews, 15 Beav. 529. (g) Fettiplace v. Gorges, 1 Ves. jun. 46; Eichv. Cockell,9Yes. 369; Hum- phery v. Richards, 2 Jar. N. S. 432 ; Moore v. Morris, 4 Drew. 38 ; Pride v. Bubh, 7 L. R. Oh. App. 64 ; NohU v. Willock, 8 L. R. Ch. App. 778.; Tay- lor V. Meads, 4 De G-ex Jon.& Sm. 597. ih) Re Goods of Pine, 1 L. R. Prob. & Div. 388 ; and see Re Goods of M. Eraser, 2 L. R. Prob. & Div. 183. ii) Norton v. Turvill, 2 P. W. 144. CH. XXVI, S, U.] SEPARATE ESTATE, BHo after the death (a). And a general residue will sweep all arrears of income due at the time of the death (&). 26. If a /erne covert having personal estate settled to her separate Separate estate use die without disposing of it, the husband will be entitled to it ; survives to the as to so much thereof as may consist of cash, furniture, or other husband, personal chattels, in his marital right, and as to so much as may consist of " clioses in action^' upon taking out administration to his wife (c). Butif a/eme covert, having income settled to her sepa- rate u^e, lay out the savings in a purchase of land in the name of a trustee, the land on her dying intestate will descend to the heir and not be personal estate in equity for the benefit of the adminis- trator. ((f). 27. If the husband receive the wife's separate income, it is clear Arrears of sepa- that neither the wife nor those entitled under her can claim against the husband or his estate, or any one standing in his place (e)^ more thair one year's arrears, but it is still s^i6 judice whether the wife or her representative can claim even so much. Lord Maccles- field (/), Lord Talbot {g), Lord Loughborough (Ji), Sir W. Grant {i), and Lord Chancellor Brady (h) held that the wife or her repre- sentative could claim nothing. On the other hand, in the judg- ment of Sir T. Sewell (/), Lord Camden (m). Lord King (^i), Lord Hardwicke (o), Lord Eldon {p), Sir J. Leach {q), Sir J. Stuart (r), Lord St. Leonards (s). Smith, M. E. in Ireland (t), and Dobbs, J. in the Landed Estate Court {%), the husband's estate is liable to an account (a) See Tatham v. Drummond, 2 {I) Burdon v. Burdon, 2 Mad. 286, Hem. & Mill. 262. The case of a will note, executing a special power. (m) lb. p. 287, note. (6) See Tatham v. Drummond, 2 (re) Countess of Warwicky. Edwards. Hem. & Mill. 262. 1 Eq. Ca. Ab. 170. In Thomas v. (c) Proudley v. Fielder, 2 M. & K. Bennet, 2 P. W. 341, his Lordship pro- 57 ; Molony v. Kennedy, 10 Sim. 254 ; bably held only that ten years'' arrears Bird V. Peagrum, 13 Com. B. R. 639 ; could not be given. Jo^M^oreev.iamJ, 15 Sim. 308; Drury (o) Townshend v. Windham, 2 Ves. V. Scott, 4 Y. & C. 264; AsJcew v. sen. 7; Peacock v. Monh, 2 Ves. sen. Booth, 17 L. R. Eq. 426. 190; Aston v. Aston, 1 Ves. sen. 267. (d) Steward v. Blakeioay, 6 L. R. [p] Parhes v. White, 11 Ves. 225; Eq. 479 ; 4 L. R. Ch. App. 603. Brodie v. Barry, 2 Ves. & B. 36 (e) Payne v. Little, 26 Beav. 1. (gj Thrupp v. Harman, 3 M. & K. (/) Powell V. Hankey, 2 P. W. 82. 513. [g) Fowler v. Fowler, 3 P. W. 353. (r) Lea v. Grundy, 1 Jur. N. S. 953. (N.B. A case of pin-money). (s) Property as administered by (A) Squire v. Dean, 4 B. C. C. 325 ; D. P., p. 169. Smith-!!. CamcZ/oj-fZ, 2 Ves. jun. 716. (i) Cm-hally v. Grainger, 4 Ir. Ch. (i) Dalhiac v. Dalbiac, 16 Ves. 126. Re. 173 ; Mackey v. Maturin, 16 Ir. {h) Arthur v. Arthur, 11 Ir. Eq. Re. Ch. Re. 150. 511. (m) Re Kirwan, 1 Ir. Re. Eq. 553. 6^0 OF THE WIFE S [CH. XXVI. S. 6. Wife's acquies- cence in receipt of her separate income by hus- band presumed. Case oifeme coL-n-i being non compos. Howard i: Digby. for one year {a). Where there is such a conflict of authority, it is hard to say which way the balance inclines. The better opinion, independently of authority, is thought to be that the wife can recover nothing from the husband's estate. Should the husband die iiisolvent, could she recover anything from the trustees on the ground of misapplication ? and if the payment was a proper one, why should it be recoverable from the estate of the husband ? The wife's assent must be deemed to continue until revoked by some- thing either expressed or implied. , 28. The principle upon which the relief against the husband's estate is thus denied is, that the Court presuvus the acquiescence of the wife in the husband's receipt de anno in annum (b). 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 herself, the Court will carry back the account of the arrears to the time of the wife's assertion of her claim (c). But the Court requires very clear evidence that the demand was seriously pressed by the wife, and will not charge the husband's estate from any idle complaints against his receipt which the wife may have occasionally made (d). There can be no acquiescence by the wife, and, there- fore, no waiver of her rights where the income has not actually come to the hands of the husband, as where it is still in the hands of a receiver (e). 29. As the Court proceeds upon the notion of the wife's acquies- cence, the question arises where she is non compos, 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 will be en- titled to an allowance for payments made for the wife's benefit, and which ought properly to have fallen on her separate estate (/). 30. In ffmvard v. Diffiy (g) a woman's pin-money was distin- (a) In Howard v. Digby, 2 CI. & Fin. 643, 665, Lord Brougham thought that in separate use, as distinguished from pin-money, the wife or her repre- sentatives could recover the whole arrears, but this is clearly untenable ; see Arthur v. Arthur, 11 Ir. Eq. Rep. 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 v. Howard, 4 Sim. 601. (6) Caton v. Rideovt, 2 H. & Tw. 41. (c) Ridout V. Lewi^, 1 Atk. 269 ; Moore v. Moore, 2 Atk. 272 ; see Moore v. Earl ojf Scarborough, 2 Eq. Oa. Ab. 156 ; Parker v. Brooke, 9 Ves. 583. {d) Thrupp V. Harman, 3 M. & K. 512 ; Corbally v. Qrainger, 4 Ir. Ch. Rep. 173. («) Foss V. Foss, 15 Ir. Ch. Re. 215. (/) Attorney -General v. Pamther, 3 B. C. C. 441 ; 4 B. C. C. 409 ; Hoio- ard V. Digby, 2 CI. & Fin. 671, 673. {g) 2 CI. & Fin. 634 ; 4 Sim. 588. CH. XXVI. S. 6.] SEl'AKATE ESTATE. 637 guished from ordinary separate use, and it was held as to pin-muitcy that the wife's representative (a) 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 in- tended, the wife or her representative could have no claim against the husband's estate when the requirements for her personal use and ornament had ceased (b). Lord St. Leonards has justly ques- tioned these principles (c), and it remains to be seen whether any distinction between pin-rmney and separate use generally can be maintained. 31. As regards the corpus of the separate estate no presumption Gift of corjms arises in favour of a husband who has received it. He is primd ^° '^"s'band not -^ presumed. facie a trustee for his wife, and a gift from her to him will not be inferred without clear evidence (d) ; but the employment of the money by the husband in his business and for his family expendi- ture with the knowledge and assent of his wife, will, in the absence of agreement to the contrary, amount to a gift by her (e). 32. Occasionally a, feme covert has a large income from property Feme not bound settled to her separate use, and being of penurious habits ac- ^° °°"]^''jY'*x *° cumulates the whole, and yet looks to her much poorer husband penses. for her support. This is a hard case, but it is said that the Court cannot look into the question whether she accumulates or not(/). 33. It has never been questioned but that if personal estate be Separate use may given to a feme covert for her separate use, her power of disposition ^^*f"? to ooriws, o •' . . or to income hc- extends over the corpus ; and so if the income of property be yond coverture. limited to a feme covert for her life, either in possession or reversion, for her separate use, or if the absolute interest be given to her in reversion for her separate use, if it appear that the separate use applies not only to the income accruing during tlie coverture, but to the life estate, or absolute reversionary interest, the feme may aliene the whole life estate, or absolute reversionary interest {g). The question in these cases is one of construction only, and there- (a) Lord Brougham considered that {d) Rich v. Cockell, 9 Ves. 369. the wife herself might in her lifetime (e) Gardner v. Gardner, \ Glff. 126. have recovered one year's arrears; see (/) Re SmWs Trusts, W. N. 1867, 2 CI. & Fin. 643, 653, 659. p. 283. (6) See too Aston v. Aston, 1 Ves. [g) Sturgis v. Corp, 13 Ves. 190 ; sen. 267 ; Fowler v. Fowler, 3 P. W. Stead v. Nelson, 2 Beav. 245 ; Hanchett 355; Barracky.McCuUocJi, BK. & J. v. Briscoe, 22 Beav. 503; Stamford, 110. Spalding and Boston Bank v. Ball, 10 (c) Law of Property as adminis- W. R. 19G ; 4 De G. F. & J. 310 ; tered, by D. P., p. 162. Dudley y. Tanner, W. N. 1873, p. 75. 638 OF THE wife's [CH. XXVI. s. 6. fore if the fund be settled upon trust for a ferm covert " absolutely, and " during her life for her separate use,'' her power does not extend beyond the life estate (a). But if personalty be limited to the separate use upon a mere contingency (as on the insolvency of the husband, an event which has not yet occurred), it seems that the feme covert cannot, pending the contingency, aliene or otherwise dispose of her possible interest (&). Scjiarate use in 34. As regards realty it was formerly held that the /«me covert estate""^ ° "^^^ could not by virtue of the separate use, if there were no express power, dispose of the freehold, at least not for any larger interest than during her life (c), for between real and personal estate it was said there was this distinction, that on the death of the fcTne 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 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. It is simply a ques- tion of intention. A married woman may have limited to her a power of disposition over a fee simple estate, and if it appear clearly that the separate use was meant to extend 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 testa- mentary instrument, as fully as she might in the case of a personal estate {d). And so it has now been decided both in Ireland and England (e). But the feme covert is not regarded as a feme sole in (a) Hanchett v. Biiscoe, 22 Beav. Mott, 14 Beav. 1 69 ; Moore v. Morris, 496 ; Crosby v. Church, 3 Beav. 485. 4 Drew. 38. (6) Marav. Manning. 2 Jon. &ha,t. (e) Adamsy GamiZc, 11 Ir. Ch. Re. 311; Bestall v. Bunhury, 13 Ir. Ch. 269; 12 Ir. Ch. Ee. 102; Bestall ^. Re. 549 ; S. C. ib. 349; Keaysv. Lane, Bunhury, 13 Ir. Ch. Re. 549 ; Hall v. 3 1. R. Eq. 1; a,nd see Luther v. Bian- Waterhouse, 6 N. R. 20; Atchison v. coni, 10 Ir. Ch. Re. 194. Lemann, 23 L. J. Ch. 302 ; Pi-ide v. (c) Churchill v.Dibben, 2 Lovi Ken- Bubb, 7 L. R. Ch. App. 64; Re yen's Rep. 2d part, 68, p. 84; case cited Smallman, 8 I. E. Eq. 249 ; Taylor v. in Ptacock v. Monk, 2 Ves. 192 ; and Meads, 5 N. R. 348 ; iS. C. 4 De Gex. see 2 Rop. Husb. and Wife, 182, 2d Jon. & Sm. 597. In the last cas-e ed. ; 1 Sand, on Uses, 345, 4th ed. ; the solicitor of the defendants, the Lechmere v. Brotheridge, 32 Beav. 353. tenant for life, and infant remainder- (d) Stead v. Nelson, 2 Beav. 245 ; man, petitioned for payment of his Wainwright v. Hardisty, Ib. 363; costs out of the estate, on the ground ~ Meux, 1 Coll. 138; 1 Phill. of his lien, and by an order made in 627 ; see p. 628; Major v. Lansley, 2 the cause (though the bill had been R. & M. 355. But see Newcomen v. dismissed), it was declared that the Hassard, 1 Ir. Ch. Rep. 274 ; Harris v. CH. XXVI. s. 6.] SEPARATE ESTATE. 639 Feme corert as protector respect of the fee simple, unless it clearly appear from the instru- ment itself that the fee simple, and not the mere life estate was limited to the separate use (a). 35. If a legal estate be hmited to a married woman for her life for her sole and separate use, without the interposition of a trustee, with remainder in tail, the wife is the sole protector of the settlement, and the husband's consent in barring the entail is not requisite (b). 36. It stin remains to treat of restraint of anticipation. The clause against the feme's anticipation is of comparatively ciau&e restrain - modern growth. In ffulme v. Tenant (c) it was held that a limitation '"§ anticipation, to the separate use simply did not prevent the /erne from aliening. In Pyhus v. Smith (d) great pains had been taken in framing tlie 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 " (e), from which time this has been the usual formulary, and the effect of it for the purpose of excluding the power of disposition has never been questioned. 37. But although these words are now almost universally em- Ko particular ployed they are not absolutely indispensable, for if the intention q°,'ired trrestrahi to restrain anticipation can be clearly collected from the whole anticipation, instrument it is sufficient (/) ; as if there be a direction to pay the income to such persons as the feme shall after it has become due appoint (g), or for her sole separate and inalienable use (h), but 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 (i), petitioner, as solicitor employed by or on behalf of the defendants to defend the said cause, was entitled to a charge on the premises for the amount at which his costs should be taxed, in- eluding the costs of the application, and directions were given for the sale, with the approbation of the Court, of a competent part of the estate for raising the costs. Ex parte Marshall. Taylor v. Meads, M. K. 6 May, 1865. See Haymes v. (Joope, 33 Beav. 431 ; Brown v. Bradshaw, 4 Giff. 260 ; Wilson V. Round, 4 Giff. 416 ; and see Aliens. Walker, bh. R. Excheq. 187. {a) T)'outbech v. Boughey. 2 L. R. Eq. 534. (h) Kerr v. Brown, 1 Johns. 138. (c) 1 B. C. C. 16. [d) 3 B. C. C. 340. (e) See Jackson v. Hobhouse, 2 Mer. 487 ; Parkes v. White, 11 Ves. 221. ( f) Ross's Trust, 1 Sim. N. S 199 ; Doolan v. Blake, 3 Ir. Ch. Rep. 349, and cases cited ib. (g) Field v. Evans, 15 Sim. 375; Baker v. Bradley, 7 De G. M. & G. 597. {h) D'Oechsner \. Scott, 24 Beav. 239; Spring v. Pride, 10 Jur. N. S. 876 ; 5. C. 4 De Gex, Jones & Sm. 395. (j) Ellis V. Atkinson, 3 B. C. C. 565 ; Clarke v. Pistor, cited ib. 568 ; Brown v. Like, 14 Ves. 302 ; Acton v. White, 1 S. & S. 429 ; Witts v. Daw- hins, 12 Ves. 501; Wagstaffv. Smith, 9 Ves. 520 ; Sturgis v. Corp, 13 Ves. 190; and see Scott v. Davis, 4 M. & Cr. 87 ; Hovey v. Blakeman, cited 9 Ves. 524. 6J:0 or THE WIFES [CH. XXVI. S. 6. Effect before marriage of the clause against anticipation. The clause against ancici- pation will operate upon tlie marriage. Brown ?'. Bam- ford. or if the trust be to pay her upon her personal 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 im- plied in the gift to the separate use " (b). Where a testator directs a daughter's share of his estate to be " so settled that she may enjoy the income during her life for her separate use," the trust is exe- cutory, and the Court will insert a clause against anticipation (c). 38. A widow may, after her husband's death (d), and a feme sole may, before mai'riage (e), dispose absolutely of a gift to her separate use, though coupled with words purporting to restrain her power of anticipation ; and the principle is briefly this — that ivherever a person possessing an interest, however rewrote a possibility, is suijuris, tkat person cannot he prevented hy 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, for her separate use," or " in trust for her separate use in the event of her marriage," without the gift of any estate independently of that contingency ; but in aU these cases the interest, whether vested or contingent, is in favour of one who is now suijuris, and who therefore cannot be restrained from disposing of property to which she either now is, oi may eventually become entitled. 39. It was formerly held by Sir L. Shadwell, that whUe the separate use took effect upon marriage (/), the clause against anticipation was nugatory [g). Lord Langdale, with more consistency, held that in the absence of alienation during discoverture, both the separate use and also the clause against anticipation came into operation upon marriage Qi). And it was so finally decided by Lord Cottenham on appeal {i). 40. It was also held in a case (k) before the late Vice-Chancellor of England, that if a fund be vested in 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 appointment to pay the same into the hands of the feme for her separate use (without the addition of any words to restrain her power of anticipation), if (a) Re Ross's Trust,l Bim. N. S. 196. (6) Parkes v. White, 11 Ves. 222. (c) Re DunnelVs Trusts, 6 T. E. Eq. 322. {d) Jones v. Salter, 2 R. & M. 208. (e) Woodmeston v. Walker, E, &M. 197 ; Brown v. Pocock, ib. 210 ; S C. 2 M. & K. 189; and see Masseij v. Parker, 2 M, & K. 174. (/) Davies v. Thornyeroft, 6 Sira. 420. (g) Brown v. Pocock, 5 Sim. 663 ; Johnson v. Freeth, 6 Sim. 423. (h) Tullett y . Armstrong , 1 Beav. 1. (i) S. C. 4 M. & C. 390 ; and see Sanger v. Sanger, 11 L. R. Bq. 470. {k] Brown v. Bamford, 11 Sim. 127. CH. XXVI. S. 6.] SEPARATE ESTATE. 641 the f&me covert assign the life 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 inconvenience, 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 (b). The substantial 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. 41. Where there is an absolute gift to a married woman of a Absolute gift fund producing income followed by a restraint against anticipation, restraint of' she cannot aUene during coverture (c). anticipation. 42. Where the clause against anticipation has once attached, even court cannot dis- a Court of equity cannot -discharge it, though alienation may be for charge the clause ^ J b > a J against anti- t\\e feme covert' s own advantage ((^). But an estate so settled "toay olpation. be subject to paramount equities, as for raising costs of suit which may enable the Court to direct a sale («) ; and in case of adultery by the wife may be dealt with by the Divorce Court under the provisions of 22 & 23 Vict. c. 61, s. 5 (/). But as a married woman whose anticipation is restrained, may still employ a solicitor to defend her right to the separate use, the solicitor so employed may acquire a lien on the separate estate for his costs thereby incurred {g). 43. The restraint against alienation may also be void for per- Kestraint of petuity, as if a fund be settled on A.'s marriage upon himself for anticipation void >: •/ ' . tor perpetuity, life, with a power to A. to appoint to his issue, A. cannot appoint to his daughters as the issue of the marriage for their sole and separate use without power of anticipation, as this would prevent alienation for more than a life in being, and 21 years which the law does not allow (h) 44. It has been held that a clause against anticipation, though Settlement of applicable to the fund when raised, does not prevent &feme covert ^<'<=°"°*5- from adjusting the amount of the fund with the trustees (i). (a) Moore v. Moore, 1 CoUyer, 84 ; (e) Fleming v. Armstrong, 34 Beav. Harrop v. Howard, 3 Hare, 624; 109. Barneit v. Macdougall, 8 Beav. 187. (/) Pratt v. Jenner, 1 L. R. Ch. App. (6) IPhill. 620. The case of Afc(^- 493. ley V. Horton, 14 Sim. 222, was decided {g) Re Keane, 12 L.R. Eq. 115; and before the decision of the Vice-Chan- see p. 638, note (e). cellor in Brown v. Bamford had been [h] See Armitage v. Coates, 35 Beav. overruled, and cannot be considered 1, and the cases there cited, and Re as law. Teagvs^s Settlement, 10 L. E. Eq. 664 ; (c) In re Ellis' Trust, 17 L. E. Eq. Re Cunynghame' s Settlement, 11 L. R. 409. Eq. 324. (d) Robinson v. Wheelwright, 21 (i) Wilton v. Hill, 25 h. J. Ch. 156 ; Beav. 214; 6 De G. M. & G. 535. unA m Stroud v. Gwyer,M.B.. 27 Apiil, T T 642 OF THE WIFE S [CH. XXVI. S. 6. Breach of trust. Interest due but not payable. Arrears of income. 33 & 34 V. u. 93. 45. Compensation for a breach of trust by a, feme covert in respect of settled property cannot be enforced even against a fund limited by the same settlement to her separate use without power of antici- pation (a). 46. Interest accrues due de die in diem ; but if the interest, though due, be not j?a?/aMe under the contract before a particular day, which has not arrived, the interest so accrued is not regarded in the light of arrears but of future income, and therefore the feme covert, if anticipation be restrained, has no power over it (&). 47. The clause against anticipation does not prevent the opera- tion of the rule that if the husband be allowed to receive the wife's income, she or her personal representative cannot recover more than one year's income, if so much (c) ; and the contracts or other engagements of the wife, which would affect her separate use generally, may be enforced against ari'ears already accrued, and which consequently have become emancipated from the clause against anticipation {d). 48. By the Married Women's property Act, 1870 (33 & 34 V. c. 93), it is enacted : S. 1. That the wages and earyiings of any married woman acquired or gained after the passing of the Act, 9th August, 1870, in any employment, occupation or trade in which she is engaged, or which she carries on separately from her husband, and also any money or property so acquired by her through the exercise of any literary, artistic or scientific skill, shall be deemed and taken to be property held and settled to her separate use. S. 2. That any deposit made or annuity granted by the commission- ers for the reduction of the national debt after the passing of the Act, in the name of a married woman, or a woman who may marry after such deposit or grant, shall be deemed to be her separate property. S. 3. That any married woman, or any woman about to be married, may cause any sum in the public stocks or funds, and not being less than 20^., to which she is entitled, or which she is about to acquire. 1865, it was ruled that Mrs. Heath, whose share was settled by the will for her separate use without power of anticipation, was bound by a settle- ment of accounts which had been exe- cuted by her. M.S. KnAsesDerhishire V. Home, 3 De G. M. & G. 113. (a) Clive V. Carew, 1 Johns. & Hera. 199; Pemberton v. M'Qill, 8 W. R. 290 ; Sheriff v. Butler. 12 Jur. N. S. 329 ; Arnold v. Woodhams, 16 L. R. Eq. 29. See however, the observa- tions of M. R. (but which were extra- judicial) in Davies v. Hodgson, 25 Beav. 186. As to breaches of trust by femes covert, see further, ante, p. 631. (J) Re BrettU, 2 De G. Jon. & Sm. 79 ; Jollands v. Burdett, ibid., and 10 Jur. N. S. 349. (c) Rowley v. Unwin, 2 K. & J. 138 ; see ante, p. 635. [d) Fitzgihhon v. Blake, 3 Ir. Ch. Re. 328 ; Moore v. Moore, 1 Coll. 54 CH. XXVI. S. 6.] SEPARATE ESTATE 643 to be transferred into the books of the Governor and Company of the Bank of England to or made to stand in her name or intended name, to her separate use, which shall thenceforth be deemed her separate property (a). S. 4. That any married woman, or woman about to be married, may cause any fully paid up shares, or any debenture or debenture stock, or any stock of an incorporated or joint stock company, to the holding of which no liability is attached, to be registered in the books of the company in her name or intended name to her separate use, which shall thenceforth be deemed her separate property (b). S. 5, That any married woman, or woman about to be married, may cause any share, benefit, debenture, right, or claim in, to, or upon the funds oi any industrial and provident society, or axij friendly society, benefit building society or loan society, to the holding of which share, benefit, or debenture no liability is attached, to be entered in her name to her separate use, which shall thereupon be deemed her separate property. S. 7. That where any woman married after the date of the Act shall during coverture become entitled to a,\iy personal property as next of kin(c), or any sum not exceeding 200/. under any deed or will, such property shall belong to her for her separate use. S. 8. That where any freehold or copyhold property shaU descend upon any woman married after the passing of the Act, the rents and profits thereof shall belong to her for her separate use. S. 10. That a married woman may effect & policy of insurance upon her own life, or the life of her husband for her separate use, and that a policy of insurance effected by any married man on his own life, and expressed upon the face of it to be for the benefit of his wife or his wife and children, shall be deemed a trust for the benefit of the wife for her separate use, and of the children. S. 12. That a husband shall not by reason of any marriage after the passing of the Act be liable for the debts of his wife contracted before marriage, and that the wife shall be liable to be sued for, and any property belonging to her for her separate use shall be liable to satisfy such debts as if she had continued unmarried (d). (a) See Be Bartholomew's Trust, not be maide a bankrupt. Ex parte W. N. 1870, p. 234. Holland, 9 L. R. Ch. App. 307. Now (J) See The Queen v. Carnatic Bail- by 37 & 38 Vict. c. 50, as to marriages way Co. 8 L. Rep. Q. B. 299. after the date of the Act (30 July, (c) The amount coming to her as 1874), the husband is liable for the next of kin appears to be without limit. debts of his wife contracted before [d) The separate property will be marriage to the extent of her fortune made available for payment of the received, or which ought to have been debts, but the feme covert herself can- received by him. T T 2 644 JUDGMENTS AGAINST CESTUI QUE TRUST. [OH. XXVI. S. 7. S. 14. That a married woman having separate property shall be subject to all such liability for the maintenance of her children as a widow is now by law subject to for the maintenance of her children, provided that the Act shall not relieve the husband from any liability at present imposed on him by law to maintain his children. For other less important provisions, see the Act itself. SECTION VII. OF JUDGMENTS AGAINST THE CESTUI QUE TRUST. Writs of execu- BEFORE entering upon this topic, it may be useful to notice tion at common briefly how legal interests stand affected by judgments. 1. 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 (a). The execution under the latter writ, however, embraced no interest in land of a higher description than a mere chattel interest, and affected not the posses- sion of the lands (b), 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 (c), and the emblements (d), that is, the corn and other crops at the time growing on the lands (e). If the sheriff, when he made his return, had not levied the fuH amount of the debt, a new levari facias might have issued, to be executed by the sheriff in like manner (/) (1). (a) Pinoh'3 Law, 471. {d) 4 Com. Ab. 118. (5) lb.; Sir E. Coke's case, Godb. (e) Harberts case, 3 Re. 11 b; 2 290. Inst. 304; 2 Bac. Ab. Execution (C) (c) Finch's Law, 472; Davt/ v. 4, note (6). Pepys, Plowd. 441. (/) P. 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 sheriffs, on the issuing of the capias utlagatum, took an inquisition of the lands of the debtor, and extended their value, and made his return to the Exchequer. A levari facias from the crown then followed, commanding the sheriff to levy the extended value de exitibus, 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 horses, 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 inquisi- tion, the agistment 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 ;" 8. C. ib. 305. The lands were bound 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 ; Ib. 307, per Lord Holt. CH. XXVI. S, 7.] JUDGMENTS AGAINST CESTUI QUE TEUST. 645 2. 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 the debt was recovered or knowledged, or damages awarded, the suitor should at his choice (whence the term elegit) have a writ of fieri facias (h) 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 he 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. We now come to the inquiry, what is the effect of judgments upon equitable interests ? 1. With respect to the fieri facias, it is clear that under the Fieri facias w system of uses no relief could have been granted ; for the creditor, ^^^^^ ^ trusts. coming in by operation of law, did not possess that privity of estate which could alone confer upon him the right to sue a subpoena. During the earlier .period of tricsts the same technical notions pre- vailed ; but Lord Nottingham introduced more liberal principles, and established, what is now law, that a creditor who is prevented from executing the legal process by the interposition of a trust, may come into Chancery, and prosecute an eqxdtable fieri facias (c). 2. But, as the analogy to law must be strictly pursued, the trust Trusts not bound . , 1 11 1 1 ii 1 1 • -i -1 1 by it before exe- of a chattel could never have been attaclied m equity until the cution sued out. writ of execution was actually sued out ; for till that time there was no lien upon the debtor's effects, which was the very ground of the application {d). 3. And as equity only follows, and does not enlarge the law, the Nor where the judgment creditor has no title to relief where the chattel of which j?^^| ^^*^'* ^^ "^"^ 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 («), that a trust of stock might, before the late Act, have been taken by a judgment creditor in equitable execution ; and (a) 13 Ed. 1. St. 1, c. 18. v. Bowser, 3 Sm. & GifF. 1 ; Smith v. Qj) This includes the writ of levari Hurst, 1 Coll. 705 ; Partridge v. Foster, facias; 2 Inst. 395. 34 Beav. 1 ; Horsley v. Cox, W. N. (c) Pit V. Hunt, 2 Ch. Ca. 73; Anon. 1869, p. 22. case, cited 1 P. W. 446 ; and see Scott {d) Angell v. Draper, 1 Vern. 399 ; V. Scholey, 8 East, 485; Estwich v. Shirley y. Watts, i Axk. 200; Smithy. Caillaud, 5T. R. 420 ; Kirkhy v. Dillon, Hurst, 1 Coll. 705 ; Partridge v. Foster, C. P. Cooper's J the case of a remainder expectant on a particular estate, there, although the sheriff may have made a return of actual delivery, yet, as such return is false in law and therefore null, a petition for sale under the Act founded upon such return cannot be sustained (e). Whether an eZ(!/7!( 31. The mode of proceeding in equity appears to be this — if the sued out " ^ creditor seek to remove some impediment to the legal execution of the judgment, he must lay a foundation for the interference of equity by suing out an elegit at law (/) ; and the same rule prevails where the judgment is merely an equitable lien (cj) ; but the elegit need not be returned (li) ; and where the trust estates were in three counties an elegit in one only was held to be sufficient (t). (a) Wells V. Kilpin, W. N. 1874, p. borough, 3 M. & C. 407 ; Mitford on 120. Plead. 126, 4th edit. (J) Beckett v. Buchley, 17 L. R. Eq. {g) Neate v. Duhe of Marlborough, 435. 9 Sim. 60 ; 3 M. & C. 407 ; Godfrey (c) In re Duke of Newcastle, Sh. H. v. Tucker, 33 Beav. 280; Imperial Eq. 700 ; and see Be Cowbridge Rail- Mercantile Credit Association v. Newry vjay Company, 5 L. R. 413; Re South, and Armagh Railway Company, 2 Ir. 9 L. R. Ch. Ap, 369. Rep. Eq. 23 per cur. ; but see Tunstall {d) Hattm v. Heywood, 9 Ij.B.. Ch. v. Trappes, 3 Sim. 286; Rolleston\. App. 229. Morton, 1 Conn. & Laws. 257. (e) Re South, 9 L. R. Ch. App. 369. (70 Dillon v. Plaslcett, 2 Bligh, N. S. (/) See Dillon v. Flasket, 2 Bh'gh, 239 ; and see Campbell v. Ferrall, Rep. N R. 239 ; Neate v. Duke of Marl- t. Plunket, 388. (i) Dillon V. Plaslcett, 2 Bl. N. S. 239. CH. XXVI. S. 7.] JUDGMENTS AGAINST CESTUI QUE TRUST. 663 When the interest sought to be affected is an equitable Fi.fa. sufficient chattel real, it is sufficient to sue out a writ of fim facias (a). abirchattel'reaL And when the assistance of the Court is sought in favour of a County Court judgment against an equitable chattel real, it is sufficient to pursue the analogous step of placing a writ of exe- cution in the hands of the high bailiff, pursuant to the County Court Act (5). A judgment creditor may redeem a mortgage without suing out Redemption of a 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 gives to the party the right to come in and redeem other incumbrancers upon the property (c). Whether the judgment be legal or equitable, if the creditor file Bill of judgraeiit his bill after the dearth of the conusor for satisfaction of his claim ^eath of conusor. out of the personal assets, and in case of their deficiency, by a sale of the real estate, an actual elegit is not an essential requisite (cf). 32. The law as to priority of judgments in the case of lands Case of lands lying in a register county is as to judgments entered up on or j^™fr"ountv before 29th July, 1864 (the date of the last Act), by the combined effect of the County Eegister 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 stiU in judgment post- force, and consequently that, in order to give a locus standi to a ^^g^t purch^^e' judgment creditor over a subsequent purchaser or mortgagee without ormortgage-n'itii- notice, his judgment must be registered both in the County Eegister registered'bothin and in the Common Pleas, before the completion of the purchase County Register and at the Uom- or mortgage (e). mon Pleas. 33. But the doctrine of notice does not apply as between two judg- Rights of two ment creditors; and therefore a judgment creditor who, by first tors^imto' TJ.*^ registering in Middlesex, has gained priority at law over a judgment of previous date duly registered in the Common Pleas, but not in Middlesex, wiLL not be postponed in equity because he had at the time of so registering notice of the prior judgment (/). And, there- (a) Gore v. Bowser, 3 Sm. & G-iff. (d) Barnwell v. Barnwell, 3 Eidg. 1 ; Smith v. Hurst, 10 Hare, SO-, Smith P. C. 24. See the observations of Lord V. Hurst, 1 Coll. 705 ; Partridge v. Fitzgibbon, p. 61 ; Neate v. Duke of Foster, 34 Beav. 1. Marlborough, 3 M. & C. 416. (6) Bennett v. Powell, 3 Drewry, 326. (e) Westbrook v. Blythe, 3 Ell. & Bl. (c) Neaie v. Duke of Marlborough, 737. 3 M. & C. H6,per Lord Cottenham ; (/) Benham v. Keane, 1 Johns. & H. and see Godfrey v. Tucker, 33 Beav. 685 ; and on appeal, 3 De Gex, F. & J. 284. 318. 664 EXTENTS FROM THE CEOWN. [CH. XXVI. S. 8. Case where sub- sequent pur- chaser or mort- 1 has notice. 27 & 28 Vict. c. 144. fore, generally, as between two judgment creditors, the one who first registers in the County Eegister obtains precedence over one who registers afterwards in the County Eegister, though he may not have registered first at the Common Pleas (a). • 34. Where the subsequent purchaser or mortgagee has notice of a prior judgment, the question is, whether the judgment was regis- tered at the Common Pleas before the completion of the purchase or mortgage, since, as we have before seen, unless so registered it cannot bind, notwitlistanding the notice. But if duly registered in the Com- mon Pleas, then notice to the purchaser or mortgagee WLll,m equity, though not at law, supply the want of registration in the county (V). 35. As to judgments entered up since 27 & 28 Vict. c. 114 (29th July, 1864), there must now be not only registration at the Com- mon Pleas in addition to the County Registry, but also actual delivery of the land in execution under the writ (c). SECTION" VIII. Extent binds trust. Sale of the lands extended. OP EXTENTS FROM THE CROWN. 1. The equitable interest of a term, or a freehold held in trust, is liable to an extent from the Crown {d) ; and this not by the effect of any legislative enactment, but per cursum scaccarii at common law («). 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, vi^hen by subpoena in Chancery he may exercise any dominion over them (/). 2. At common law the extent of the Crown did not authorise a sale of the lands, but only the perception of the rents and profits, until the amount of the debt was levied (g). This defect was supplied partially by a statute of Elizabeth (h), and more effectually by 25 G. 3, c. 35. It is by the latter statute enacted, that " it shall be lawful for the Court of Exchequer, and the same Court is thereby authorised, on the application of the Attorney-General (i) (a) Hughes v. Lumley, 4 Ell. & BI. 274 ; Neve v. Flood, 33 Beav. 666. (6) Benham v. Keane, 1 Johns. & H. 685; Tunstall v. Trappes, 3 Sim. 302; Davis v. Earl of Strathmore, 16 Ves. 427. (c) See Re Bailey's Trust, W. N. 1869, p. 43. (d) King v. Larnbe, M'Clel. 422, per Sir W. Alexander ; Chirton's case, Dyer, 160, a; 8. C. cited Sir E. Coke's case, Godb. 293 ; the cases cited Id. 294 ; Id. 298 ; Babington's case cited Id. 299 ; King\. Smith, Sugd. Vend. & Purch. Append. No. xv. 11th edit., per Ch. Baron Macdonald. (e) Attorney-Generalv.Sands,Tilaxd. 495, per Lord Hale. (/) See Sir E. Coke's case, Godb.294. ig) Rex V. Blunt, 2 Y. & J. 122, per Baron HuUock. {h) 13 Eliz. c. 4. (i) See Rex v. Bulheley, 1 Y. & J. 256. CH. XXVI. S. 9.] FORFEITURE OF A TRUST. 665 in a summary way by motion (a) to the same Court, to order that the right, title, estate, and interest of any debtor to the Crown, and the right, title, estate, and interest of the heirs and assigns of such debtor, wlrich have been or shall be extended under or by virtue of any extent or diem clausit extremum, shall be sold as the Court shall direct, and the conveyance shall be made by the Remem- brancer in the said Court of Exchequer or his deputy, under the direction of the said Court, by a deed of bargain and sale to be inrolled in the said Court." 3. Bv the effect of this enactment, a trust or equity of redemp- Equity of re- ■' > -i. J L demption. tion (6) of a Cro'wn debtor may now be sold upon summary appli- cation to the Court of Exchequer by motion. SECTION IX. OF FOBFEITUEE. 1. A TRUST of lands was never forfeitable at common law for Trust not forfeit- attainder either of treason or felony (c) ; for forfeiture worked only f^}^^^^ attainder upon tenure, and a trust is holden of nobody. The ground of the for- feiture at law was that all estates were held upon condition of duty and fidelity to the lord, and upon breach of allegiance they returned to the Crown, from whom they originally proceeded {d). 2. The exemption of the use from forfeiture was remedied in the 26 H. 8. c. 13. case of treason, by 26 H. 8, c. 13, s. 5, whereby it was enacted, that, " every offender convicted of high treason by presentment, confession or process of outlaivry, should forfeit to the King all such lands, &c., which such offender should have of any estate of inheritance in use ot possession." 3. The following year was passed the 27 H. 8, by which uses 27 H. 8. were abolished, and, as the trust which grew 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 by special enactment to remedy the defect. 4. The 33 H. 8, c. 20, s. 2, declared, that " if any person or per- 33 h. 8. c. 20. sons should be attainted of high treason by the course of the common laws or statutes of the realm, every such attainder by the common law (e) should be of as good strength, value, force, and effect, as if it had been done by authority of Parliament ; and that the King's Majesty, his heirs and successors, should have as much (a) See Bex v. Blunt, 2 Y. & J. 120. (a!) Gilb. on Uses, 38. (6) King v. DelaMotte, Forr. 162. (e) This includes the general statutes (c) Attornsy- General v.iSamefo, Hard. of the realm, as opposed to a special 495, per Lord Hale ; 1 Hale's P. C. Act attainting a particular individual. 247 ; Jenk. 190. 666 FOEFEITUKE OF A TEXJST. [oh. XXVI. S. 9. King w. Dac- combe. Construction of 33 H. 8. benefit and advantage by such attainder, as well of uses, rights, entries, conditions, as possessions, reversions, 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, tenements, hereditaments, uses, goods, chattels, and all other things of the offenders so attainted, which his highness ought lawfully to have, and which they, being so attainted, ought or might lawfully lose and forfeit, if the attainder had been done by authority of Parliament, without any office or inquisition to he found of the same." 5. Notwithstanding this statute, it was laid down extrajudicially in the reign of James I., and was said to have been so resolved previously (a), that the -trust of a freehold was not forfeited upon attainder of treason; and it has been remarked by the highest legal authority, that this doctrine " may be thought to be founded on reason, because it is not pretended 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 for- feiture of any equitable estate which has sprung up since the former Act. The statute had other objects " (6). 6. To understand the scope of the enactment it must be ob- served, — 1. That previously to 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 offiice found. 2. That 26 H. 8. had extended the forfeiture to lands in use or possession, but not to rights, entries, or conditions; and now that 27 PI. 8. had passed, the 26 H. 8. was not even applicable to uses, or, as they were henceforth to be called, trusts. 3. That 26 H. 8. had embraced attainders hj presentment, confession, verdict, or process of outlawry, but had omitted other cases, as where the offender stood mute. The intention of the legislature, then, in passing 33 H. 8. was, as resolved in Dowties case (c), — 1. To vest the actual possession in the Kiag by the attainder without off,ce ; 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 26 H. 8. had accidentally omitted. Assuming the Act to have had a remedial scope, can it be sup- (o) King v. Daccombe, Cro. Jae. 512. (6) Gilb. on Uses, by Lord St. Leo- nards, 78, note 9 ; and see Burgess v. Wheate, 1 Ed. 221. (c) 3 Re. 9, b. CH. XXVI. S. 9.] FOEFEITOEE OF A TRUST. 667 posed, that, when " rights, entries, and conditions," were, for tlie 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 27 H. 8., had escaped the forfeiture imposed upon them by 26 H. 8. ? The insertion of the ■word " uses " can be no argument that " trusts " were not intended, for at that day both words were employed indifferently, as terms perfectly synonymous. In support of this reasoning may be cited the opinions expressed by Baron Turner and Lord Hale, in the weU-considered case of Attorney-General v. Sands (a). And Lord Hale afterwards recurs to the subject in his Pleas of the Crown (6), 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 substance 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 So7nerset's case, and so resolved in Ahington's case, that a trust of a freehold was not forfeited by attainder of treason. But how this resolution in Abington's case can stand with the statute of 33 H. 8., I see not; for certainly the uses there men- tioned could be no other than trusts ; and therefore the eqidty or trust itself, in cases of attainder of treason, seems forfeited by the statute, though possibly the land itself be not in the King " (c). 7. Equities of redemption appear to have been made forfeitable Whether equities for attainder of treason by 33 H. 8. {d) ; for the statute enumerates subfect™o for- conditions, and the interest of the mortgagor is a condition, which, feiture. though broken at law, is saved whole to him in a Court of Equity. 8. Trusts of chattels, whether real or personal, were always for- Trusts of chattels f citable to the Crown upon conviction («) ; and if a term was in conviction. "^°" (a) Hard. 495 ; S. C. Nels. 131 ; executed in the King by a Court of S. C Freem. 130. equity, which seems the better opinion. (6) 1 P. C. 218. (d) Anon, case, cited Reeve v. Attor- (c) In Attorney- General v. Sands, it ney-General, 2 Atk. 223. was laid down, according to Nelson's (e) 'Wikes''s case, Lane, 54, agreed ; report (p. 131), that the estate was King v. Daccomhe, Cro. .Tao. 512 ; executed in the King by force of the Jenk. 190, case 92 ; Attorney- General statute ; but, according to Freeman v. Sands, Hard. 405 ; Pawlett v. Attor- (p. 130), that the estate was to be «C2/-(?c)je?-aZ, Hard. 467, per Lord Hale; Sir J. Dack''s case, cited Holland's ease, 668 FORFEITDEE OF A TRUST. [CH. XXVI. S. 9. trust for the wife of the felon, but not for her separate use, it seems the trust was affected by the forfeiture of the husband (a). But the wife would still be entitled to a provision under her equity to a settlement (V). CrowTi entitled 9^ j^ these cases the forfeiture did not reach the legal estate to suopcena. " vested in the trustee, but entitled the Crown to sue a siibpcena m equity (c). No forfeiture of 10. If a felon at the time of his conviction was only contingently a felon*M eiiiitied entitled, and before the interest vested he had undergone his punish- only oontin- ment, no forfeiture accrued (cf). But otherwise, if the interest vested before the term of imprisonment expired (e). And it was held that where a felon was entitled to a share of proceeds from the sale of real estate, but the sale was not to be made tiU after the death of A., and the felon had undergone his punishment in the lifetime of A., in this case, as the Crown had no equity during the life of A. to compel a conversion, the Crown was not entitled ; otherwise where the time of sale had arrived and the sale had been actually made tefore the felon had suffered his punish- ment (/). Money liable to be laid out in the purchase of land was regarded as land and so protected from being forfeited as personal estate (g). 33 & 34 V.c. 23. 11. IsTow by 33 & 34 V. c. 23, it is enacted that " from and after the passing of the Act (4 July, 1870), no confession, verdict inquest, conviction, or judgment of or for any treason, or felony, or felo de SB shall cause any attainder or corruption of blood, or any forfeiture or escheat ; provided that nothing in the Act shall affect the law of forfeiture consequent upon outlawry " (Ji). Of forfeiture by 12. At law a tenant for life might, untU a recent statute (i), by far'life. ^ ^"^'^ Certain tortious acts, as by a feoffment of the fee-simple, have for- feited his estate to the remainderman (k) ; but had an equitable tenant for life affected to dispose of the equitable fee, no forfeiture would have accrued, for nothing passed beyond the grantor's actual Aleyn, 16 ; Re Thompsoii's Trusts, 22 and see Gough v. Davies, 2 Kay & J. Beav. 506. 623 ; Re Bateman's Trust, 15 L. R. (a) Wikes^s case, Lane, 54, per Eq. 355. Barons Snig and Altham. (e) Robert v. Walker, 1 Rus. & My. (J) See ante, p. 616. 752. (c) Holland's case, Al. 14 ; Sir J. (/) Re Thompson's Trust, 22 Beav. Dack's case, as cited by RoUe, J. Id. 506. 16; Attorney - General y. Sands, Hard. (g) Rarrop's Estate, 3 Brew. 726. 495, per Lord Hale ; and see Kildare (h) See supra, p. 27. V. Eustace, 2 Ch. Ca. 188 ; S. C. \ (i) 8 & 9 Vict. c. 106, s. 4. Vera. 405, 419, 423, 428, 437. {h) See Co. Lit. 251 a. (d) Stokes V. Holden, 1 Keen, 14; CH. XXVI. S. 10.] ESCHEAT. 669 interest (a). By the recent Act referred to all conveyances are now innocent, that is, they pass nothing but what the grantor can law- fully part with. SECTION X. OF ESCHEAT. 1. A TRUST in fee of lands is not subject to escheat (&). This Trust not subject was determined in the great case of Burgess v. Wheats (c), before _ . Lord Northington, assisted by Lord Mansfield and Sir T. Clarke. Wheate. The arguments of these eminent judges will amply repay a very careful perusal It may be mentioned generally, that Sir T. Clarke and Lord Mansfield, while they pursued different lines of reason- ing, 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 sui 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 adminis- tered on the footing of uses ; but not, as Sir Thomas Clarke main- tained, 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 qualification, as ietiveen the privies to the trust only, and not as respected strangers : his objection to the claim of the lord was, that it was for the execution of a trust that did not exist : where there was a trust, [a) LethieulUer v. Tracey, 3 Atk. 488; and seel Harg.Jurid. Exero. 383. 728, 730; Lady Whetstone v. Bury, (c) 1 Eden, 176; S. C. IW. Black. 2 F. W. 146. 123. (b) Attorney- General v. Sands, Hard. 670 ESCHEAT. [CH. XXVI. S. 11. it should be considered in that 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 could enjoy ; b.ut he knew no instance where that Court ever permitted the creation of a trust to affect the right of a third person {a). Trustee retains 2. The result of the determination in Burgess v. Wheate, as ("rip P^Vfl.i'P followed in more recent cases, is, that where the owner of the equitable fee dies intestate without heirs the trustee retains the estate (6). Principle applied 3. The same principle was applied by the present Master of the demption.° ^'^' EoUs to an equity of redemption ; and his Honour decided, that, where there was a mortgage in fee and then the mortgagor died intestate, the equity of redemption did not escheat to the Crown, but belonged to the mortgagee, subject to the mortgagor's debts (c). SECTION XI. THE DBBCEKT OF THE TEUST. Trust descends as 1- ^ TKUST is governed by the same rules of descent as the the legal estate, 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. Seisin cip parte 2. 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 Hne, and, failing the heirs on the part of the mother, wUl rather absolutely deter- mine, than pass into the paternal line (d). But if one seised ex parte maternd devise to A. and his heirs 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 (e). matcrna. (a) 1 Eden, 251. settlor; Barrow v. Wathin, 24 Beav. (b) Tayhr v.HaygarthflA Sim. 16; 1; and seep. 40, supra. Davall V. New River Company, 3 (c) Beale-f. Sym(mds,\Q'Qes,\. 40Q. De G. & Sm. 394 ; Cox v. Parker, 22 {d) Burgess v. Wheate, 1 Ed. 177, Beav. 168. As to estates pur autre see 186, 216, 256; Langleyy. Sneyd, vie, see p. 574, supra. And where a 1 Sim. & Stu. 45; Nanson v. Barnes, trust of real estate was created in favour 7 L. R. Eq . 250. of an alien, the Crown was entitled to (e) Davis v. Kirh, 2 Kay & John, the benefit of the trust as against both 391. the trustee and the heir at law of the CH. XXVI. S. 11.] DESCENT OF A TKUST. 671 3. If the land be subject to gavelkind, borough English, or other Gavelkind, custom, the equitable interest wiU follow the same course of in- heritance (a). 4. And a trust of copyholds as well as of freeholds is governed Copyholds, by the descent of the legal estate (6). 5. The analogy to law is so strictly preserved, that, until Possessio fratris. recently, if the last cestui que trust had no seisin of the equitable estate corresponding to possessio fratris at law, the trust would have descended to the brother of the half blood, not to the sister of the whole blood (c). By the late Act, the half blood is now in all cases, but subject to the preferable claim of the whole blood, capable of inheriting estates, whether legal or equitable {d). 6. If a settlement contain a power of sale, with a trust to re- Proceeds from . '- sale of gavelkind invest the proceeds m a purchase to the same uses, and the lands lands. are sold, but the proceeds are 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 («). 7. And if gavelkind or borough English lands (/) be limited to Limitation to a person's heirs as purchasers the common law heirs and not the ch^e^ ^"'^' customary heirs 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 {g) ; 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 (a) i^aiuceiv.iowiAer,2Ves. Sen.304, ninqham v. Moody, 1 Ves. 174; Co. ^er Lord Hardwicke ; Banhs y. Sutton, Lit. 14 b; and see the cases cited 2 P. W. 713, per Sir J. Jekyll ; Cow- Casborne v. Scarfe, 1 Atk. 604. per V. Cowper, 2 P. W. 720 ; Jones {d) 3 & 4 W. 4. c. 106, s. 9. V. Reasbie, 22 Vin. Ab. 185, pi. 7 ; (e) Houghham v. Sandys, 2 Sim. 95, Buchanan v. Harrison, 1 Johns. & see 153. Hera. 662. (/) PolleyY.Polley, (No. 2),31Beav. (6) Trash v. Wood, 4 M. & Cr. 363. 324. [g] Now by 3 & 4 W. 4. c. 106, s. 3, (c) Banks v. Sutton, 2 P. W. 713, a limitation in a deed to the settlor or per Sir J. Jekyll ; Covjper v. Earl his heirs, or in a will to the testaior^s Cowper, lb. 736, J)er eundem; Cun- heirs, confers a.n estate by purclutse. 672 A TRUST AS ASSETS. [CH. XXVI. s. 12. second son, and the heirs oi his body, &c. " Not," added Lord Hard- wicke, " according to the custom of gavelkind, because it must go according to the rule of common law, being not a trust executed, but executory " (a). SECTION XII. OF ASSETS. The general law relating to assets, as it stood previously to the Statute of Frauds may be thus stated. Legal assets. I jj^g executor or administrator of the deceased was bound to apply his personal estate in payment of his debts ; and this in the order of their legal priorities as first of judgments, then of spe- cialties, and then of simple contract debts ; or, as it is expressed the personal estate was legal assets. Assets iy descent. 2. Again, where the deceased had executed an instrument bind- ing himself and his heirs, the heir to the extent of the real estate (except copyholds) which came to him, was bound to satisfy this obligation of his ancestor, or, in other words, the lands so inherited were assets by descent. Equitable assets. 3. The 32 Henry 8, c. 15, which first gave the power of devising lands, inadvertently opened a door to fraud, since it was held that if the owner of land devised it away, a creditor claiming by bond or other instrument binding the heir could not sue the devisee, and if he sued the heir, the latter might plead he had no land by descent. Where, however, the owner had by his wiU charged his lands with or devised them subject to the payment of debts, a Court of equity viewed the creditors as cestuis que trust, and made the land available in satisfaction of the debts ; but in doing this it paid all the creditors pari passu without reference to their legal priorities, that is, the lands so charged or devised were equitable assets. 4. With these prefatory remarks we proceed to the consideration of equitable interests as assets before the Statute of Frauds. 5. The trust of a chattel was always accounted assets in equity {a) ; by which is meant, not equitable assets, but assets for the due ap- plication of which in payment of debts the personal representative was responsible in equity, if not at law. 6. But whether the trust of a freehold should be assets in the Equitable in- terests. Trusts of chattels are assets. Trust of a free^ hold. (ffl) Roberts v. Dixwdl, 1 Atk. 607 ; and see Thorpe v. Owen, 2 Sm. & Gitf. 90 ; Sladen v. Sladen, 2 Johns. & Hem. 369. CH. XXVI. S. 12.] A TEUST AS ASSETS. 673 hands of the heir for payment of debts by specialty was for a long time vexata qucestio. On the one hand it was argued, 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 trusts 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. It was determined by Lord Hale, Chief Justice Hyde, and Bennet v. Box. Justice Windham, in the case of Bennet v. Box, that a trust in fee should not be assets (a) ; and Lord Keeper Bridgman afterwards felt himself bound by the authority of this decision in respect of a trust (h), though he doubted somewhat as to an equity of redemp- tion (c) ; and so the law as to a trust was laid down by Lord Hale in Attorney General v. Sands (d). The question was renewed before Lord Nottingham in Gr-ey v. Grey v. Colvile. Golvile (e), when trust estates were declared to be assets in equity. The case was afterwards reheard before Lord Guildford, and is reported by Vernon under the title of Creed v. Colvile (/), 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 pie- cedents 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 {g). In Michaelmas term the next year, upon the motion of the de- fendants, it was ordered, that, unless plaintiffs, the creditors, pro- cured the certificate of the Lord Chief Justices' and Lord Chief Baron's opinion by the first day of the next term, the hill should he dismissed without further motion (h). No further proceedings appear in the case ; and, therefore, it miist be concluded that the bill was dismissed. There can be no doubt, however, that Lord Nottingham's decision was correct, and in Gaffe v. Whalley (i) the question was renewed, but the result does not appear, unless the overruling of the heir at law's demurrer to the creditor's bill was on the ground that the Court held the trust to be assets. (a) 1 Ch. Ca. 13. (e) 2 Ch. Re. 143. (6) Pratt V. Colt, 1 Ch. Ca. 128; (/) 1 Vern. 172. S. C. Preem. 139. (g) R. L. 1683, A. fol. 166. (c) Trevor v. Perryor, 1 Ch. Ca. 148. (/*) R. L. 1684, A. fol. 210. {d) Hard. 490 ; S. C. Freera. 131 ; (i) 1 Vern. 282, Raithby's edit. S. C. Nels. 134. 674 A TEUST AS ASSETS. [CH. XXVI. S. 12. 3 & 4 W. 4. u. 104. Statute of Frauds. 7. Thus stood the law before the Statute of Frauds (a). By the 10th section of that Act a trust in fee-simple was declared to be assets by descent. But the enactment was taken to embrace simple, trusts only, and not complicated trusts (b), or equities of redemption (c), so that the question still remained whether such interests as were not within the statute might not still, upon the general principles of equity, be treated as assets by analogy to law. This was expressly so decided as to equities of redemption in Pluchiet V. Kirh (d) and other cases («) ; and upon priuciple, the rule governing equities of redemption ought equally to be applied to every other equitable interest. 8. The question is now of little importance, as it was enacted by 3 & 4 W. 4. c. 104, that all a person's "estate or interest" (which must include any trust) in lands, tenements or hereditaments, cor- poreal or incorporeal, or other real estate, whether freehold, cus- tomaryhold, or copyhold, should be assets for the payment of debts as well on simple contract as on specialty. 9. There remains to be considered the question, whether a trust shall, as to persons who died before 1st January, 1870, be adminis- tered as legal or equitable assets. And first as to trusts of choitel interests or other equitable interests in personal estate. 10. It has in some cases been considered that the mere circum- tances that property was equitable at the testator's death, was suffi- cient to make it equitable assets (/), but this is clearly erroneous, the question being, not whether the assets can be recovered by the executor at law or in equity, but whether the creditor can obtain payment thereout only from a Court of equity {g). Now if an executor recover money in that character under a trust or other equitable right, the proceeds, when actually come to his hands, will be legal assets, even in a Court of law Qi) ; and it would be an inconsistency to say, that, if the property has been reduced into possession, a Court of equity shall administer it as legal assets, but Whether a tru.i-ow 5 1 7 X X 2 676 A TRUST AS ASSETS. [CH. XXVI. S. 12. "Whether trust in 12. Similarly, in the case of a devise of a trust in fee, the analogy fpp /7pQ)^ ^pn 1 K legal or equitable presented by the case of the devise of a legal fee, ought, it is con- ^^^^*'5- ceived, to be pursued. By 3 & 4 W. & M. c. 14, the power of the owner of the land to devise it away in fraud of his creditors (a) was first restrained, and a remedy was given against the heir and devisee jointly, in respect of the property so devised. The statute, however, expressly excepted from its operation, as do also the subsequent Acts enlarging the creditor's remedies (&), devises clothed with a trust or charge for payment of debts. It is con- ceived, that the true test whether an equitable estate in fee devised shall be legal or equitable assets, is, whether the estate if legal and devised in similar terms would have constituted legal or equitable assets (c). 3 & i W. 4. 0. 104. 13. By 3 & 4 W. 4. c. 104, it was enacted that when any person should die seised of or entitled to any estate or interest in lands tene- ments, or hereditaments, corporeal or incorporeal, or other real estate, whether freehold, customaryhold, or copyhold, which he should not hy his last will have charged with, or devised subject to the 'fiayment of his debts, the same should be assets, to be administered in Courts of equity for the payment of the just debts of such per- sons, 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, should 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 that Act all creditors by specialty in which the heirs were bound should bepaid the full amount of the debts due to them before any of the creditors, by simple contract, or by specialty in which the heirs were not bound, should be paid any of their demands. Construction of Upon the construction of this statute the following observations occur : — a. The Act creates a general charge on the estate for the benefit of creditors (d), subject only to the right of alienation in the heir or devisee (e). (a) See p. 183, supra. 4 Ves. 538; and the observations on (b) 47 G. 3 0. 74 Sess. 3 ; 11 G. 4. & those cases in 3rd edit. p. 690. 1 W. 4. c. 47 ; 3 & 4 W. 4. o. 104. (d) KinderUy v. Jervis, 22 Beav. 1 . (c) See Plunket v. Penson, 2 Atk. (e) See cases, p. 218, note (h). 51, 290; Sharpen. Earl of Scarborough, the Act. CH. XXVI. s. 12.] A TRUST AS ASSKTS. 677 (i. The words " assets to be administered in equity " mean only that the creditor's remedy shall be in Chancery, and not that the estate shall be administered as equitable assets, and therefore the estate is to be distributed as legal assets (a). y. The express terms of the Act giving priority to creditors by specialty in which the heirs are bound, over creditors by specialty in which the heirs are not bound, have, as a matter of course, had full effect given to them (b). 8. The Act makes no mention of debts by judgment or by decree of a Court of equity, so that the remedies for the recovery of these out of the real estate may perhaps be viewed as still depending upon the general law (c). 14. As regards the administration of es&tes of persons who may have died on or after January, 1870, the legislature has now abolished the distinction between specialty and simple contract 32&33V.C. 46. debts, and has directed all specialty and simple contract debts to be paid pari passu (d). (a) Foster v. Handley, 1 Sim. N. S. 200 ; moi'e fully reported, 15 Jur. 73 ; Re Burrell, 9 L. R. Eq. 443. (b) Richardson v. Jenldns, 1 Drew. 477. (c) Judgments against the testator or intestate and decrees in equity against the testator or intestate are paid out of the personal estate pari passu. Decrees (if for payment of money or costs) were by 1 &2 Vict. c. 110, s. 18 (though they were not formerly, Bligh, V. Darnley, 2 P. W. 619, Mil- dred V. Robinson, 19 Ves. 585), liens upon the real estate ; and they always ranked as of equal degree with judg- ments in the administration oi personal estate, and therefore above specialty or simple contract debts. Searle v. Lane, 2 Vern. 37, Foly's case, 2 Eq. Ca. Ah. 459 ; Stasby v. Powell, 1 Freem. 333 ; Peploe V. Swinburn, Bunb. 48. Judg- ments and decrees against the pet-sonal representative are paid out of legal assets in the order of their dates ; DoUond V. Johnson, 2 Sm. & Gif 301, and cases cited, ib. When dockets were in use, a judgment against a per- son had no priority in the administra- tion of his assets over other debts unless it was docketed ; Hickey v. Hayter, 6 T. R. 384 ; Landon v. Fer- guson, 3 Russ. 849. But when the docket was closed the judgment had priority ^er se and the executor or ad- ministrator was bound by that priority though he had no notice, and no means of obtaining notice of the judgment ; Fuller V. Redman, 26 Beav. 600. To remedy this inconvenience it was en- acted by Lord St. Leonard's Law of Property Amendment Act, 23 & 24 Vict. c. 38, ss. 3, 4, that judgments should have no priority in the adminis- tration of assets unless they were re- gistered. But the Act does not apply where the judgment is recovered against the executor or administrator, as in that case the personal represen- tative has full notice necessarily, and no remedy is required ; Jennings v. Rigby, 33 Beav. 198 ; Gaunt v. Taylor, 3 Man. & Gr. 886, and 3 Scott (N. S.) 700 ; In re Williams'' Estate, 15 L. R. Eq. 270. And the Act is retrospec- tive, so that an unregistered judgment, though entered up against a debtor living at the date of the Act has no preference ; Kemp v. Waddingham, 1 Law. R. Q. B. 355. But otherwise, where the debtor was dead at the date of the Act, so that the creditor had acquired a vested right ; Evans v. Williams, 2 Drew. & Sm. 324. [d] 32 & 33 V. c. 46. 678 CHAPTER XXVII. RELIEF OF THE CESTOI QUE TRUST AGAINST THE FAILURE OF THE TRUSTEE. Truat follows the estate. Trustee dying in testator's life- time, or other- wise failing. We have now pointed out in what the estate of the cestui que trust primarily consists. We have also examined what are the in- cidents and properties of it by analogy to estates at law or by statute. It follows next that we speak of certain collateral or subsidiary rights by which the cestui que trust is supported in the enjoyment of his equitable interest against the various accidents to which an estate, not direct, but transmitted through the instrumentality 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.'' 1. It is a general rule that, whenever the intention of the settlor 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 assurance. Thus, if a devisor or settlor appoint a trustee, who either dies in the testator's lifetime (a), or disclaims (h), or is incapable of 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 devolved. " I take it," said Lord Chief Justice Wilmot, " to be a first and fundamental principle in equity, that the trust follows the legal estate wheresoever it goes, except it comes into the hands of a purchaser for valuaile consideratio)i without notice. A Court of equity considers devises of trusts as (a) Moggridge v. Thackwell, 3 B. C. C. 528; S. C. 1 Ves. jun. i75, per Lord Thurlow ; Attorney- General v. Downing, Amb. 552, admitted ; Tem- pest V. Lord Camoys, 35 Beav. 201. (6) Backhouse v. Baclchouse, V. C. of Ene. 20 Dec. 1844. (c) Sonley v. Clochmaker^s Company, 1 B. C. C. 81 ; Anm. case, 2 Vent. 349; White v. Baylw, 10 Ir. Eq. Re. 53, 54. {d) Attorney- General v. Stephens, 3 M. & K. 347. CH. XXVII.] FAILURE OF THE TRUSTEE. 679 distinct substantive devises, standing on their own basis, inde- pendent of tlae legal estate : and the legal estate is nothing but the shadovir, which always follows the trust estate in the eye of a Court of equity" (a). 2. If a testator direct a sale of his lands for certain purposes. Direction to sell, but omit to name a person to sell, the trust attaches upon the con- ^y-y ^ImeA^^ science of the heir, and he is strictly bound in equity to give effect to the intention (&). 3. So, 'if the lands be devised (c), or a sum of money be be- Direction for queathed (d) to a feme covert for her sole and separate use, but no trustee ap- without the interposition of a trustee, the property vests at 1(^10 in pomted. the husband, but in equity he holds upon trust for the separate use of the wife. 4. We have seen, in a former chapter, that powers are dis- Failure of trustee tributable into arbitrary and imperative, and that powers impera- rative. tive 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 power be one which it is the duty of the party to execute — made his duty by the requisition of the will — put upon him as such by the testator, who has given him an interest extensive enough to enable him to 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 circumstances to disappoint tlie interests of those for whose benefit he is called upon to execute it " (e). '■' As to the objection," said Lord Chief Justice Wilmot, " 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 obligatory upon the conscience of the party intrusted. This Court supplies the defective exectctiori of powers, but never the 7ion- (ffl) Attorney-General V. Lady Down- Parker v. Brooke, 9 Ves. 583; and injr, Wilm. 21, 22. see Roberts v. Spicer, 5 Mad. 491; (h) First clearly settled in Pitt v. Wills v. Sayers, 4 Mad. 409 ; Rich \. Pelham, Freera. 134. Cockell, 9 Ves. 375. At first there (c) Bennet v. Davis, 2 P. W. 316 ; was some doubt : Harvey v. Harvey, Major V. Lansley, 2 R. &M. 355. 1 P. W. 125; Burton v. Pierpoint, 2 [d] Rollfe V. Budder, Bunb. 187 ; P. W. 78. Tappenden v. WaUh, 1 Phillim. 352 ; (e) Brown v. Higgs, 8 Ves. 574. Pritchard v. Ames, Turn. & Russ. 222 ; 680 FAILURE OF THE TRUSTEE, [CH. XXVII. execution of tliem, for the powers 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 instru- ments 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 ofl&ce. There is some personality in every choice of trustees ; but this personality 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 V No : I trust them to execute my intention : I do not put it into their power whether my intention shall ever take place at aU " (a). Trustee of a dis- 5. If trustees, then, have such an imperative power committed testator'l^ifeUme *° *®^' ^^^ ^^^^ ^^*^®^ "^^^ ™ ^^^ testator's lifetime (S), or decline declining office, the office (c), or disagree among themselves as to the mode of execution (d), 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 will sub- stitute itself in the place of the trustees, and will exercise the power by the most reasonable rule. And the Court assumes the jurisdiction of exercising the power retrospectively [g), and will take up the trust, whatever difficulties or impracticabilities may stand in the way (/i) ; for, as Lord Kenyon laid down the rule strongly, if the trust can hy any possibility be exercised by the (a) Attorney- General y. Lady Down- Flanders y. Clark, 1 Ves. lOj^erLord ing, Wilm. 23. Hardwicke ; Harding v. Glyn, 1 Atk. (6) Attorney- General V . Lady Down- 469.; Ray v. Adams, 3 M. & K. 243; ing, Wilm. 7 ; S. C. Amb. 550 ; Attor- per Lord Langdale ; Griexeson v. Kir- ney- General v. Hickman, 2 Eq. Ca. «o^^, 2 Keen, 653 ; Croft y. Adam, 11 Ab. 193 ; Maherley v. Turton, 14 Ves. Sim. 639 ; In the matter of Hargrov^s 499. Traste, 8 I. R. Eq. 256. (c) Doyley v. Attorney - General, 2 (/) Attorney- General v. Stephens, 3 Eq. Ca. Ab. 194 ; Gude v. Worthington, M. & K. 347 ; In re Richards, 8 L. K. 3 De Gex & Sm. 389 ; Iznd v. Izod, Eq. 119. 32 Beav. 242. \g) Edwards v. Grove, 2 De Gex, {d) Moseley v. Afosefei/, Rep. t. Finch. F. & J. 222, per L. J. Turner ; Maberly 53 ; and see Wainwrighty. Waterman, v. Turton, 14 Ves. 499. 1 Ves. jun. 311. Qi) Pierson y. Garnet, 2 B. C. C. 46, (e) Hewett v. Hewett, 2 Eden, 332 ; per Lord Kenyon. CH. XXVII.J FAILUEE OF THE TRUSTEE. 681 Court, the non-execution by the trustee shall not prejudice the cest'uis que trust (a). 6. In what 7nod6 the Court will execute the power wiU vary Modeofexecu- according to the circumstances of the case. '""■ Where the discretion of the trustee is to be govervM hy some wtere the settlor rule, or to be measiored by a state of facts, ivhich the Court can j-^J'l^^sComt^ enquire into as effectually as a private person, then the Court can will adopt it. " look with the eyes of trustees," and will substitute its own judg- ment for that of the individual (6). Thus in Gower v. Mainivaring (c), John Mainwaring executed a Gower v. Main- trust deed, by which the trustees were to give the residue of the "'^"°s- real and personal estate among the settlor's relations wlure 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 of the trustees could be vicariously exercised by the Court. Lord Hardwicke said, " What differs it from the cases mentioned is this, that here is a rule laid doivii for the trust. Wherever there is a trust or power — for this is a mixture of both — I do not know that the Court can put itself in the place of those trustees, and exercise that discretion. Wliere trustees have power to distribute generally according to their dis- cretion 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 government and regulation of charity. But here is a rule laid clown : tlie trus- tees are to judge of such necessity and occasions of the family : the Court can (d) judge of the necessity : that is a judgnunt 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 j^tdge what is equitable and just on this necessity," and his Lordship de- creed 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 enquire into, and consider how it might be most equitably and justly divided (e) (1). {a) Brown v. Higgs, 5 Ves. 505. there is the strange misprint of " can- (6) Hewelt v. Hewett, 2 Eden, 332; not judge." Mabeirleyy. TMrfon, 14 Ves. 499. (e) 2 Ves. 110; and see Liley v. (c) 2 Ves. 87. Hey, 1 Hare, 580. {d) In Mr. Belt's edition of Vesey (1) The execution of the power in this case in favour of the settlor's relations Construction of within the Statute of Distributions, according to their necessities, leads us to bequest to "poor observe upon the construction of a direct bequest to a person's " poor or neoes- relations." 682 FAILURE OF THE TRUSTEE. [CH. XXVII. How the Court will tseroise the power where the settlor has laid down no rule. Equality is equity. 7. Where the settlor has given no rule or measure by which the discretion is to be governed, the Court cannot in that case act upon mere caprice, but will execute the power by the most reasonable and intelligible rule that the circumstances of the case will admit. Upon ordinary occasions the Court proceeds upon the maxim, that equality is equity (a). Thus in Doyley v. Attorney-General (b), a testator gave his real and personal estate to trustees upon trust (a) Doyley v. Attorney - General, 2 Eq. Ca. Ab. 196; Fordyce v. Brydges, 2 Phill. 497 ; Longmore v. Broom, 7 Ves. 124; Salusbury v. Denton, 3 K. & J. 536 ; Penny v. Turner, 2 Phill. 493; /20c?v. 720^^,32 Beav. 242; Gray V. Gray, 13 Ir. Ch. Ke. 404. (h) 2 Eq. Ca. Ab. 195. See Down V. Worrall, 1 M. & K. 561 ; but there the two sets of objects were connected not by "and," but by "or;" and Doyley v. Attm-ney - General was not cited ; see V.-C. Wood's observations, 3 K. & J. 538. sitous relations." It is commonly thought that the epithet ' poor,' ' necessitous,' or the like, is merely nugatory ; but on consideration there will appear to be considerable 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. Buckland, cited 1 Ves. 231, Amb. 71), that "relations," though accompanied with the words "poor," "necessitous," or the like, will be restricted to those within the Statute of Distributions. The only question, thei efore, is whether as among those within the statute expressions of this kind will not be allowed their effect. In a case reported by Peere Williams {Anon, case, 1 P. W. 327), the bequest was to "poor relations," and the Countess of Winchelsea, 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 case can have no application where the word " poor " is not of doubtful meaning, but is clearly to be taken in the sense of poverty and necessity. In Widmorey. Woodroffe, Amb. 636, the testator had given a third of the residue to be distributed " amongst the most necessitous of his relations." There was mily 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 construction of the word " relations" to those out of the statute. Thus there appears to be no authority for holding the words to be nugatory as among the relations within the status, 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 5O0Z. 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 loho were objects of charity. In Mahon v. Savage, 1 Sch. & Lef. Ill, a testator gave 1000/. to be distributed amongst his ^oo?- relations, or such other objects of charity as should be men- tioned in his private instructions to his executors. No instructions were left, and Lord Redesdale 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. Mainwaring, cited in the text, in which a direction for such a distinction was actually made. CH. XXVII.J FAILURE OF THE TRUSTEE. 683 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 convenient : 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 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. 8. With respect to the subject under consideration, the cases in Words of gift and which the donor's intention is expressed in the form of a gift, may distfn-ndsheT'' admit of distinction from those in which it is expressed in the form of a poiver. If a fund be limited " upon trust for the children of A. as B. Upon trust for shall appoint," the construction is, that the children of A. take a a. as B. shall vested interest by the gift, subject to be divested by the exercise ^ppoi"*- 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 (a). But the gift is sub- ject to the exercise of the power, and, therefore, if the power be testamentary, the donee of a power may well appoint in favour of those who may be living at his death, to the exclusion of those who may have predeceased him (b). Where an estate is vested in trustees "upon trust to dispose Upon trust to di.=- thereof among the childreu of A.," in this case the children take child?^°of A.""" nothing by way of gift, but the transmission of their interest must be through the medium of the poiver. 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 (c) ; and if the trustees be at liberty to distribute unequally, and make no distribution, the Court itself executes the power, and divides the fund equally amongst the objects of it (d). 9. But, further, a discretion may be given to the trustee, not Discretion as to objects of tbe (o) Davy v. Hooper, 2 Vern. 665 ; 196 ; 1 Phill. 72 ; and see Lambert v. Fenwick v. Greenwell, 10 Beav. 412 ; Thwaites, 2 L. Rep. Eq. 151. Madoc V. Jackson, 2 B. C. C. 588; (c) Phillips v. Garth, 3 B. C. C. 64; Hockley v. Mawbey, 1 Ves. jun. 143, Eayner v. Mowbray, lb. 234. see 149, 150; Jones v. Torin, 6 Sim. (rf) Hands v. Hands, cited Swift v. 255; Falknery. Lo^-d Wynford,'^ Jnr, Gregson, 1 T. R. 437, note; Pope v. 1006. Whiicombe, 3 Mer. 689, corrected from (i) Woodcock V. Renneck, 4 Beav. Reg. J-.ib. 2 Sug. Powers, 650, 6th power. 684 FAILURE OF THE TRQSTEE. [CH. XXVII. Whether to be regarded as a trust or power. Harding v. Glyn. Marlborough v. Godolphin. Brown v. Higgs. The doctrine of Harding v. Glyn now established. In favour of what objects the Court will exercise a power impe- rative. only in respect of the proportions to be appointed, but also in re- spect 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. The question first to be resolved is, Did the settlor intend to communicate a mere power or to create a trust ? In Rarcling v. Glyn (a) a testator gave to Elizabeth his wife a house and certain goods and chattels, " but desired her at or before her death to give the same unto and among such of the testator's relations as she should think most deserving and approve of." The wife died without having made any appointment, and the Court considered a trust was created, and divided the estate equally amongst the testator's relations living at the time of the wife's death. In The Buhe of Marlborough v. Lord Godolphin (b), Lord Hard- wicke held in a similar case that there was merely a. power and no trust. In Brown v. Higgs (c), on the contrary, where the introductory words used were, "/ authorise and empower" Lord Alvanley de- cided that there was a trust. The cause was reheard before his Lordship, and, after grave consideration on the subject, he decreed as before {d). The decree was afterwards affirmed on appeal by Lord Eldon (e), and again affirmed in the House of Lords (/). The doctrine of Harding v. Glyn has since been affirmed by other authorities {g), and may be now viewed as established. The rule has been thus laid down by Lord Cottenham : " 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 carry into effect the general intention in favour of the class '' {h). 10. The question in favour of what objects a power imperative, whether of distribution merely, or of selection, wiU. be executed by the Court, viz., whether in favour of those living at the death of edit. ; Walsh v. Wallinger, 2 R. & M. 78 ; S. C. Taml. 425 ; Grieveson v. Kirsopp, 2 Keen, 653 ; Brown v. Pocock, 6 Sim. 257; Finch v. Hollings- worth, 21 Beav. 112 ; He White's Trust, 1 Johns. 656. (a) 1 Atk. 469, S. C. stated from Reg. Lib. in Brown v. Higgs, 5 Ves. 501. (6) 2 Ves. Sen. 61. (c) 4 Ves. 708. Id) 5 Ves. 495. (e) 8 Ves. 551, seep. 576. if) 18 Ves. 192. (g) Birch v. Wade, 3 V. & B. 198 ; Burrough v. Philcox, 5 M. & Cr. 72 ; Penny v. Turner, 2 Phill. 493 ; Walsh V. Wallinger, 2 R. & M. 78 ; Re Caplin, 11 Jur. N. S. 383, 2 Dr. & Sm. 527 ; and see Salushury v. Denton, 3 K. & J. 635; Re White's Trust, 1 Johns. 656 ; Re Eddowes, 1 Drew. & Sm. 395. {h) Burrough v. Philcox, 5 M & Cr. 92. CH. XXVII.] FAILURE OF THE TRUSTEE. 685 the testator, or those living at the death of the donee of the power, remains to be considered ; and it is conceived that, in reference to this question, the following results may be deduced from the authorities : First. Where a testator bequeaths property with a power imioe- Caae where an rative in favour of a class, whether of children, relations, or others, c™^of 'the power and it appears to be the intention that the distribution or selection is contemplated. should take place as soon as conveniently may he 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 (a). Secondly. Where the frame of the wiU does not of necessity where an immc- point to an immediate exercise of the power, as where the donee '^'^'^ exercise not J; ... contemplated. of the power takes a life estate expressly, or by implication, the nature of the power given to the donee has to be taken into consideration : a. If the devise or bequest be in the form not of a gift, but of a Where power power to be exercised by will only, then, inasmuch as the objects ^™^" ^'^^' of the p.ower 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 (To). But the rule applies only where the class take through the medium of a iwwer, for if there be a gift to them in the first instance, in such shares, &c., as the donee of the power shall appoint by will, then, in default of exercise of the power, the whole class take, whether they survive the donee of the power or not (c). p. Where the power given to the tenant for life is not merely where power not testamentary, but may be exercised either by deed or will, the merely testa- 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 still further 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 {d), and those which support an execution in favour (a) Brown v. Higgs, 4 Ves. 708; 2 Giff. 195; Re Caplin's will,2 Drew. &o. ; Longmwex. Broom, 7 Yes. 124:. & Sm. 527; Freeland v. Pearson, The result will, of course, be the same 3 L. R. Eq. 668 ; and see the analo- where a life estate being given to the gous cases of Woodcock v. Rennech, 4 donee of the power, the donee dies in Beav. 190, 1 Phil. 72 ; Finch v. Hol- the testator's lifetime. See Penny v. lingsworth, 21 Beav. 112. Turner, 2 Phill. 493 ; Hutchinson v. (c) Lambert v. Thwaites, 2 L. Rep. Hutchinson, 13 Ir. Eq. Re. 332. Eq. 151. (6) Cruwys v. Colman, 9 Ves. 319; {d) Doyley v. Attorney -General, 2 Birch V. Wade, 3 V. & B. 198 ; Walsh Eq. Ca. Abr. 195 ; Harding v. Olyn, V. FaZKn^«)", 2 R. & M. 78; Brown y. 1 Atk. 469; Pope v. Whitcombe, 3 Pocock, 6 Sim. 257 ; Bun-ough v. Phil- Mer. 689, corrected from Reg. Lib. 2 cox, 5 M. & Cr. 72 ; Bonser v. Kinnear, Sugd. Pow. 650, 6th edit. 686 , FAILUEE OF THE TRUSTEE. [CH. XXVII. of the class as existing at the death of the original testator (a), 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 wiU, 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 attended with difficulty. On the one hand, the power may be pro- perly exercised by the donee at any time before his 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, has an undoubted right to postpone the execution of it until the last moment of his life, and the only default which the Court has to supply, is the non-exercise jicst lefore the dmili, and that default must, therefore, be supplied in favour of those who were objects at the date of the death of the donee (h). On the other hand, the donee of the power may exercise it in favour of the class existing at the time of exercise, to the exclusion of those who have died before, and, also, where the power is one of selection to the ex- clusion of those who may come into esse subsequently, but 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 improbable, where children or some limited class of relations are the objects,) there would be a power imperative which is construed as a trust, and no cestui que trust, a result which, it is conceived, the Court would be somewhat unwilling to adopt. Whole purview of 7- It is clear that where the donee tenant for life may exercise inftrnmeiit must ^^ power by deed or will, the members of the class in existence be reg.irdcd. (a) Hands v. Hands, cited 1 T. B. 659, 660, a case different, however, 437, note ; Grieveson v. Kirsopp, 2 from any of those discussed in the Keen, 65.S. text, the donees of the power being (b) See also observations by V -C. trustee;-, who both died before the "Wood in Re White's Trust, 1 Johns. tenant for hfe. CH. XXVII.] FAILURE OF THE TKUSTEE. 687 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). 11. It may be useful to enquire more particularly in connection with this subject, in what manner the Court will execute a power in favour of " relations." The donee, of the discretion, if he have a power of selection, may appoint to relations in any degree (6), and it is only in those cases where he has a mere power of distributioyi that he must confine himself to the relations within the Statute of Distribution of Intestates' Estates (c). But the Court, except where the bequest is for the benefit of poor relations by way of founding a charity {d), or the testator has furnished some intelligible rule by which the relations out of the statute may be easily ascertained (e), 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 infinitum (/) 12. A further point open to discussion is, ill what shares such relations shall take — whether those who in case of intestacy would have claimed by representation shall under the execution of the power by the Court take ^je?- stirpes or per capita. (a) Winny. Fenwick, 11 Beav- 438 ; and see Tiffin v. Longman, 15 Beav. 275. (6) Supple V. Lowson, Amb. 729 ; Grant v. Lynliam, 4 Russ. 292 ; Hard- ing V. Glyn, 1 Atk. 469 ; 8. C. stated from Reg. Lib., Brown v. Higgs, 5 Ves. 501 ; Mahon v. Savage, 1 Sch. & Lef. Ill ; Cruviys v. Coleman, 9 Ves. 324, per Sir W. Grant ; Spring v. Biles, cited Swift v. Gregson, 1 T. R. 435, note ( f) ; Salusbury v. Denton, 3 K. & J. 536 ; Snow v. Teed, 9 L. R. Eq. 622. In Brunsden v. Woolrege, Amb. 507, Sir T. Sewell seems (con- trary to his opinion in Supple v. Lowson, uhi supra) to have confined tlie trustees to relations within the statute. (c) Isaac V. Defriez, Amb. 595; but see the case stated from Reg. Lib., Attorney -General v. Price, 17 Ves. 373, note (a) ; Carr v. Bedford, 2 Ch. Re. 146 ; Pope v. WUtcombe, 3 Mer. 689. The last case, and Forbes v Ball, 3 Mer. 437,wereboth decidedby SirW, Grant, but appear to be contradictory ; however, in the latter case the question Construction of the word " re- lations." Power of selec- tion and power of distribution. Whether rela- tions shall take per stirpes or per capita. raised was, not whether the donee had exceeded her power, but whether the discretion was a power or a trust; for if a power, and it had not been exe- cuted by the will, the fund would have sunk into the residue, and the plaintiff have been entitled as residuary lega- tee. Noie, a power of selection will be implied in a case of "relations," where it would not have been implied in the case of " children." Spring v. Biles, cited 1 T. R. 435, note (/) ; Mahon v. Savage, 1 Sch. & Lef. Ill ; Salusbury v. Denton, 3 K. & J. 536. In the two last cases the words were " amongst the relations," but see Pope v. Whitcombe, 3 Mer. 689, where the expression was similar. {d) See IfMev. fFAite, 7Ves. 423; Attorney -Generaly. Price, 17 Ves. 371 ; Isaac V. De Friez, lb. 373, note (a) ; and see Mahon v. Savage, 1 Sch. & Lef. 111. (c) Bennett T. Honywood, Amb. 708, (/) Thus in Bennett v. Honywood, uhi supra, 456 persons applied as re- lations within two years. 688 FAILURE OF THE TRUST. [CH. XXVII. Principle to be extracted fi'om the cases. Subject of the gift incapable of division. Moseley v. Moseley. IsTow, the rule that those should be deemed relations who would take a distributive share under the statute was adopted on the ground, that unless some line were drawn for restricting the mean- ing of the word, a bequest to relations would be void for uncertainty. As this was the sole foundation for appealing to the statute at all, it is evident the single enquiry for the Court is, who would take a distributive share : in what proportions 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 proportions 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 what is correct upon principle, viz., that in a gift to " relations," {whether the testator has added the words " equally to he divided," or not), the distribiUion among the relations within the statute must he made per capita, and not per stirpes (h). The question can no longer arise where the gift is to " next of kin ": for by the decision of Elmsley v. Young, upon appeal from Sir J. Leach to the Lords Commis- sioners (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. 13. We have stated that, as a general principle, the Court will execute the power among the objects equally; but it sometimes 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 hy any possibility the power can be executed, the Court will do it. In Moseley v. Moseley (d), a very early case, an estate was devised to trustees upon trust to settle on such of the sons of N. as the trustees should think fit. The trustees having neglected to comply (a) See Walker v. Maunde, 19 Ves. 427, 428. {b) &ee Thomasv. Hole,Cas.t.Ta.\h. 251; Stamp v. Cooke, 1 Cox, 236; Phillips V. Garth, 3 B. C. C. 64 ; Green v. Howard, 1 B. C. C. 33 ; Rayner v. Mowhray, 3 B. 0. C. 234, Res. Lib. B. 1791, fol. 183; Pope v. Whitcombe, 3 Mer. 689, Keg. Lib. B. 1809, fol. 1535; Hinckley y . Maclaerm, 1 M. & K. 27; Withy v. Mangles, 4 Beav. 358 ; 10 CI. & Fin. 215. The above cases are discussed in Append. No. IX. to 3rd edit. (c) 2 M. & K. 780; and see WUhy V. Mangles, 4 Beav. 358; 10 CI. & Fin. 215. (d) Rep. t. Finch, 53; S. C. cited Clarke v. Ttimei; Freem. 199. Chapman. CH. XXVII.] FAILUKE OF THE TRUSTEE. 689 with the direction, the sons of N. filed a bill 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 nomination, 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. In Ricliardson v. Ghapman (a) Dr. Potter, Archbishop of Can- Eichardson v. terbury, gave all his options to trustees upon trust, that in dis- posing 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. Eichardson." 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 con- sidered 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 wiU 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 difficult it was to make the selection, it is decisive to show the Court must do it, though the trust is in its nature so discretionary " (b). {a) 7 B. P. C. 318; S. C. cited Alvanley was inclined to think, though Brown v. Higgs, 5 Ves. 504, 505. he would not decide the point, that the (J) Brown v. Higgs, 5 Ves. 504. In children of Samuel Brown could not this case (see 4 Ves. 718, 719 ; 5 Ves. establish a claim ; but the ground of 508), an estate was devised " to one of this opinion was not that a trust had the sons of Samuel Brown as John been created which the Court could Brown should direct by a conveyance not execute, but that the intention of in his lifetime, or by his last will and the testator as collected from the will testament;" and, John Brown not was to communicate a mere power, having executed the power, Lord Y Y 690 CHAPTER XXVIII. 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, &c. THE RIGHTS OF A CESTUI QUE TRUST IN PREVENTION OP BREACH OF TRUST. As the estate of the cestid 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 are calculated to arm him with this protection. I. The cestui que trust is entitled to have the custody, and administration of the estate confided to the care both of proper persons and of a proper number of such persons. 1. Thus if the trustee originally appointed by a wOl 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; and where a testator did not appoint trustees at aU, but only appointed executors, the Court asserted an inherent jurisdiction of its own to appoint trustees to take charge of the fund (a). 2. ^So, where the original number of trustees has become reduced by deaths, the cestici que trust may restore the property to its original security by calling for the appointment of new trustees in the place of the trustees deceased (h) ; and even a cestui qite trust in remainder may file a biU to have the proper number of trustees filled up (c). 3. If a trustee refuse to act {d) or become so circumstanced that he cannot effectually execute the office [as where a trustee goes abroad to reside permanently (e), or a feme trustee marries (/), or fa) Dodkin v. Brunt, 6 L.R. Eq. 580. (6) Buchanan v. Hamilton, 5 Ves. 722 ; Hibhard v. Lanibe, Amb. 309. (c) Finlay v. Howard, 2 Dru. & War. 490. [d) Maggeridge v. Qrey, Nels. 42 ; Travell v. Danvers, Finch, 380 ; Wood V. Siane, 8 Price, 613 ; Anon. 4 Ir. Eq. Rep. 700. (e) O'Reilly v. Alderson, 8 Hare, 101 ; Re Ledioich, 6 Ir. Eq. Eep. 561 ; Commissioners of Charitable Donations V. Archbold, 11 Ir. Eq. Rep. 187. (/) Lake v. De Lambert, 4 Ves. 592; the trustee in this case had married a fweigner, but the decision was upon general grounds. to be " inhabi- tants." CH. XXVIII. J SUBSTITUTION OF TRUSTEES. 691 the trustees of a chapel entertain opinions contrary to the founder's intention (a)], or if the trustee become bankrupt (&), or misconduct himself in any manner (c), [as by dealing with the trust property for his own personal advancement (d), by suffering a co-trustee to commit a breach of trust (e), or by absconding on a charge of forgery (/) ] ; in these and the like cases the cestui 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 conseq^uence of some act on the part of the cestui que trust, or of some change in his situa- tion ; but it will be impertinent, and may be scandalous, to state circumstances of general malice or personal hostility {g). And if the old trustee be removed on the ground of misconduct, he must bear the expense of the appointment of a new trustee, as an act necessitated by himself (A). 4. If the settlement require the trustees of a' charity to be Trustees required inhabitants of a particular place, it is irregular to appoint persons trustees who do not answer that description, provided at the time of the election there be any inhabitants proper to be trustees (t). But where it has been the custom to appoint trustees not being inhabitants, the Court will not remove the existing trustees, though it wiU take care that the founder's directions shall be better observed for the future Qt) ; and generally, though trustees may have been appointed irregularly in the first instance, their removal cannot be demanded after acquiescence for a great number of years (/). (a) Attorney- General v. Pearson, 7 General, 7 B. P. C. 235; Buckeridge Sim. 290, see 309 ; Attorney- General y. v. Glasse, Cr. & Ph. 126, see 131. Shore, lb. 309 see 317. {d) Ex parte Phelps, 9 Mod. 357. (6) Bainbriggey. Blair, IBeav. 496; (e) Ex parte Beynolds, 5 Yes. 707. In re Boche, 1 Conn. & Laws. 306; (/) Mi7fard v. Byre, 2 Ves. jun. 94. Commissioners of Charitable Donations (g) Earl of Portsmouth v. Fellowes, V. Archbold, 11 Ir. Eq. Rep. 187; 5 Mad. 450. Harris v._ Harris (No. 1), 29 Beav. {h) Ex parte Greenhouse, 1 Mad. 92. 107; and if the trustee compound with (») Attorney- General v. Cowper, 1 his creditors, it is presumed that he B. C. C. 439. As to the force of the may equally be removed, for the word " residence," see Blackwell v. cestuis que trust have a right to have England, 3 Jur. N. S. 1302 ; Atten- the administration of the trust estate borough v. Thompson, 2 Hurlst. & Nor. committed to responsible persons. But 559. the previous bankruptcy of a trustee (A) Attorney- General y. Stamford, 1 who has since obtained a first-class VhxW.TiT; Attorney- Generaly.Clifont, certificate is ^Wma/acjfi not sufficient 32 JJeav. 596; Attorney- General v. ground for his removal ; Re Bridgman, Daugars, 33 Beav. 621. 1 Drew. & Sm. 164. (Z) Attorney- Generaly. Cuming, 2 Y. (c) Mayor of Coventry v. Attorney- & C. Ch. Ca. 139, see 150. y Y 2 692 SUBSTITUTION OF TRUSTEES. [CH. XXVIII. Trustee not to be dismissed from caprice. In appointing new trustees the Court will not give them a power of appoint- ing other trustees. And in the selection of trustees of charities the Court enquires whether the parties proposed are proper persons, not whether they are the most proper that could be found (a). 5. The Court will not dismiss a trustee for the mere caprice of the cestui que trust without any reasonable cause shown (&), or because the trustee has refused from honest motives to exercise a power at the request of a tenant for life (c), or because a dissension has arisen between the trustee and one of the cestuis que trust {<£), or because a cestui que trust puts forward a claim which may be unfounded that property of the trustee ought to be brought into the settlement (e), or because the trustee has transgressed the strict line of his duty, provided there was no wilful default, but merely a misunderstanding (/). Where, however, a trustee pertinaciously insisted on being continued in the ofB.ce, though his co-trustees were unwilling to act with him. Lord Nottingham said, " He liked not that a man should be ambitious of a trust when he could get nothing but trouble by it," and, without any reflection on the conduct of the trustee, declared he should meddle no further in the trust {g). 6. 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 cannot be expected that the Court should, when appointing new trustees and directing the trust property to be conveyed to them, authorise the insertion of a power in the conveyance, enabling the new trustees 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, notwithstanding some previous fluctua- tion in the practice Qi), it is now settled that, except in charity cases (i), the Court will not authorise the insertion of such a power in the deed of conveyance (k). (a) Lancaster Charities, 7 Jur. N. S. 96. (6) O'Keefe v. Calthorpe, 1 Atk. 18 ; and see Pepper v. Tuchey, 2 Jones & Lat. 95. (c) Lee V. Young, 2 Y. & C. Ch. Ca. 532. {d) Forster v. Davies, 4 De G. P. & J. 133. (e) s. a (/) See Attorney- General v. Cooper''s Company, 19 Ves. 192 ; Attorney- General V. Caius College, 2 Keen, 160. {g) Uvedale y.Ettrick, 2 Ch. Ca. 130. (h) Joyce v. Joyce, 2 Moll. 276 ; White V. White, 5 Beav. 221. (i) Attorney- General v. Hurst, M. R. Dec. 2, 1791, Reg. Lib. A. 1791, f. 487 ; see the decree, stated Seton's Dec. 130 ; In the matter of 62 G. 3. c. 101, 12 Sim. 262; Be Lovetts Ex- hibition, Sidn. Sjass. Coll. Camb., cor. V. C. Knight Bruce, Dec. 20, 1849. (k) Bayleyy. Mansell, 4 Madd. 226 ; CH. XXTIII.] SUBSTITUTION OF TRUSTEES. 693 7. In appointing new trustees the Court does not act arbitrarily, Rules for select- but upon certain general principles. In the first place, the Court has '"S^ew rus ees. regard to the wishes of the author of the trust, whether actually ex- pressed in the instrument, or plainly deducible from it ; and if he has declared a particular person not fit to be appointed a trustee, the Court will refrain from appointing him. Secondly, the Court will not appoint a new trustee with a view to the interest of some of the parties beneficially interested, in opposition to the wishes of others ; for a trustee ought to hold an even hand as between all parties, and not favour a particular class. And, thirdly, the Court has regard to the nature of the trust, and the question by whose in- strumentality it can best be carried into execution {a). 8. The exercise by the cestui que trust of his right to have the Statutory powers, custody of the trust estate confided to a proper number of duly qualified trustees has been greatly facilitated by various statutes, enabling him to obtain, in certain cases, the removal of unfit trustees, and the appointment of others in their room, and also the appointment of new trustees where the office is merely vacant ; and this by a cheaper and more summary proceeding than by bill. 9. By the last Bankruptcy Act, 32 & 33 Vict. c. 71, s. 117, it is enacted, that " where a bankrupt is a trustee within the Trustee Act, 1850, section 32 of that Act shall have effect so as to authorize the Court (by which was meant the Court of Chancery (&) ), to appoint a new trustee in substitution for the bankrupt (whether voluntarily resigning or not) if it appears to the Court expedient so to do " (c). 10. By 2 Wm. 4. c. 57, s. 3, in case of the death of the trustee in 2 w. 4, c. 57, s. 3. whom any real property may have been vested in trust for any charity, the Court of Chancery may upon petition appoint new trustees, and direct the estate to be vested in them upon the charitable trusts. 11. By 5 & 6 "Wm. 4. c. 76, s. 71, (the Municipal Corporations 5 & 6 w. 4, c. 7C, Act), it was enacted that in every borough in which the body ^' ^^■ corporate, or any one or more of the members of such body corporate in his w their corporate capacity then stood solely or together with Brown v. Brown, 3 Y. & C. 395 ; (a) Re Tempest, 1 L. R. Ch. App. Southwells. Ward, Taml. 314; Bowles 485 ; 12 Jur. N.S. 539. V. Weeks, 14 Sim. 591 ; Oglander v. (6) Coomhes v. BrooJces, 12 L. R. " " 2 De Gex & Sm. 381; Eq. 61. Holder v. Durbin, 11 Beav. 594; in (c) For the law under the previous which last case Lord Langdale, M. R., Bankrupt Act, 12 & 13 V. 0. 106, re- in deference to the views of the other pealed by 32 & 33 V. c. 83, s. 20, see judges, declined to follow his own pre- the 5th edition of the Law of Trusts, vious decision in White v. White. p. 607. 694 SUBSTITUTION OF TRUSTEES, [CH. XXVIII. Jurisdiction of the Court of Chancery under 5 & 6 W. 4, c. 76, s. 71. Legal estate. 16 & 17 V. c. 137. a. 65. Petitions for appointment of new trustees of charities. any person or persons elected solely by such body corporate, or by any members thereof, seised or possessed for any estate or interest whatsoever of any hereditaments or personal estate whatsoever, in whole or in part, in trust for any charitable trusts, all the estate and interest, and all the powers of such body corporate or of such members thereof, should, from and after the 1st day of August, 1836, utterly cease ; with a proviso that if Parliament should not otherwise direct, on or before the said 1st day of August, 1836, (which was not done), the Lord Chancellor should make such orders as he should see fit for the administration of such tinist estates. Under the authority " to make orders," the Court of Chancery has from time to time, for the due management of the charity property, appointed trustees in the place of the corporation. The jurisdiction of the Court, however, has been held not to apply to a case where no estate was vested in the old corporation, but the charity property was vested in trustees and the corporation was merely the visitor with powers of nomination (a). Where there was a charity corporation substantially, though not identically, the same in its component parts as the municipal corporation, the case was held to be vsdthin the spirit if not the letter of the section above referred to (6). The appointment of trustees by the Court under the Act, though it made them custodiers of the property, could not of course transfer to them the legal estate, which notwithstanding the strong, negative words used in the statute, it was decided, remained in the cor- poration (c). 12. But now by 16 & 17 Vict. c. 137, c. 65, the legal estate is vested without any actual conveyance in the trustees appointed by the Court, and upon the death, resignation or removal of any of the trustees, and the appointment of any new trustee or trustees, the legal estate transfers itself to the trustees for the time being without any conveyance. 13. Petitions for filling up vacancies in the number of trustees of charities, in substitution for a corporation, ought to be presented under Sir S. Eomilly's Act (52 Geo. 3. c. 101), as well as the Municipal Corporation Act (d), and the Attorney-General's fiat (a) Attorney- General v. Newbury Corporation, C. P. Coop. Rep. 1837- 38, 72 ; ChrisCs Hospital v. Grainger, 16 Sim. 102. (6) Attorney- General v. Mayor, dc. of Exeter, 2 De Gex. Mac. & Gor. .507. (c) Doev. Norton, 11 Mees. & W. 913. (d) ReWarwick ChariiieSjlVhW. 559. CH. XXVIII.] SUBSTITUTION OF TRUSTEES. 695 should be obtained to such a petition (a) ; though this rule does not appear to have been uniformly adhered to (6). 14. By the Charitable Trusts Act (16 & 17 Vict. c. 137, s. 28,) Appointment new trustees of any charity the gross annual income whereof charities^uMer exceeds 30^. (c) may be appointed by one of the equity judges in t^e Charitable 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 Com- missioners under the 17th section, must first be obtained. And by a more recent Act still (23 & 24 Vict. c. 136, s. 2), the Charity Commissioners are empowered upon the application of the trustees or a majority of them, under their hands or common seal, to make the like orders for the appointment of new trustees of charities as could have been made by a judge at chambers, and this power extends even to contentious cases (e). 15. By 13 & 14 Vict. c. 28, " Wherever, freehold, leasehold, peto's Act. copyhold, or customary property, in England or Wales, has been or shall be acquired by any congregation, or society, or body of persons associated for religious purposes or for the promotion of education, as a chapel, meeting-house," &c., " and wherever the conveyance, assignment, or other assurance of such property has been or may be taken " to trustees, duly appointed, such convey- ance, assignment, or other assurance shall not only vest the pro- perty in the parties named, but also in their successors from time to time, and where there is no power to appoint new trustees, the society may, for the purpose of vesting the estate, appoint new trustees, such appointment to be evidenced by deed under the hand and seal of the chairman and attested by two witnesses. The primary, if not the only object of this enactment obviously was to make the trust estate devolve upon the trustees of the society from time to time without conveyance, and it is doubtful whether the new trustees to be thus appointed by the society (a) Re RoUe's Charities, 3 De G. M. (d) Re Davenporfs Charity, 4 De & G. 153; Re London, Brighton, &c. Gex, Mac. & Gor. 839. In Lincoln Railway Company, 18 Beav. 608. Primitive Methodist Chapel, 1 Jur. N S. Ifi) Nightingale's Charity, 3 Hare, 1011, V. C. Stuart does not appear to 336; Belke's Clmrity, 13 Jur. 317. have had his attention drawn to the (c) By s. 32, where the income is previous decision of Lord Cranworth below 30Z. (since extended by 23 & 24 in Davenporfs Charity. Vict. c. 136, s. 11 to an income not (e) Re Burnham National School, exceeding 50Z.), the District Courts of 17 L. R. Eq. 241. Bankruptcy and County Courts have jurisdiction. 696 TRUSTEE COMPELLABLE [CH. XXVIII. succeed generally to all the powers of the old trustees, or take the legal estate only («). 13 & 14 Vict. c. 60. 16. Amongst the various provisions of the Trustee Act, 1850 (13 & 14 Vict. c. 60) it is enacted (by s. 32) that whenever it shall be expedient to appoint a new trustee or 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 in substitution for or in addition to any existing trustee or trustees (5). Trustee may be compelled to any act of duty. Maintenance of right at law. Tenant for life of renewable lease- holds neglecting to renew. Trustee giving security. II. The cestui que trust is entitled to file a bill against his trustee, and compel him to the execution of any particular act of duty. 1. Thus, if the legal estate in the hands of the trustee be dis- turbed by a stranger, the cestioi que trust, though he may not institute legal proceedings in the name of a trustee without his authority (c), may oblige the trustee, on giving him a proper in- demnity, to lend his name for asserting the legal right {d). If the trustee of a covenant, even a voluntary one, will not sue upon it, the cestui que trust may compel the trustee on a proper indem- nity to lend his name to the cestui que trust, to enable him to sue (e). Otherwise, should the trust property be lost, and the trustee himself become insolvent, the cesttd que trust's equitable interest would be absolutely destroyed. 2. If a tenant for life of leaseholds, who is regarded as a trustee for the remainderman be bound to renew, and by his threats or acts manifest an intention not to renew, the remainderman may file a bill, and have a receiver appointed for the purpose of pro- viding 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 (/). 3. In one case, where a suspicion was entertained that the (o) See as to the construction of the Act, Re Hcmghtoris Chapel, 2 W. R. 631. (6) Notwithstanding the very large terms of this enactment, it does not authorise the Court toremovea. trustee who is willing to act; Re Hudson^s Settlement, 9 Hare, 118; Re Hadley, 2 JJe Gex & Sm. 67 ; Re Blanchard. 7 Jur. N. S. 505 ; Re Mais, 16 Jur. 608; Re Garty's Settlement, 4 N. R. 636. See the Act with notes in the Appendix. (c) See Crossley v. Crowther, 9 Hare, 386. (d) Foley v. Burnett, 1 B. C. C. 277,^er Lord Thurlow; Gary, 14; and see Kirhy v. Mmh, 3 Y. & C. 295 ; Malone v. Geraghty, 2 Conn. & Laws. 251. (e) See Fletcher v. Fletcher, 4 Hare, 78 ; Jerdein v. Bright, 30 Beav. 332. (/) See Bennett v. Colley, 5 Sim. 192; S. C. 2M. &K. 233. CH. XXVIII.] TO PERFOKM HIS DUTY. 697 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). 4. And generally a cestui que h'ust, who can allege an existing Cestui que trust ° '' ^ may have a con- interest, however minute or remote, may, upon reasonable cause tingent interest shown, apply to the Court to have his interest properly secured. secured. 5. But a distinction must be taken between an existing interest. Possibility upon whether vested or contingent, and the mere possibility of a future ^ ^°^^^ ^ ^' event, which, if it occurs, may give birth to an interest. Thus where a one-fifteenth share of a residue was bequeathed to Isaac for life, if he married Esther, and after his death for Isaac's eldest or only child living at his decease, and who should attain twenty- one, with a gift over in case Isaac should not mariy Esther, and Isaac married Isabella while Esther was stiU. living, it was held by M. E. (5), and affirmed by Lord Westbury (c), that the eldest child of Isaac, an infant, as his interest was preceded by the condition that Isaac should survive his present wife and then marry Esther, a possibility upon a possibility, could not sus- tain a suit for having his interest secured. Had Isaac survived his wife and then married Esther, the interest of the child would still have been contingent, and in that case M. E. appears to have thought that the child would have no locus standi in Court, but , L. C. was of a different opinion. And in another case, where a house was devised to trustees in trust for A. for life, and after his decease for the children of A. then living, and the issue of such of them as should be dead, and failing such children and issue in trust for a class, and some of the class presented a petition for the appointment of new trustees, on the footing that they were " per- sons beneficially interested " under the 37th section of the Trustee Act, 1850, M. E. dismissed the petition with costs (d), but on appeal the order below was reversed, and the L. J.J. held that the petitioners were persons beneficially interested (e). 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 his trust have reason to suppose, and can satisfy the Court, that the "^"'y- 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 (a) Keeling v. Child, Eep. t. Finch, {d) Be Sheppard's Trust, 10 W. R. 360. 704. (6) Davis V. Angel, 31 Beav. 223. (e) 1 N. R. 76 ; 4 Da G. F. & J. (c) 10 W. R. 723. 423. 698 TRUSTEE COMPELLABLE TO PERFOEM HIS DUTY. [CH. XXYIII. Though the damage wouldnot be irreparable. Partial owner may obtain injunction. Injunction against bankrupt or insolvent trustee. restrain the trustee from such a wanton exercise of his legal power (a). 1. It is clear the cesUd que trust would be entitled to an injunc- tion where the act in contemplation would, if done, be irremedi- able (h) ; but in Pechd v. Foivler (c), a case in the Exchequer while a Court of equity, 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 consequential damage to the trust estate, and so the injury was not irreparable ; but Sir J. Leach, under similar circumstances^ granted an injunction {d) ; and other authorities are not wanting in support of so just and reasonable a right, which may now be considered as established (e). 2. And not only a person exclusively interested in a trust fund, and therefore the absolute owner, may obtain an injunction against the disposition of it, which is almost matter of course ; but one who has only a common interest with others, in the trust estate, is entitled on behalf of himself and those others to have the pro- perty secured (/). 3. An injunction against the disposition of the fund may be obtained against an insolvent trustee {g) and d fortiori against one who is actually a bankrupt (li), but the Court wiU not interpose because an executor is merely poor {%), but the Court will grant an injunction against the administration of the assets by an executor who is proved to be of bad character, drunken habits, and great poverty (/«). (a) Balls V. Strutt, 1 Hare, 146. So a mortgagee with a power of sale will proceed at his peril to sell the mort- gaged estate after tender of principal and interest, though costs be not in- cluded, if the security be sufficient, and a purchaser with notice cannot shelter himself under a clause in the mortgage deed exempting the pur- chaser from the necessity of seeing to the validity of the sale ; Jenkins v. Jones, 2 Giff. 99. (6) See Corporation of Ludlow v. Greenhouse, 1 Bl. N. R. 57 ; In re Chertsey Market, 6 Price, 279, 281; Attorney- Gen^ralw. Foundling Hospital, 2 Ves. jun. 42. (c) 2 Anst. 549. (d) Anon, case, 6 Mad. 10. (e) See Webb v. Earl of Shaftes- y, 7 Ves. 487, 488 ; Reeve v. Par- kins, 2 J. & W. 390 ; Milligan v. Mitchell, 1 M. & K. 446; Attorney- General V. Mayor of Liverpool, 1 M. & C. 210; Vann v. Sarnett, 2 B. C. G. 157 ; Dance v. Goldingham, 8 L. R. Ch. App. 902. (/) Scott V. Becker, 4 Price, 346 ; Dance v. Goldingham, ubi sup. ig) Mansfield v. Shaw, 3 Madd. 100; ScoU V. Becker, 4 Price, 346 ; Taylor v. Allen, 2 Atk. 213. {k) Gladdon v. Stoneman, 1 Mad. 143, note. (i) Howard v. Papera, 1 Mad. 143 ; Hatkorntkwaite v. Russell, 2 Atk. 126 ; S. C. Barn. 334. (k) Everett v. Prytkergck, 12 Sim. 365. 699 CHAPTER XXIX. THE REMEDIES OF THE CESTUI QUE TRUST IN THE EVENT OF A BREACH OF TRUST. Upon the subject of the cestui qxu trusts remedies for a breach of trust, we shall consider, 1. The right of the c&stid 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 personally, by way of compensation for the mischievous consequences of the act ; and 4. The mode and extent of redress in breaches of trust committed by trustees of charities. SECTIOI^ I. OP FOLLOWING THE ESTATE INTO THE HANDS OF A STEANGEE. 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, A¥hat account the Court will direct of the mesne rents and profits. First. Into whose hands the estate may be followed. 1. If the alienee be a volunteer, then the estate may be followed Where alienee is into his hands, whether he had notice of the trust (a), or not (b) ; may be followed, for though he had no actual notice, yet the Court 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 (a) Mansell v. Mansell, 2 P. W. Plunket, 58; Pye v. George, 2 Salk. 678; SauTidersY, Dehew,'i.Yer:n.21\\ 680, ^er Lord Harcourt ; and see 1 S. C. 2 Freera. 123 ; Langton v. Astrey, Re. 122 b ; Burgess v. Wheate, 1 Eden, 2 Ch. Re. 30; 8. C. Nels. 126. 219; Spurgeon v. Collier, 1 Eden, 55; (h) Mansell v. Mamell, 2 P. W. Cole v. Moore, 806. 681, per Cur. ; Bell v. Bell, LI. & G. t. 700 OF FOLLOWING THE ESTATE, [CH. XXIX. S. 1. notice of the trust, whether the notice be actual or constructive (a), and notwithstanding the Statute of Limitations, which does not apply to a person taking with notice, and therefore taking by fraud (6), he is bound to the same extent and in the same manner as the person of whom he purchased (c), even though the convey- ance was made to him by fine with non-claim ((f) ; for, knowing another's right to the property, he throws away his money volun- tarily, and of his own free wiU (e). 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 agree- ment affecting the estate (/), or a lien for purchase money (ff). But, if a bond fide purchaser have not notice, either expressly or constructively, he then merits the fuU protection of the Court, and his title, even in equity, cannot be impeached Qi). (a) Bourset v. Savage, 2 L. R. Eq. 134. (6) Rolfe V. Gregory, 11 Jur. N. 8. 98 ; S. C. 4 De Gex Jon. and Sm. 576. This was the case of a debt to which the six years' limitation would have applied, but the same principle must govern the case of land to which the twenty years' limitation applies. However, in the latter it is not very probable that twenty years could elapse without such gross laches as would dis- entitle the plaintiff to relief on that ground, independently of the statute. And see Hartford v. Power, 2 Jr. Rep. Eq. 204. (c) Dunbar v. Tredenniclc, 2 B. & B. 319, ^e?" Lord Manners; Pawleit v. Attorney- General, Hard. 469, ^cr Lord Hale; Burgess v. Wheate, 1 Ed. 195, per Sir T. Clarke ; Bovey v. Smith, 1 Vern. 149 ; Phayre v. Peree, 3 Dow, 129 ; Adair v. Shaw, 1 Sch. & Lef. 262, per Lord Redesdale; Wigg v. Wigg. 1 Atk. 382; Mead v. Lord Orrery, 3 Atk. I?,?,, per Lord Hard- wioke ; Mackreth v. Symmons, 15 Ves. 350, per Lord Eldon ; Mansell v. Mansell, 2 P. W. 681, per Cur.; Willmtghby v. Willoughby, 1 T. R. 771, per Lord Hardwicke ; Verney v. Carding, cited Joy v. Campbell, 1 Sch. & Lef. 345 ; Flemming v. Page, Rep. t. Finch. 320 ; Powell v. Price, 2 P. W. 539, admitted; Backhouse v. Mid- dleton, 1 Ch. Ca. 173; S. C. id. 208; Walley v. Whalley, 1 Vern. 484; Pearcey. Newlyn, 3 Mad. 186 ; Slattery v. Axton, W. N. 1866, p. 113 ; Mac- bryde v. Eykyn, W. N. 1867, p. 306 ; Heath v. Creahch, W. N. 1873, p. 225. (d) Kennedy v. Daly, 1 Sch. & Lef. 355 ; and see Bell v. Bell, LI. & G. t. Plunket, 44. (e) Mead v. Lord Orrery, 3 Atk. 238, per Lord Hardwicke. (/) Daniels v. Davison, 16 Ves. 249 ; Earl Brooh 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. Orm^by, 2 Sch. & Lef. 583; Kennedy V. Daly, 1 Sch & Lef. 355. {g) Mackreth v Symmons, 15 Ves. 329 ; Walker v. Preswick, 2 Ves. 622, per Lord Hardwicke ; Kator v. Pem- broke, 1 B. C. C. 302,^er Lord Lough- borough; Gibbons v. Baddall, 2 Eq. Ca. Ab. 682, note (6); EllioU v. Ed- wards, 3 B. & P. 181 ; and see Grant V. Mills, 2 V. & B. 306 ; Dunbar v. Tredennick, 2 B. & B. 320. (7i) 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, ^e»- Cur. ; Willoughby v. Willoughby, 1 T. R. 771 , per Lord Hardwicke ; Dunbar v. Tredennick, 2 B. & B. 318, per Lord Manners ; Trevor v. Trevor, 1 P. W. 633 ; Harding v. Hardrett, Rep. t. Finch, 9 ; Colev. Moore, Mo. 806, ^er Cur. ; Jones v. Powles, 3 M. & K. 581 ; Payne v. Compton, 2 Y. & C. 457 ; Thorndike v. Hunt, 3 De G. & Jon. 563; Heath v. Creahch, W. N. 1873, p. 225. CH. XXIX. S. l.J OF FOLLOWING THE ESTATE. 701 2. If the purchaser have no notice of the trust at the time of Purchaser with- the purchase, but afterwards discovers the trust and obtains a con- protect 'himself" veyance from the trustee, he cannot protect himself by taking by getting in legal shelter under the legal estate ; for this is not like getting in a first express trustee. mortgage, which the first mortgagee has a right to transfer to whomsoever he will (a) ; but here notice of the trust converts the purchaser into a trustee, and he must not, to get a plank to save himself, be guilty of a breach of trust (6). A purchaser taking the legal estate without actual notice of the trust, but taking it from a person in whom it vested by an instrument which disclosed the trust, but of which instrument the purchaser was ignorant at " the time of purchase, can still protect himself as a purchaser without notice (c). Where a trustee of shares of a company within the Companies' Shares in a com- Clauses Consolidation Act transferred them to a stranger without P*°^' notice, but who had notice before the transfer was registered, the purchaser was protected ; for he had no notice when he paid his money, and it was Uke a conveyance where the legal estate was to become vested on the performance of some condition, such as making a demand or the like, and the registration involved no breach of trust by the trustee (d). 3. A purchase without notice from a purchaser with notice is Purchaser with- not liable, for his own hona fides is a good defence in itself, and the purchsKer wit™ mala fides of the vendor ought not to invalidate it (e). But the notice. 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 a charity (/). 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 [g). 4. A purchaser with notice from a purchaser without notice is Purchaser with exempt from the trust, not from the merits of the second purchaser, ""^^"^^ *™™ P™' notice. {a) Bates v. Johnson, 1 Johns. 304 : {d) Dodds v. HilU, 2 Hemm. & Mill. Baillie v. M'Kewan, 35 Beav. 177; 424. Joyce V. Rawlins, 11 L. R. Eq. 53. (e) Merlins v. Joliffe, Amb. 31S, per (b) Saunders v.Deheiv, 2 Yern. 271; Lord Hardwicke ; Ferrars v. Cherry, S. C. 2 Freem. 123 ; Langton v. Astrey, 2 Vern. 384 ; see Pitts v. Edelph, Tot- 2 Ch. Re. 30 ; S. C. Nels. 126 ; Carter hill, 164 ; Salsbury v. Bagoit, 2 Swans. V. Carter, 3 K. & J. 617 ; Sharpies v. 608. Adams, 32 Beav. 213 ; Collier v. (/) East Greenstead's case, Duke, 65, McBean, 34 Beav. 426 ; Justice v. Sutton Colefield case, id. 68 ; and see TFj/nne, 10 Ir. Ch. Re. 489; 12Ir. Ch. id. 94, 173; see Commissioners of Re. 289 ; Prosser v. Rice, 28 Beav. 68. Charitable Donations v. Wyhrants, 2 (c) Pitcher v. Rawlins, 7 L. R. Ch. Jones & Lit. 194. App. 259, overruling Carter -v. Carter, {g) SeeSugd. Vend. & Pur. 722,14th 3 K. & J. 617. edit. 702 OF FOLLOWING THE ESTATE. [CH. XXIX. S. 1. How far pur- chaser bound by notice of a doubtful equity. Notice of " heirs of the body." but of the first ; for if an innocent purchaser were prevented from disposing of the beneficial interest, the necessary result would be a stagnation of property (a). But, if the trustee seU the lands to a bond fide purchaser without notice, and afterwards himself be- come the owner of the lands, though for a good and valuable con- sideration, the trust as to him revives again, and he shall restore the land to the trust (b) ; and in this respect equity foUows the law ; for, if a trespasser of goods sell them in the market overt, the owner's title is barred ; but, if they come to the trespasser again, the owner may seize them (c). 5. Upon the question, how far a purchaser will be bound by notice of a dovhtful equity. Lord ISTorthington said, in Cordwell v. Mackrill (d), " A man must take notice of a deed on which an equity, supported hy precedents the justice of which every one ac- knowledges, arises, hut 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 siich a doubtful equity that a purchaser is not to be taken to know ivhat will be the decision, and that is aU Lord Camden (e) means ; but in this case the equity is clear " {f) 6. The rule, that " heirs of the body " in articles shall be con- strued " first and other sons," does not appear to have been fully established till about the year 1720 {g) : Lord Hardwicke therefore said, that notice of ancient articles, that is, of articles before the doctrine was weU settled, should not bind a bond fide purchaser (h). 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 (a) Harrison v. Forth, Pr. Ch. 51 ; Bradwell v. Calchpole, stated Walker V. Symonds, 3 S-wans. 78, note (a) ; Merlins v. Joliffe, Amb. 313, ^er Lord Hardwicke ; Brandlyn v. Ord, 1 Atk. 571, per eundem; Sweet v. Southcote, 2 B. C. C. 66 ; M' Queen v. Farquhar, 11 Ves. 478, jjer Lord Eldon; Lowther V. Carlton, 2 Atk. 242 ; S. C. 3 Barn. 358; S. C. For. 187; Andrew v. Wrigley, 4 B. C. C. 136, per Cur.; Salshury v. Bagott, 2 Swans. 608, per Cur. (6) Bcwy V. Smith, 2 Ch. Ca. 124 ; S. C. 1 Vern. 60, 84, 144 ; Kennedy V. Daly, 1 Sch. & Lef. 379, per Lord Redesdale. (c) See Bovy v. Smith, 2 Ch. Ca. 126. {d) 2 Ed. 347 ; -L. J. Turner. (e) Gray v. Lewis, 8 L. R. Eq. 526 ; seep. 543. (/) See Chalmer v. Bradley, 1 J. & W. 67 ; Bennett v. Colley, 2 M. & K. 232: Llevellyn v. Mackworth, Barn. 449 ; Wilson v. Moore, 1 M. & K. 146 ; Townshend v. Townshend, 1 B. C. C. 554 ; Hamond v. Hicks, 1 Veni. 432 ; Norton \. Tarvill, 2 P. W. 144 ; Bell v.BeU,U.& G. ^Plunket, 66 ; Attorney- General v. Mayor of Exeter, Jao. 448; Heath v. Henly, 1 Ch. Ca. 26 ; Weddeirbum v. Wedder- burn, 2 Keen, 749 ; 2 M. & C. 41 ; 22 CH. XXIX. S. l.J STATUTE OF LIMITATIONS. 705 has hence been argued, that, as the person into whose hands the estate is followed is also by construction of law a trustee, the cestui que. trust is entitled to the benefit of the rule, and is not precluded by mere lapse of time from establishing his claim. But the authorities show that this doctrine cannot be main- tained (a). " It is certainly true," said Sir W. Grant, " that no time bars a direct t7'ust ; 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 wlurc 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 acquiescence, comes into a Court of equity to seek that relief (h). 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 perform his trust, his possession operates nothing as a bar, because his piossession 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, hut 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 ad.verse to the Beav. 84 ; Smith v. Acton, 26 Beav. 4 B. C. C. 125 ; Collard v. Hare, 2 R. 210 ; Lord Hollis^s case, 2 Vent. 345 ; & M. 675 ; and see Cholmondehy v. Earl of Pomfret v. Windsor, 2 Ves. Clinton, 2 J. & W. 190 ; S. C. affirmed, 484 ; Hargreaves v. Michell, 6 Mad. 4 Bligh, 4 ; Bell v. Bell, "Rep. t. Plun- 326 ; Nevarre v. Button, 1 Vin. Ab. ket 66 ; Portlock v. Gardner, 1 Hare, 185 ; Shields v. Athins, 3 Atk. 563; 594 ; Ex parte Hasell, 3 Y. & C. 622 ; Phillipo V. Munnings, 2 M. & C. 309 ; Wedderhurn v. Wedderburn, 4 M. & Ward 7. Arch, 12 Sim. 472; Young Cr. 53; but see Attorney- General v. V. Waterparh, 13 Sim. 204; Goughv. Christ's Hospital, 3 M. & K. 344 (the Bull, 16 Sim. 323 ; Massy v. O'Dell, case of a charity) ; Bolfe v. Gregory, 10 Ir. Ch. Re. 22; Crawfordv. Craw- 11 Jm-. N. S. 98; 4 De Gex, Jon. & ford, 1 Ir. Rep. Eq. 436. Sm. 576 ; SlRtrgis v. Morse, 3 De G. & (a) Townshend v. Townshend, 1 B. Jon. 1 . C. C. 550, see 554; Bomiey v. Rid- (b) Beckfordy. Wade,!! Ves. 97. gard, 1 Cox 145 ; Andrew v. Wrigley, Z Z STATUTE OF LIMITATIONS. [CH. XXIX. S. 1. General opera- tion of lapse of time. Three bars to equitable relief Bar by analogy to a statute. Lord Camden's views. Lord Eedesdale' views. title of the person who impeaches the transaction on the ground of fraud." (a). 2. For more clearly understanding how lapse of time operates in reference to the remedy of the cestui que trust in the event of a wrongful alienation of the trust estate by the trustee, it may be of advantage to consider the effect of lapse of time upon suits for eq^uitable relief generally. To claims in equity there appear to be three bars arising from lapse of time : — I. A statute of limitation ; II.- The presumption of something done which, if done, is subversive of the plaintiffs right ; III. The ground of public policy or inconvenience of the relief. I. Where there is a statutable bar at law, the same period was always either by analogy, or in obedience to the statute, adopted as a bar in equity in reference to equitable claims (6). 1. The language of Lord Camden upon this subject has been admired as peculiarly energetic. " As a Court of equity," he said, " has no legislative authority, it cannot properly define the time of bar by a positive rule to an hour, a minute, or a year : it is governed by circumstances. But as often as Parliament has limited the time of actions and remedies to a certain period in legal proceedings, the Oourt of Chancery has adopted that ride, and applied it to similar cases in equity; for when the legislature has fixed a time at law, it would be preposterous for eguity, which by its own proper authority always maintained a limitation, to countenance laches beyond the period that law is confined to by Parliament ; and there- fore in all cases, where the legal right had been barred by Parlia- ment, the equitable right to the same thing has been conchoded by the same bar " (c). 1 Lord Eedesdale, in a case before him, 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 (a) Hovenden v. Lord Annesley, 2 Soh. & Lef. 633. [h) See Ex parte Dewdney, 15 Ves. 496 ; Bonney v. Ridgard, 1 Cox. 149 ; Bechford v. Wade, 17 Ves. 97 ; Town- shend v. Townshend, 1 B. C. C. 554 ; Ac/ffas v. Picherell, 3 Atk. 225 ; Belch v. Harvey, Appendii to Sugd. Vend, and Purch. No. xiv. 13th edit. ; White v. Ewer, 2 Vent. 340 ; Knowles v. Spence, 1 Eq. Ca. Ab. 315 ; Pearson v. Pulley, 1 Ch. Ca. 102 ; Johnson v. Smith, 2 Burr. 961 ; Attorney-General v. Mayor of Exeter, Jac. 448 ; Salter v. Ca- vanagh, 1 Dru. & Walsh, 668 ; Kings- ton V. Lorton, 2 Hog. 166; Foley -v. Hill, 1 Phill. 399 ; Hamilton v. Gra/nt, 3 Dow, 44 ; Marquis of Clanricarde v. Henning, 30 Beav. 175. (c) Smith v. Clay, cited in note to Deloraine v. Browne, 3 B. C. C. 639. CH. XXIX. S. l.J STATUTE OF LIMITATIONS. 707 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 oheclience to them " (a). And again, " I think the statute must be taken virtually to include Courts of equity; for when the legislature has by statute limited the proceedings at law in certain cases, and provided no express limitation for proceedings in equity, it must be taken to have contemplated that equity fol- lowed law; and therefore it must be taken to have, virtually enacted in the same cases a limitation for Courts of equity also " (V). And the same doctrines have been repeatedly recognised by the highest authorities, amongst whom may be mentioned Lord Man- ners (c). Sir T. Plumer (d), Lord Lyndhurst (e), and Lord West- l^ury (/). 2. Upon these principles, then, an equitable claim to lands could Limitation of never have been enforced after a lapse of twenty years ; for though ^'^" ^ years, to writs of right and to formedons much longer periods were allowed at law, yet equity always looked upon these as peculiar and ex- cepted cases, and guided itseK rather by analogy to the statute of James, which fixed the limitation to the prosecution of i^ghts of entry (g). 3. At law the remainderman's right always ran only from the BiUa to redeem, determination of the particular estate, but in the case of a hill to redeem filed by the person entitled in remainder to the equity of redemption, twenty years' possession by the mortgagee without account or admission of title, though partly or wholly during the lifetime of the tenant for life, barred the remainderm,an ; the ground for the distinction apparently being, that the remainderman might have filed a bill to redeem during a continuance of the life estate (Ji). But where the mortgagee is also tenant for life of the equity of redemption, the time does not run against the remainderman until the death of the tenant for life (i) ; and the same rule applies (a) Hovenden v. Lord Annesley, 2 (/) See Knox v. Oye, 5 L. R. Eng. Sch. & Lef. 630. & Ir. App. 674. (b) Hovenden v. Lord Annesley, 2 (g) Marquis of Cholmondeleyy. Lord Sch. & Lef. 631 ; and see Marquis of Clinton, 2 J. & W. 192. Cholmondeley v. Lord Clinton, 2 J. & {h) See Giffard v. Hort, 1 Sch. & W. 192; Bond v. Hophins, 1 Sch. & Lef. 407 note; BMe v. i^oster, 4 Bligh, Lef. 429. N. S. 1 40 ; Corhett v. Barker, 1 Anstr. (c) Medlicott v. O'Donel, 1 B. & B. 138, 3 Anstr. 755 ; Harrisons. Hollins, 166. 1 S. &. S 471 ; but see 2 Phil. 121. {d) Marquis of Cholmondeleyy. Lord (i) Raffety v. King, 1 Keen, 601, Clinton, 2 J. & W. 151. and cases there cited ; Burrelly. Lord (e) Foley v. Hill, 1 Phil. 405. Egremont, 7 Beav. 205. Z Z 2 •708 STATUTE OF LIMITATIONS. [CH. XXIX. S. 1. Fine. Statutory bar not avoided by igno- rance, poverty, .tc. Effect of for- bearance of tbe trustee to sue. where the mortgagee is tenant in common with others of the equity of redemption (a). 4. Where a fine, with proclamations, was levied by a person 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 (&). 5. In the case of a statutory bar the limited period affords a substantial insuperable obstacle to the plaintiff's claim, and no plea of poverty, ignorance or mistake, can be of any avail. However clear and indisputable the title, could the merits be enquired into, the limited time has elapsed, and the door of justice is closed (c). If the Court could relieve after twenty years on the ground of dis- tress, or any similar plea, so might it after thirty, forty, or fifty ; there would be no limitation, and property would be thrown into confusion (d). 6. Sir Joseph Jekyll is reported on one occasion to have laid down the rule that, "the forbearance of the trustees in not doing what it was their office to have done should in no sort prejudice the cestuis que trv^st " (e) ; and 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 this is not the case generally as regards the operation of the Statutes of Limitations. " The rule, that the Statute of Limita- tions does not bar a trust estate," said Lord Hardwicke, " holds only as between cestui que trust and trustee, not as 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 " (/). "A cestui que trust" said Lord Eedesdale, "is always barred by length of time operating against the trustee. If the tmstee does not enter, and the cestui que trtost does not compel him to enter, as to the person claiming paramount the cestui que trust is (a) Wynne v. Slyan, 2 Phil. 303. (5) Belly. Bell, LI. & G. t. Plunket, 44; and see 3 P. W. 310 note(a). (c) Marquis of CTiolmondeley v. Lord Clinton, 2 J. & W. 139, per Sir T. Plumer ; Byrne v. Frere, 2 Moll. 171, 178, per Sir A. Hart ; Astley v. Earl of Essex, W. N. 1874, p. 98. But as to mistake, see Broohshanh v. Smith, 2 Y. & C. 58. {d) Ilovenden v. Lord Annesley, 2 Sell. & Lef. 640. (c) Leclvmere v. Earl of Carlisle, 3 P. W. 215. (/) LtweUin v. Machworth, 2 Eq. Ca. Ab. 579 ; S. C. Barn. 445. CII. XXIX. S. l.J STATUTE OF LIMITATIONS. 709 barred" (a). And Lord Manners observed, "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 trustees neglect their duty, and suffer an adverse possession of twenty years to be held, I apprehend the Statute of Limitations is a bar to the cesttoi que trust " (b). 7. It results from the foresoins; statements of the doctrine of Oa.se wheK cestui ,„. qiw trust is under the Court, that where both cestui que trust and trustee are out ot disaljility, or is possession for the time prescribed by the Statutes of Limitations, entitled m re- '- r J > mamder. the former suffers for the neglect of the latter and is barred. But the question still remains, whether in cases where the cestui que trust would, if his title were legal, have more than the ordinary time to sue (as where he is under disability or entitled in remainder only), he will be allowed the same extended period for suing in equity, notwithstanding that the trustee may be barred. 8. Where the subject matter of the trust is a personal debt, it Where subject seems difficult to avoid the conclusion, that when the trustee is jg ^^ (jcbt. barred, the cestui que trust is barred also. There is, in such a case, no general right to sue in equity (c). The proper remedy of the cestui que trust is to proceed at law in the name of the trustee ; and he cannot by changing the tribunal confer upon himself an extended time for suing, or make the subject matter of the trust, although irrecoverable at law and virtually destroyed, recoverable in equity (d). But if the debtor borrowed the money as trust money, or knowing it to be such, he cannot set up the Statute (e). 9. The same result would seem to follow where the subject Where subject matter of the trust is land, and the possession has been held ad- ^^^^ poss^ession versely to both trustee and cestui qtie trust, without any species of is adverse, privity, as when the trustee is disseised. Here there is generally no remedy in equity. The proper course for the cestui que trust is to bring ejectment in the name of the trustee. The rare instance of a person entering without privity or authority upon lands belonging in equity to an infant may perhaps constitute an excep- tion, the rule being that he who so enters must, whether the infant is legally or equitably entitled, be regarded as a bailiff or receiver {a) Hovenden v. Lord Annesky, 2 pany, 3 P. W. 309 ; Stone v. Stone, 5 Sch. & Lef. 629. L. R. Ch. App. 74. (b) Penlland v. Stohes, 2 B. & B.75. [e) SpicherneU v. Hotham, Kay, 669, (c) Hammond v. Messenger, 9 Sim. Bridgman v. Gill, 24 Beav. 302 ; 327 ; Bolton v. Poioell, 14 Beav. 275. Ernest v. Croysdill, 6 Jiir. N. S. 740, {d) See Wych v. East India Com- and see Stone v. Stone, 5 L. R. Cli. App. 74. 710 Where trust is of land and party in possession claims by con- veyance from trustee. Fraud. STATUTE OF LIMITATIONS. [CH. XXIX. S. 1. for the infant (a). But no such exception can be maintained where the infant has newr been in possession by himself, his guardian, or agent, but the title was adverse to those through whom he claims (6). And even the existence of the exception itseK cannot be viewed as free from doubt (c). 10. Where the subject matter of the trust is land, and the person in possession claims by conveyance, from the trustee, here, unless the facts warrant the defence of purchase for value with- out notice, the right of the cestui que trust to fix the person in possession with the liability to perform the trust falls under an ordinary head of equitable jurisdiction. The cestui que trust is clearly entitled to file his bill against the legal owner, and the only question is within what time he must do so. In these cases, it is conceived, the cestui que trust (although the trustee may be barred from his action of ejectment) must, in the absence of any express statutory enactment applicable to the case (d), be entitled to sue in equity within the same extended period in reference to disability and accruer of right, as if his title were legal. 11. No time will cover a fratid so long as it remains concealed; for, until discovery (or at all events until the fraud might with reasonable diligence have been discovered), the title to avoid the transaction does not properly arise (c). 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 («) See cases cited p. 725, infra, note (e). (b) Crowther v. Crovither, 23 Beav. 305. But see Quinton v. Frith, 2 I. R. Eq. 414. (c) See AUen v. Sayer, 2 Vern. 368, corrected from R. L. Treat, on Trusts, 3rd edit. App. X., and the author's remarks at p. 720 of the same edition ; Wych V. East India Company, 3 P.W. 309; The Early. Countess of Hunting- don, cited lb. 3i0, note (G.) ; Thomas V. Thomas, 2 K. & J. 79. {d) See p. 718, infra. (e) Blair v. Bromley, 2 Phil. 354 ; RolfeY. Gregory, 11 Jur. N. S. 97; S. C. 4 De Gex. Jon. & Sm. 576; Cotterell v. Purchase, Cas. t. Talbot, 63, per Lord Talbot ; Medlicott v. O'Donel, 1 B. & B. 166, per Lord Manners ; Arran v. Tyrawly, cited lb. 170 ; Alden v. Gregory, 2 Eden, 280 ; Morse v. Royal, 12 Ves. 374, ^er Lord Erskiue ; Bichnell v. Gough, 3 Atk. 558 ; South Sea Company v. Wymond- sell, 3 P. W. 143 ; Booth v. Warrington, 4 B. P. C. 163; Pickering v. Lord Stamford, 2 Ves. jun. 280, per Lord Alvanley ; Hovenden v. Lord Annesley, 2 Sch. & Lef. 634 ; Soche v. O'Brien, 1 B. & B. 330 ; Blennerhassett v. Day, 2 B. & B. 118; per Lord Manners; Robertson v. Noi-ris, 1 Giff. 421 ; Whatton V. Toone, 5 Mad. 54; and see Whalley v. Whalley, 1 Mer. 436 ; Western v. Cartwright, Sel. Cas. Ch. 34 ; Re Agriculturists'' Cattle Insurance Company, 3 L. R. Eq. 769. But Sir A. Hart thought time would run against fraud from the date of it, tliough undiscovered, provided the person entitled had knowledge of the fraud a reasonable time before the ex- piration of the period. Byrney. Frere, 2 Moll. 137. CH. XXIX. S. 1.] STATUTE OF LIMITATIONS. 711 distance of time ; it is entirely your own neglect that you did not do so within the period limited by the statute " (a). 12. The defendant may avail himself of the Statute of Limita- How defendant ... 1 (. /• j_i 1 '11 may take advan- tions, when the bar to the claim appears on the face ot the bul, tage of the by demurrer (b) : when it does not appear on the bill, by plea (c) ; statute. or the defendant may pray in his answer to have the same benefit at the hearing as if he had pleaded the statute (d) ; but, if he neither demur, nor plead, nor pray to have the same benefit as if he had pleaded, he cannot shelter himself under the statute at the time of the hearing (e) ; though it seems the Court itself may still, in its own discretion, refuse to grant relief after the limited period (/). 13. Even when the bill charges fraud, the defendant may in cases of fraud, demur {g), or plead Qv) according to the circumstances of the case. If the plaiatiff allege that he only discovered the fraud within the period limited by the statute, the defendant must by plea either deny the fraud, or insist that the plaintiff had knowledge of it (t). II. The Court, after great length of time, will presume some act Bar from pre- to have been done, which, if done, is a bar to the demand (k). sumption. 1. The period at which the Court raises the presumption de- At what time pends upon the circumstances of the case. As a general rule, the raisecT^*^"" ^^ (a) Hovenden v. Lord Annesley, 2 Sch. & Lef. 634, per J^ord Redesdale ; Western v. CartivrigJit, Sel. Ch. Ca. 34; and see Mulcahy v. Kennedy, 1 Ridg. 337. (6) Foster v. Hodgson, 19 Ves. 180 ; Bampton v. Birchall, 5 Beav. 67 : Prance v. Sympsmi, Kay, 680 ; Hoare V. Peck, 6 Sim. 51 ; Bechford v. Close, cited lb. 184 ; Ferguson v. Livingston, 9 Ir. Eq. Rep. 202 ; Hardy v. Reeves, 4 Ves. 479, per Lord Alvanley ; Hodle V- Healey, 1 V. & B. 539 ; Hovenden V. Lord Annesley, 2 Sch. & Lef. 637, 638 ; Fyson v. Pole, 3 Y. & C. 266 ; Jenner y. Tracey, cited Cook v. Arn- Jmm, 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 Aggas V. Pickerell, 3 Atk. 225, contra ; and see O'Kelly v. Glenny, 9 Ir. Eq. Re. 25. (c) Aggas v. Pickerell, 3 Atk. 225 ; and the cases there cited ; Wych v. East India Company, 3 P. W. 309 ; Lacon v. Lacon, 2 Atk. 395; Welford V. Liddel, 2 Ves. 400 ; Blewitt v. Thomas, 2 Ves. jun. 669 ; &c. {d) Barber v. Barber, 18 Ves. 286; &c. (e) Prince v. Heylin, 1 Atk. 494 ; Harrison v. Borwell, 10 Sim. 382 ; Roch V. Callen, 6 Hare, 535 ; Sleight V. Lawson, 3 K. & J. 296. (/) Prince v. Heylin, ubi supra, (g) See Hovenden v. Lord Annesley, 2 Sch. & Lef. 637, disapproving Lord Deloraiiie v. Browne, 3 B. C. C. 633 ; Hoare v. Peck, 6 Sim. 51. {h) South Sea Companyv. Wymond- sell, 3 P. W. 143. (i) See Mitford on Pleading, 269; 4th edit. (7c) Pattison v. Hawkesworth, 10 Beav. 375 ; and see Attorney- General V. Moor, 10 Beav. 119. 712 BAR FROM PRESUMPTION. [CH. XXIX. S. 1. Ground of the presumption. Ignorance, mia- take,and distress. 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 (a). 2. Presumptions are made, not necessarily because the Court really believes what is presumed, but in the absence of evidence, for the purpose of quieting the possession (&). Lord Erskine ob- served, " It is said you cannot presume unless you helieve. It is because there are no means of creating belief or disbelief, that such general presumptions are raised " (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 of 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 prohetur in eontrarium. But the Court has judged it better for the ends of justice, that presumptions should be favoured in law, and should not be rebiitted by slight evidence in contradiction {d). 3. The Court cannot preffiime a person to have abandoned his right so long as he remains in ignorance of it, or labours under a mistake (e) ; and the distress of a person, so far as it accounts for his laches will pro tanto weaken the foundation of the presump- tion (/). So a release of right cannot with the same force be presumed against a class of persons, as against an individual ; for it is not likely that a person having only an aliquot share in the (a) Eldridge v. Knott, Cowp. 214. (&) Eldridge v. Knott, Cowp. 215, per Lord Mansfield ; and see Grenfell V. Girdlestone, 2 Y. & C. 682 ; Mag- dalen College v. Attorney- General, 3 Jur. N. S. 675. (c) Hillary v. WaUer,12Yes. 266. (d) Jones v. Tuberville, 2 Ves. jun. 13, per Lord Commissioner Byre ; and see Grenfell v. Girdlestone, 2 Y. & C. 662. (e) See Marquis v. Cholmondeley v. Lord Clinton, 2 Mer. 362 ; Eaiidall V. Errington, 10 Ves. 427 ; Roche v. O'Brien, IB. & B. 330, see 342; Pickering v. Stamford, 2 Ves. jun. 280, and following pages ; 8. C. ib. 585 ; Chalmer v. Bradley, 1 J. & W. 65, and following pages ; Bennet v. Colley, 2 M. & K. 232 ; Stone v. Godfrey, 5 De G. M. & G. 76. (/) See Roche v. O'Brien, 1 B. & B. 342; Hillary Y. Waller, \2Y6& 266; Gowland v. De Faria, 17 Ves. 25 ; Byrne v. Frere, 2 Moll. 171, 178. (1) In Harmood v. Oglander, 6 Ves. 199, 8 Ves. 106, the bill was filed after a lapse of thirty-two years, yet neither Lord Alvanley nor Lord Eldon considered the length of time to bar the plaintiff's demand ; but in this case the parties were equitable tenants in common, and as between them the presumption of ouster did not arise. CH. XXIX. S. l.J BAK FROM PEESUMPTION. - 713 property, should pursiie his remedy with the same spirit, as if he were the exclusive proprietor (a). 4. A bar by analogy to a statute may, as we have seen, be taken How the de- j , ry T J • , IT 1 fondant is to advantage oi, according to circumstances, by demurrer, or plea, or J^^ail himself of answer ; but a presumption, being the inference of a fact, cannot t^e presumption, be made available as a defence by demurrer (6). III. Though the plaintiff's demand cannot be met by an abso- Bar from public lute bar, and no release of right can be 2^'''^sumed ; yet, thirdly, vemence.^ "icon- relief will not be granted where, if administered, it would lead to great public or private inconvenience (c). 1. Thus in a bill for an account against an executor or adminis- On bill for ac- trator, who is in equity a trustee, and was formerly not protected ment*may*te" by any statute of limitations {d), though the presumption of a presumed. final settlement 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 re- ceipts are lost (e). 2. Where a suit was prosecuted after a delay of threescore and Instances of 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 " (/). But bills have been dismissed at the end of twenty- seven years {g), 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 cir- cumstances (h). 3. In Pickering v. Lmxl Stamford (i) 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, and prayed that such part as consisted of money upon mortgage 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 : " Iknoiu no rule that has established that mere length (a) See Whichcote v. Lawrence, 3 (d) See now 3 & 4 W. 4, c. 27, Ves. 752 ; Anon, case, cited Lister v. s. 40 ; 23 & 24 Vict. c. 38, s. 13. Lister, 6 Ves. 632 ; Kidney v. Couss- («) Hunton v. Dairies, 2 Ch. Re. 44 ; maker, 12 Ves. 158 ; Hardwich v. Huel v. Fletcher, 1 Atk. 467 ; Pearson Mynd, 1 Anst. 109 ; Attorney- General v. Belchier, 4 Ves. 627 ; Hercy v. Din- V. Lord Dudley, Gr. Coop. 146; but see woody, 2 Ves. jun. 87. Elliot V. Merriman, 2 Atk. 42 ; Hercy (/) St. John v. Turner, 2 Vern. 418. V. Dinwoody, 2 Ves. jun. 87. {g) Campbell v. Graham, 1 R. & M. (6) Deloraine v. Browne, 3 B. C. C. 453. 633. See the argument stated in Mit- Qi) See Hercy v. Dinwoody, 2 Ves. ford on Pleading, p. 212, 4th ed. jun. 93 ; Earl of Pomfrct v. Lord (c) See Attorney- General v. Mayor Windsor, 2 Ves. 483. of Exeter, Jao. 448. (i) 2 Ves. juu. 272. Stamford. 714 BAR TO EBLIEF FROM TIME. [CH. XXIX. S. 1. of time, will har. 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 enquiries 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. The question, he observed, in aU these cases is, whether there are motives of public policy or pri- vate inconvenience, to induce the Court to say, the suit ought not to be entertained. " If," said his Lordship, " 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, Puhlic convenience. The plaintiffs are so conscious of this, that they do not call on the trustees to account for what has been dis- bursed before any demand made. 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. Therefore, desiring to be understood by no means to give any countenance to these stale demands, but upon the circumstances that there is nothing indu- cing 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 " (V). Bar from length 4. The doctrine laid down by Lord Alvanley in the case refer- of time. j.g^ ^Q^ ^Q^ mere length of time will not bar, requires some quali- fication. Lapse of time or delay in suing, unaccounted for by disability or other circumstances, constitutes per se in the eye of a Court of equity, laches disentitling the plaintiff, in certain classes of cases at least, to relief 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 may bar his title to relief (c). So where a plaintiff seeks to set aside a purchase from him by his solicitor {d) or of a reversionary interest (e), or to fix a defendant with a constructive trust (/), or to caU a person to account for (a) 2 Ves. jun. 283. (/) Clegg v. Edmmdsm, 3 Jur. [h) lb. 682, and following pages. N. S. 299 ; Isald v. Fitzgerald, cited (c) See the cases, p. 432, supra. Amb. 735, 737 ; and see Pennell v. {d) See Oresley v. Mousley, 4 De JSbme, 3 Drew. 337 ; iVbrris v. ieiVeue, Gex. & Jon. 78 ; and the cases there 3 Atlc. 38 ; Jackson v. Welsh, LI. & Gr. cited, and Ijyddon v. Moss, ib. 104. Rep. t. Plunk. 346. [fi) Bolerts v. Tunstall, 4 Hare, 257. CH. XXIX. S. l.J LAPSE OF TIME — LACHES. 715 acts of waste (a), or comes to a Court of equity alleging a case of fraud as a ground for avoiding the operation of the Statute of Limitations (6). So where an account was 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, refused its aid after a delay of thirteen years (c). And where the assistance of the Court is sought in a suit for specific performance (d^, or in one partaking of that character («), the rule is extremely strict. It is difficult to refer the refusal of the relief by the Court, in the instances men- tioned, to any one general principle. In the cases of purchases by trustees, or of claims founded upon constructive trust, the pro- bability of alteration of circumstances in regard to the property, and the unfairness of the plaintiff in lying by, have weighed with the Court. Perhaps, the nearest approach to general principle will be found under the head of " Public Convenience ; " " Expedit BeipuMicce ut sit finis litium " (/). 5. It has been pointed out that in certain special cases a delay of Bar from lacJies, less than twenty years operates as a bar ; and the Court in these ^^^^^ *'^f'^Limi- instances departs still further from the analogy offered by the tations. Statute of Limitations, by taking into account partly time which may have elapsed while the plaintiffs interest was reversionary (g). The question remains, whether, in general, laches can be relied upon as a bar to a mere dry equitable demand 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 (h). 6.' Besides the bars which have been enumerated arising from the Acquiescence, effect of time, a plaintiff may also be precluded from relief on the ground of acquiescence. This is of two kinds : — First, direct, where the Act complained of was done with a full knowledge and (a) Harcourt v. White, 28 Beav. 303. Browne v. Crosse, 14 Beav. 105 ; but as (h) Blair v. Ormond, 1 De Gex & to the latter case, see observations of Sm. 428. Turner, L. J. in Life Association of (c) Tatam v. Williams, 3 Hare, Scotlaiid v. Siddal, 3 De Gex, F. & J. 347 ; and see Harcourt v. White, 28 73. Beav. 303. (A) See B,ochdale Canal Company v. {d) Southcomh v. Bishop of Exeter, King, 2 Sim. N. S. 89 ; Penny v. Allen, 6 Hare, 213 ; Alloway v. Braine, 26 7 De G. M. & G. 426 ; Mehriens v. Beav. 575 ; Sharp v. Wright, 28 Beav. Andrews, 3 Beav. 76 ; Duke of Leeds 150. V. Earl of Amherst, 2 Phill. 117; (e) Hope V. Corporation of Glou- Clarke v. Hart, 6 H. L. C. 633 ; cester, 1 Jur. N. S. 320. Beaudry v. Mayor, &c. of Montreal, (/) See Gresley v. Mousley, 4De G. 11 Moore, P. 0. C. 399 ; Story v. Oape, & Jon. 95. 2 Jur. N. S. 706. {g) Boberts v. Tunstall, 4 Hare, 266; 716 Late Limitation Acts. Lands and rents. Express trusts. 3 & 4 w. IV. c. 27, AND 37 & 38 v. c. 57. [ch. xxix. s. 1. express approbation of another, in which case a Court of equity will not allow that other to seek relief against the very transac- tion to which he was himself a party (a). Secondly, indirect, where a person having a right to set aside a transaction, stands by and sees another dealing with property in a manner inconsistent with that right, and makes no objection ; when also a Court of equity will not relieve (&). But in the latter case the Court not only looks to the conduct of the person who stands by, but also considers how far the person in possession of the property has any just claims to the protection of the Court. If, for instance, the possessor lays out his money, with the full knowledge that the property which he improves belongs to another, then it is said he makes the outlay to his own cost. " If," observed L. J. Turner, " a man places his property on the land of another with full know- ledge of that person's title, how can the fact that the landowner assented to its being placed there give an equity to have it re- stored ? If it did the doctrine would come to this, that whenever a man lays out money on another person's land with the consent of the owner, he has an equity to have it repaid " (c). We may now introduce the late Acts for the limitation of actions and suits. 7. The 3 & 4 WiU. 4, c. 27, enacts as follows— Sect. 24 : " No person claiming any land or rent in equiti/ shall bring any suit to recover the same, but within the period during which by virtue of the provisions hereinbefore contained (d) 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." Sect. 25 : " When any land or rent 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 hefore, the time at which such land or rent shall have been conveyed to a purchaser for valuable consideration, and {a) See Kent v. Jackson, 14 Beav. 384 ; Styles v. Guy, 1 Mac. & Gor. 427 ; 1 Hall & Tw. 523 ; Ex parte Morgan, 1 Hall & Twells, 328 ; Gra- ham V. Birkenhead, cfic. Railway Com- IJany, 2 Mao. & Gor. 146. (i) Duke of Leeds v. Amherst, 2 Pliill. 123 ; Phillipson v Gatty, 7 Hare, 523 ; Stafford v. Stafford, 1 De G. & Jon. 202; and see Jorden v. Money, 5 H. L. C. 185. (c) Rennie v. Toung, 2 De G. & Jon. 136, see 142. See ante,'^. 591. id) See 37 & 38 Vict. c. 57, s. 9, which from the commencement of the Act (1 January, 1879), varies the periods within which actions and suits may be brought. CH. XXIX. s. 1.] 3 & 4 w. IV. c. 27, and 37 & 38 v. c. 57. 717 shall then be deemed to have accrued only as against such pur- chaser, and any person claiming through him " (a). Sect. 26 : " In every case of a concealed fraibd the right of any Fraud, 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 shall, or with rea- sonable diligence might, have been first known or discovered " (b). Sect. 27:" Nothing in the Act contained shall be deemed to Acquiescence, interfere with any rule or jurisdiction of Courts of equity in refusing relief, on the ground of acquiescence or otherwise, to any person whose right to bring a suit may not be barred by virtue of the Act." Sect. 42 : " ISTo arrears of rent or of interest in respect of any Arrears of rent sum of money charged upon, or payable out of, any land or rent, °^ interest, 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 payable or his agent." 8. And the Eeal Property Limitation Act, 1874, 37 & 38 V. c. 57, enacts, that /rom and after 1 January, 1879 — S. 1. ISTo action or suit shall be brought to recover any land or rent but within twelve years from the time when the right first accrued. S. 2. The right, as to reversions, remainders, and future estates, shall be deemed to first accrue when they fall into possession. S. 3. In cases of disability, six years from the cesser of the dis- ability or from the death of the person under disability shall be allowed, notwithstanding the expiration of the twelve years. S. 4. ISTo extension of time shall be allowed for absence beyond seas. S. 5. ISTo action or suit to recover any land shall be brought but within thirty years from the time when the right first accrued, notwith- standing the existence of any disability or succession of disabilities. 9. It results from these Acts thatuntd 1 January, 1879, twenty Eesuitofthe years', and from that time twelve years' possession is made a statutory ■*-^*^- bar to suits in equity in respect of equitable interests, as in the case of actions at law upon legal rights ; but in case of disability a term of ten years under 3 & 4 Will. c. 27, and of six years under 37 & 38 Vict, c 57 is allowed next after the cesser of the disability, subject to the proviso that no suit is to be brought (a) Sums of money and legacies been no express trust. 37 & 38 Vict, charged on land and secured by an c. 57, s. 10. express trust, are as from 1 January, ih) See Manhy v. Beioifke, 3 K. & 1879, made only recoverable within J. 342; Petre y. Petre, 1 Drew. 371; the time allowed for recovery, had there Vane v. Vane, 8 L. R, Ch. App. 383. 718 3 & 4 w. IV. c. 27, AND 37 & 38 v. c. 57. [ch. xxix. s. 1. In case of express trust time runs from conveyance for value only. And not even then as against persons under disability, &c. after the lapse oi forty years in the former case, and of thirty years in the latter case from the accruer of the right, whateyer disabilities may have existed. 10. The effectof the25thsection of3&4'W.4,c.27,isthat, asbetween the trustee and any person claiming through him, and the cestui qtie trust and any person claiming through him, time does not run until there has been a conveyance to a purchaser for valuable consideration. The trust estate may, therefore, be followed by the cestui que trust, notwithstanding acquiescence by him (a), not only as against the trustee, but as against all volunteers claiming under him (6) ; but so soon as the estate is conveyed to a purchaser for valuable con- sideration, as if it be made the subject of a marriage settlement, the time begins to run (c) ; and a lease for value is pro tanto a conveyance within the meaning of the Act (d). No possession, however, by a purchaser for valuable consideration short of the statutory period will be a bar (e). 11. The question whether a lapse of the statutory period from the time of a conveyance for value by a trustee will bar cestuis que trust, who, by reason of clisability or their rights being reversionary, would otherwise be entitled to sue after the suchperiod,is not free from diffi- culty. The 25th section of 3 & 4 W. 4, c.27, enacts affirmatively that the right is to be deemed to have accrued at the time of conveyance, and this, in strict construction, would seem to work an indepen- dent bar. But this section is merely a proviso on the 24th section, which is in effect an enactment restraining the right to sue in equity within the limits allowed for suits at laiv ; and the 25th section would appear to be not a further restraint of the right to sue, but an enlargement, by way of modification of the restriction previously introduced by the 24th section. The decisions and dicta accord with this view and point to the conclusion, that a cestui que trust, who is a remainderman, or under disability, is entitled to the full statutory period from the accruer of the right in possession, or from the cesser of the disability, as the case may be, notwithstand- ing the trustee may have conveyed away the estate for value, and the twenty or twelve years, as the case may be, may have elapsed from the date of conveyance, but in no case must the period allowed exceed (a) Browne v. Radford, W. N. 1874, p. 124. (6) Sturgis v. Morse, 24 Beav. 541, 3 De G. & Jon. 1 ; Heenan v. Berry, 2Jon. & Lat. 303 ; Salter v. Cavanagh, 1 Dru. & Walsh, 668 ; Blair v. Nugent, 3 Jon. & Lat. 658, 9 Ir. Eq. Rep. 400 ; Ravenscroft v. Frisby, 2 Coll. 16; Massy v. O'Dell, 10 Ir. Ch. Re. 22 ; O'Reilly v. Walsh, 6 1. R. Eq. 555 ; and see Dixon v. Oayfere, 17 Beav. 421. (c) Petre v. Petre, 1 Drew. 371. (d) Attorney- General v. Davey, 4 De Gr. & J. 136; Attorney- General v. Payne, 27 Beav. 168. (e) Attorney- General v. Flint, 4 Hare, 147. CH. XXIX. s. 1.] 3 & 4 w. IV. c. 27, and 37 & 38 v. c. 57. 719 forty or thirty years, as the case may be, from the accruer of the right in possession (a). 12. The 25th section applies only to express trusts ; it is there- Express trasts. fore necessary to ascertain with precision what is meant by this 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. 13. It is not necessary to use the word trust in order to create Word "trust" J. j_ /7 \ 1 j_ 1 j_i j_ IT* -i, • riot necessary to an express trust (o), but any language that would m equity raise constitute an or imply a trust will be deemed an express trust. If, therefore e^cpresa trust, land be devised to a person upon trust to receive the rents and thereout to pay certain annuities, 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 any length of pos- session by the trustee (c). 14. But trusts arising by the construction of a Court of equity Constructive from the acts of parties, or to be made out by circumstances, or to "^"^^ ^ "" ^^^® ' be proved by evidence, 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 (d). So if a trust fund be lent to A., and B. as surety with notice of the trust gives a mortgage of his estate to secure the fund, here B. is not an express trustee ; and if no interest be paid for the statutable period the cestui que trust is barred (e). If a person act as the trustee of a settlement contain- ing express trusts, though he assume the character by mistake, he will be deemed, so far as he acts, an express trustee (/). 15. Mere charges might have been held to fall under the description (a) Thompson v. Simpson, 1 Dru. & pay debts, the late V. C. E. thought War. 489; Attorney- Oeneral v. Mag- that as no part of the produce of the dalen College, 18 Beav. pp. 239, 260; sale had been set apart for debts, the 6 H. L. Cas. 189, see p. 215 ; and Life case was not within the exception of Association of Scotland y. Siddal, 3 Ue the 25th sect., but fell under the 40th Gex, F. & J. 58; Shavi v. Keighron, sect., and that if there had been no 3 I. R. Eq. 574, and see Butler v. Car- subsequent acknowledgement of the ter, 5 L. R. Eq. 276 ; Quintan v. Frith, debt, it could not have been recovered. 2 I. R. Eq. 396. This, it is conceived, cannot be main- (6) Commissioners of Charitable Do- tained. However, it was a dictum nations V. Wybrants, 2 Jon. kLat. 197 . only, as the bonds were directed to (c) Sailer v. Cavanagh, 1 Dru. & be paid on the ground of aoknowleg- Walsh, 668; and see Commissioners of ment ; see Watson v. Saul, 1 Giff 197. CharitableDonationsY.Wybrants,2 Jon. {d) Peire y. Petre, 1 Drew. 371; & Lat. 196, 7 Ir. Eq. Rep. 580 ; Mutlow In Re Scott, 8 Ir. Ch. Re. 316. V. Bigg, 18 L. R. Eq. 246. In Lord St. (e) In Re Scott, 8 Ir. Ch. Rep. 316. Johny. Boughton, 9 Sim. 223, where (/) Life Association of Scotland v. there was an express trust to sell and Siddal, 3 De G. F. & J. 58. 720 3 & 4 w. IV. c. 27, and 37 & 38 v. c. 57. [ch. xxix. s. 1. of express trusts, but that they are dealt with under a separate sec- tion, viz., the 40th of 3 & 4 W. 4, c. 21, (for which as from 1 January, 1879, is now substituted the 8th of 37 & •18 V. c. 57), a circumstance which shows that they were meant to be distinguished from express trusts. If, therefore, a testator having two properties, A. and B., charge all his real estate with his debts and devise estate A. to trustees upon trust to pay his debts, the statute as to estate B. is made a bar under 3 & 4 Will., 4, c. 27, after twenty years, (and under 37 & 38 Vict. c. 57, after twelve years), but as to estate A. it does not begin to run until a conveyance to a purchaser, for valuable con- sideration (a). So, if 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 or twelve years, as the case may be (b). And if a testator charge his debts and direct his executors to raise them by mortgage or otherwise, the direction adds nothing to the charge, (which per se authorised the raising of the debts by mortgage or otherwise), and no express trust, but only a charge is created (c). Charge coupled 16. But a charge in form may be an express trust in fact. Thus, with a duty. where an estate in Ireland was devised to trustees and their heirs, upon trust to convey to J. W. for life charged with annuities to certain corporations for charitable purposes, although the corpora- tions were interposed as trustees, yet, as the devisees were bound to execute a settlement, so as to secure the annuities and retain the legal estate in the mean time, they were, until the settlement had been executed trustees for the charity {S). So, though a simple charge of the testator's debts fell within the 40th section of 3 & 4 "W. 4, 0. 27, and the creditor was barred after twenty years (e), yet, if the will was so worded as to impose on the devisees subject to the charge the personal obligation of exerting themselves actively in paying the debts, it became an express trust and fell within the exception of the 25th section (/). (a) Jacgaei V. Jofgwei, 27 Beav. 332 ; natioiis v. Wybi-ants, 2 Jon. & Lat. Proud V. Proud, 32 Beav. 235. 182, 7 Ir. Eq. Rep. 580. (5) Kimx v. Kelly, 6 Ir. Eq. Rep. 279 ; (e) Dundas v. Blake, 12 [r. Eq. Kep. Toft V. Stephenson, 7 Hare, 1 ; Hodge 138, and cases there cited. The 40th V. Churchward, 16 Sim. 71 ; Francis v. section, as from 1 January 1879, has Grover, 5 Hare, 39 ; Hughes v. Kelly, been repealed by 37 & 38 Vict. c. 57, 3 Dru. & War. 482 ; and see Hamson s. 9. See the 8th section of the V. Duiqnan, 2 Dru. & War. 295. latter Act. (c) Dickenson v. Teasdale, 31 Beav. (/) Hunt v. Batemmi, 10 Ir. Eq. 511; 1 De Glex, J. & S. 52. Rep. 360, and cases there cited; {d) Commissioners of Charitable Do- Watson v. Saul, 1 Giff. 188; and see Burrowes v. Gore, 6 H. L. Cas. 907. CH. XXIX. s. 1.] 3 & 4 w. IV. c. 27, and 37 & 38 V. c. 57. 721 17. A charge upon an estate may under the same instrument Charge and be a mere charge as between some parties, while it is an express fn^ame maUer. trust within the 25th section, as between other parties. If, for instance, an estate be devised to A. and his heirs, subject to a charge of 500^. to B. and C. upon certain trusts, this, as between A. and the two trustees, is a mere charge and would be barred after twenty or twelve years, as the case may be, but, as between the two trustees and their cestuis que trust, the charge when raised will be an express trust and the time of the bar as between them will be extended accordingly. 18. If a term be limited to trustees for the purpose of securing Case of charge the charge, the rights of the cestuis que trust will not be barred so of7ea^s.^^ ^ '^™ long as the term vested in their trustees remains unbarred (a). 19. A mortgage by way of trust for sale is nothing more than a Mortgage byway mortgage with a power of sale, and does not come under the descrip- tion of an express trust within the meaning of the 25th section (&). 20. To make the Act operate as a bar to a charge there must be 40th section. a hand to receive, and capable of signing a receipt ; as if 40 OZ. be charged by deed 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 are not to raise the money till after the death of the surviving tenant for life, the statute does not begin to run until the latter period (c). 21. It will be observed that, by the 25th section of 3 & 4 Will. 4, Person.^ claiming c. 27, the cestui que trust and any person claiming through him may trustee, enforce the trust against the trustee and aiiy person claiming through him (d), 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 cestioi que trust. Thus, in 1810 a legal estate was vested in trustees upon trust for five tenants in common, but from that time to the filing of the bill in 1842, four of the tenants in common received the rents to the 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 (a) Young v. Lord Waterpark, 13 was right; but it was a bold step to Sim. 202 ; on appeal, 15 L. J. N. S. Ch. say that the trustees had not such a 63 ; Cox V. Dolman, 2 De G-. M. & G. power. And see Attorney General v. 592 ; and see Ward v. Arch, 12 Sim. Persse, 2 Dru. & War. 67 ; see now the 472. 8 & 9 sections of the 37 & 88 V. c. 57. (6) Loclcmg v. Parker, 8 L. R. Ch. {d) See cases p. 718, note (5), supra. App. 30. («) Burroughs v. McCreight, 1 Jon. (c) M'Carthy v. Daunt, 11 Ir. Eq. & Lat. 290, 7 Ir. Eq. Re. 49 ; Corn- Rep. 29. Assuming that the trustees missioners of Charitable Donations v. could not sign a receipt, the decision Wyhrants, 2 Jon. & Lat. 198 ; 7 Ir. AAA 722 3 & 4 w. IV. c. 27, AND 37 & 38 v. c. 57. [oh. xxix. s. 1. Posseasion by- one of the cestu; qiw trust. Cestvi que trust in possession bj- mistake. Disseisin by cestui que trust. 42nd section. cestui que trust, and that the right of such cestui que trust was barred by the statute (a). 22. But possession by one cestui que trust, where it is according to the title (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. In these cases the cestui que trust in possession is the tenant at will of the trustee, and until that will is determined, the possession of the cestui que trust is the possession of the trustee (&). But the doctrine that a cestui que trust, who is in possession with the consent or acquiescence 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 the statutory period without payment of rent or acknowledgment of title to either cestioi que triost 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 (c). 23. If the possession be held by the trustee of an express trust who has the legal estate, but who mistakes his cestui que trust and pays the rents to a wrong person, the possession of the trustee is the possession of the rightful cestui que trust, and the wrongful recipient of the rents does not acquire a title by adverse possession under the statute (d). 24. If cestui que ti'ust under a will hold adverse possession of an estate supposed to pass, but which did not in fact pass by the will to a trustee, and eventually the true owner is barred, the legal estate gained by the disseisin vests in the trustee of the wOl, under colour of which the possession was taken, and not in the cestui que trust (e). 25. 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 (/). Eq. Eep. 580 ; Law v. Bagwell, 4 Dru. & War. 409. (a) Garrard v. Tuck, 8 Com. B. Rep. 231 ; 13 Jur. 871 ; Re Berming- Jiam, 4 I. R. Eq. 194, per cur. ; and see Knight v. Bowyer, 2 De Gex & J . 440; Doe v. Phillips, 10 Q. B. Rep. 130 (which is not at variance with Garrard v. Tmc/c, as in the former case the tenancy at will had not been de- termined) ; Locking v. Parker, 8 L. R. Ch. App. 35. (6) Melling v. Leak, 16 Com. B. Rep. 652. (c) Lister v. Pickford, 34 Beav. 576. (d) Kemaghan v. M'Nally, 12 Ir. Ch. Re. 89 1 Hawksbee v. Hawksbee, 11 Hare, 230. (e) Playfair v. Cooper, 17 Beav. 187; Gough V. Bult, 16 Sim. 323; Watson V. Saul, 1 Giff. 200 ; Slurgis V. Morse, 3 De G. & Jon. 1, 24 Beav. 541 ; Gyles v. Gyles, 9 Ir. Ch. Re. 135. And see Wright \. Chard, 4 Drew. 680. CH. XXIX. s. l.J 3 & 4 w. IV. c. 27, and 37 & 38 v. c. 57. 723 26. And where there is a subsisting term not barred, upon which the trustee may obtain possession, the whole arrearages may be recovered (a). Thus, in Cox v. Dolman (&), 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 S. Cox for life, with remainder over ; and after the death of S. Cox, one of the annui- tants 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 remainderman. The direct remedy was, no doubt, to have the whole arrears raised by sale or mortgage of the term, but as the remainderman 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. 27. It was at first doubted whether charities were not altogether charities, unaffected by the Act of 3 & 4 W. 4. c. 27, inasmuch as, by a special exception in their favour. Courts of equity did not oppose to charit- able, as they did to ordinary equitable claims, a bar by analogy to the old Statutes of Limitation, and the Act of W. 4, contained no express mention of charities (c) ; but it was afterwards held that they were within the operation of the 24th section, though they might be protected by the 25th section relating to express trusts (d) ; and the law was ultimately so settled in the case of Attorney- Gene7-al v. Magdalen College (e) on appeal to the House of Lords. 28. A legacy cannot be recovered under 3& 4 Will.4, c. 27, after 20 Legacy, years, or under 37 & 38 V. c. 57, as from 1 January, 1879,after twelve years. But if the executor assent to the legacy, he then becomes a (a) Cox\. Dolman, 2 De|G. M. & G. (c) Incorporated Society v. Richards, 592 ; Snow v. Booth, 2 K. & J. 132 ; 1 Dru. & War. 287, 288. 8 De G. M. & G. 69 ; Lewis v. Dun- [d) Commissioners of Charitable Do- combe (No. 2), 29 Beav. 175 ; Lawton nations v. Wybrants, 2 Jones & Lat. V. Ford, 2 L. Rep. Eq. 97 ; Earl of 182, 7 Ir. Eq. Rep. 580. Mansfield v. Ogle, 1 Jur. N. S. 414 ; (e) 18 Beav. 223; 6 H. L. Cas. 189; Me Wyse, 4 Ir. Cli. Rep. 297; Re Attorney- Genei'al \. Davey,19 Beav. Bermingham, 4 Ir. Eep. Eq. 187 ; Re 521, & 4 De Gex & Jon. 136; Attor- Murphy, 5 I. R. Eq. 147. ney-General v. Payne, 27 Beav. 168. (6) 2 De G. M. & G. 592. A A A 2 724 MESNE RENTS AND PEOFITS. [CH. XXIX. S. 1. Residue or share of residue. 23 & 24 Vict. u. 38, s. 13. Assets sub- sequently received. 36 & 37 V. c. 66. trustee, and the statute does not run (a) ; and a fortiori if the legacy be coupled with a trust as for the separate use of a feme covert, the exe- cutor, after assent to the trust, is converted into a trustee (6) ; and if a legacy be given to A. for life with remainder to his children, and the circumstances are such that during the life of A. there is no hand entitled to receive it, the time does not run against the children during the life of A. (c). 29. The eighth section of 37 & 38 V. c. 57, is, as from 1 January, 1879, substituted for the 40th section of 3 & 4 W. 4. c. 27, and it is presumed that under the substituted as under the original section the limited period will by a liberal construction of the word legacy be held to be a bar to suits also in respect of a residue or share of residue {d). 30. The section of 3 & 4 W. 4, c. 27, did not extend to the case of intestacy, and by 23 & 24 Vict. c. 38, s. 13, no suit or other proceeding can be brought to recover personal estate or any share thereof from the personal representative of any intestate but within twenty years after the accruer of the right, unless there has been part payment or some acknowledgment in writing. The eighth section of 37 & 38 V. c. 57, appears not to extend to the case of an intestacy, and if so a legatee will under the latter section be barred after 12 years, while the next of kin will not be barred u.ntil after 20 years. 31. The right of the legatee or next of kin may be barred as to assets received more than the prescribed period before the com- mencement of the suit, but not barred as to assets received since (e). 32. By 36 and 37 V. c. 66, s. 25, Eule 2, it is enacted that " no claim of a cestui que trust against his trustee for any property held on an express trust, or in respect of any breach of trust, shall be held to be barred by any statute of limitations." But as to sums of money and legacies charged on any land or rent this Act must as from 1 January, 1879, betaken to be repealed by 37 & 38 V. c. 57, s. 10. Account of mesne rents and profits. Thirdly. We have to enquire to what extent a Court of equity, upon recovery of the estate, will direct an account against the defendant of the mesne rents and profits. The right of the cestui que trust to an account of mesne rents and profits cannot very well be treated of without entering generally (a) Phillipo V. Munnings, 2 M. & Cr. 309 ; O'Reilly v. Walsh, 6 Ir. Eq. 555. (6) Hartford v. Poiver, 2 Ir. Rep. Eq. 204. (c) Carroll v. Hargrave, 5 I. R. Eq. 123. {d) Prior v. Horniblow, 2 Y. & C. 20l ; Christian v. Devereux, 12 Sim. 264 ; and see Payne v. Evens, W. N. 1874, p. 86; Carey v. Cuthhert, 7 I. R. Eq. 542. (e) See Adams v. Barry, 2 Coll. 290. CH. XXIX. S. l.J MESNE EENTS AND PROFITS. 725 into the priaciples upon which relief in a Court of equity, in respect of mesne rents and profits, is founded. An account of rents and profits may be sought in equity, either (I.) Independently of relief respecting the corpus of the land, or (II.) As incident or collateral to it. First. Where the account is sought independently of otlier relief. 1. If the account besought against an express ^rwsige, then, as Account may be the Statutes of Limitation do not run between trustee and cestui que espreS'trastee trust, it will be directed from the time the rents were with- without reference to the Statutes of drawn {a). Limitation. 2. If the claim to the rents rest upon a legal title, the plaintiff Account in equity has then a legal remedy, and cannot come into a Court of equity at respect of a legal all (V) ; except in cases where, from the complicated nature of the ti'l<3- accounts, or other particular circumstances, a Court of law would Except the ac- afford very inadequate relief (c). But an infant may file a bill for g™JJ| &(,'^°"^'^ ^' an account upon a legal title {d) ; as every person entering upon or the plaintiff an infant's lands is regarded in the light of a bailiff or receiver for ^^ ^"^ infant, the infant («) ; but the rule does not apply where the infant has never had possession, but it has been held by an adverse party (/). The jurisdiction against a person entering during the infant's minority remains, though the bill be not tiled until after the infant attains twenty-one ((/). But after six years the Statute of Limita- tions will be a bar (/;-). And generally all persons may have an account upon a legal title in respect of mines, which are a species Or in the case of of trade (i), but not of timber, without praying an injunction (k). o f ' b {a) ^66 Attorney- General y. Brewers' G. M. & G. 782 ; Pascoe v. Sioan, 27 Company, 1 Mer. • 498 ; Matheio v. Beav. 508. Brise, 14 Beav. 341. (/) Crowther v. Crowther, 23 Beav. (6) Jenus College v. Blooine, 3 Atk. 305. But see the observations of 262 ; and see Dinimddie v. Bailey, 6 V. C. in Quinton v. Frith, 2 L R. Ves. 136 ; Taylor v. Crompton, Bunb. Eq. 414. 95; Laiisdowne v. Lansdouone, 1 Mad. (g) Blomfield v. Eyre, 8 Beav. 250; 137. Hicks V. Sallitt, uhi supra. (c) See 0' Connor \. Spaight, 1 Sch. (h) Loclcey v. Lockey, Tr. Ch. 518, & Lef. 309 ; Corporation of Carlisle and see Knox v. Gye, 5 L. R Eng. & v. Wilson, 13 Ves. 276. Ir. App. 674. (d) Gardiner v. Fell, 1 J. & W. 22 ; (i) Bishop of Winchester v. Knight, Roherdeauy. Rous, 1 Axk. 543; Yallop 1 P. W. 406; and see Pulteney v. V. Holworthy, 1 Eq. Ca. Ab. 7 ; New- Warren, 6 Ves. 89 ; Lansdowne v. hurgh v. Bickerstaffe, 1 Vern. 295; Lansdowne,! Mad. 116; Parrott v. Curtisy. Curtis,2B. C. C. 631,iJer Cur. Palmer, 3 M. & K. 632. (e) Dormer y. Fortescue, 3 Atk. 130, {k) Jesus College v. Bloome, 3 Atk. ^er Lord Hardwicke ; Pulteney y. War- 262 ; Higginbotham v. Hawkins, 7 L. ren, 6 Ves. 89, per Lord Eldon ; Mor- R. Ch. App. 676 ; and see Pulteney v. gan v. Morgan, 1 Atk. 489 ; Lord Worren, 6 Ves. 89 ; University of Falkland v. Bertie, 2 Vern. 342, per Oxford v. Richardson, lb. 701 ; Grier- Cur. ; Doe v. Keen, 7 T. R. 390, per son v. Eyre, 9 Ves. 346 ; but see Garth Lord Kenyon ; Hicks v. Sallitt, 3 De v. Cotton, 1 Dick. 211 ; Lee v. Alston, 1 B. C. C. 194. 726 MESNE RENTS AND PROFITS. [CH. XXIX. S. 1. Whether after thf) death of the per- nor an account may be had in equity against his executor. The account in these cases will be confined to the legal limit. Where a legal remedy did exist but has expired, equity will not assist. Unless there be mistalce. 3. Although where a remedy lies at law an account cannot be had in equity against the pernw of the profits himself, yet, after his decease, the party entitled to the profits may consider himself a creditor, and file a bill in equity for an account of the assets (a). 4. 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 : otherwise if the defendant do not avail himself of the statute by demurrer, plea, or answer (6). 5. It often happens that a legal remedy did exist, but has since, by the death of a party or the determination 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 (c). 6. But if the remedy was lost through mistake, the Court upon that principle may 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 laiu 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 will or not ; but in the present case, hy reason of tlie circumstance of loth daughters being of the same name, and the mistake consequent thereon, the defendant must account for the mesne profits from the expira- tion of the lease " {(£). 7. So equity will relieve where the remedy was prevented by (o) Monypenny v. Bristow, 2 R. & M. 115 (but the bill also prayed de- livery of title deeds) ; Gardiner v. Fell, IJ. & W. 22 (but the plaintiff was also an infant) ; and see Thomas v. Oakley, 18 Ves. 186 ; Lansdoume v. Lansdowne, 1 Mad. 116. (J) See Monypenny v. Bristow, 2 R. & M. 125 (c) Barnwall v. Barnmall, 3 Ridg. P. C. 71,pcr Lord Fitzgibbon ; Hutton 2 Vern. 722; Norton v. Frecher, 1 Atk. 525, 526, per Lord Hardwioke ; and see Pulteney v. War- ren, 6 Ves. 88. {d) Duke of Bolton t. Deane, Pr. Ch. 516. (Note, in this case Lord Hardwicke thought a remedy still existed at law, Dormer v. Forteseue, Ridg. Rep. t. Hardwioke : but Lord Macclesfield was evidently of a dif- ferent opinion, and so was Lord Fitz- gibbon. Barnwall v. Barnwall, 3 Ridg. P. C. 68.) CH. XXIX. S. l.J MESNE RENTS AND PROFITS. 727 fraud : as where A. was entitled to a leasehold estate, but B., Or fraud, concealing the deeds, remained in possession until the term had expired. Lord .King directed an account of the rents and profits from the time that A.'s title accrued, on the ground that A. had been kept in ignorance of his just rights through B.'s fraudulent concealment of the deed and counterpart (a). 8. And generally the Court will in all cases lend its aid where Or some fault in the legal process has been lost, not by any delay on the part of the plaintiff, but through some default of the defendant (&). Secondly. An account may be sought as incident or collateral to the relief The doctrines upon this subject were very distinctly laid down by Lord Fitzgibbon, afterwards Lord Clare, in Barnwall v. Barnwall (c). A.— 1. " The general rule of equity," he said, " is, that if the Kaintiff recover- in 2" tiie estate ou suit for recovery of possession be properly cognisable in a Court an equitable title. of equity, and the plaintiff obtains a decree, the Court will direct an account of rents and profits, as incident to such relief" 2. In the case of a cestui que trust, who is following the trust Wliere cestni qve ,. trust follows estate into the hands of a person cla%mmg through tlu trustee, under trust estate into such circumstances that the defendant is himself to be regarded ^'^'^^ °.^ ^. 'f ol""- ^ teer claiming as a trustee, it is clear that the cestui que trust, by establisliing his under a trustee claim to the land, has thereby established a right to the mesne rents and profits from the very commencement of his title {d). And a fortiori the rule is so where the plaintiff has been under the dis- ability of infancy during the possession of the defendant, because then the latter is regarded as a bailiff or trustee for the former (e) ; or where there has been fraud or suppression on the part of the defendant. o. Where the case is that of a plaintiff coming forward not strictly where plaintiff as cestui que trust, but still as equitable owner to recover the estate ^b™^^ ^ eqmt- against one in hond fide adverse possession, many of the older against one in decisions and dicta point to the conclusion that, in the absence of poss'^essio^n? ^^'^'^^ special circumstances, the account will be directed from the time of the accruer of the title (/), subject only to the qualification, that by analogy to the legal defence upon the Statute of Limita- (a) Bennett v. Whitehead, 2 P. W. («) Hides v. Sallitt, 3 De G-. M. & 644 ; and see Duke ef Bolton v. Deane, G. 782 ; Schroder v. Schroder, Kay, ¥r.Q,\i.bl&,SLadiBarnwall\. Barnwall, 591; Pascoe y. Swan, 21 Beav. 508; 3 Bidg. P. C. 66. and cases cited p. 725, note (e). (6) Pulteney v. Warren, 6 Ves.73. (/) Dormer y. Fortescue, Eidg. Rep. (c) 3 Eidg. P. C. 66. t. Hardwicke, 183 ; S. C. & Atk. 130, {d) Sturgis v. Morse, 3 De Gex & f)er Lord Hardwicke; iZbisoH v. JVevor, Jon. I; 24Beav.541 ; WrightY. Chard, 2 P. W. 191 ; Coventry v. Hall, 2 Ch. 4 Drew. 673 ; Kidney v. Coussmaher, Ca. 134. 12 Ves. 158. 728 MESNE KENTS AND PROFITS, [CH. XXIX. S. 1. Where defendant ignorant of his true character of trustee. Where there has been laches in suing. 3 & 4 W. 4. c. 27, not material. How the order for an account is worded. tions, the account will not be carried back beyond six years before the filing of the bill (a). The naore recent authorities seem, how- ever, to establish that where there is no trust, no infancy, no fraud, and no suppression, where, in short, there is a mere iondfide adverse possession, the practice of the Court is not to carry back the account beyond the filing of the bill (b) ; unless at least there was a demand of possession by the plaintiff or acts equivalent thereto before bill filed, in which case the account will be carried back to the time of the demand or constructive demand (c). 4. In one case in which the plaintiff was an infant, and the de- fendant in fact a trustee, but ignorant of his true character, the account was limited to the filing of the bill, except as to money which had been paid into Court (d), but the decision is of doubtful authority (e). 5. If the cestui que tritst or equitable owner be guilty of laches, the account will not be carried further back than to the time of filing the bill, for it was the plaintiff's own fault that he did not institute his suit at an earlier period (/) ; and if it be a case of great laches, the Court will show its displeasure by not dii-ecting an account beyond the date of the decree {g). 6. It would seem that 3 & 4 W. 4. c. 27, has no bearing upon the question how far the account should be carried back, for the suit in these cases is not one for recovery of rent within the general purview of the Act Qi) : nor is it a suit within the meaning of the 42nd section for the recovery of arrears of rent, which must mean arrears of some definite reserved rent, and not mesne profits. If there be any Statute of Limitations applicable by analogy it must be 21 James I. cap. 16 (i). 7. The order to account for mes'>ie rents and profits will not, ex- cept in a case of gross fraud (k), contain the words, " which, without (a) Reade v. Reade, 5 Ves. 749, 750 ; Harmood v. Oglander, 6 Ves. 216 ; Drummond v. Duke of St. Albans, 5 Ves. 439 ; Stackhome v. Barnston, 10 Ves. 470. (5) Pulteney v. Warren, 6 Ves. 93, per Lord Eldon ; Edwards v. Morgan, M'CIel. 541, see 554, 555 ; Hicks v. Sallitt, 3 De G. M. & G. 81 3 ; Thomas V. Thomas, 2 K. & J. 79; Morgan v. Morgan, 10 L. R. Eq. 99. (c) Penny v. Allen, 7 De G. M. & G. 409 ; and see Edwards v. Morgan, M'CIel. 554. {d) Drummond v. Duke of St. Albans, 5 Ves. 433, see 439. (e) See Hicks v. Sallitt, 3 De G. & G. pp. 811, 815. (/) Dormer \. Fortescue, Eidg. Rep. t. Hardwicke, 183; S. C. 3 Atk. 130, per Lord Hardwicke; Cooky. Arnham, 2 Eq. Ca. Ab. 235; Fettiward v. Fre^cott, 7 Ves. 541 ; Bowes v. East London Waterworks Company, 3 Mad. 375; Fickett v. Loggon, 14 Ves. 215; Schroder v. Schroder, Kay, 591 ; see Kidney v. Cov^smaker, 12 Ves. 158. (g) Acherley v. Roe, 5 Ves. 565. (A) Grant v. Ellis, 9 M. & W. 113. («') See observations of L. J. Turner, Hicks V. Sallitt, 3 De G. M, & G. 816. (k) Stackpole v. Davoren, 1 B. P. C. 9. CH. XXIX. S. 1.] MESNE RENTS AND PROFITS. 729 neglect or default, the defendant might have received," and on the other hand a direction to make just allowances in taking the account will be inserted (a). 8. The assignee who has had the perception of the rents and who i.s the person profits will, in the first instance, account for them, not, however, *° ^'^'^ount. with interest (&). But if the assignee be insolvent, the trustee who tortiously assigned will then be answerable for the mesne rents and profits personally (c). The Court has also allowed dis- tinct bills to be filed, first to recover the estate and afterwards the mesne profits {cl). B. — 1. "If a man," continued Lord Fitzsibbon, "have a mere Ha person have legal title to the possession, he has no right to come into equity for cannot sue in the recovery of it ; and if he has originally recovered the possession th" e'tat^'^'^r th"^ at law, he has no manner of right to proceed by bill for an account mesne rents and of rents and profits : as his title to the possession was at law, he ^™ ^' must proceed for the whole there " (e). 2. Upon this rule it must be remarked, that a clowress ( / ) Unless the plain- . "t . 1-11 'III "'^ ^ dowress. and mjant ( g) are allowed to proceed m equity upon then' legal Or an infant. title, and incidentally to the relief may pray an account of the mesne rents and profits. But by 3 & 4 W. 4. c. 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 Qi). C. — 1. " If a party," continued Lord Fitzgibbon, " be obliged to If a person apply come into a Court of equity for aid to enable him to prosecute his Mg^action at^law title at law," (as where he cannot recover in a legal action by lie may come 1. T 1 ,ii-jiiT T back for an ac- reason ot an outstanding term, or because the title deeds to the count, estate are in the hands of the defendant,) "after possession re- covered at law, there may be cases in which he may come back for an account of rents and profits in the suit depending in (a) Hmoell v. Hoviell, 2 M. & C. 478. v. Meggot, 2 Id. 794 ; Goodenough v. (h) Macartney v. Blaclcwood, Ridg. Goodenough,21A.l^b\ Curtis Y.Curtis, Lapp. & Sch. 602. 2 B. C. C. 620 ; Moor v. BlaA:k, Rep. (c) Vandebende v. Levingston, 3 t. Talbot, 126 ; and see Dormer v. Swans. 625. Fortescue, 3 Atk. 130 ; Pulteney v. {d) Ball V. Coventry, 2 Ch. Ca. 134 ; Warren, 6 Ves. 89 ; Agar v. Fairfax, Wright v. Chard, 4 Drew. 673. 17 Ves. 552. («) Barvwall v. Barnwall, 3 Ridg. {g) See Dormer v. Fortescue, 3 Atk. P. C. 66. See also Z)ormer V. i^oj-fesoije, 130, 134; S. C. Ridg. Rep. t. Hard- 3 Atk. 130 ; Tilly v. Bridges, Pr. Ch. wioke, 183, 191 ; Pulteney v. Warren, 252 ; Owen v. Aprioe, 1 Ch. Re. 32 ; 6 Ves. 89 ; Newhurgh v. Bickerstaffe, Anon, case, 1 Vern. 105, contradicted 1 Vern. 295. 3 Atk. 129. {h) Lockey v. Lockey, Pr. Ch. 518 ; (/) Mundy v. Mundy, 2 Ves. jun. and see Knox v. Gye, 5 L. R. Eng. & 122 ; D'Arcy v. Blake, 2 Sch. & Lef. Ir. App.. 674. 387 ; Wild v. Wells, 1 Dick. 3 ; Meggot 730 CONVERSION OF THE TRUST PEOPEETY. [CII. XXIX. S. 2. Or being obliged to come to equity on one ground, he may obtain his whole relief there. But the account in equity will be restricted to the legal limit, or to the filing of the bill. Unless the de- fendant be guilty of fraud. equity " (a). Or the plaintiff being obliged to resort to equity on one ground, may, to prevent circuity, ask complete relief in the first instance in that Court ; and if his title be established, an account of the rents and profits will be consequential upon the relief (b). 2. In these cases the account ought upon principle to be restricted to the same period as that for which the mesne profits were recoverable at law ; for the plaintiff recovers upon a leffal title, and the circum- stance of his being obliged to sue in equity ought not to vary his rights ; and there is authority to support this view (c) ; but in a later case (d) Vice-Chancellor Wood stated the rule to be that in an adverse suit in the nature of an ejectment suit the account is directed only from the filing of the bill ; and there may be some difficulty in establishing a distinction between cases where the plaintiff sues upon a mere equitable title and cases where his title is rendered partially equitable, so to speak, by the existence of outstanding terms or estates. 3. If the plaintiff has been kept out of the estate by the fraud, misrepresentation, 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 fijst accruer of his title, and wiU then decree an account of the mesne rents and profits against the defendant from that period («). Geaeral rule. Tortious conver- sion. SECTION" II. THE RIGHT OF ATTACHING THB PEOPEETT INTO WHICH THE TEUST ESTATE HAS WEONGPULLY BEEN CONVEETBD. 1. If the trust estate has been tortiously disposed of by the trustee, the cestui que trust may attach and follow the property that has been substituted in the place of the trust estate, so long as the metamorphosis can be traced. In Taylor v. Plumer{f) it was argued that although where the conversion was in pursuance of the trust, the newly acquired pro- perty would be bound by the original equity {g) ; yet where the conversion was tortious, then as the property purchased was not in a form consistent with the trust, and the cestui que trust would be (a) See Dormer v. ForteacMe, 3 Atk. 124 ; S. C. Ridg. Fep. t. Hardwicke, 176 ; Reade v. Beads, 5 Ves. 744. (6) Townsend v. Ash, 3 Atk. 336 ; Edwards v. Morgan, M'Clel. 541 ; Reynolds v. Jones, 2 Sim. & Stu. 206. (c) Reynolds v. Jones, 2 Sim. & Stu. 206. (rf) Thomas v. Thomas, 2 K, & J. 85. (e) Dormer v. Fortescue, Kidg. Rep. t. Hardwicke, 184, 185 ; S.C. Z Atk. 130. (/) 3M. &S. 562. (g) Burdett v. Willett, 2 Vern. 638 ; Ryall V. Rolle, 1 Atk. 172 ; Ex parte Chion, 3 P. W. 187, note (A) ; Waite V. Whorwood, 2 Atk. 159; Ex parte Sayers, 5 Ves. 169 ; Anon, case, Sel. Cha. Ca. 57. CH. XXIX. S. 2.] CONVERSION OF THE TRUST PROPERTY. 731 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 the distinction was disallowed (a) ; for " An abuse of trust," said Lord EUenborough, " can confer no rights on the party abusing it, nor on those who claim in privity with him " (b). 2. It was said by Lord King that " money had no earmark, inso- " Money has no much 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 follow the land " (c) ; and hank-notes and Bank-notes and negotiable bills have been represented as possessing the same °^sotia e i s. quality. But the notion seems to have originated from some mis- conception, and cannot be supported. Lord Mansfield observed, " 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 recovered 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 con- sideration : but before the money has passed in currency 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 currency " {d). And Lord Ellen- borough observed, " The dictum that money has no earmark must be understood as predicated only of an undivided and undistin- guishable 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 fall 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 " (e). (ffl) The same point had been viewed 17 Sim. Ill; Harford v. Lloyd, 20 as not maintainable in several previous Beav. 310 ; Frith v. Cartland, 2 Hemra. cases, as in Whitecomb v. Jacob, 1 Salk. & Mill. 417. 160 ; Lane v. Dighton, Arab. 409 ; (5) Taylor v. Plunrwr, 3 M. & S. Ryal V. Ryal, lb. 413 ; Balgney v. 574. Hamilton, lb. 414. N. B. Wilson v. (c) Deg v. Deg, 2 P. W. 414; and Foreman, 2 Dick. 593, is misreported ; so his Lordship seems to have decided see ierecA V. iewcA, 10 Ves. 519. The in Cox v. Bateman, 2 Ves. 19; and subsequent cases are Lord Cliedworth see Waite v. Whorwood, 2 Atlc. 159 ; v. Edwards, 8 Ves. 46 ; Oreatley v. Whitecomb v. Jacob, 1 Salk. 160. Noble, 3 Mad. 79 ; Buckeridge v. Glasse, (d) Miller v. Race, 1 Burr. 457, Or. & Ph. 126 ; Murray v. Pinkett, 12 459. CI. & Pin. 784; Sheridan v. Joyce, 1 (e) Tatjlor v. Phimer, 3 M. & S. Jones & Lat. 401 ; Trench v. Harrison, bib. 732 CONVERSION OF THE TEUST PROPERTY. [CH. XXIX. S. 2. Trust money mixed with the trustee's money. Assets employed in trade. The only distinction, then, between money, notes, or hills, and other chattels, appears to be this — that the former, for the protection 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, pro- vided he did not buy them in market overt. Money {a), notes (b), and bills (c). may be followed by the rightful owner, where they have not been circulated or negotiated, or if the person to whom they passed had express notice of the trust {d). And the only dif- ference to be taken between money on the one hand, and notes and hills 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 (e). 3. We may here put the case of trust money mixed in the same heap with the trustee's money. It may be said, that the trust money has, like water, run into the general mass, and become amalgamated, and therefore the cestui que trust has no lien. But clearly this cannot be maintained, for suppose 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 purchased with the cestui que trust's money, and yet the cestui que trust has a lien upon the whole for the amount that was misemployed (/). And it follows 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 cestid que trust is entitled to take so much out (g). 4. Upon a similar principle, if a surviving partner, being the executor of a deceased partner, continue the testator's capital with- out authority in his trade, though the capital may consist only of (a) See TayJor v Plumer, 3 M. & S. 575 ; Miller v. Race, 1 Burr. 457 ; Howard v. Jemmet, 3 Burr. 1369 ; King v. Eggington, 1 T: R. 370 ; Ryall V. Rolle, 1 Atk. 172. (6) Anon, case, 1 Salk. 126; S. C. 1 Rayra. 738 ; Miller v. Race, 1 Burr. 457 ; Tatjlur v. Plumer, 3 M. &S. 562. (c) Bennet v. Mayhev), cited Pul- teney v. Darlington, 1 B. C. C. 232, and Cat(yr v. Earl of Pembroke, 2 B. C. C. 287 ; Frith v.Cartland, 2 Hemm. & Mill. 417 ; and see Ex parte Bayers, 5 Ves. 169; Lord Chedworth v. Ed- wards, 8 Ves. 46; Ryall v. Rolle, 1 Atk. 172 ; Raphael v. Bank of Eng- land, 17 C. B. Re. 161. id) Verney v. Carding, cited Joy v. Campbell, 1 Soh. & Lef. 345. (e) See Ford v. Hopkins, 1 Salk. 283. (/) Lane v. Dighton, Arab. 409; Lewis V. Madocks, 17 Ves. 57, 58; Price V. Blakemore, 6 Beav. 507 ; Hopper V. Congers, 12 Jur. N. S. 328. (g) See Pennell v. Deffell, 4 De G. M. & G. 382 ; Ex parte Sayers, 5 Ves. 169 ; Ernest v. Croysdill, 2 De Gex, P. & J. 175; Frith v. Cartland, 2 Hem. & Mill. 417. CH. XXIX. S. 2.] CONVERSION OF THE TRUST PROPERTY. 733 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 ramifications, and gives to the beneficiaries of the deceased partner's estate the fruits derived from that capital so continually altered and changed (a). 5. And so if a trustee pay trust money into a bank to the Money followed ^ •' •' through a bank. account of 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 c&stwi que trust (b). But even as against the cestui que trust, the general rule must prevail that the sums drawn out must be attributed to the earliest deposits according to the order in which they were paid in (c). But if trust money be paid into a bank to an account headed in such a way that the banker cannot fail to know, and must be taken to know that it was a trust account, though the bankers are not bound to enquire into the propriety of the trustee's cheques upon that account, yet if the trustee becomes bankrupt and has overdrawn his private account, the bank cannot apply the credit of the trust accoimt by way of set-off against the debit of the private account {d). 6. In tracing money into land, the principal difficulty in the Following money old cases arose from the Statute of Frauds (e), the 7th section reference to the enacting that all declarations of trusts of land should be mani- Statute of ,, .. -r r. 11111 Frauds. fested 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 elicit a constructive trust, was inadmis- sible (/) ; but Lord Hardwicke, on the ground that constructive trusts were excepted out of the Statute of Frauds {g), ruled that parol evidence might be given Qi) ; and Sir T. Clarke, in the leading case of Lane v. Bighton (i), (though had the point been res integra, he should have thought the evidence not admissible within the statute,) followed the authority of Lord Hardwicke ; and whatever doubts might formerly have been entertained upon the subject the law is now settled (k). (a) See p. 245, 246, sup-a. (e) 29 Car. 2. c. 3. (6) Pennell v. Deffell, 4 De (i. M. (/) See supra, ch. ix. s. 2, p. 148. & Gr. 372. The observations of L. J. (g) By the 8th section ; see p. 171, Knight Bruce, p. 381, are well worth supra. a careful perusal. (A) Ryal v. JRyal, Amb. 413 ; and (c) Brown v. Adams, 4 L E. Ch. see Anon, case, Sel. Ch. Ca. 57. App. 764. (i) Amb. 409. {d) Ex parte Kingston, 6 L. R. Ch. {h) Lench v. Lench, 10 Ves. 517 App. 632. Hopper v. Conyers, 2 L. R. Eq. 549. 734 CONVERSION OF THE TKUST PROPERTY. [CH. XXIX. S. 2. Trustee bound to invest a certain sum, and pur- chasing at that price. Covenant to settle his whole personal estate and a subsequent purchase is made. Whether cestui qne trust can take the land itself, or has only a lien. Statute of Limi- tations. 7. The mere fact that a trustee has trust money in his hands when he makes a purchase, is not sufficient to attach the trust on lands bought with his own money (a). But if a trustee who is under an obligation to lay out money on land, 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 (b). But no such presumption can be raised where it can be shown that the trustee, though under such an obligation, was mistaken in the nature of the trust, and acted under a different impression (c). 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 {d). 8. In Lewis v. MadocJcs (e), no evidence to connect any par- ticular fund with the estate was necessary, for a person having covenanted on his marriage to settle all the personalty he should acquire upon certain trusts, and having afterwards invested parts of his personalty on land, it was clear that the money expended upon the estate was bound by the trust, and could therefore be followed into the purchase. 9. Where a trust fund is traceable into land, and the fund con- stitutes a part only of the money laid out in the purchase, the Court has usually given a lien merely on the land for the trust money and interest (/) ; but where the entire land is clearly the fruit of the trust fund, the cestuis que trust must upon principle, have a right to take the land itself, whether the purchase was or not of the description authorised by the trust {g). 10. Where trust money is followed into the hands of a person who, as having received it by coUusion, or with express notice of the trust, becomes himself a trustee, he is precluded from pleading the Statutes of Limitation (A). (a) Sealy v. Stawell, 2 1. R. Eq. 326. (6) See Anon, case, Sel. Ch. Ca. 57 ; Price V. Blahemore, 6 Beav. 507 ; Mathias v. Mathias, 3 Sm. & Giff. 552. (c) Perry v. Phelips, 4 Ves. 108, see 116, 117. (d) Denton v. Davies, 18 Ves. 499. (e) 8 Ves. 150; S C. 17 Ves. 48. (/) Lane v. Dighton, Arab. 409 ; Lewis V. Madochs, 8 Ves. 150; 17 Ves. 48, see 57 ; Price v. Blakemore, 6 Beav. 507 ; Scales v. Baker, 28 Beav. 91 ; Hopper v. Conyers, 2 L. R. Eq. 549. {g) Trench v. Harrison, 17 Sim. 111. Lord Manners, in Savage v. Carroll, 1 B. & B. 265, see 284, seems to have thought otherwise ; but this was be- fore Taylor v. Plumer, p. 730, supra. (h) Ernest v. Croysdill, 6 Jur. N. S. 740; Rolfe v. Gregory, 11 Jur. N. S. 97 ; S. C. 4 De Gex, Jon. & Sm. 576 sispost, p. 737. CH. XXIX. S. 3.] REMEDY FOE BEEACH OF TBUST. 735 SECTION III. OF THE REMEDY FOB A BEEACH OF TRUST AGAINST THE TEUSTBB PBESONALLY. 1. We may remark in limine that, by a recent statute (a), a breach Fraudulent of trust has been made a criminal act, and that if a trustee of any J^^^ ^^^^ ™'^ property for the benefit of another person, or for any public or charitable purpose, with intent to defraud, appropriates the same to his own use or for any other purpose than the legitimate one, he is now to be deemed guilty of a misdemeanor and be liable to be kept in penal servitude for any term not exceeding seven years and not less than three years, or to be imprisoned for any term not exceeding two years, with or without hard labour, and with or without soKtary confinement. But no prosecution is to be com- menced without the sanction of Her Majesty's Attorney-General, or, in the vacancy of that oiiice, of the Solicitor-General ; nor, where civil proceedings have been taken, without the sanction of the Court of civil judicature before which the same are pending (6). And no remedy at law or in equity is to be affected, nor is the Act to prejudice any agreement entered into or security given by any trustee, having for its object the restoration or repayment of any trust property misappropriated. 2. This last mentioned enactment of the statute leaves the Effect of Act remedy of the cestui que trust in reference to civil proceedings ceedingr^ ^^°' exactly as it stood before the Act. It relieves him from such obligation, if any, as the statute might have been held to impose of prosecuting the fraudulent trustee before proceeding to recover his property (c) ; and, notwithstanding the general policy of the law (d), may perhaps be held to go so far as to authorise an agree- ment for the restoration of the trust property even though the withdrawal of an indictment against the trustee be one of the terms of the arrangement. (a) 24 & 25 Vict. c. 96, ss. 80. 86, cuting before taking civil proceedings re-enacting substantially 20 & 21 Vict. in cases oi felony, see Cox v. Paxton, c. 54, -which had been repealed by 24 17 Ves. 329 ; White v. Spettigue, 13 & 25 Vict. c. 94. M. & W. 603 ; Scattergood v. Sylvester, (b) See Wadham v. Rigg, 1 Drew. 15 Q. B. E. 506. & Sm. 216. {d) See Keir v. Leeman, 9 Q. B. K. (c) As to the necessity for prose- 371. 736 REMEDY FOR BREACH OF TRUST. [CH. XXIX. S. 3. Where a solicitor 3. A solicitor who wilfully advises a breach of trust, is liable to brracWnrast. ^^ Struck off the roll (a). And d fortiori a solicitor, who, being a trustee himself, commits a wilful breach of trust, is amenable to the same penalty (b). But a solicitor is not liable as a constructive trastee for the consequences of acts done by such solicitor, pur- suant to instructions from his clients, who are trustees, and exer- cising their legal powers, unless the solicitor either receive some part of the trust property or assist with knowledge in some dis- honest and fraudulent design on the part of his clients (c). Thus a testator devised and bequeathed his residuary estate to Crush, Lugar, and Addy, his three trustees and executors, upon trust for his four children, viz. Ann (who married Barnes), Susan (who mar- ried the trustee, Addy), and WUliam and Mary. The shares of Ann and Susan were to be held upon trust for their separate use respectively, without power of anticipation, with remainder to their children ; and the will contained a power of appointment of new trustees, vested in the executors, but there was no authority to diminish their number. Crush renounced and disclaimed, and Clarke was appointed in his place ; but Lugar and Clarke both died, and Addy became sole trustee of the trust fund. The shares of Susan and WiUiam had been satisfied, and Mary's share was not in question ; but as to the share of Ann, the wife of Barnes, there being disputes between Addy, the trustee, and Barnes, Addy in- structed his solicitor, Dufi&eld, to appoint Barnes sole trustee in the place of Addy, so far as regarded the share of Ann Barnes. Duffield represented the danger of placing the fund under the power of a single trustee, and advised Addy not to do it ; but as he persisted, he advised him at all events to take a deed of indemnity. Duffield afterwards declined to proceed unless a separate solicitor acted for Mrs. Barnes and her children, and Preston was thereupon appointed such solicitor, and he wrote to Ann Barnes a letter explanatory of the risk, but nevertheless Ann Barnes wished it to be done. The deed of appointment of Barnes as sole trustee, and the deed of indemnity which had been proposed by Dufheld, were then approved by Preston and executed ; and Addy transferred the share of Ann Barnes (amounting, after certain deductions, to 2074Z. consols), into the name of Barnes, who the next day sold it out, and applied the proceeds in his (a) Goodwin v. Gosnell, 2 Coll. 457, (c) Barnes v. Addy, 9 L. R. Ch. see p. 462. App. 251, per Lord Selborne. (b) In re Chandler, 22 Beav. 253; In re Hall, 2 Jur. N. S. 633. CH. XXIX. S. 3.] REMEDY FOE BREACH OF TRUST. 737 business and became bankrupt. The fund having been lost, the cliildren of Ann Barnes iiled their bill against the administratrix of Addy (then deceased), and against Duffield and Preston, to compel them to restore the trust fund. Addy's estate was declared liable, but the bill was dismissed as against Dufiield and Preston. The plaintiffs appealed from this 'dismissal, and rested their case on the solicitors being parties to a threefold breach of trust, viz., first, the appointment of a single trustee ; secondly, the transfer of the fund into the name of a sole trustee ; and, thirdly, the division of the fund, so that there should be a separate trustee of each part. There was no evidence that either Duflfield or Preston suspected, or had reason to suspect, the good faith of Barnes, and Lord Selborne and Lord Justice James concurred in the principle above laid down, and dismissed the appeal with costs (a). 4. As regards civil proceedings for compensation against the Civil proceedings, trustee, the cestui que trust, in the event of a breach of trust, is entitled to file a bill against the trustee to compel a compensation from him personally for the loss which the trust estate has sus- tained ; and if the plaintiff have a vested interest and has reason to apprehend that the trustee is going abroad, he may obtain a writ of ne exeat regno (I). 6. This right to sue is not affected by the Statute of Limita- statute of Llmi- tions (c). And even a trustee, who was also a cestui que truest in *^*'°°s- remainder, and by whose neglect the tenant for life got possession (o) Barnes v. Addy, 9 L. E. Ch. App. 244. (5) Hawldns v. Hawhim, 1 Drew. & Sm. 75. As to the assignment of a right to sue for redress in respect of a breach of trust, see Hill v. Boyle, 4 L. R. Eq. 260. If a trustee has made default in payment of a trust fund which was in his hands, and was mis- applied, he can be attached, though he may have spent the money before the date of the order tor payment, and is unable to pay, and such trustee is within the third exception of the Debtors' Act, 32 & 33 V. c' 62, s. 4. Middleton v. Chichester, 6 L. R. Ch. App. 152. (c) Phillippo V. Munnings, 2 M. & C. 309 ; Browne v. Radford, W. N. 1874, p. 124; Milnes v. Cawley, 4 Price, 103 ; Cator v. Croydon Rail- way Company, 4 Y. & C. 405 ; Doivnes v. Bulloch, 25 Beav. 61 ; Clark v. Hoshins, W. N. 1867, p. 216 ; Butler V. Carter, 5 L. R. Eq. 276 ; Brittle- bank V. Goodwin, 5 L. K. Eq. 545 Hartford v. Power, 2 Ir. Rep. Eq.204 Woodhouse v. Woodhouse, 8 L. R. Eq, 514 ; Burdick v. Garrick, 5 L. R. Ch App. 233; Stone v. Stone, 5 L. R. Ch, App. 74; Mutlow v. Bigg, 18 L. R Eq. 246 ; Watson v. Saul, 1 Giff. 188 Harris v. Harris (No. 2), 29 Beav. 110 Ernesto. Croysdill, 2 De Gex, F. & J. 175; Rolfe v. Gregory, 11 Jur. N. S 98 ; ;S. C. 4 De Gex, Jon. & Sm. 576 : and see Bright v. Legerton, 2 De Gex, P. & J. 606 ; Tyson v. Jackson, 30 Beav. 384 ; Cresswell v. Dewell, 4 GifF. 460; Burrowes v. O^Brien, 15 Ir. Ch. Re. 424 ; Burrowes v. Gm-e, 6 H. L. C. 907. As to the cases of Dunne v. Doran, 13 Ir. Eq. R. 545, and Brereton v. Hutchinson, 3 Ir. Ch. Rep. 361 ; see Brittlehank v. Goodwin, 5 L. R. Eq. 551. But see Carroll v. Hargrave, 5 I. R. Eq. 123. As to suits between solicitor and client, see Ra Jlindmarsh, 1 Drew. & Sm. 129. EBB 738 REMEDY FOE BEEAOH OF TEUST. [CH. XXIX. S. 3. 36ifc37V.c.66. Trust money taken by a firm. Corporation liable for breach of trust. Land tortiously sold. of the fund, has been allowed, notwithstanding the statute, to re- cover it from the estate of the tenant for life who wrongfully pos- sessed himself of it (a) ; and an agent who collects debts for his employer under a power of attorney, is regarded as a trustee, so that he cannot plead the statute to a bill for an account (6). And the personal representative of a deceased trustee who has com- mitted a breach of trust, or a legatee or next of kin in possession of the assets, with notice of the breach of trust (c), cannot plead the Statute of Limitations, but must be answerable in the same way as the testator or intestate would have been (d). But though the Statute of Limitations cannot be pleaded in bar, yet where the trust fund has no actual existence but the bill is for damages, gToss laches will per cursum cancellarim disentitle a plaintiff to relief. 6. By a recent statute, 36 & 37 V. c. 66, s. 25, rule 2, it is expressly enacted, that no claim by a cestui que trust against his trustee in respect of any breach of trust, shall be barred by any statute of limitations. 7. Where the trustee is one of a firm, and trust money finds its way into the coffers of the firm, with the sanction of the partners, and is misapplied, not only the trustee but the partners also are liable (e). And if one of a firm of solicitors, in transacting business with trustees practise a fraud upon the trustees, the co-partners are liable (/). 8. The remedy for a breach of trust lies against a corporation as well as against an individual ; and a municipal corporation since the Municipal Corporation Act, is liable for a breach of trust com- mitted before the Act {g). 9. If a trustee dispose of the trust estate to a purchaser for valu- able consideration without notice, the cestui que trust may compel the trustee to purchase other lands of equal value to be settled upon the like trust (Ji), or the cestui 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 increase of price caused by subsequent improvements {%). Butler V. Carter, 5 L. R. Eq. Oarrick, 5 L. R. Ch. {a) 276. ih) Burdiok v, App. 233. (c) Woodhouse v. Woodhouse, 8 L. R. Eq. 514; seep. 521. {d) Story V. Gape, 2 Jur. N. S. 706 ; Obee V. Bishop, 1 De G. P. & Jon. 137 ; Brittlebanh v. Goodwin, 5 L. R. Eq. 545. But see the Irish cases, Dunne v. Doran, 13 Ir. Eq. Rep. 545; Brereton v. Hutchinson, 3 I. Ch. Rep. 361 ; Carroll v. Hargrave, 5 I. R. Eq. 123. (e) Eager v. Barnes, 31 Beav. 579. (/) Sawyer V. Goodwin,W.'S. 1867, p. 215; ion^ v. Hay, W. N. 1871, p. 134. {g) Attorney- General y- Corporation of Leicester, 9 Beav. 546. Qi) See Mansell v. Mansell, 2 P. W. 681 ; Vernon v. Vaudry, Barn. 303 ; Macnamara v. Carey, 1 Ir. R. Eq. 23, and see 37 & 38 V. c. 78. {i) See Attorney- General v. East Retford, 2 M. & K. 35 ; but see Denton V. Davies, 18 Ves. 504. CH. XXIX. S. 3.] REMEDY FOE BKEACH OF TKUST. 739 10. Where a testator had directed an investment in three per Neglect to cent. Consolidated Bank Annuities and an accumulation of the dividends, 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 accumula- tion (a). 11. If a settlement contain a covenant for the transfer of stock. Covenant to and the trustee neglects to enforce the transfer, he is liable for aU ^^^^ er s oc . the consequences (&). 12. So if there be a trust for sale, and the trustee neglects to sell Neglect to sell. for a great length of time, whereby the property is deteriorated, he is answerable for the loss (c). 13. If a trustee suffer a policy of insurance to become forfeited Policy forfeited, through neglect to pay the premiums, he is bound to make good the loss to the cestui que trust (d) ; provided, that is, he had funds in hand for payment of the premiums, for if he had none and could procure none, he would be exempt from liability (e). He may, however, either advance money himself, or borrow it from another on the security of the policy, and a lien on the policy wiU. be allowed (/). If there be no means of keeping up the policy the Court will direct it to be sold (g). 14. If the trustees of a marriage settlement take by assignment Neglect to give cJioses en actio7i of the husband, and neglect to give notice of the ment. settlement to the persons in whom the choses en action are vested, and on the bankruptcy of the husband the choses en action, as left in his order and disposition with the consent of the true owner, become forfeited in favour of the creditors, it is apprehended that the trustees would be liable for their neglect of duty in not having given notice of the settlement, so as to take the property out of the order and disposition of the settlor Qi). 15. So if the trustee of a deed which requires registration to Registration, protect the property neglect to register it, he is answerable for the consequences (i). (a) Pride v. FooTcs, 2 Beav. 430 ; see (/) Clach v. Holland, 19 Bear. 273, Byrchall v. Bradford, 6 Mad. 13 ; 276, per Cur. ; Be Layton^s Policy, S. C. Id. 235; and see ante, p. 296. W. N. 1873, p. 49 ; and see Johnson (b) Fenwich v. Greenwell, 10 Beav. v. Sunre, 3 Giff. 194. 412. {g) Hill V. Teenery, 23 Beav. 16; (c) Devaynes v. Robinson, 24 Beav. Beresford v. Beresford, ib. 291. 86 ; Sculthorpe v. Tipper, 13 L. R. (A) As to what chattels are within Eq. 232. the operation of the clause, see 32 & \d) Marriott v. Kinnersley, Taml. 33 V. c. 71, ». 15. 470. (»') Macnamara v. Carey, 1 Ir. R. (e) Now so decided, Hobday v. Eq. 9. PeUrs, (No. 3), 28 Beav. 603. B B B 2 740 REMEDY FOR BKEACH OF TRUST. [CH. XXIX. S. 3. Power impera- 16. A trust is sometimes in the form of a power imperative, that IS, a power which it is the bounden duty of the trustee to execute, and if through his neglect to execute it a loss arises he will be held responsible (a). Receipt byperson 17. If a trustee has assumed to act as trustee and having received but acting ^' money in that character misapplies it, he is accountable for the such. proceeds to the cestui que trust, and cannot defend himself by showing that in fact he was not legally a trustee (&), or that when he committed the breach he did not know who his cestui que trust was (c). But the trustee of a devised estate will not be accountable for property comprised in the devise, but the existence of which did not come to his knowledge, and which he was not bound to have discovered (d). Wilful default. 18. If a bill be filed for an account and the plaintiff seeks relief against wilful default, he must by his bill allege some specific act of wilful default (e) and pray consequential, relief, and at the hear- ing must prove some act of wilful defaiilt, or at least establish a case for enquiry (/) ; and a fortiori where, at the original hearing, the common accounts only were directed, it is too late to ask relief on further directions against any wilful act that may have transpired accidentally from the other enquiries {g) ; and a trustee cannot be declared liable for wilful default upon a common order made at Chambers for the administration of the trustee's estate (h). But if a biU pray an account with interest, and at the original hearing an account is directed, and in the course of the accounts improper balances appear to have been retained, interest on the balances may be asked for at the hearing on further directions {€). And if relief against a breach of trust be prayed, and at the original hearing the iisual accounts only are directed, but with an enquiry who are the parties interested, it is not too late to ask relief against the breach of trast on further directions, as before that time the Court was (a) Luther v. Bianconi, 10 Ir. Ch. {d) Ycmde v. Cloud, W. N. 1874, Re. 194. p. 133. (J) Raekham v. Siddall, 16 Sim. (e) Bond v. McWatty, 14 Ir. Ch. 297; affirmed on appeal to the extent Re. 174; Wildes v. Dudlow, W.N. of the interest of the plaintiff, the 1870, pp. 85, 231. tenant for life, 1 McN. .& G. 607; (f) Sleight v.Johnson, 3 K.k J. 292. Pearcev. Pearce, 22 Beav. 248; and {g) Coopy. Carter, 2 DeG. M. & G, see DerUshire v. Hoiue, 3 De Gex, 292 ; Ashew y . Fbo«;Aea(^, W. N. 1873, Mao. & Gor. 80 ; Hope v. Liddell, 21 p. 143. Beav. 183; Life Association of Scotland (h) Be Fryei; 3 K. & J. 317 ; Par- y. Siddall, 3 De Gex, F. & J. 58 ; tington v. Reynolds, 4 Drew. 253 ; Re Hennessey y. Bray, 33 Beav. 96; Ex Delevante, 6 Jur. N. S. 118 ; but see parte Norrii, 4 L. R. Ch. App. 280. Brooker v. Brooher, 3 Sm. & Gif. 475. (c) Ex parte Narris, 4 L. R. Ch. (i) Shaw v. Twbett, 13 Ir. Ch. Re. App. 280. 476. CH. XXIX. S. 3.]- REMEDY FOE BREACH OF TRUST. 741 not in a condition to deal with the question (a). And in a redemp- tion suit it is not necessary that the plaintiff should charge wilful default, nor is the case altered, if the deed though in substance a security be in the form of a deed of trust (b). And it has been held that where executors file a biU for the administration of their testator's estate, it is competent to a defendant to allege by his answer a case of wilful default by the executors, and that on proof of it at the hearing the Court will give the necessary directions without obliging the defendant to file a cross bill (c). It is not competent to a remainderman to file a bill for relief in respect of the prior life estate, for he has no interest in the income, but only in the corpus (d). 19. An executor or administrator of a trustee will be answerable Bill against for a breach of trust, though he may have distributed the assets t™stee's personal ' o •> representative. amongst the legatees or next of kin, without previous notice of the breach of trust (except it was done under the sanction of the Court (e), or under the provisions of Lord St. Leonard's Act, 32 & 23 Vict. c. 35, s. 29) ; and the Statute of Limitations affords him no protection (/) : or the cestui que trust, if he has not being lying by while the rights of the defendants have been varied by lapse of time (g), may recover the assets directly from the legatees or next of kin amongst whom they have been distributed (h). 20. The debt constituted by a breach of trust is even after it Breacli of trust has been established by a decree an equitable debt only, and until an^eqmtablo debt the Bankruptcy Act, 1869, would not have supported a petition in bankruptcy (i). 21. The claim of the cestui que trust is in general a simple con- Breach of trust tract debt, and therefore, until the late Act, making a person's <=onstitutessimple whole real and personal estate liable to his simple contract debts unless the" trustee it was recoverable, not from the real, but only from the personal estate. But if the trustee sign the trust deed and engage under his hand and seal, by words that amount to a covenant at law, to execute the trust, then the breach of trust becomes a specialty debt (^-). {a) Fattenden Y.Hobson, 1 Eq. Ee. 28. (/) See pp. 739, ante. (b) O'Connell v. 0' Callagan, 15 Ir. (g) Itidgwayy.Newstead,&I)eGex, Ch. Ee. 31. F. & J. 474. (c) Harvey v. Bradley, 4 L. E. Eq. (A) March v. Russell, 3 M. & Cr. 13. 31 ; Knatdibull v. Fearnhead, 3 M. & {d) Whitney v. Smith, 4 L. E. Ch. Cr. 126; Underwood v. Hatton, 5 App. 513. Beav. 38. (e) Knatchhull v. Fearnhead, 3 M. (i) Ex parte Blencowe, 1 Law Eep. & C. 122 ; March v. Russell, 3 M. & Ch. App. 393. See now 32 & 33, V. C. 31 ; Low V. Carter, 1 Beav. 423 ; c. 71, s. 6, and Ex parte Sturt S Co. Hill V. Gmnme, lb. 540 ; Underwood 13 L. E. Eq. 309. V. Hatton, 5 Beav. 39; Waller v. (h) See S2«p»-a, p. 182, 183. Barrett, 24 Beav. 413. i covenanted. 742 REMEDY FOE BBEACH OF TRUST, [cH. XXIX. S- 3, Immaterial whether trustee was gainer or loser by tHb breach of trust. Case of trustee bringing a profit as well as a loss to the trust. 22. In awarding compensation to the cestui que trust against the trustee, the Court pays no regard to the circumstance whether the trustee derived any actual advantage or not, but proceeds 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 misconduct, and a loss follows, 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 (5). " 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 deprecia- tion '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 invested by such personal representa- tive 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 represen- tative will be liable to make it good, however unexpected the residt, however little likely to arise from the course adopted, and however free such conduct may have been from any improper motive " (c). 23. And a trustee who is liable for a loss occasioned by a breach of trust in respect of one portion of a trust fund, cannot set off against his bability a gain which has accrued to another portion of the trust fund through another distinct and wholly unconnected breach of trust (d) ; and even in the same matter, where executors were directed to convert the testator's property and invest it in Government or real securities, and they allowed the tenant for life for eleven years to receive 10 per cent, on an Indian loan, and then invested the capital in a purchase of Bank Annuities, and the stock purchased was considerably more than could have been purchased with the same capital at the end of one year from the testator's death, they were not only made liable for the excess of interest paid to the tenant for life, but were disallowed their claim (a) See Dornford v. Dornford, 12 Ves. 129 ; Raphael v. Boehm, 13 Ves. 411 ; S. C. lb. 490, 491 ; Moons v. De Bernales, 1 Russ. 305 ; Adair v Shaw, 1 Sch. & Lef- 272; Lord Montford y . Lord Cadogan, 17 Ves. 489 ; &cur field V. Howes, 3 B. C. C. 90; but see Attorney- Oeneral v. Greenhouse, 1 Bligh, N. R. 57—59. (6) See Caffrey v. Darly, 6 Ves 496; Cooler v. QuayU, 1 K. & M 536; Fyler v. Fyler, 3 Beav. 568 Kellaway v. Johnson, 5 Beav. 324 Munch V. Cockerell, 5 M. & Cr. 212 Gibbons v. Taijlor, 22 Beav. 344. (c) Clough V. Bond, 3 M. & C. 496. (d) Wiles V. Oresham, 2 Drewry, 258, see p. 295. CH. XXIX. S. 3.] REMEDY FOR BREACH OF TRUST. 743 to set off against their liability, the accidental advantage accruing to the trust from a purchase of a larger sum of Bank Annuities than could otherwise have been purchased from their laches in making the investment, and the depreciation of the funds during the interim (a). 24. A defaulting trustee will not be charged with imaginary Trustee not values Q>) ; and being regarded as a mere stakeholder, he wOl not imaginary values, be liable for more than he has actually received (c), except in cases of very supine negligence, or wilful default {d). 25. Where co-tncstees are jointly implicated in a breach of trust, Co-trustees the eestui que trust, though he obtains a decree against the trus- ^ trust are tees jointly, may have process of execution against any one of them severally respon- separately (e) ; for as regards the remedy of the cestui que trust whole loss. there is no primary liability, but each trustee is responsible for the entirety of the loss incurred (/). However, where the trustees are in pari delicto \he, decree is usually enforced against the trustees equally {g) ; and in one case, 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-trustees should not be answerable for more than the moiety paid to himself, the division of the trust money having been. Sir J. Leach observed, " a term in the creation of the trust " Qi). 26. Where the defendants are involved in a breach of trust, the And also for the Court decrees costs against them jointly, and does, not distinguish °°^'^^ °* ^"^*' between the relative culpabilities of the defendants (i). But where the plaintiff in pursuance of the decree recovered all the costs from a single co-defendant, the latter obtained an order in the same (ffl) Dimes v. Scotty i Russ. 195 ; and Angle, Barn. 425 ; In re Chertsey see Fletcher Y. GVeem, 33 Beav. 426. Market, 6 Price, 278, 279; Ex parte {h) Palmer v. Jones, 1 Vern. 144. Norris, 4 L. R. Ch. App. 280. {c) Harnard Y. Webster, Sel. Ch. (/) See TFJiZsora v. itfoore, 1 M. &K. Ca. 53. 146 ; Lyse v. Kingdon, 1 Coll. 188 (d) Pybus y. Smith, lYes.jun.X93, Richardson v. Jenkins,! Drew. 477 per Lord Thurlow ; Palmer v. Jones, AMeyne v. Darcy, 4 Ir. Ch. Re. 206 1 Vern. 144, ^er Lord Nottingham. Jenkins y. Robertson, 1 Eq. Rep. 123. (e) Ex parte Shakeshaft, 3 B. C. C. (g) Rehden v. Wesley, 29 Beav. 215, 197 ; Walker v. Symonds, 3 Swans. 74, per M. E. 75 ; Attorney- General v. Wilson, 1 Cr. {h} Birls v. Betty, 6 Mad. 90. &Ph. 28,i)erLord Cottenham; Taylor (i) Lawrence y. Boivk,2Fhil}. liQ; V. Tabrum, 6 Sim. 281; Fletcher v. 1 C. P. Coop. t. Cott. 241. Green, 33 Beav. 426 ; and see Ex parte 744 KEMEDY FOE BREACH OF TRUST [CH. XXIX. S. 3. cause upon a motion (which however was not opposed) for con- tribution by the other defendants (a). Liability and 27. Though, as respects the remedy of the cestui que trust, each between the trustee is individually responsible for the whole amount of the trustees them- Iqss, whether he was the principal in the breach of trust, or was selves, or between -^ -^ them and otlicr merely a consentmg party, yet, as between the trustees themselves, parties. ^j^g j^gg ^^^j l^g thrown upon the more guilty party, or if he be dead upon his estate ; and this claim of the innocent trustee (though formerly only a simple contract debt as between himself and his co- trustee, even where the breach of trust as between them and the cestuis que trust was a specialty debt), is now in such cases by the effect of the Mercantile Law Amendment Act (b) a specialty debt also (c). If all the trustees be equally guilty, then (unless the transaction was vitiated not only by constructive but actual fraud, when the Court will hold itself entirely aloof (d), ) an apportion- ment, or contribution amongst the trustees may be compelled, not in the same suit, but on a bill filed for the purpose (e). And if in the suit for recovery of the trust fund any benefit, as a legacy, be coming in the same matter to one of two defaulting trustees, the other trustee, if he pay the whole of what is due to the cestu,is que trust, will have a lien on the legacy of the co-trustee for the amount of contribution he ought to pay (/). The gainer by 28. As between the trustees and a third person who has reaped trustirultimately ^^^ 'benefit of the breach of trust, though the trustees must make liable. 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 {g). But the circumstance that the breach of trust (a) Pill V. Bonner, 1 Y. & C. Ch. Baynard v. Wolley, 20 Beav. 583 ; Ca. 670. Jesse v. Bennett, ti De G. M. & G. (b) 19 & 20 Vict. 0. 97. 609 ; and see Wilson v. Goodman, 4 (c) Loclehart v. Reilly, 1 De G. & Hare, 54 ; Paull v. Mortimer, W. N. Jon. 464; Priestman v. Tindall, 24 1873, p. 199; Keogh \ . Keogh, 9, I. Vi. Beav. 244. Eq. 179. But see now 36 & 37 V. (f?) See Lingard v. Bromley, 1 Ves. c. 66, s. 24, rule 3, and schedule to & B. 114; Tarleton v. Hornby, 1 Y. the Act, Rule 12, and the 9th and & C. 336 ; Attorney- General y. Wilson, following rules of the 15th order under 1 Cr. & Ph. 28. the Supreme Court of Judicature Act, (c) FUtclier v. Green, (No. 2), 33 1873. Beav. 513 ; Attorney- General v. Dall- (/) Binks v. MickUthwaite, 33 Beav. qars, 33 Beav. 624,^cr Cur. ; Coppard 409. V. AlUn, 2 De G. Jon. & Smith, 177, {g) Traffordy. Boehm, 3 Atk. 440; per L. J. Turner; Ex parte Shakeshaft, Greenwoods. Walceford, 1 Beav. 580; 3 B. C. C. 198, per Lord Thurlow ; Booth v. Booth, 1 Beav. 125; Lm-d Lingard v. Bromley, IV. & B. 114; Montfort v. Lord Cadogan, 17 Ves. Perry y. JTnofi, 4 Beav. \m, per Lm-d 485; 19 Ves. 635; 8. C. 2 Mer. 3; Jjungdajle; 3,ni see KnatchbuUy.Fearn- Binks v. Micklethwait, 33 Beav. 409 ; head 3 M. & C. 122 ; Pilt v. Bonner, and see Howe v. Earl of Dartmouth, 1 Y.' & C. Ch. Ca. 670 ; Ex parte 7 Ves. 150, 1 51 ; Jacob v. Lucas, 1 Burton, 3 Mont. D. & De Gex, 373; Beav. 436; Lincolny. Wright, iBeSiV. CH. XXIX. S. 3.] AGAINST TRUSTEE PERSONALLY. 745 was committed at the instance of the ceshd que trust will not per se impose upon him the obligation of indemnifying the trustee generally. Thus in Sah/ v. Ridedhalgh (a), where the cestuis q%i,e trust, the tenants for life, had instigated the breach of trust, L. J. Turner asked, "Has the Court in a suit of this nature ever gone the length of ordering the cestuis que trust personally to recoup the trustee?" and the Court directed the tenants for life to account to the trustee only for the monies which had been received by them under the breach of trust, and this has since been followed by other decisions (6). s, 29. If a tenant for life, or other person having a partial interest, The interest of be responsible for having ioined in a breach of trust, all the benefit parties commit- '^ ° •' ' tmg a breach of that would have accrued to him, either directly or derivatively (c), trust may be either from that trust fund, or any other estate comprised in the Ig'^I^te the trast. same settlement (d) (and even though the estate be legally vested in the wrong doer (e), ) may be stopped by the cestuis que trust, or other person having a similar equity, as against him, his assignees in bankruptcy (/), or judgment creditors {g), or general creditors (A.) ; and (except so far as the defence of purchase for value without notice may be applicable) against all who claim under him (*), until the amount impounded, with the accumulations thereon (h), has com- pensated the trust estate for the loss it had sustained. fAnd the rule"" applies to a fejTie covert entitled to her separate use if there be no restraint of anticipation, but otherwise where her power of anticipa- tion is restrained (/), and if the cestui que trust be one of three trustees, and joined with the co-trustees in a breach of trust, and the co- trustees have been made to repair the breach of trust, the co-trus- 432 ; Vaughm v. Vanderstegen, 2 Egbert v. Butter, 21 Beav. 560, is Drewry, 165, 363 ; Hobday v. Peters, contra, but the former case was not 28 Beav. 354; Fetherstone v. West, cited. 6 I. R. Eq. 86. (/) Ex parte Turpin, 1 D. & C. 120 ; (a) 7 Be G. M. & G. 108. Ex parte Smith, 1 Deac. 143 ; Ex parte (6) Brown v. Maunsell, 5 Ir. Ch. Sn^, 2 M. & A. 410; Primev. Savell, Eep. 351 ; Bentley v. Robinson, 9 Ir. W. N. 1867, p. 227 ; Jacubs\. Rylance, Ch. Re. 479; and see Walsham v. 17 L. R. Eq. 341 ; see Smith \. Smith, Stainton, 1 Hemm.- & Mill. 337. 1 Y. & G. Ex.Ca.338 ; BurridgeY.Row, (c) Jacubs V. Rylance, 17 L. R. Eq. 1 Y. & C. Ch. Ca. 183, 583. 341. (g) Kilworth v. Mountcashell, 15 Ir. {d) WoodyattY.GTesley,9,&im.l9,Z; Ch. Rep. 565. Ex parte Mitford, 1 B. C. C. 398; see {h) Williams v. AlUn (No. 2), 32 Prtddy v. Rose, 3 Mer. 106 ; Burridge Beav. 650. V. iJow, 1 Y. & C. Ch. Ca. 183, 583; (i) Woodyatt v. Gresley, 8 Sim. Lincoln v. Wright, 4 Beav. 432, per 180; Priddy v. Rose, 2 Mer. 86 ; Cole Lord Langdale; Fuller v. Knight, 6 v. Muddle, 10 Plare, 186; and see Beav. 205 ; M'Gachen v. Z)ew,15Beav. Morris v. Livie, 1 Y. & C. Ch. Ca. 380. 84 ; Vaughton v. Noble, 30 Beav. 34. (7c) Ex parte King, 2 jM. & A. 410. (e) Woodyatt v. Gresley, 8 Sim. 180; (Q See p. 624, supra. 746 BANKRUPTCY OF THE TRUSTEE. [CH. XXIX. S. 3. tees have a lien on the share of the cestui qxie trust, who is also a trustee, for a contribution of one-third, but without interest, towards the amount paid by them for clearing the joint breach of trust (a). It was contended in one case, that where an estate was devised to a person who was a debtor to the testator, the debt was a lien on the devised estate, but the Court not finding any precedent did not allow the claim (6). ttiTw^e^"^ 30. If the trastee become bankrupt, the loss may be proved against his estate (c), and without filing a biU for establishing the breach of trust (d), and if interest would have been decreed in equity against the trustee himself, it will constitute part of the debt in the proof against his estate in the hands of his trustee in bainkruptcy(6), and if the breach of trust was a sale of stock, the cestui que trust may, at his option, prove for the proceeds of the sale, or for the value of the stock at the date of the bankruptcy (/), and if the bankrupt be a debtor to the trust, and entitled himself to a reversionary interest in the debt, the trustee may nevertheless prove for the whole debt without any set-oil for the reversionary in- terest {g). But if the bankrupt, in whose hands the trust fund was, be one of the trustees, and iadebted to the trust estate, and also have a present beneficial interest 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 (Ji). Trustee a partner 3x_ jf ^\^q trustee was one of a bankrupt firm, to which the and lending the '' i i • , trust money to trust money had been lent, proof may be made either against the tbe_firm with joint estate of the firm, or the separate estate of the bankrupt trustee, and of any other of the partners who may have constituted themselves trustees or taken an active part in the breach of trust (i); but not against both the joint and separate estates (k), and if the (a) Prime v. Savell, W. N. 1867, p. Rose, 413 ; Ex parte Stutely, 1 M. D. 227. & De G. 643. (J) ExpaHeBarf, 1 De Gex, 613. {g) Ex parte Stme, 8 L. R. Ch. (c) Kehle v. Thompson, 3 B. C. C. App. 914. 112 ; Moons v. De Bernales, 1 Russ. (A) Exparte Turner, 2 De Gr. M. & 301 ; Dornfm-d v. Do)-nford, 12 Ves. G. 927; Ex parte Bishop, 8 L. R. Cli. 127 ; Ex parte Shakeshaft, 3 B. C. C. App. 768. 197 ; BicJc v. Motley, 2 M. & K. 312; (i) Ex parte Heaton, Buck, 386; Lincoln v. Wright, 4 Beav. 427. Ex parte WaUon, 2 V. & B. 414 ; {d) Ex parte Norris, 4 L. R. Ch. Smith v. Jameson, 6 T. R. 601 ; Ex App. 280. parte Bolland, 1 Mont. & Macart. 315 j (e) Dornford v. Dornford, 12 Ves. Ex parte Paulson, 1 De Gex, 79 ; Ex 127 ; Bick v. Motley, 2 M. & K. 312 ; parte Bamewall, 6 De G. M. & G. Moons V. De Bernales, 1 RuiS. 301. 801. (/) Ex parte Shakeshaft, 3 B. G. G. {k) Ex parte Bamewall, 6 D& G. 197 ; Ex parte Ourner, 1 M. D. & De M. & G. 795. G. 497 ; and see Ex parte Moody, 2 CH, XXIX. S. 3.] BANKRUPTCY OF THE TRUSTEE. 747 bankrupt has laid out the trust money on a naortgage, 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 mort- gage also (a) : 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 (5), 32. If the trustee was not one of the firm, but he lent the trust Trustee not a fund to the bankrupt firm, proof can be made as for an ordinary debt {^^[(jj'ng m^ney to against the joint estate. If the trustee lent the money, not to the the firm or the firm, but to one of the members of the firm, and the partners had no notice of the source from which it came, proof can only be made against the separate estate of the partner who received, though the money may, in fact, have been applied to partnership purposes (c). But if the other partners had notice of the source of the money, proof can be made against the joint estate of the firm (d), but not it seems, against the separate estate of each partner (e), unless the firm by their dealings with the cestuis que trust constituted them- selves trustees directly for them (/). !N"or can proof be made on the mere ground of notice for the profits made by the use of the money, for the partners in the firm are regarded not as actual but only as constructive trustees, that is, haviug notice of the trust they are accountable for the money, but not being clothed with any special duty, they do not come within the rule that " a trustee shall not profit by his trust " (g). 33. It was held by the late M. E. that where a trustee had proved Apportionment against a bankrupt's estate for 6985/. 19s. 7d. principal money made forTife'and"^"* away with by the bankrupt, and for 2744/. 9s. lid. interest (which remaindermen should have been paid to the tenant for life), making together a recovered from sum total of 9730/. 9s. 6d., all dividends received under the bank- Bankrupt trustee, ruptcy should first make up the lost capital, and that the tenant for life had no lien for his lost income, but was entitled only to (a) Ex parte Biddulph, 3 De G. & G-.364; Ex parte Bolland, 1 Mont. & Sra. 687 ; Ex parte Geaves, 25 L. J. Mac. 315. (N. S.) Bank. 53; 2 Jur. N. S. 651. (e) Ex parte Heilly, 1 Gl. & Jam. (J) In re Montefiore, 9 Jur. 562. 167 ; and see Ex parte JSurton, 3 Mont. (c) Ex parte Apsey, 3 B. G. C. 265 ; Deac. & De G. 364 ; Ex parte Woodin, Ex parte Wheatley, Cook's Bankrupt 3 Mont. Deac. & De G. 399. Law, 534, 8th ed. (/ > Ex parte Woodm,3 Mont. Deac. (d) Ex partePeek, 6 Ves. 602 ; Ex & De G. 399. parte Clowes, 2 B. 0. C. 595 ; and see [ff) Stroud v. Owyer, 28 Beav. 130 ; Ex parte Burton, 3 Mont. Deac. & De see 141 ; and see Ex parte Burton, 3 Mont. Deac. & De G. 364. 748 BANKRUPTCY OF THE TRUSTEE. [CH. XXIX. S. 3. How far trust debt barred by the bankrupt's certificate. the interest of the capital sums received by way of dividend under the bankruptcy (a). The natural course would have been to appor- tion the fund as between the tenant for life and remaindermen according to their respective losses, and if the case could stand it would work occasionally a great hardship. Suppose for instance the tenant for life, though entitled for the last 10 years, had received nothing and then died before the dividend was paid. The whole would go to the remainderman, and the executor of the tenant for life would receive nothing, though a large part of the dividend was recovered in respect of the life estate (6). Since these remarks were written, the case has in effect been overruled. In Cox v. Cox (c) A. covenanted on his marriage that his executors, within three months after his death should pay to the trustees a sum of 6,000^. with interest, from his death, at 4 per cent., to be held in trust for his widow for life, with remainder to the children. A. died in 1862, and his estate was administered by the Court. The assets were insufficient to satisfy the principal and interest, and the question was, how the amount recovered was to be dealt with as between the tenant for life and the remainder- men, and V.-C. Sir W. James said, " The true principle in all these cases is, that neither the tenant for life nor the remainderman is to gain an advantage over the other, neither is to suffer more damage in proportion to his estate and interest than the other suffers from the default of the obligor. Assuming that 5500/. is the sum that will be recovered, a calculation must be made back. What principal, if invested on the day of the obligor's death (the date from which interest was to run) at 4/. per cent, would amount with interest to the sum so recovered. Interest at 4=1. per cent, on this principal, or in other words the difference between the principal and the amount wiU then go to the tenant for life, and the rest must be treated as principal." 34. The original trust debt was formerly 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 fund (d). But it was the duty of the trustee to see that S07ne person proved on behalf of the trust, and if he did not, he was liable in equity for this neglect of duty : and though he had obtained his certificate he was held responsible personally for the amount that might have been received (a) In re Grabowski'e Settlement, 6 L. R. Eq. 12. (b) Seelnnesv.Mitchell, 1 Phill. 710 & Turner y.Nevjport, 2 Phill. 14, which were not cited to M. R. (c) 8 L. R. Eq. 343. [d) Ex parte Holt, 1 Deac. 248. CH. XXIX. S. 3.] BANKRUPTCY OF THE TRUSTEE. 749 by way of dividend (a). And a demand in respect of a breach of trust was held to be equally barred by the trustee's discharge under the Insolvent Acts, provided the liability was duly mentioned in the schedule (&). 35. If the bankrupt was one of several co-trustees, who were Proof where one jointly implicated in a breach of trust, then proof may be made ia bankrupt, against the bankrupt's estate for the whole money lost, though he was not the party benefitted by the breach of trust (c) ; and though the other trustee be living and solvent (d). And the proof against the bankrupt will not be precluded by a bond given not to sue the other trustee, reserving the right against aU other parties (e), though a release to the other trustee, being an extinguishment of the debt, would prevent any subsequent proof (/). 36. So if two co-trustees be bankrupts, proof may be made Co-trustees against the estate of each (c/) ; but of course more than 20s. in the ™ ™P ^' 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 (Ii). 37. But where the whole debt is proved against the estate of the Contribution. bankrupt trustee, the trustee in bankruptcy may afterwards file a bill, and compel contribution from the other trustee (i), even where the bankrupt trustee himself could ]jot, from his fraudulent con- duct, have obtained such relief (k). 38. Where a testator has authorised the employment of his Trust money estate in trade, if the firm in which it was employed become employed in° bankrupt, proof cannot be made against the estate of the bank- trade, rupts in respect of the money so employed ; for it is not a debt of the firm, but merely capital brought into it : but, when the joint creditors have been satisfied, the trustee member of the firm may, as one of the partners, establish a balance, if there be one, against the separate estates of the co-partners {I). (a) Orreit v. Corser, 21 Beav. 52 ; (g) Kehle v, Thompson, 3 B. C. C. and see Woodhouse v. Woodhouse, 8 112; Ex parte Poulson, I De Gex, 79. L. R. Eq. 521. W Ex parte King, 1 Deac. 164, &c. (5) Thompson v. Finch, 22 Beav. (i) See .Ex parte Shakeshaft, 3 B. 316 ; on appeal, 8 De G. M. & G. 560. C. 0. 97 ; Bromley v. Lingard, 1 V. & (c) Ex parte Shakeshaft, 3 B. C. C. B. 114. 197. (yfc) See Muchleston v. Brown, 6 Ves. (d) Eoe parte Beiliy, 1 G. & J. 167. 68 ; Joy v. Caraphell, 1 Sch. & Lef. (e) lb. 335, 339 ; Ottley v. Brown, 1 B. & B. ( /) See Blackwood v. Borrowes, 2 360. Conn. & Laws. 478. {I) Scott v. Izon, 34 Beav. 434; and see M'Neille v. Acton, 2 Eq. Re. 21. 750 CONCUERENCE IN BEEACH OF TRUST. [CH. XXIX. S. 3. 32 & 33 V. c. 71. 39. By the late Bankruptcy Act («) a bankrupt after, and not- withstanding his order of discharge, remains lial)le to his cestui que trust for a breach of trust. Concurrence of the cestui pie trust in the breach of trust. Ignorance. Feme coverts and infants cannot concur. Except guilty of actual fraud. In assigning to the cestui que trust the foregoing remedies against the trustee, it must of course be understood that the cestui que trust has not himself concurred in the breach of duty, or subsequently acquiesced in it, and, d fortiori, has not executed a formal release or confirmation. I. — 1. If a cestui que trust concur in the breach of trust, he is for ever estopped from proceeding against the trustee for the con- sequences of the act (&), and a fortiori a cestui que trust, who is also a trustee, cannot hold his co-trustee responsible for any act in which they both joined (c). 2. 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 (d). 3. And persons cannot concur in a breach of trust, who, as feme coverts (e) and infants (/), have no legal capacity to consent to the transaction. 4. But neither coverture nor infancy wUl be a protection from a charge of fraud, and therefore if a feme covert (g), or infant {&), (a) 32 & 33 V. c 71, s. 49. (6) Brice v. Stokes, 11 Ves. 319, and Walker v. Symonds, 3 Swans, 64, per Lord Eldon ; Wilkimon v. Parry, 4 Russ. 272 ; Cocker v. Quayle,^ 1 R. & M. 535 ; Nail v. Punter, 5 Sim. 555 ; Newman v. Jones, Rep. t. Finch. 58 ; and see Fellows v. Mitcliell, 1 P. W. 81 ; Booth V. Booth, 1 Beav. 125 ; Langford v. 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 ; Byr- chall V. Bradford, 6 Mad. 13 ; Morley V. Lord Hawke, cited in Small v. Att- wood, 2 y. & J. 520 ; Fyler v. Fyler, 3 Beav. 550; Griffiths v. Porter, 25 Beav. 236 ; LifeAssociation of Scotland V. Siddal, 3 De G. F. & J. 74 ; Ex parte Barnewall, 6 De G. M. & G. 801. (c) Butler v. Carter 5 L. R. Eq. 281, pe?* cur. {d) Buckeridge v. Glasse, 1 Cr. & Ph. 135, per Lord Cottenham. {e) Ryder v. Bickerton, cited Walker V. Symonds, 3 Sjpans. 80 ; Underwood V. Stevens, 1 Mer. 717 ; Smith v. French, 2 Atk. 243 ; Needler's case, Hob. 225 ; Lench v. Lench, 10 Ves. 517, per Sir W. Grant; Lord Montford v. Lm-d Cadogan, 19 Ves. 639, 640, per Lord Eldon; and see Parkes v. White, 11 Ves. 221 ; Bateman v. Davis, 3 Mad. 98; Creswell v. Deivell, 4 Giff. 460. (/) See supra, pp. 34, 36 ; and Wil- kinson V. Parry, 4 Russ. 276. (g) Ryder v. Bickerton, cited Walker V. Symoruls, 3 Swans. 82, per Lord Hardwicke ; and see Savage v. Foster, 9 Mod. 35 ; Lord Moidford v. Lord Cadogan, 19 Ves. 640 ; Vandebende v. Livingston, 3 Swans. 625 ; Evans v. Bicknell, 6 Ves. 181 ; t/brees v. Kearney, 1 Dru. & War. 166; Davies v. iJorf^- soji, 25 Beav. 187 ; Sharpe v. Foy, 4 L. Rep. Ch. App. 35; -Be Lush's Trust, 4 L. R. Ch. App. 591, Green v. Lyon, W. N. 1873, p. 114, reversed on the facts ib. 184 ; Arnold v. Wocdhams, 16 L. R. Eq. 33 per cur. (h) See the oases at note (g) p. 36, supra. CH. XXIX. S. 3.] CONCUEBBNOE IN BREACH OF TRUST. 751 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. 5. A feme covert will be bound by her concurrence in a breach Separate use. of trust as to any fund which is settled to her separate use, where there is no restraint against anticipation (a), and such /ewe covert, if she execute a deed, will not be allowed to controvert the statements of fact contained in the deed (b). But she will not be estopped upon the ground of concurrence where the act was not voluntary, but her judgment was misled, or she was under undue influence (o). And a feme covert has no power to concur in any act as to a fund settled to her separate use where there is a restraint against anticipation {d). 6. And her concurrence will not operate beyond the interest powerof ap- settled to her separate use, though she have a power of appointment pointment. in addition ; 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 will from holding the trustees responsible (e) ; and the doctrine that the property becomes by the appointment assets to satisfy the breach of trust cannot be made available by the trustee (J). But a feme covert is capable of committing a fraud ; .and therefore if an estate be settled to her separate use for life, with a general power of appointment by wiU, and in default of appointment to her in fee, and she suppresses her real name, and holding herself out as a feme sole, mortgages the estate, the mortgagee has a lien upon the estate as against the heir or appointee {g). Where there is no fraud, and the feme covert has a general power of appointment either by instrument inter vivos or by will, it has been recently held (a) See amfe, p. 624. (f) Vaughanv.Vanderstegen,2Drew. (6) Keays v. Lane, 3 I. E. Eq. 8, 165; Blatchford v. Woolley, 2 Drew. per cur. & Sm. 204. Otherwise where the (c) Whistler Y. Newman, iYesA29 ; person concurring in the breach of Hughes v. Wells, 9 Hare, 773 ; and see trust and having a power of appointing Walker v. Shore, 19 Ves. 393. by will is sui juris, Williams v. Lomas, {d) Cocker v. Quayle, 1 R. & M. 16 Beav. 1, and the doctrine in the 535 ; Walrond v. Walrond, 1 Johns. text as to a married woman has been 24 ; Leedham v. Cliawner, 4 K. & J. much shaken by the recent case of 465; Clive v. Carew, 1 Johns. & Hem. London Chartered Bank of Australia 199; Pemhertcm v. McOill, 8 W. R. v. Lemprih-e, 4 L. Rep. P. C. 572; 290 ; Fletcher v. Qreen, 33 Beav. 426 ; see p. 596. Arnold V. Woodkams, 16 L. R. Eq. (g) Vaughan v. Vanderstegen, 2 29; and see WiUon v. Hill, 25 L. J. Drew. 363; and &ee Hohday y. Peters, N S. Ch. 156; Derbyshire v. Home, 3 (No. 2), 28 Beav. 354; but see Lon- De G. M. & G. 102, 113. don Chartered Bank of Australia v. (e) Kellaway v. Johnson, 5 Beav. Lempriere, 4 L. Rep. P.O. 596. 319. 752 ACQUIESCENCE IN BEEACH OF TRUST. [CH. XXIX. S. 3. Acquiescence of cestui que trust. Whether mere knowledge and abstinence from suing a bar in cases of breach of trust. that the genera] engagements of the wife are payable out of the pro- perty so settled (a), and the Court went so far as to say,in the broadest terms, that such a settlement amounts in effect to what in common sense and to common apprehension it would be, viz., an absolute gift to the sole and separate use, and that such a form of settlement on a married woman, without restraint of anticipation, vests in equity the entire corpus in her for all purposes as fully as a similar gift to a man would vest it in him (b). The actual decision of the case in which this general doctrine was laid down was clearly supportable on the ground that there had been an imperfect execution of the power, and there being valuable considerations equity would supply the defect ; and the Court did not mean what the generality of the expressions would imply, that where the power is not executed the property is available for the feme covert's engagements, for the Court expressly approved the doctrine laid down by Sir G-. Turner, that where there is a limitation over in default of appointment and the power has not been exercised, the engagements of the married woman cannot prevail against the parties entitled in default of ap- pointment (c). ISTor did the Court decide even where the power is executed that the settled property will be available for payment of such general engagements as are merely verbal and not evidenced by any written instrument, or appear by any writing which is not an execution of the power at law, and would not be aided in equity for want of sufficient consideration. II. — 1. Again, a cestui que trust, though he did not concur at the time, may debar himself from relief by having acquiesced in the breach of trust subsequently {d). 2. How far the mere Jcnowledge of a right to sue in respect of a breach of trust, and the abstaining to sue will, without any other act, constitute laches in the eye of a Court of equity, and disentitle the plaintiff to relief, as in the particular instances of purchases by [a] London Chartered Banh of Atts- tralia v. Lempriire, 4 L. Eep. P. C. 572, and see Brewer v. Swirles, 2 Sm, & Giff. 219. Shattock v. Shattock, 2 L. Rep. Eq. 182 ; and Hohday v. Peters, (No. 2) 28 Beav. 354, would seem therefore to be overruled. (J) London G hariered Bank of Aus- tralia V. Lempriere, 4 L. Rep. P. C. 595. (c) 8. C. 592. {d) Harden v. Parsons, 1 Eden. 145; Tlwmpson v. Finch, 22 Beav. 324, per M. R.; Griffiths v. Porler, 25 Beav. 241 ; per M. R. ; Walker v. Symonds, 3 Swans. 64, per Lord Eldon ; Ho]je v. Liddell, 21 Beav. 183 ; Brice v. Stokes, 11 Ves. 326; Macdonnellv. Harding, 7 Sim. 190 ; Broadhurst v. Balguy, 1 Y. & C. Ch. Ca. 16 ; Lincoln v. Wright, 4 Beav. 432 ; Blackwood v. Borrowes, 2 Con. & Laws. 459 ; Farrant v. Blanchford, 1 De Gex, Jon. & S. 107; Rutherfoord v. Maziere, 13 Ir. Ch. Re. 204 ; Stevens V. BoherUon, W. N. 1868, p. 123; Sleeman v. Wilson, 13 L. R. Eq. 36. CH. XXIX. S. 3.] ACQUIESCENCE IN BEEAGH OF TKUST. 753 trustees, &c., above referred to (a), was until lately very uncertain ; but it seems to be now settled that gross laches, as for twenty years, will disentitle a cestui que trust to relief (6). But of course mere knowledge without suing for a few years, as for three years (c), or ten years (f?), will not destroy the right to impeach the transaction. And where there is an express trust for sioccessive incumbrancers, on a limited interest, as a life estate, the subsequent incumbrancers are not chargeable with laches so long as the whole beneficial in- terest is absorbed by the prior incumbrancers (e). 3. A cestui que tnost, who does not actually know, is not to be No bar where affected with knowledge of a breach of trust because he might by "j l^^^ jg ll^_ enquiry have ascertained the fact, for it is not his duty but that structiye only, of the trustee to see that the trust fund is in a proper state (/). 4. A settlement by a ward of Court under the direction of the Ward of Court. Court, of funds stated to represent the infant's fortune, will not operate as a confirmation of past breaches of trust (g). 5. It seems that a public and fluctuating body, as parishioners. Fluctuating body -i-i-iT, • /7^T>i-•i•^J- ^ parishioners may be bound by acquiescence [h). But it is almost unnecessary qj. creditors, to repeat, 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 (i). 6. A cestui que trust who, knowing that his trustee has com- Satisfaction in mitted a breach of trust, gets what he can from the wreck of the ortrust.'^ ^'^^'^ property, and with that view receives from the trustee j>a7't of the relief to which he is entitled, does not thereby waive his right to the ftdl relief to which he is entitled (/«). 7. As to acquiescence by a cestui que trust while his interest is Acquiescence by reversionary, L. J. Turner observed : " Length of time, where it does not operate as a statutory or positive bar, operates simply as evidence of assent or acquiescence. The two propositions of a bar by length of time and by acquiescence are not distinct proposi- (a) See p. 715, supra. 325—327 ; 8 De G. M. & G. 560 ; Life {b) Bright v. Legerton, (J^o. 1), 29 Association of Scotland y. 814(101,31) e Beav. 60 ; 2 De Gex P. & J. 606 ; G. F. & J. 73. Hodgson v. Bibhy, 32 B.eav. 221 ; and [g) Zambaco v. Cassavetti, 11 L. R. see Browne v. Cross, 14 Beav. 105 ; Eq. 439. Payne y. Evens, W. N. 1874, p. 86; (h) See Corporation of Ludlow v. He M'Kenna, 13 Ir. Ch. R. 239 ; Mar- Greenhouse, 1 Bligh New Rep. 92 ; In quis of Clanricarde v. Henning, 30 re Chertsey Market, 6 Price, 280, 284 ; Beav. 175. But see Knight y.Bowy ex, EdenboroughY. Archbishop of Canter- 2 De Gex & Jon. 443. bury, 2 Russ. 105, 108 ; Attorney- {c) HanchBtt~v,Briscoe,22'Bea,vA96. General v. Scott, 1 Ves. 415; Attor- {d) Farrant v. Blanchford, 11 W. ney-General v. Cuming, 2 Y. & C. Ch. R. 178. Ca. 150. (e) Knight v. Bowyer, 2 De G. & (i) See supra, pp. 435, 712. Jon. 421, see 443. (Ic) Thompson v. Finch, 22 Beav. (/) Thompson v. Finch, 22 Beav. 316 ; 8 De G. M. & G. 560. c c c 754 ACQUIESCENCE IN BEEACH OF TBUST. [CH. XXIX. S. 3. Release and confirmation by cestui que trust. Waiver. tions. They constitute but one proposition, and that proposition is that the cestui que trust assented to the breach of trust. A cestui que trust whose interest is reversionary is not bound to assert his title until it comes into possession ; but the mere circumstance that he is not bound to assert his title does not seem to me to bear upon the question of his assent to a breach of trust. He is not, so far as I can see, less capable' of giving such assent when his interest is in reversion than when it is in possession. Whether he has done so or not is a question to be determined on the facts of each par- ticular case" (a). But he afterwards added that he was not prepared to say, that, where the trust was definite and clear, a breach of trust could be held to have been sanctioned or concurred in by the mere kncnuledge and non-interference of the cestui que trust before his interest had come into possession (&). The above doctrines were approved by L. C. Campbell, with the further remark that it was easy to conceive cases in which, from great lapse of time, the facts from which the consent of the cestuis que trust was to be inferred might and ought to be presumed (c). III. — 1. Lastly, a cestui que trust may preclude himself from his remedy against the trustee by executing a formal release of the 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 afterwards proceed against the other parties who would have been secondarily liable (e). 2. Under the head of release, we may notice the subject of loaiver. " 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 is nothing, unless it amounts to a release. It is by a release, or something equivalent only, that an equitable demand can be given away. A mere waiver signifies nothing more than an expression of intention not to insist upon the right, which in cqidty will not without consideration bar the right any more than at law an accord without satisfaction 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) Life Association of Scotland v. ^-t^rfaZ, 3DeG. F. & J.72. (J) Tb. 74. (c) lb. 77, and see Taylor v. Cart- wright, 14 L. R. Eq. 176. (d) Blachwood y. Borrowes,2 Conn. & Lrw.s. 4,59 ; French v. Hobson, 9 Ves. 103 ; Wilkinson v. Pariy, 4 Russ. 272 ; Aylwyn v. Bray, cited in Small V. Attwood] 2 Y. & J. 517 ; Cresswell V. Dewell, 4 Giff. 465, per Cur. (e) Thompson v. Harrison, 2 B. C- C. 164 ; see Blachwood v. Borroives, 2 Conn. & Laws. 478. (/) Stackhouse v. Barmton, 10 Ves. 406. CII. XXIX. S. 3.] ACQUIESCENCE IN BREACH OF TRUST. 755 It would seem, therefore, that waiver is some positive act which, if supported by valuable consideration, though slight, will be taken in equity to constitute a release ; but, if it be merely an expression of intention not to insist on the right, and there is an absence of consideration, it is no waiver in the sense of a re- lease (a). 3. Acquiescence, and release or confirmation, to have the effect Eequi.sitea for we have mentioned, must be understood to be accompanied with cence ^release or the following conditions : — confirmation. a. As in the case of concurrence, the ceshoi que trust must be sui juris, and not a feme covert or infant ; and as regards infants, the Court continues its protection even after they have attained twenty-one till such time as they have acquired all proper informa- tion (6) ; and, in the case of a formal release being executed by ' them, they must have proper legal advice (c). However, a feme covert is clearly sui juris as regards property settled to her sepa- rate use where there is no restraint against anticipation (cQ. But where a feme covert is entitled to separate estate with a clause against anticipation it is difficult to see how she can be affected by acquiescence. In a late case (e), however. Lord Justice Turner intimated his leaning to be in favour of the affirmative. The language of Lord Justice Knight Bruce in the case alluded to, was more guarded. Of course the restraint on anticipation can impose no fetter as respects income accrued due before the acts of acqui- escence relied upon (/). If a bill be filed for relief against a breach of trust, the Court has jurisdiction to sanction a compromise on behalf of a married woman even though her interest be rever- sionary (g). p. The cestui que trust must be fully cognizant of aU the facts and circiunstances of the case Qb). (a) See Warrant v. Blanchford, 11 ?ot-iV?A<, 14L. R. Eq. 175. The dictum W. K. 178. of Lord Hardwicke in ;Sm2'tf» V. FrracA, (J) See Walker v. Symonds, 3 Sw. 2 Atk. 245, and the view of the late 69 ; Hiclcs v. Hicks, 3 Atk. 274 ; Os- M. R. in Davies v. Hodgson, 25 Beav. mondy. Fitzroy, 3 ]?. W. 131 ; Hylton 187 ; Eire opposed to the current of V. Hylton, 2 Ves. 547 ; Kilhy v. Sneyd, authority. 2 Moll. 233 ; March v. Russell, 3 M. («) Derhishire v. Home, 3 De G. & C. 42, 44 ; Bateman v. Davis, 3 M. & Gr. 80 ; and see Wilton v. Hill, Mad. 98; Wedderhurny. Wedderburn, 25 L. J. N. S. Ch. 156; Davies v. 2 Keen, 722, 4 M. & C. 41 ; Kay v. Hodgson, 25 Beav. 186, 187 ; Clive v. Smith, 21 Beav. 522 ; Aveline v. Mel- Carew, 1 John. & Hem. 205. huish, 2 De G. Jon. & Sm. 288; (f) RowleyY.Unwin,2Kity&JohTi. CJiambers v. Crabbe, 34 Beav. 457; 138. Sei combe v. Sanders, 34 Beav. 382. (g) Wall v. Rogers, 9 L. R. Eq. (c) Lhyd V. Attwood, 3 De Gex & 58. Jon. 615. Qi) Adams v. Clifton, 1 Russ. 297 ; {d) See ante, 624 ; and Jones v. Hig- Walker v. Symonds, 3 Swans. 1 ; Ran- gins, 2 L. R. Eq. 538 ; Taylor v. Cart- dall v. Errington, 10 Ves. 423 ; Bucke- C C C 2 756 STATUTE OF CHAEITABLB USES. [CH. XXIX. S. 4. y. The cestui que trust must not only be acquainted with the facts, but also to a certain extent apprised of the law, or how those facts would be dealt with if brought before a Court of equity (a). S. The release must not be wrung from the cestui que trust by distress or terror (&). SECTION IV. OP THE MODE AND EXTENT OP EEDKESS IN BREACHES OF TRUST COMMITTED BT TRUSTEES OP CHARITIES. I. Of the mode of redress. Ordinary mode of 1. The regular and Ordinary course of proceeding is by way of of trust by ohari- information (1) in the name of the Attorney-General : the Queen is table trustees. parens patriae, and it is the duty of the Crown of&cer, the Attorney- General, to see that justice is administered to every part of her Majesty's subjects. Eelators need not be personally interested (c). ridge v. Glasse, Cr. & Ph. 126 ; Bennett Dovmes v. Bullock, 25 Beav. 62 ; V. Colley, 2 M. & K. 232, per Lord Lloyd v. AUwood, 3 De G. & Jou. Brougham ; Vyvyan v. Vyvyan, 30 650. Beav. 65; Eaves v. Hiclcson, 30 Beav. (a) Cocherell v. Cholmeley, 1 R. & 142 ; Farrant v. Blanchford, 11 W. R. M. 425, per Sir J. Leach ; McCarthy 178,1 DeG. Jon.&S. 119 ; LifeAssocia- v. Decaix, 2 R. & M. 615; Marker v tion of Scotland v. Siddal, 3 De G-. F. & Marker, 9 Hare, 16 ; Burrows v. Walls J. 74; Strange v.Fooks, 4 Giff. 408 ; and 5 De G. M. & G. 254 ; Be Saxon Life see Earl of Chesterfield v. Janssen, 2 Assurance Society, 2 Johns, and Hem. Ves. 146, 149, 152, 158; Moche v. 412; Strange v. Fooks, 4 Giff. 408; O'Brien, 1 B. & B. 339, and the cases but see Stafford v. Stafford, 1 De G. there cited ; Bowes v. East London & Jon. 202, and the observations at Water Works Company, 3 Mad. 375 ; p. 434, supra. McCarthy v. Decaix, 2 R. & M. 615; (ft) Bowles v. Stewart, 1 Sch. & Lef. Wedderhurn v. Wedderhurn, 2 Keen, 209, see 226; and see Chesterfield v. 722 ; 4 M. & C. 41; Munch v. Cockerell, Janssen, 2 Ves. 149, 158. 9 Sim. 339; 5 M. & C. 179 ; Sronc^- (c) Attorney- General v. Vivdan, 1 hurst V. Balguy, 1 Y. & C. Ch. Ca. 16 ; Russ. 226. (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. Parker, 1 Ves. 43; S. C. 3 Atk. 576; Attorney- General V. For ster, 10 Ves. 335; Attorney- General v. Newcombe,14: Ves. 1; Davis v. Jenkins, 3 V. & B. 151; InhaUtants of Clapham v. Hewer, 2 Vern. 387 ; Attorney- General v. Cuming, 2 Y. & C, Ch. Ca. 149. CH. XXIX. S. 4.] STATUTE OF CHAEITABLE USES. 757 They are required merely because the Attorney-General, prose- cuting 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 (a). 2. In the reisn of Elizabeth an Act was passed, commonly called Statute of Gha- ritable Uses, the Statute of Charitable Uses (I), by which the Court of Chancery was empowered to issue commissions to certain persons, including the bishop of the diocese, who were authorised, after summoning a jury of the county where the property was situate, to enquire 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 (c). 3. After commissions had ceased to be issued, the legislature 52 g. 3, o. 101, endeavoured to provide a remedy, not as before, by creating a ^^'f^ Romiiiy a new jurisdiction, but by giving liberty to proceed under the old jurisdiction of Chancery in a summary mode. The 52 Geo. 3. c. 101, commonly called Sir Samuel Eomilly's Act, and intituled "An Act 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 when- ever the direction or order of a Court of equity should be deemed necessary for the administration of any trust for charitable pur- poses, it should be lawful for any two or more persons to present a petition to the Chancellor, Master of the Kolls, or the Court of Exchequer, praying such relief as the nature of the case might require, such petiton to be heard in a summary way upon affi- davits or such other evidence as should be produced, 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." 4. These enactments, though penned by a very able hand, have strictures on been strongly reprobated as very loosely and obscurely worded — *^^^ ■^°*- [a) Corporation of Ludlow y. Green- (c) Corporation of Ludlow v. Green- house, 1 Bligh, N. R. 48, per Lord house, 1 Bligh, N. R. 61,62, per Lord Redesdale. Redesdale. (6) 43 Eliz. c. 4. 758 SIR s. eomilly's act. [CH. XXIX. s. 4. Construction of the Act. Interest. as tending rather to increase than diminish the expense of the ap- plication — in short, as having produced more mischief than benefit. " It was a wise saying," observed Lord Eedesdale, " 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). 5. Upon the construction of this statute the following points have been resolved : — 0, (g) WheldaleY.Parfridge,SYea.256. see 688, 689; and see Grieshach v. (h) BradisliY. (Jee, Amb. 229. Fremantle, 17 Beav. .314. (i) See the cases cited, Lechnere (c) Harcourt v. Seymour, 2 Sim. v. Earl of Carlisle, 3 P. W. 221, N. 8. 12, see p. 46. note (C) ; and see PuUeney v. Darling- {d) Edwards v. Countess of War- ton, 1 B. C. C. 236, 236 ; Sharp v. St. loick, 2 P. W, 174. Sauveur, 7 L. E. Ch. App. 343. ih) 7 W. 4. & 1 Vict. c. 26. 790 TRUSTEES FOE LUNATICS. [CH. XXX. S. 2. SECTION II. Power of the trustee at law and in equity. Where the cestui que trust is sui juris. Power of the trustee where the cestui que trust in a lunatic. The interest of the lunatic the exclusive object. THE ACT OF THE TRUSTEE SHALL NOT ALTER THE NATUEB OP THE CESTUI QUE TRUST'S ESTATE. 1. At law the trustee is the absolute owner of the land or fund, and therefore may exercise any control or dominion over it — may convert realty into personalty, or personalty into realty : but equity, which regards the 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. 2. But although every such change in the nature of the pro-* perty as is not made either in pursuance of the trust or by the authority of the beneficial owner, must in general be considered a misfeasance, the dealings of the Court (under the respective juris- dictions of lunacy and chancery), and of committees, guardians, and trustees, with the property of lunatics and infants, require par- ticular notice. 3. It has been laid down as a general rule in lunacy, that the Court will not alter the condition of the lunatic's property to the prejudice of his successors ; but the maxim must be received with the qualification, eoscept it he for the henefit of the lunatic him- self (a). The Chancellor takes the advice and assistance of the pre- sumptive next of kin and presumptive heir at law in the care and management of the property (b) ; but through aU the cases runs this prevailing principle — that 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 (c). If the Court considered how the representatives would be affected, there would always be among them an emulation of each other, and their (a) Ex parte Grirmtone, cited Ox- enden v. Lord Compton, 4 B. C. C. 235, note, per Lord Apsley. (6) ExparU Phillips, 19 Ves. 123, per Lord Eldon. (c) Oxenden v. Lord Compton, 2 Ves. jun. 72 ; and S. C. 4 B. C. C. 233,jper Lord Thurlow; and see Ex parte Bromfield, 1 Ves. jun. 462 ; Ex parte Grirmtone, Amb. 708 ; S. C. cited 2 Ves. jun. 75, note (a), and 4 B. C. C. 235, note ; Ex parte Phillips, 19 Ve.s. 123; Dormer's case, 2 P. W. 265; Ex parte Chumley, 1 Ves. jun. 297 ; Ex parte Baker, 6 Ves. 8. CH. XXX. S. 2.] TRUSTEES FOR LUNATICS. 791 speculations, if the administrator were to engage in them, would mislead his attention as to the interest of the only person he was bound to protect; there would be a continued 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 in favour of those who have no imme- diate interest, and whose contingent interests are left to the ordi- nary course of events (a). 4. Upon this principle, where a lunatic was seised ex parte Timber cut on a paternd of estate A., and ex parte maternd of estate B., and the patema applied latter was subiect to a mortgage, the money arising from a fall of *° '^^'"^^ °^ ^^ ■' a o > JO estate ex parte timber upon A. was directed to be applied m discharge of the maternd. mortgage upon B. ; and upon a question between the respective heirs it was held, that the representative who succeeded to A. was not entitled to any recompense from the representative who in- herited B (6). 5. So, if the lunatic be considerably indebted, and it appears that Sale of lunatic his m5.intenance would be better provided for, and his advantage ^^^ estate. promoted, by the sale of a real estate inconvenient and ill-con- ditioned, instead of exhausting the personalty, the Court, on a pro- per representation of the case, would have no difficulty in making an order to that effect (c). 6. So, timber which ought to be cut on a lunatic's estate may be Fall of timber felled by the direction of the Court, and the proceeds may either be applied to the redemption of the land-tax, or payment of debts ((i), or to any other purpose which the true interest of the lunatic may require ; or if not wanted for any particular purpose, will go to the next of kin as personalty, and not to the heir as part of the realty (e). 7. So, if it be necessary for the interest of the real estate to Action of tres- bring an action of trespass, resort may be had with that object to P^^^- the lunatic's personal fund (/). 8. By the same rule the money of the lunatic may be laid out improvements. (a) Oxenden v. Lord Compton, 2 (e) Ex parte Bromfield, 1 Ves. jun. Ves. jun. 72, 73; S. G. 4 B. C. C. 453; S. C. 3 B. C. C. 510; Oxenden 233, 234, per Lord Loughborough. v. Compton, 2 Ves. jun. 69 ; S. C. (b) Ex parte Phillips, 19 Ves. 123, 4 B. C. C. 231; Shelley's case, cited per Lord Eldon ; but see Re Leeming, 1 Ves. jun. 457 ; Ex parte Phillips, 3 De Gex, P. & Jon. 43. 19 Ves. 124, per Lord Eldon. The (c) Ex parte Phillips, 19 Ves. 124, dictum in Marquis of Anandale v. per Jjord Eldon. Marchioness of Anandale, 2 Ves. 384, {d) Ex parte Phillips, 19 Ves. 119 ; must be considered as overruled. BevarCs case, cited Ex parte Bromfield, (/) Oxenden v. Lord Compton, 2 1 Ves. jun. 455, 457. Ves. jun. 72 ; per Lord Loughborough. 792 TRUSTEES FOE LUNATICS. [CH. XXX. S. 2. Necessary ex- penses of real estate. ConTersion not allowed, except where it is clearly for the lunatic's benefit Personal estate applied to relief of real estate. in improvements (a) ; and the Chancellor, acting tanquam bonus pater-familias, may take every opportunity of ameliorating the estate by fair and ordinary means, such as draining, inclosure, &c. (b), erecting a fire engine for the purpose of working a coal mine (c), but must not engage in risks and dangerous adven- tures (d). And of course the personalty may be drawn upon for necessary expenses, as repairs (e), fines for renewal of leases, or ad- mission to copyholds (/). But where the committees of a lunatic, who were entitled to the estate themselves after his death, laid out a sum in purchasing timber for repairs, when they ought to have cut timber on the estate. Lord Hardwicke said, that, having done so merely to serve their own interest, they should make good the disbursement to the lunatic's next of kin {g). 9. In the preceding cases the conversion has been for the clear benefit of the lunatic, but in general the Court will not lightly change the condition of the property, but will only act on pressing and urgent occasions Qi) : it will interfere with great caution, and do nothing that is unnecessary or uncalled for {€). The Court will not buy and sell for the lunatic (h) ; and, therefore, if the committee of a 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 representa- tives (T), but win transfer to the heir what ought to have remained real estate, and to the next of kin what ought to have remained personal estate {m). So, where a mortgage upon the lands of a (a) Sergeson v. Sealey, 2 Atk. 414, per Lord Hardwicke ; Dormer's case, 2 P. W. 262. (J) See Justice De Grey's argu- ment in Ex parte Grimstone, cited Oxenden v. Lord Compton, 2 Ves. jun. 75, note. (c) Oxenden v. Lord Compton, 2 Ves. jun. 73. {d) Oxmden v. Lord Compton, 2 Ves jun. 73, ^er Lord Loughborough. (e) Sergeson v. Sealey, 2 Atk. 414, per Lord Hardwicke; Ex parte Orim- stone, Amb. 708 ; S. C. cited Oxenden V. Lord Compton, 4 B C. C. 237, note, per Lord Apsley ; 2 Ves. jun. 72, per Lord Lougliborough ; New- port's case, cited lb. ; In re Badcoch, 4 M. & Cr. 440. But it was said in the last case, that "if the money were laid out in a purchase of land, or, what was the same thing, in building a farm house, it would be right that the sum so laid out should retain its character of personalty." (/) Justice De Grey's argument in Ex parte Grimstone, vbi supra; but see Degg's case, cited Oxenden v. Lm-d Compton, 4 B. C. C. 235, note. . {g) Ex parte Ludlow, is Atk. 407. {h) Ex parte Bromfield, 1 Ves. jun. 463, and 3 B. C. C. 515, per Lord Thurlow. (j) Oxenden v. Lord Compiton, 2 Ves. jun. 76, and 4 B. C. C. 238, per Lord Loughborough. (Je) Oxenden v. Lord Compton, 2 Ves. jun. 73, per Lord Loughborough ; Ex parte Grimstone, cited in Oxenden V. Lord Compton, 4 B. C. C. 235, note, per Lord Apsley ; Sergeson v. Sealey, 2 Atk. Ali, pel- Lord Hardwicke. (l) See Ex parte Bromfield, 1 Ves. jun. 462. (m) Anon, case, 2 Freem. 114 ; Av)dley v. Awdley, 2 Vern. 292 ; CH. XXX. S. 2.] TRUSTEES FOE INFANTS. 71)3 lunatic is discharged out of his personal estate, though it was for- merly held that the next of kin after the lunatic's decease had no lien upon the real estate for the amount expended (a), it has since been ruled that the personal estate after the lunatic's death shall be recouped the amount expended in exonerating the real estate (6). However, if timber be cut down, not by a committee in breach of his duty, but by a stranger tortiously, then, as there is no abuse of confidence, the heir has no eq^uity, and the property of the timber, like a windfall, will belong to the executor (c). Next as to infants. 1. Lord Thurlow, on one occasion, but without having examined Infants dis- ... .,, IT T- -11 ^ ■ -I tinguished from the authorities, said he could not distinguish between lunatics and lunatics, infants (d) ; but, when the matter came on again, and he had maturely considered the subject, he never once hinted at the existence of such a doctrine (e) ; and, indeed, until the late Wills Act, there was a very broad distinction between the two cases ; for, if a lunatic recovered, which in contemplation 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 (/) ; but an infant, while he could have bec[ueathed personal estate under the age of twenty-one, could not have devised a free- hold until he had attained that age {g). 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 : should land have been turned into money, he would indirectly have gained a power which the policy of the law had forbidden him (h). Marquis of AimndaU v. Marchioness (/) See Ex parte Phillips, 19 Ves. of Anandale, 2 Ves. 384, per Lord 123. Hardwicke ; and see In re Badcoch, (g) See Earl of WincJielsea v. Nor- 4 M. & Cr. 440. diffe, I Vern. 437, in which case the (a) Ex parte Grimstone, Amb. 786 ; distinction appears first to have been S. C. cited Oxenden v. Compton, 4 B. noticed. C. C. 235, and Weld v. Tew, Beatt. {Ti) Ware v. PolUll, II Ves. 278, 272. and Ex parte Phillips, 19 Ves. 122, (J) Weld V. Tew, Beatt. 266 ; Re per Lord Eldon ; Ashburton v. Ash- Leeming, 3 De Gex, F. & Jon. 43. burton, 6 Ves. 6 ; Sergeson v. Sealey, (c) Anon, case, cited Ex parte Brom- 2 Atk. 413 ; and Rooh v. Worth, 1 Ves. field, 1 Ves. jun. 462, and 3 B. C. C. 461, per Lord Hardwicke; Witter v. !)lb,p>er Lord Thurlow. WiUer, 3 P. W. 99 ; but see Earl of id) Ex parte Bromfield, I Ves. jun. Winchelsea v. Norcliffe, I Vern. 435; 461 ; /S. C7. 3 B. C. C. 515. Inwood v. Twyne, 2 Ed. 152 ; Ex (e) Oxenden v. Lord Compton, 2 Ves. parte Bromfield, 1 Ves. jun. 461. jun. 69; S. C. 4 B. C. C. 231. 794 TRUSTEES FOR INFANTS. [CH. XXX. S. 2. Timber cut on an infant's estate. Exoneration of infant's real estate out of his personal estate. Necessary ex- penses. Vernon «. Vernon. Exception from the general rule. 2. Upon the same principle, had timber been cut on an infant's estate, the proceeds, and, it seems, the accumulation of the pro- ceeds (a), would have continued part of the realty, and have descended to the heir (h). But a distinction was taken in Mason V. Mason (c), (and Sir Thomas Clarke said he allowed it {d), ) be- tween 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 remainderman, the Court would treat the fund as personalty, and give it to the infant's executors. 3. Again, if an infant's money had been applied to pay off a charge, or redeem a mortgage affecting his real estate, it was the better opinion (though some old authorities were against it), that the sum so invested would still be looked upon as part of the personalty (e). 4. But necessary expenses, though affecting the infant's lands, were allowed to be thrown upon the personal fund, as disburse- ments for repairs (/), for keeping up a house, &c. (g). 5. So in Ve7'non v. Vernon (h), 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. 6. There were some cases to which the reason for preserving the original character of the property did not apply. Thus, if an infant was seised of a lease for lives ex parte maternd, and the guardian procured a new lease to be granted to the infant and his heirs, whereby the old lease was merged, the substituted lease would not descend in the maternal line, but, as a new acquisition, would go (a) See Ex parte Bromfield, 1 Ves. jun. 454. (5) Tullet V. TuUet, 1 Dick. 322; S. C. Amb. 370; Mason v. Mason, cited lb. 371 ; Ex parte Phillips, 19 Ves. 124, per Lord Eldon ; and see Boole V. Worth, 1 Ves. 461 ; but see Ex parte Bromfield, 3 B. C. C. 516. (c) Ubi supra. {d) TuUel V. Tulkt, Amb. 371 ; and see Dyer v. Dyer, 34 Beav. 504. (e) Ex parte Bromfield, 3 B. C. C. 516, per Lord Thurlow ; Tullet v. Tullet, 1 Dick. 323, per Sir T. Clarke ; Seys V. Price, 9 Mod. 220, per Lord Hard- wicke ; Dowling v. Belton, 1 Flan. & Kelly, 462; but see 2 Freem. 114, c. 126 ; Ex parte Grimstone, Amb. 708 ; Palmes v. Danhy, Pr. Ch. 137 ; Zoach V. Lloyd, cited Awdley v. AvxHey, 2 Vern. 192 ; as to Dennis v. Badd, cited lb. 193; see Earl of Winchelsea v. Nor- clife, 1 Vern. 436. (/) Ex parte Grimstone, cited Ox- enden v. Lord Compton, 4 B. C. C. 235, note, per Lord Apsley. (gr) Ex parte Grimstone, Amb. 708, per eundem. (h) Cited in Ex parte Bromfield, 1 Ves. jun. 456. CH. XXX. S. 2.] TRUSTEES FOR INFANTS. 795 to the heirs on the part of the father (a) ; for 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. 7. By the late WiUs Act (6), an infant has no greater testa- Effect of late mentary power over personal than over real estate ; and it remains ^ ^ '^'' to be seen how far the removal of the ground, so frequently relied upon against permitting the conversion of the personal escate of an infant into realty, can be treated as having diminished the rights of the next of kin, or as authorising the application of the decisions in lunacy to the administration of the property of infants. 8. The leaning of the Courts would appear to be to simplify the Dyer v. Dyer, law by assimilating the case of infants to that of lunatics. Thus in a late case (c) an estate was devised to an infant, his heirs and assigns, with a limitation over on his dying under twenty-one, and timber was cut on the estate during the infancy with the sanction of the Court. The infant died without attaining his age, and the question was whether the proceeds belonged to the infant's per- sonal representative, or should go with the estate to the person entitled under the limitation over, and the late M. K. held it to be personalty, and evidently made no distinction between infancy and lunacy. (a) Mason v. Dry, Pr. Cr. 319 ; of all parties interested, the proceeds Pierson v. Shore, 1 Atk. 480. will go along with the estate : Field (6) 7 W. 4. & 1 Vict. c. 26. v. Brown, 27 Beav. 90 ; unless the (c) Dyer v. Dyer, 34 Beav. 504. order be made upon the application of But if an estate be settled upon A. for a remainderman entitled in fee-simple, life only, with remainders over, and the subject to the prior estate. Phillips v. Court cuts the timber for the benefit Daycock, W. N. 1867, p. 54. 79G PART IV. PLEADING AND PEACTICE. CHAPTER XXXI. In this chapter we propose to consider, First, The necessary parties to suits relating to trusts ; Secondly, The order and man- ner in which trustees and cestuis que trust ought to sue or he sued ; Thirdly, Distringas ; Fourthly, Production of Documents ; Fifthly, Compulsory payment into Court ; Sixthly, Eeceivership ; Seventhly, Costs of suit. SECTION I. OF NECESSARY PAETIEB. The more convenient arrangement will he to state. First, The general practice ; and then. Secondly, The modifications introduced hy statutory enactment and the orders of the Court. First. As TO the geneeal practice: Suits in equity affecting trusts are either, I. Between strangers on the one hand, and the persons interested in the trust on the other ; or, II. Between the persons interested in the trust inter se. We shall treat of each of these two heads in order, and then con- sider, III. Certain exceptional cases which are applicable to both classes, or one of them. General rule in I. — 1. In suits by or against strangers it is a general rule, where suits by or enactment or order of the Court makes an exception, that all agamsl strangers. ■' " -^ ' CH. XXXI. S. 1.] NECESSARY PARTIES. 797 the trustees and all the cestuis que, trust, as together constituting but one interest, must be made parties [a). 2. Where a mortgage is made to A. in trust for B., the latter cannot file a foreclosure bill without making A. a party, who on redemption would be the person to convey the legal estate (b). 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 (c). 3. One of several cestuis que trust cannot file a bill of fore- closure {d) or redemption (e) without bringing before the Court the other cestiois que trust who are interested in the mortgage or equity of redemption. 4. A mortgagee could not, under the old practice, foreclose without making all the cestuis que trust, claiming under the mort- gagor, parties (/) ; and a mortgagor could not file a biU to redeem without bringing before the Court, aU the cestuis que trust inte- rested in the mortgage {g) ; unless where the mortgagee had created the trust for the purpose of embarrassing the mort- gagor Qi). 5. If A. grant an annuity to B., and vest a term in C. to secure it, A. cannot file a biU 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 {i). 6. It was laid down by Lord Eedesdale, that " Trustees of real estate for payment of debts or legacies might sustain a suit, either as plaintiffs or defendants, without bringing before the Court the creditors or legatees for whom they were trustees " (k). But in Trustee for mort- gagee a necessary party. One cestui que tryst alone can- not foreclose or redeem. Mortgagee fore- closing and mort- gagor redeeming must make all cestuis que trust parties. Legal termor a necessary parly. Error in Lord Rc'desdalc's Treatise as to trustees for creditors. {a) Bifield v. Taylor, 1 Moll. 198, per Sir A. Hart ; Adams v. St. Leger, 1 B. & B. 184, per Lord Manners. (6) Wood V. Williams, 4 Mad. 186 ; Scott V. Nicoll, 3 Russ. 476 ; Hichens V. Kelhj, 2 Sm. & Gif. 264. (c) Cope V. Parry, 2 J. & W. 538 ; Hohson V. Staneer, 9 Mod. 83. {d) 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 consent. (e) Palmer v. Lord Carlisle, 1 S. & S. 425, per Sir J. Leach ; Henley v. Stone, 3 Beav. 355. (/) Caverleyy. Phelp, 6 Mad. 229 ; Coles V Forrest, 10 Beav. 557 ; and see Wilton v. Jones, 2 Y. & C. Ch. Ca. 244; Thomas v. Dunning, 5 De Gex & Sm. 618 ; Anderson v. Slather, 2 Coll. 209. (g) Oshurn v. Fallows, 1 E. & M. 741 ; Whistler v. Webb, Bunb. 53 ; Yates V. Hamhly, 2 Atk. 237; Drew V. Harman, 5 Price, 319 ; Welherell v. Collins, 3 Mad. 255. [h) Yates v. Hamhly, 2 Atk. 237 ; and see Oshurn v. Fallows, 1 R. & M. 743. (i) Bromley v. Holland, 7 Ves. 3, p. 11, 12; and see Butler v. Prender- gast, 2 B. P. C. 170. {k) Mitf. Eq. PI. 174, 4thed. 798 NECESSARY PARTIES TO [CH. XXXI. S. 1. Similar error as to trustees with absolute power of disposition. Suits for specific performance. Harrison v. Steivardson {a), V.-C. Wigram, upon this passage being referred to, denied "that such was the practice of the Court," and 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. 7. Again, it was laid down by Lord Eedesdale, that " persons having demands prior to the creation of a trust, might enforce those demands against the trustees without bringing before the Court the persons interested under the trust, if the absolute dis- position of the property was vested in the trustees : that persons having specific charges on the 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 " (&). But it is apprehended that an absolute power of disposition in the trustees was never sufficient to dispense with the cestuis 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. However^ assignees of bankrupts and insolvents, though quasi trustees, were always competent to sue of sustain a suit without the presence of the creditors. 8. In suits for specific performance of a contract, or to have it 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 plaintiff's or defendants without the presence of the cestuis que trust. And not only is it unnecessary, but in many cases it would be highly improper to make the cestuis que trust parties (c). 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 (a) 2 Hare, 530 ; and see Holland t. Baker, 3 Hare, 68 ; Thomas •^.Dunning, 5 De G. & Sm. 618. (6) Mitf. Eq. PL 176, 4th edit. (c) Wood V. White, 4 M. & C. 460 ; Keon V. Magawly, 1 Dru. & War. 401 ; Tasker v. Small, 3 M. & C. 63 ; Humphreys v. Hollis, Jac. 73 ; Wake- man y. Duchess of Rutland, 3 Ves. 233, 504. CH. XXXI. S. 1.] SUITS KESPECTING TRUSTS. 799 other parties as the principals and not their agents are the proper persons to sue (a). 9. In marriage articles husband and wife and their issue are all Case of marriage purchasers for valuable consideration and parties to the contract, '^^ "^ '^^' and therefore if any agreement was made in articles with trustees, the latter could never alone have filed a bill for specific perform- ance without bringing the cesiuis que trust before the Court, for the cestuis que trust, being also in fact parties to the contract, if the biU of the trustees were dismissed, might afterwards themselves file another bill against the defendant for the like purpose (b). 10. Where several persons have united in constituting another Kepresentative _ '^ ° specially con- their representative in a matter for all purposes, there, it seems, stituted. such representative may sue or be sued in the absence of the cestuis que trust (c). But the intention to constitute such a repre- sentative must clearly appear; for trustees are not themselves owners of the property : they are in a sense agents for the owners in executing the trust, but they are not constituted agents for the purpose of defending the owners against the adverse claims of third parties {d). 11. Where the suit is between the parties interested in the trust .^"'^ ^J P'^f*'? ^ interested "inter inter se, the rule is (where no enactment or order of the Court se:' dispenses with it) that all the trustees and all the cestuis que trust must be before the Court. I. As to trustees. 1. In suits by cestuis que trust, praying relief against their trus- li^ suits by ces^^w ■^ ^ > tr J a o qiie trust against tees, it is necessary as a general rule to make all the co-trustees their trastees, all parties (e), in order that as each co-trustee is liable to the cestuis necessary parties. que trust, a multiplicity of suits for the same matter may be avoided, and that the accounts may be taken once for all ; and that the Court, so far as it can, may do justice amongst the co- defendants (/) ; and it is the plaintiff's duty so to frame his suit (a) Douglas v. Horsfall, 2 S. & S. 77 ; Wilson v. BrougMon, cited ib. 78 ; 184 ; Hook v. Kinnear, 3 Swans. 417, but see Walker v. Symonds, 3 Sw. 75 ; note ; Small v. Attwood, Younge, 457. Tarleton v. Hornby, 1 Y. & C. 336 ; (h) Kirk v. Clark, Pr. Ch. 275. Humherstone v. Chase, 2 Y. & C. 213 ; (c) Vernon v. Blackerly, 2 Atk. 145: Attorney- General v. Wilson, Cr. & Ph. Bifield V. Taylor, 1 Moll. 193; S. C. 28. Beat. 91. (/) See Jones v. Jones, 3 Atk. 112; {d) Holland v. Baker, 3 Hare, 72. Walker v. Preswick, 2 Ves. 622 ; La- (e) Munch v. Cockerell, 8 Sim. 219; touche v. Dunsany, 1 Sch. & Lef. 137, Perry v. Knott, 4 Beav. 179 ; and see 2 Sch. & Lef. 690 ; Farquharson v. In re Chertsey Market, 6 Price, 278 ; Seton, 5 Riiss. 45 ; Conry v. Caxdfield, Attorney- General v. Newbury Corpora- 2 B. & B. 255 ; and see anU, p. 744. tion, C. P. Cooper's Rep. 1837—38, 800 NECESSARY PARTIES TO' [CH. XXXI. S. 1. Rule the same though equities cannot be ad- justed. Quasi-trustee a necessary party. that complete justice may be dispensed, as far as possible, without the necessity of ulterior proceedings {a). But it is to be remembered that the equities between co-defendants must always be founded on the proofs in the cause in the issue between the plaintiff and the co-defendants, for though one^defendant may read against a co-defen- dant the proofs by the plaintiff as having been taken as against all the defendants, he cannot read the answer of a co-defendaut (h). 2. It commonly happens that, in a suit by a ceskd que trust for relief against the trustees for a breach of trust, the merits of the case as between the co-defendants the trustees are not sufficiently elicited 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 relief to which they are entitled. They must nevertheless, according to the old practice, be all made parties to the original suit, for although the Court will, in general, make no decree between them, it will proceed as far as it can by declaring the joint liability, and settliag the amount of it by accounts taken in the presence of aU ; and then in a future suit for contribution or other relief, the Court may make its decree upon the basis of the amount so ascertained (c). 3. 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 (d). And where the facts have been sufficiently proved as against the third party the Court will decree relief against him in favour of the trustee a co-defendant without the necessity of a cross bUl, and though the pending suit do not specifically pray that relief But the Court will take care that the third party is not taken by surprise, and that no injustice is done him (e). However, it has been held that such third person is sufficiently represented by an administrator, ad litem, without general letters of adminis- tration (/). (a) See Jones v. Jones, 3 Atk. 112; Shipton V. Rawlins, 4 Have, 62.3, 624. {b) Eccleston v. Skelmersdale, 1 Beav. 396 ; and see Cottingham v. CttrzoM, 1 De Gex (S Sm. 350. See now the 9th and following rules of the 15th order of Rules of Court under the SupremeCourt of Judicature Act, 1873. Shrewsbury, 3 Hare, 627 ; Lennard v. (c) See Perry v. Knott, 4 Beav. 180. But see now 36 & 37 V. c. 66, s. 24, rule 3, and schedule to the Act, rule 12. (rQ Burt v. Dennett, 2 B. C. C. 225 ; Perry v. Knott, 4 Beav. 179, 5 Beav. 297 ; Consett v. Bell, 1 Y. & C. Ch. Ca. 569 ; Williams v. Allen, 29 Beav. 292 ; hut see Pearse v. Hewitt, 7 Sim. 471 ; Williams v. Allen, 4 De G. F. & J. 71. (c) Paby v Ridehalgli, 7 De G. M. & G. 104; Keays v. Lane, 3 I. R. Eq. 1, see 7. (/) Williams v. AlUn, 4 De G. F. & J. 71. CH. XXXI. S. l.J SUITS RESPECTING TEUSTS. 801 4. If a trustee transfer a fund improperly to a stranger without stranger who has consideration and without notice, and the stranger transfer it over i^rA without either for no consideration or for a valuable consideration not paid 'notice not a . T 1 n T necessary party. 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 specifically attached (a). 5. If a person invested with a fiduciary character be guilty, not Rule different in 01 a mere breach oi trust or non-perlormance ot a civil obligation, („„,;• but of a tort or delictum (6), that is, a fraudulent (c) or wrongful {d) act, the remedy might always have been pursued against that . person only, without making his confederates also parties («). 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 inveigling strangers by fraudulent misrepre- sentations (/). 6. It is not necessary to bring before the Court the represen- Eepresentatives tative of a deceased trustee who, as the bill is framed, had no had no interest concern with the matters in question in the suit [g) ; and in some not necessai-y cases the plaintiff has been allowed to proceed in the absence of the representative of a co-trustee, by waiving all such relief as could not be granted in the absence of the representative Qi). 7. A person need not be made a party who has merely been Nor a trustee named a trustee but has disclaimed (i). ""^^ disclaims. 8. And the suit may proceed so far as it can in the absence of Nor a trustee a trustee who is out of the jurisdiction (k), or cannot be compelled diction. ^ ^^^^' by the utmost process against him to appear to the bid (I) ; or if (o) Harrison v. Pryse, Bam. 324; Routh v. Kinder, 3 Swans. 144, note; Knye v. Moore, 1 S. & S. 61. Slater v. Wheeler, 9 Sim. 156 ; Beattie (6j See Lingard v. Bromley, 1 V. & v. Johnstone, 8 Hare, 1 69 ; and see B. 117. Re Steel, W. N. 1867, p. 282. (c) SeeSerf(^onv. ConneK, 10 Sim. 86. (A) Selyard v. Harris, 1 Eq. Ca. {d) ^Qe, Attorney- General y. Wilson, Ab 74, Moon v. Blake, 1 Moll. 1 Or. & Ph. 28. 284. («) Attorney- General v. Wilson, 1 (j) Wilkinson v. Parry, 4 Kuss. Cr. & Ph. 1 ; Seddon v. Connell, 10 274 ; Richardson v. Hulbert, 1 Anst. Sim.58, seep. 86; Walbumv.Ingilhy, 65; Greedy. Creed, 2 \iog. 21b. 1 M. & K. 77 ; and see Charity Cor- {k) See Morrill v. Lawson, 2 Eq. porationy. Sutton, 2 Aik.AOQ; Attor- Ca. Ab. 167; Walhy v. Walley, 1 7iey- General v. Brown, 1 Swans. 265. Vern. 487 ; Cowstad v. Cely, Pr. Ch. (/) See the observations of Lord 83. Cottenham in Attorney- General v. {I) Butler v. Prendergast, 2 B. P. Wilson, 1 Cr. & Ph. 28. , C. 170. (g) Glass V. Oxenham, 2 Atk. 121 ; F F F mere equity. 802 NECESSAKY PARTIES TO [CH. XXXI. S. 1 it be proved to the Court that diligent search and enquiry has been made after him to serve him with process, and that he cannot be found («). Nor representa- 9. Where a trustee has died insolvent, it is not necessary in a insolvent^tSe^ ®^i*' which under other circumstances would cast a liability upon the estate of the trustee as for having joined in a breach of trust, to bring his personal representative before the Court (&). But a trustee, if otherwise a necessary party, cannot be dispensed 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 (c). Nor trustee of an 10. In suits between parties for the adjudication of their rights outstanding term. . ii-i-j. j_ixi j> ^ to an estate, it is not necessary to have the presence oi a mere trustee of an outstanding term {(£). Nor trustee of a H. An intermediate trustee of a mere equity need not, except under special circumstances (e), be made a party. Thus, A., the cestid que tnost 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 (/). Nor a trustee who 12. A trustee who has assigned his interest over to a new as assignee . 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 not necessary in a suit to set aside the annuity to make A. a party {g). Nor a trustee who 13. Where a person mortgaged his reversionary interest in IS a mere agent. ^\^q^^ and then assigned it to trustees by a voluntary and revo- cable instrument upon trust for payment of his debts, it was held that 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 (A). (a) See s. 49 of the Trustee Act, {d) Brookes v. Burt, 1 Beav. 106. 1860, re-enacting s. 24 of 11 G. 4. & (e) Scully v. Scully, 3 Ir. Eq. Eep. 1 W. 4 c. 60, s. 24 ; and see Moore v. 494. Vinten, 12 Sim. 161 ; Heath v.Percival, (/) Head v. Teynham, 1 Cox, 57 ; 2 Eq. Ca. Ab. 167 ; S. C. 1 P. W. Munch v. Cocherell, 8 Sim. 219 ; and 683 ; Walley v. Walley, 1 Vern. 487. see Malone v. Oeraghty, 2 Conn. & (i) Seddon v. Connell, 10 Sim. 85 ; Laws. 249 ; Whittle v. Halliday, 2 Madooc V. Jackson, 3 Atk. 406; De- Conn. & Laws. 430 ; HorrocksY. Led- vaynes v. Robinson, 24 Beav. 98 ; and sam, 2 Coll. 208 ; Nelson v. Seaman, 6 see Moore v. Morris, 13 L. R. Eq. Jur. N. S. 258 ; He Steel, W. N. 1867, 139 ; but see Hayward v. Ovey, 6 p. 282. Mad. 113. (g) Bromley v. Holland, 7 Ves. 11 ; (c) See Thorpe v. Jackson, 2 Y. & C. and see Knye v. Moore, 1 S. & S. 65 ; 560, 563 ; Haywood v. Ovey, 6 Mad. Reed v. O^Brien, 7 Beav. 32. 113. {h) Slade v. Rigg, 3 Hare, 35. CH. XXXI. S. l.j SUITS RESPECTING TRUSTS. 802 14. It has been said that sometimes bills have been brought Anomalous case, 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 whatever decree should be made {a), But this must be regarded as a special and exceptional case. 15. If a' bill be filed against several trustees but without seek- Trusteeship ing to charge them personally, on the death of one the trusteeship survives, and the representatives of the deceased trustee need not be brought before the Court (&) ; 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 surviving trustee, need not be made a defendant to a suit for recover- ing amends for the breach of trust against the surviving trus- tee (c). 16. If a person entitled to a share of a fund standing in the One class of names of trustees make a new settlement and appoint new trustees, sued without the who commit a breach of trust in which the old trustees are also '^t^"^''- implicated, the cestui que trust under the last settlement may have relief, in respect of the breach of trust, against the new trustees without making the old trustees parties (d). II. As to cestiois que trust. 1. It was necessary until recently to have all the cestuis que trust AU cestuis que before the Court, in order that the rights of all parties interested parties'as^a^'^^ might be ascertained, so that future litigation might be excluded, general rule. and that the trustee might not be afterwards harassed for having obeyed the order of the Court («). But the general rule was always subject to numerous exceptions. 2. If a cestui que trust be abroad, the Court may proceed without Cestui que trust him if he be merely a passive party, and the disposition of the ^^'^°^ • property be in the power of those before the Court (/). But if the primary object of the suit be to affect the right of the absent cestid que trust, as in a bill for equitable execution against liis estate, the Court will not make a decree behind his back, even though {a) Kirk v. Clark, Pr. Ch. 275. ning v. Thesiger, ib. 107 ; Josiing v. (5) London Oas Light Company v. Karr, 3 Beav. 495 ; Marril v. Lawson, /Si^oftistooode, 14 Beav. 271. 2 Eq. Ca. Ab. 167; PhilUpson v. (c) Simes v. Eyre, 6 Hare, 137. Gatty, 6 Hare, 26 ; Hanne v. Stevens, (d) M'Gachen v. Dew, 15 Beav. 84. 1 Vern. 110. (e) Pyncent v. Pyncent, 3 Atk. 571 ; (/) Rogers v. Linton, Bunb. 200; Adams v. St. Leger, 1 B. & B. 181 ; and see Willatts v. Bmhy, 5 Beav. 193. Court V. Jeffery, 1 S. & S. 105 ; Afan- F F F 2 804 NECESSAEY PAKTIES TO [CH. XXXI. S. 1. Cestui que trust standing out process. Assignment of interest. Case of a cestui que trvst of an aliquot share of a fund. Suit to recover a trust fund. the legal interest may be vested in some of the defendants (a). In one case, however, such a decree was made, but liberty was reserved to make alterations in the decree, apparently in order that the absent ce,st%i que, trust might, if so advised, apply by petition to have the decree amended (6). And in another case where one of the cestuis que trust 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 tricst (c). 8. A suit may proceed in the absence of a cestioi que trust, if process be made against him to a sequestration, and he cannot be compelled to appear {d). 4. 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 (e). 5. A cestui qu,e trust, entitled to a distinct aliquot share of an ascertained fund, may file a bill against the trustee of the fund for the transfer of that share without making the cestuis que trust of the residue of the fund parties (/). But where a plaintiff is entitled to an aliquot share not in an ascertained and existing fund, but in one for which the defendant is liable to account, he must make the persons entitled to the other aliquot shares parties (g). And it has been considered that suits for aliquot shares, without making parties the other persons interested, are inconvenient, and not to be encouraged (h). 6. Where a breach of trust has been committed, the cestuis que trust need not be parties to a bill by one or more of the trustees against the co-trustee or other person liable to make good the fund. It may be objected, that, as a suit by the cestuis que trust would also clearly lie in such a case, the defendant would thus be exposed to a double vexation for the same matter. However, the rule from its great convenience has been repeatedly recognised, and may be considered as established {i). {a) Browne v. Blount, 2 R. & M. 8.3 ; see Holmes v. Bell, 2 Beav. 298 ; Fell V. Brown, 2 B. C. C. 276; WillaU T. Busby, 5 Beav. 193. (6) Attorney - General v. Balliol College, 9 Mod. 407 ; see 409. (c) Willats V. Bushy, 5 Beav. 193. {d) Dowries v. Thomas, 7 Ves. 206 ; Phillips V. Duke of Buckingham, 1 Vern. 228. (e) Goodson v. Ellisson, 3 Russ. 583. (/) Smith V. Snow, 3 Mad. 10 Hutchinson v. Townsend, 2 Keen, 675 Hughson v. Cookson, 3 Y. & C. 578 Perry v. Knott, 5 Beav. 293 ; but see Hunt v. Peacock, 11 Jur. 555. ig) Lenaghan v. Smith, 2 Phil. 391 ; Alexander v. Mullins, 2 R. & M. 568. (h) Huichinsony . Townsend, 2 Keen, 678, pel- Lord Langdale. (i) Franco v. Franco, 3 Ves. 75 ; May V. Selby, 1 Y. & C. Ch. Ca. 235 ; CH. XXXI. S. 1.] SUITS RESPECTING TRUSTS. 805 7. Where a cestui que trust has concurred in the breach of trust, Where a cestui -, . , 1- 1 1 n ii j_ i q-ue trust is li-iAAe m such a manner as to become liable as well as the trustees, one foj. ^ breach of trustee cannot file a bill for contribution against the other trustee *'^'^*'*' without bringing such cestui qioe trust before the Court (a). 8. Persons claiming a title purely adverse to the trust, cannot Adverse be made parties to a suit for the execution of the trust (5). III. Certain cases which are exceptions to the above principles Exceptional C3/SGS remain to be considered. 1. Where the necessary parties, for instance the cestuis que trust, "Where cesimsque ., , trust extremely are so numerous a body that the suit could not possibly, or at all numerous, some events conveniently, proceed, if all were required to be plaintiffs ™^^^ of au'^ ^'^' or defendants, the Court wiU permit some to sue on behalf of the rest and as their representatives (c). 2. So a small number may be made defendants as representatives So some may de- of the rest for the purpose of binding their rights {d). But in such of all. cases if all the cestuis que trust be not parties, the trustees must be so (e). 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 (/). 3. In order to enable some to sue on behalf of themselves and Bequisltes to en- others, it must appear that the relief sought is in its nature bene- on behalf of all. ficial to all those whom the plaintiff undertakes to represent {g). Bridget v. Hames, 1 Coll. 72 ; Noble 1 Sim. 8 ; Walworth v. Holt, 4 M. & V. Meymott, 14 Beav. 471 \ Pealse v. C. 619 ; Attorney -General v. Heelis, 2 Ledger, 4 De Gex & Sm. 137 ; Groom S. & S. 67 ; Taylor v. Salmon, 4 M. & V. Booth, 1 Drewry, 567 ; Horsley v. C. 134 ; William y. Salmond, 2 K. & Fawcett, 11 Beav. 565 ; Hughes v. Key, J. 463. 20 Beav, 395 ; Baynard v. Woolley, {d) Adair v. New River Company, lb. 583; Bridgman v. Gill, 24 Beav. 11 Ves. 429, see pp. 443, 444, 445; 302. City of London v. Richmond, 2 Vern. (a) Jesse v. Bennett,^ 6 De G. M. & 421 ; Meux y. Malthy, 2 Sw. 277 ; G. 609. As to contribution, see 9th Bunnett v. Foster, 7 Beav, 540 ; Har- and following rules of 15th order of vey v. Harvey, 4 Beav. 215, 5 Beav. Rules of Court under the Supreme 134 ; Milbank v. Collier, 1 Coll. 237. Court of Judicature Act, 1873. (e) Holland v. Baker, 3 Hare, 68. (6) A ttorney- General v. Portreeve, (/) Meux v. Malthy, 2 Swans. 285 ; &c. of Avon, 3 De Gex, Jon. & Sm. 637. and see Powells. Wright, 7 Beav. 449, (c) Chancey v. May, Pr. Cli. 592 ; 450. Manning v. Thesiger, 1 S. & S. 106 ; {g) Jones v. Del Rio, cited Attorney- Weld V. Bonham, 2 S. & S. 91 ; Har- General v. Heelis, 2 S. & S. 76 ; 8. C. vey V. Harvey, 4 Beav. 215; and see T. & K. 297 ; Gray v. Chaplin, 2 S. Lloydr. Loaring, 6 Ves. 773; Cock- & S. 267, see 272; Bainbngge v. burn y. Thompson, 16 Ves. 321 ; Burton, 2 Beav. 539 ; Long v. Yonge, Hichens v. Congreve, 4 Russ. 562 ; 2 Sim. 385 ; Richardson v. Larpent, 2 Preston v. Gra?id Collier Dock Com- Y. & C. Ch. Ca. 507. pany, 11 Sim. 327 ; Bromley v. Smith, 806 NECESSAKY PARTIES TO [CH. XXXI. S. 1. What number sufficient to dis- pense with neces- sity for making all parties. 30th Order of August, 1841. Decisions on the 30th Order. And the frame of the suit must not involve any matter of contest between the plaintiff and the parties represented by him inter se (a). 4. What number was large enough to induce the Court to dis- pense with the rule requiring aU to be made parties has never been exactly defined. It was held in one case that where the cestuis que trust were twenty-one, they ought aU to be brought before the Court (&). But in two other cases where the original cestuis que trust were twenty-seven and twenty-six in number respectively, and bills were filed twenty and seventeen 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 main- tain the suits on behalf of themselves and all others (c). Secondly. As TO the changes made in the peactice of the Court by certain special enactments, and by the General Orders of the Court. 1. By the 30th Order of 26th August, 1841 {d), it was provided that in all suits concerning real estate, vested in trustees by devise who were competent to sell and give discharges, 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 did not apply where the trustees had not an absolute power of sale but only with the consent of another person (/). And where the trust for sale was not immediate, but to be exercised on the death of a tenant for life, the Court doubted whether the case was within the Order, and required the presence of the cestuis que trust (g). 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 (h). But where the suit was one for (a) Evans v. Stokes, 1 Keen, 24; Bainhrigge v. Burton, 2 Beav. 539 ; Richardson v. Larpent, 2 Y. & C. Ch. Ca. 507 ; Newton v. Earl of Egmont, 4 Sim. 574 ; 5 Sim. 130 ; see 137. See now the 15th order of Eules of Court under the Supreme Court of Judicature Act, 1873. (6) Harrison v. Siewardson, 2 Hare, 533. (c) Smart v. Bradstock, 7 Beav. 500 ; Bateman v. Margerison, 6 Hare, 496. {d) Now abrogated, but the decisions may be useful in I'eference to the more modern rules; see p. 810 infra. (e) Savory v. Barber, 4 Hare, 125 ; and see Ogden v. Lowry, 25 L. J. N. S. Ch. 198. (/) Llm/dY. Smith, 13 Sim. 457. ((?) Cox V. Barnard, 5 Hare, 253 ; but see Shaw v. Hardingham, 2 W. R. 657. [h) See Osborne v. Foreman, 2 Hare, 659 ; Ward v. Bassett, 5 Hare, 179 ; CH. XXXI. S. 1.] • SUITS EESPECTING TRUSTS. 807 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 (a) ; though legatees whose legacies were charged merely on real estate were not necessary parties (b). 2. The 32nd Order of 26th August, 1841, (now Order VII, 32nd Order of Eule 2, of Consolidated Orders of February, 1860) declares that ^^ ' a plaintiff having a joint and several demand against several persons, either as principals or sureties, need not bring 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 indeed Decisions on the was introduced expressly to meet the case of co-trustees concurring in a breach of trust (c) ; and it applies to individual members of a public body of trustees as well as to private trustees (d). 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 the suit («). And where the case is not one of breach of trust merely, but a general account is also sought, the Order does not apply (/). And a cestui que trust under a wUl cannot file a bill against a surviving executor for a general ad- ministration 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 {g). And where a bill was originally filed on the basis of making all the co-trustees liable, the plaintiff cannot afterwards, upon one of the trustees dying (li), or becoming bankrupt {i), Miller v. Huddleston, 13 Sim. 468; {d) Attorney- General v. Pearson, 2 Wilton V. Jones, 2 Y. & C. Ch. Ca. Coll. 581. 244. (e) Perry v. Kiwtt, 4 Beav. 179; [a) JonesY.How,l'H.sxe,,ilO; Miller 5 Beav. 297; ShijJton v. Bawlins, 4, V. Huddlestone, 13Sim.467. The de- Hare, 619; Jesses. Bennett,2,]m-.'H.Q. cision in Turner v. Hind, 12 Sim. 414, 964, 6 De G. M. & G. 609 ; Willictms may be supported on this ground, but v. Allen, 29 Beav. 292 ; Burrowes v. the view there taken that the Order O'Brien, 15 Ir. Ch. Re. 424; and see did not apply to equitable estates, may Turquandy. Marshall, 6 L.R. Eq. 112. be doubted. (/) Coppard v. Allen, 4 Gift'. 497, (i) See Osborne v. Foreman, 2 reversed 2 De G. Jon. & S. 173. Hare, 656 ; Ward -r. Basseti, 5 Hare, (g) Chancellor v. Morecraft, 1 1 Beav. 179. 262; Biggs v. Penn, 4 Hare, 469; (c) SeeKellawayv. JbAnsom. 5 Beav. Hall v. Austin, 2 Coll. 571 ; Devaynes 319; Attorney- General v. Corporation v. Robinson, 24 Beav. 86. of Leicester, 7 Beav. 176 ; Strong v. {h) London Gas Light Company v. /SifroH(7,18Beav. 408; NorrisY. Wright, Spottiswoode, 14 Beav. 264; see Pow- 14 Beav. 310 ; Perry v. Knott, 4 Beav. land v. Witherden, 3 McN. & G. 568. 179 ; 5 Beav. 293 ; Ex parte Norris, (i) Fussell v. Elwin, 7 Hare, 29 ; 4 L. R. Ch. App. 280. Lewin v. Allen, 8 W. R. 603. 808 NECESSARY PARTIES TO [CH. XXXI. S. 1. New rules as to parties tinder 15 & 16 Vict. c. 86, o. 42. 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, as the law then stood, precluded himself from obtaining a decree against those he had examined, the Court would not under the Order make a decree against the rest (a), a 3. By 15 & 16 Vict. c. 86, s. 42, rule 1, any residuary legatee, 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 gite trust may have a decree for administration of the trust without serving the other cestuis que trust (V). 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, administrator, or trustee may obtain a decree for ad- ministration 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 to be made parties. Ayid hy rule 8, in all the foregoing cases, tJie decree when made must be served on all the per- sons luho, according to the practice of the Court at that time, and in- dependently of the Act, looiild he necessary parties (c). It is to be observed upon these rules that although in a large of the new rules, proportion of cases the old difficulties as to parties are removed down to the hearing, yet rule 8 stiU renders a reference to the old practice necessary, though at a different stage of the cause, and these rules will not authorise a remainderman to file a bill for relief in respect of the prior life estate on the ground that the tenant for life will be served, and is therefore represented in the suit (d). 4. By rule 9, in all suits concerning real or personal estate vested in trustees under a will, settlement, or otherwise, such trustees shall represent their cestuis que trust in the same manner as exe- General working Rule 9. (a) Attorney- General v. Dew, 3 De Gr. & Sm. 488 ; see now Harford v. Rees, 9 Hare, Append. Ixx. (J) An appointment of new trustees may be obtained under this rule with- out making all the cestuis que trust parties, but all who are not parties must be served with the decree ; Jones V. James, 9 Hare, Append. Ixxx. (c) By the 4th rule of 15th order of Rules of Court under the Supreme Court of Judicature Act, 1873, the above rules, and also rule 9, are confirmed and extended. {d) Whitney v. Smith, 4 L. R. Ch. App. 513. CH. XXXI. S. 1.] SUITS EESPECTING TRUSTS. 809 cutors or administrators represent the persons beneficially inter- ested in the personal estate. But the Court may direct the cestuis que trust to be made parties. This rule is much more comprehensive than the 30th Order of Decisions on Rule 9. 26th August, 1841, as the rule comprises trustees appointed not only by a will but by any instrument, and is not confined to trus- tees for sale merely, but extends to all trustees in whom the estate is vested. It has been held that this rule applies to cases where the bill was filed before the passing of the Act (a), and that trus- tees can sufficiently represent their cestuis que trust in creditor suits (6), and even in redemption (c) and foreclosure suits (d). In one foreclosure suit executors who were empowered and directed to sell the equity of redemption on the death of a tenant for life, and distribute the proceeds of sale, were allowed to represent the cestuis que trust («) ; but in another case before the same judge an executrix who was also tenant for life, and had an equitable power of sale under a general charge of debts, was held not to be capable of representing the persons beneficially interested (/). It is thus discretionary with the Court whether the cestuis que trust shall or not be made parties. Where the trustees fill 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 supposed to dispense with the presence of the cestuis que trust (g) ; but where the trustees are trustees of a settlement merely (h), 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 (i). And where a bill was filed by a settlor to set aside a settlement as having been fraudu- lently obtained by the trustees, it was 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 plaintifl), could not be treated as sufficientl;f representing the cestuis que trust (a) Fowler v. Bayldon, 9 Hare, Ap- (/) Bolton v.Stannard, 4 Jur. N. S. pend. Ixxviii ; Goldsmid v. Stonehewer, 576. ib. xxxviii. [g) Hanman v. Riley, 9 Hare, Ap- (6) Smith V. Andrews, 4 W. R. 353. pend.xl; ani see Shaio v.Hardingham, (c) Stansfield v. Hohson, 16 Beav. 2 W. K. 657. 189. {h) Goldsmid v. Stonehewer, 9 Hare, {d) Sale V. Kitson, 3 De G. M. Append, xxxviii ; but see WiUcijis v. & Gr. 119 ; Hanman V. Riley, 9 Hare, Reeves, 3 Eq. Re. 495. Append, xl ; Glegg v. Rees, 7 L. R. (i) Cropper v. Melkrsh, 1 Jur. N. S. Ch. App. 71 ; see Morley v. Morley, 299 ; Chaffersy. Baker, 5 W. R. 326 ; 26 Beav. 253. WilUns v. Reeves, 3 Eq. Re. 495. (e) Shaw v. Uardingham, 2 W. R. 657. 810 NECESSAKY PAETIES TO SUITS RESPECTING TRUSTS. [CH. XXXI. S. 1. 15 & 16 Vict, c. 86, s. 47. Same Statute, s. 51. Supreme Court of Judicature Act, 1873. New Rules. for the purposes' of the suit (a). And in another case where the interest of one of the trustees conflicted with the interests of the cestuis que trust, the rule was held not to apply (V). 5. 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 of the testator's or intestate's real estate where the whole real estate is by devise vested in the trustees, who are em- powered to sell, and authorised to sign receipts for the rents and profits and produce of sale (c). 6. By the 51st section the Court may adjudicate upon questions in the presence of some only of the parties interested (d), and as to a portion only of the trust estate («), and without taking the accounts. 7. By the supreme Court of Judicature Act, 1873, 36 & 37 V. c. 66, schedule rule 10, " where there are numerous parties, having the same interest, one or more of such parties may sue or be sued, or may be authorised by the Court to defend on behaK or for the benefit of all parties so interested," and by the 14th rule, " trustees, executors, and administrators, may sue and be sued on behalf of or as re- presenting the property or estate of which they are trustees or representatives, without joining any of the parties beneficially in- terested in the trust or estate, and shall be considered as repre- senting such parties in the action, but the Court or a Judge may at any stage of the proceedings order any of such parties to be made parties either in addition to or in lieu of the previously existing parties thereto." 8. Eules of Courtin pursuance of the Act have since been issued, and by the first three rules of the 15th order, persons claiming any relief against the defendants may join as co-plaintiffs, and persons against whom any relief is prayed may be joined as co-defendants. And by the 9th and following rules of the same order, " contribution, in- demnity, or other remedy or relief over against any person not a party to a proceeding " may be worked out in such proceeding by bringing such other person before the Court in the manner therein specified. (a) Reade v. Prest, 1 K. & J. 18.3. {b) Payne v. Parker, 1 L. E. Ch. App. 327. (c) See the decisions on the 30th Order of August, 1841, the language of which is similar, p. 806, supra, and see Coleman v. Turner, 10 L. R. Eq. 230 ; and De la Salle v. Mom-at, 11 L. R. Eq. 8. (rf) See Doody v. Higgins, 9 Hare, Append, xxxii; Walters v. Jones, 6 Jur. N. S. 530. (e) Prentice v. Prentice, 10 Hare, Append, xxii ; Parnell v. Higston, 3 Sm. & Gif. 337. CH. XXXI. S. 2,] ORDER AND MANNER OF SUING. 811 SECTION II. OF THE OEDEE AND MANNEE IN WHICH THE TEtTSTEBS AND CESTUIS QUE TEITST OUGHT TO APPEAR UPON THE EBCOED, AS WHBTHEE JOINTLY OR SEVERALLY AS PLAINTIFFS OR DEFENDANTS. 1. In a contest between the trii,st on the one hand, and a stranger on the other, the trustees and cesiuis que trust represent but one interest, and costs must not be multiplied unnecessarily by the severance of them in the suit. 2. Sir Anthony Hart laid it down, that a cestui que trust about gj^ ^ Hart's to file his bill, ought to apply to his trustee to allow his name statement of the to be used as co-plaintiff. This (he said) the trustee is bound to 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 be 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 be bound to pay the proper course. costs of the trustee for his own unreasonable negligence in not having required the trustee to be co-plaintiff (a). 3. Upon the same principle, where a trustee and cestui que trust Trustee and are made defendants in the same right, as they have an identity "«**'"* 2''."' ti'i'st , , T , 1 p I ,^1 oughttojoin in of mterest they ought not to split the defence, and file separate defence, answers (&) ; not that a trustee and his cestui que trust can be compelled to join in their defence (c) : but if they do not they will be mulcted in costs, as only one set of costs will be decreed against the plaintiff (d). 4. In suits between the trustees and cestuis que trust, inter se, j^^ g^j^g „ ^^f^,^. all the cesttiis- que trust in the same interest ought to sue as co- *«'." "estuis Que plaintiffs (e) ; or if the bill is by a trustee he ought to join his interest should co-trustees with him, unless there be some special circumstance ^""^ ^ plaintiffs, demanding a severance. 5. In suits of every description, joint trustees should make a Trustees should joint defence, and if they put in separate answers, one set of costs •^'^fe"'' jointly. (ffl) Reade v. Sparks, 1 Moll. 8, 11 ; (o) Van Sandau v. Moore, 1 Russ. Hughes v. Key, 20 Beav. 395 ; Browne 441 ; reversing S. C. 2 S. & S. 509. V. Lochhart, 10 Sim. 426, is contra, {d) Cuddy v. Waldron, 1 Moll. 14 ; sed gumre. Homan v. Hague, 1 Moll. 14 ; Gal- (b) Beads v. Sparlces, 1 Moll. 10, way v. Butler, 1 Moll. 13. 12 per Sir A. Hart ; Woods v. Woods, (e) See Hosking v. NicJiolls, 1 Y. 5 Hare, 229 ; Farr v. Shenffe, 4 Hare, & C. Ch. Ca. 478. 528. 812 OEDEE AND MANNER OF SUING. [CH. XXXI. S. 2. Apportionment of costs where one of seve/al trustees is ft plaintiff. How feme covert cestui que triiH should sue and defend. only -will be allowed (a), which, if they be equally in fault, will be apportioned amongst them, the apportionment being left to the taxing master (6). 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 (c). And where two trustees severed in their defence, one of whom was charged with misconduct, the Court held that the innocent trustee was justified in severing, and whUe allowing one set of costs gave the whole of them to him (d). However, 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 (e), or where the co-trustees reside at such a distance from each other that a joint answer is impracticable (/), or where other special grounds exist (ff), the several trustees will be allowed to put in separate answers, and each will be allowed his full costs. The determination of each case must depend on its own particular circumstances (h). 6. It may be here observed, that where co-trustees being de- fendants sever, their costs are of a similar character, but if one trustee be plaintiff and the other defendant, the two sets of costs are of a different description. Assuming the plaintiff's costs to have been properly incurred, irrespectively of the question of sever- ance, the equity of the case appears to be that if one trustee has acted improperly by not making his co-trustee a co-plaintiff, the costs of the defendant trustee should be deducted from the plain- tiff's costs ; and on the other hand, if the defendant trustee refused to join as co-plaintiff, the defendant's costs should be disallowed (i). 7. A fe^ne covert entitled to her separate use cannot join with (a) Nicholson v. Palkiner, 1 Moll. bb^,per Sir A. Hart; Qaunt v. Taylor, 2 Beav. 347, per Lord Langdale ; Shovelton v. Shovelton, 32 Beav. 143. (&) Course V. Humphrey, 26 Beav. 402; Attorney- General v. Wyville, 28 Beav. 464. (c) Young v. Scoii, 1 Jones' Ir. Exch. 71 ; and see Attorney- General V. Cuming, 2 Y. & C. Ch. Ca. 156. {d) Webb V. Webb, 16 Sim. 55; Cummins v. Bromfield, 3 Jur. N. S. 657. (c) Gaunt V. Taylor, 2 Beav. 346. (/) Aldridge v. Westbrooh, 4 Beav. 212; Cummins v. Bromfield, 3 Jur. N. S. 657 ; 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. {g) Anon, case, cited Barry v. Wood- ham, 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. (h) Gaunt V. Taylor, 2 Beav. 346. (j) Rughes v. Key, 20 Beav. 395 ; Gomperiz v. Kensit. 13 L. R. Eq. 369. CH. XXXI. S. 3.] DISTRINGAS. 813 her hu&band as co-plaintiff, if there be any adverse interest, but must sue by her next friend, making her husband a defendant, who, under such circumstances, ■wUl be entitled to his costs (a) ; and the same rule applies to a suit relating to the execution of a power vested in a married woman (6). But a feme covert entitled to her separate use may sue by her next friend, and make the husband a co-plaintiff, if there be no adverse interest (c). If the feme be made a defendant in respect of an interest to her separate use, she may obtain an order to defend separately {d). But the mere fact of &feme covert living apart from her husband, does not entitle her to appear separately at the costs of a trust estate under administration, where the interest which she claims is not settled to her separate use (e). SECTION III. OF DISTRINGAS. 1. In the case of stock transferable in the books of the Bank Danger to which of England, and also in the case of the stock and shares of many ^^°^^l in^'conse- other public companies, no obligation exists on the part of the quence of legal bank or public company to look beyond the title of the legal recognised.'^ holder. The modern form of legislative enactment on the subject is usually to the effect that the company " shall not be bound to see to the execution of any trust, whether express, implied, or constructive " (/). Where, therefore, property of this description is held upon trust, the interests of the cestui que trust are pecu- liarly liable to be endangered by the dishonesty of the trustee; and, indeed, but for the means of protection now about to be explained, would be almost entirely at his mercy. 2. The distringas was originally a process of the equity side origin of the writ (now abolished) of the Court of Exchequer for compelling the °^ distringas, 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) Thorhy v. Yeais, 1 Y. & C. Ch. {d) See Norris v. Wright, 14 Beav. Ca. 438. See now as to this paragraph 303; and p. &ii, supra. the first three rules of 15th order of (e) Garey v. Whittingham, 5 Beav. the Rules of Court under the Supreme 270 ; and see Barry v. Woodham, 1 Court of Judicature Act, 1873. Y. & C. 538. (b) Hope V. Fox, 1 Johns. & H. 456. (/) 8 Vict. c. 16, s. 20. (c) Beardmore v. Gregory, 2 Hemm. & Mill. 491. 814 DISTEINGAS. [CH. XXXI. s. 3. Practice con- tinued notwitlt- standing 4 Anne, c. 16, and 39 &40 G. 3. 0. 36. Process trans- ferred to Clian- cery on the abo- lition of the equity Ex- chequer. Additional re- medy given by 5 Vict. c. 5, s 4. Practice under the 4th section. a party sought to restrain a transfer of stock, before he fQed the bill against tlie holder of the stock and the bank (which was then a necessary party), 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. 8. The 4 Anne, c. 16, s. 22, declared that no suhpmna or other process for appearance should issue until after the biU. was filed ; and the 39 & 40 G. 3. c. 36, enabled suitors to obtain an injunc- tion against the bank, without making the bank a party. How- ever, in practice the distringas stUl continued to be served on the bank, and the same attention was paid to it in not allowing a transfer. 4. The convenience of the distringas was so sensibly felt, from the frequent necessity of laying an embargo upon stock at a moment's notice, that when 5 Vict. c. 5, abolished the equity side of the Exchequer, it was thought expedient to transfer the process to the Court of Chancery, and enlarge the remedy (a). 5. 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 party interested by irwtion or petition, in a summary way, witJimot till filed, to restrain the Bank of England or other company, whether incor- porated or not, from permitting the transfer of any stock in the public funds, or any stock or shares in any inMic 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 amount . of the stock, or the particular shares to be aifected thereby, and the name or names of the person or persons, tody politic or corporate, in which the same should he standing." 6. An application to the Court under this section must be (a) See 2nd rule of 41st order of Rules of Court under the Supreme Court of Judicature Act, 1873, by which the writ of distringas is con- tinued. CH. XXXI. S. 3.] DISTRINGAS. 815 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 ordinary way, if the opposite party move to dissolve the injunction, 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 bill (&). When a bill has been filed, and an answer put in, and the defendant moves to discharge the restraining order, the plaintiff may file affidavits in opposition to the answer, and is not confined to the merits disclosed in the answer (c). 7. By section 5 of the Act it is thus enacted, " In the place Transfer of the ... old writ of dis- and stead oi the Writ of Distringas, as the same has been hereto- tringas. fore issued from the Court of Exchec[uer, a Writ of Distringas in the form set out in the schedule to the Act shall be issuable from the Court of Chancery, and shall be sealed at the subpoena 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 command ^" ' you that you omit not, by reason of any liberty, but that you enter the same, and distrain the Governor and Company of the Bank of England by all their lands and chattels in your bailiwick, so that they, or any of them, do not intermeddle therewith until We other- wise 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 Chan- cery on the day of , to answer a certain hill of complaint lately exhibited against them and other defendants before us in our said Gaibrt of Chancery by complainant ; and further, to (a) Ex parte Field, 1 Y & C. Ch. Hare, 584. See same case, 1 Phil.203 Ca. 1 ; Re Marquis of Hertford, 1 (c) In re Marquis of Hertford, 1 Hare, 586. Phil. 203. See now 15 & 16 Vict.o 86, (6) In re Marquis of Hertford, 1 s. 59. 816 DISTRINGAS. [CH. XXXI. S. 3. Orders of the Court of Chan- cery regulating practice. Writ. AiE davit. Form of affidavit. Discharge of writ. Effect of service of writ. 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- 8. The Act, as we have seen, empowered the Court to regulate the practice of the distringas, and orders have been issued ia con- sequence to the following effect : — (a) u,. That any person claiming to be interested in any stock 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 office of the clerks of Eecords and Writs. p. That such person must, before the writ is sealed, leave at the office an affidavit sworn by him or his solicitor in the follow- ing form : — " A. B." {the name of the party or parties in whose hehalf 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 iy the solicitor, " A. B. of , is ") " beneficially interested in the stock hereinafter particularly de- scribed, that is to say " {here specify the amount of the stock to he affected by the writ, and the name or names of the person or persons, or tody politic or corporate, in whose name or names the same shall he standing. y. That such writ of distringas, and aU process thereunder, may be discharged by order of the Court, to be obtained, as of course, by the party on whose belialf 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. S. " 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 (a) XXVII Cons. Ord. 1860. See and 10 Dec. 1841, 3 Beav. xxxviii. Orders, 17 Nov. 1841, 3 Beav. xxxiii; CH. XXXI. S. 3.] DISTRINGAS. 817 made, or to withhold payment of such dividends for more than eight days after the date of such request." 9. The present course, therefore, is this : The solicitor of the Present practice i-i-i -PT- -iii- ^t° obtaining party seeking the distringas prepares a writ oi distringas in the torm and serving the required by the Act, and the party or his solicitor swears an af&davit ^"*- in the form required by the general order. The writ and affidavit are then taken to the office of the clerks of Eecords and Writs and the writ is sealed. 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 payment 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. 10. Between the remedy given by the 4th section, and that given Distinctions be- by the 5th section of the Act, the following distinctions exist. The under the 4th & former applies not merely to stock in the funds, but to stock and st.h sections of ^'^ -' . the Act. 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 England. Again, the distringas under the 5th 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 applica- tion to stock in the public funds and Government annuities. 11. As respects stock in the funds, the distringas under the 5th Both remedies section, and the restraining order under the 4th section, may both ^^^e of stock. ^ occasionally be resorted to should circumstances require it ; for the adoption of either remedy is not an election of the one to the exclusion of the other (c). " 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 (a) See Etty v. Bridges, 1 Y. & C. (c) In re Marquis of Hertford, 1 Ch. Ca. 486. Hare, 584 ; 1 Phil. 129. (6) Note (a), p. 815, supra. G G G ^IS PKODUCTION. [CH, XXXI. S. 4. by bill in the ordinary way, — an opportunity 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 (a) only at the discretion of the bank. The restraining order, which the 4th section enables the Court to grant, is imperative ; it con- tinues 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," he added, " 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, notwithstanding, upon a full disclosure of the facts in a case of merits and urgency, entitle himself to a restraining order under the 4th section " (V). SECTIOIsr IV. OF PRODUCTION. General rale. 1 . All documents held by the trustee in that character must be produced by him to the cestuis que trust, who in equity are the Cases for opinion, true owners (c). And if the trustee has submitted cases to counsel and taken opinions, not for the purpose of defence in any litigation between himself and his cestuis que trust, but for his guidance as trustee, he is bound to produce them to the cestuis que trust, who Parties. pay the expense so incurred by the trustee (cQ. But as aE. the cestuis que trust have an interest in the documents, they must all be represented, directly or indirectly, in the suit before the documents can be finally dealt with (e). If the trust documents include mort- gages upon which the trust fund has been invested, the production cannot be objected to on the ground that the mortgagors, or persons entitled to the equity of redemption, are not parties (/). Trust must be "Z. The privilege of requiring production can be asserted only by a cestui que trust when the relationship of trustee and cestui que trust has been established ; for, so long as the claim is disputed, the would-be cestui que trust is regarded as a stranger {g). (a) Sic, qu. " restrains." 42 ; Talbot v. Marshfield, 2 Drew. & (6) In re Marquis of Hertford, 1 Sm. 285, 549. Hare, 590. (e) Bugdm v. Tylee, 21 Beav. 545. (c) Simpson v. Bathurst, 5 L. R. (/) Gough v. Offley, 5 De Gex. & Ch. App. '202, ^cj- Lord Hatherley. Sm. 653. {d) Wynne y. Humberstone,2TBea,y. (g) Wynne v . Humherslone, 27 Beiiy . 421 ; Devaynes v. Robinson, 20 Beav. 421. established. CH. XXXI. S. 5.] COMPULSOKY PAYMENT INTO COUET. 819 3. An executor and trustee is bound to keep clear and distinct Accountj. accounts, and if he enter the accounts of the trust in his private books, he is bound to produce them (a) ; and if an executor or trustee, being a partner, be allowed to enter the trust accounts in the partnership books, the Court will not allow the partners to with- hold the inspection (b) ; but if an agent be employed to manage an estate, and he keeps the accounts in the same books in ■which the accounts relating to the estates of other persons are kept, the pro- duction, in the absence of those other persons, has been refused (c). 4. Where litigation is pending or is contemplated between the Privileged com- trustee and his cestui que trust, and the trustee submits a case to niumcations. counsel for his opinion, for the protection of the trustee himself adversely to the cestui que trust, the case and opinion are communica- tions within the general rule, and privileged from production {d). 5. The right of the cestuis que trust is enforced not only as against Persons bound by the trustee personally, but as against aU claiming under him, and ^^^^ o t e though for value, if with notice of the trust (e). SECTION V. OP COMPULSOEY PAYMENT INTO COUET. 1. The general rule as laid down by Lord Eldon, and which has General rule 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 interest, together ivith others, as entitles him on his own hchalf, and the iehalf of those others, to have the fund secured in Court " (/). It is not indispensable that the plaintiff should be the person exclusively interested ; for if he have a partial or contingent interest {g), it is enough, provided all the other persons interested in the fund are before the Court Qi) ; and occasionally the Court will make orders for payment into Court, although some of the persons interested in the money are not before it (i). Where, under the new practice, the other persons interested are not necessary parties to the suit, payment into Court, if consistent with the prayer of the biU, may be obtained without (a) Freeman v. Fairlie, 3 Mer. 43, and see Duhless v. Flint, 4 M. & C. per Lord Eldon. 502 ; M'Hardy v. Hitchcock, 11 Beav. {b) lb. 77. (c) Airey v. Hall, 12 Jur. 1043. {g) Boss v. Moss, 12 Beav. 89 (d) Talbot V. Marshfield, 2 Drew. & (h) Whitmarsh v. Robertson, 4 Beav. Sm. 285, 549; Brown v. Oalcshott, 12 26 ; Bartletl v. Bartlett, 4 Hare, 631. Beav. 252 ; Devaynes v. Robinson, 20 (i) Wilton v. Hill, 2 De G. M. & Beav. 42. G. 807; Hamond v. Walker, 3 Jur. (e) Smith V. Barnes, 1 L. E. Eq. 66. N. S. 686. (/) Freeman v. Fairlie, 3 Mer. 29 ; G G g2 820 COMPULSORY PAYMENT INTO COURT. [CH. XXXI. S. 5. Plaintiff may move upon a pos- .sible title. Payment of a share. Motion must be founded on admission in defendant's answer. service on them of the notice of motion (a) ; but where cestuis que trust had been served with the copy of a bill which prayed the appointment of new trustees, and a transfer of the fund not into Court but to the new trustees, the Court held that the parties served with a copy of the biU must be served with notice of the motion to transfer the fund into Court (6). 2. If the defendant admits himself to be a trustee for some one, but it remains to be ascertained whether he is a trustee for the plaintiff or for other parties, the plaintiff may move upon his possible title, where all persons are before the Court among whom there wiU be found some one who is entitled (c). " 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 adjudicates upon the right. Such cases generally arise when the property is in the hands of stake- holders, 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 " (d). 3. Occasionally, 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 (e). 4. The merits upon which the motion is founded must be ad- mitted by the defendant's answer, and no evidence as to merits can be adduced aliunde (/). 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 (g). B. 181, per LordEldon; Richardson V. Bank of England, 4 M. & C. 171, 175, per Lord Cottenham ; Duhless v. Flint, 4 M. & C. 502; Black v. Creighton, 2 Moll. 554,^er-Sir A. Hart ; and see Green v. Pledger, 3 Hare, 171 ; Hagell v. Curne, 2 L. R. Ch. App. 452. The 59th sect, of the 15 & 16th Vict, c. 86, directing the defendant's answer to be viewed merely as an affidavit in motions for injunction or receiver. &c. does not touch motions for payment into Court. (g) Boschetti v. Power, 8 Beav. 98. (a) Marryatt v. Marryatt, 23 L. J. N. S. Ch. 876. (6) Lewellin v. Cohhold, 1 Sra. & Giff. 572. (c) See Dolder v. Bank of England, 10 Ves. 355 ; Whitmore v. Turquand, 1 Johns. & H. 296 ; but see Dublin V. Flint, 4 M. & Cr. 502 ; McHardy V. Hitchcock, 11 Beav. 73. (d) Richardson y. Bank of England, 4M. &C. 171. (e) Rogers v. Rogers, 1 Anst. 174; Hamond v. Walker, 3 Jur. N. S. 686 ; see Score v. Ford, 7 Beav. 336. (/) Beaumont v. Meredith, 3 V. & CH. XXXI. S. 5.] COMPULSORY PAYMENT INTO COURT. 821 5. And it would seem that not only must the plaintiff be able to Answer should read from the answer an admission of the defendant's receipt of the admiSonof money, but also an admission of his own title, or probable title, e. g. piaintifi's title, as next of kin, heir-at-law, &c., and that if the defendant ignores the plaintiff's title, the money will not be ordered into Court (a). But in a suit to establish a constructive trust, the rights of the plaintiff may appear so clear upon the answer that the Court, notwithstanding a formal denial by the defendant that he is a trustee, will feel itself justified in ordering payment (h). 6. The plaintiff cannot ask for payment of money into Court Payment into upon the footing of an equity not alleged by the bill, but only ^p^^^ (.j^g footing stated by the answer. Thus, where the plaintiff filed a biU claiming of an eqiity one-fifth of the residuary estate of a testator and asking relief as in bill. the 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 bill obtain payment into Court of the sum so admitted to be due (c). 7. It is not necessary that the defendant should acknowledge the Not necessary fund to be in his hands at the time of the answer ; for if he admit be^actually in"de- that he once actually received it, and state that he afterwards fendant'a hands, applied it in a way not authorised by the trust, the Court will fasten upon the receipt, and not allow him to discharge himself by pleading a breach of duty ; as if a trustee admit that he once had a fund in his hands, but that he afterwards allowed it to be received by a co-trustee who misapplied it {d), or that he afterwards sold it out an,d did not re-invest it (e), or paid it away improperly (/), or lent it on personal {g) or other security (h) not within the terms of the trust. And no attention wrU be paid to the objection that the bill is for the very purpose of securing the fund, and therefore that the money ought not to be ordered into Court until decree {i). 8. 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 sum, mentioned in (o) Dubless V. Flint, 4 M. & C. (/) See&o«v.Secto-,4Prioe, 350; 502; M' Hardy -v. Hitchcock, l\^6&\. Meyer v. Montriou, 4 Beav. 343; 73 ; Bank of Turkey v. Ottoman Com- Nokes v. Seppings, 2 Phill. 19. pany, 2 L. Eep. Eq. 366. [g) Vigrass v. Binfield, 3 Mad. 62 ; (6) Hagell v. Currie, 2 L. E. Ch. Collis v. Collis, 2 Sim. 365; Roy v. App. 452, ^er L. J. Cairns. Gibbon, 4 Hare, 65. (c) Proudfoot V. Hume, 4 Beav. 476. (A) Wyatt v. Sharratt, 3 Beav. 498 ; (d) Jngle \. Partridge, 32 Bea.v.66\. Costeker v. Horrox, 3 Y. & C. 530; («) Wiglesworth v. Wigleaworth, 16 Hinde v. Blake, 4 Beav. 597 ; Bourne Beav. 272 ; Phillippo v. Munnings, v. Mole, 8 Beav. 177. 2 M. & C. 309 ; and see Meyer v. (J) See Bothwell v. Rothwell, 2 S. & Montriou, 4 Beav. 346; Futter v. S. 217; Wyatt v. Sharratt, 3 Beav. Jackson, 6 Beav. 424. 498 ; Collis v. Collis, 2 Sim. 365. 822 COMPULSORY PAYMENT INTO COURT. [CH. XXXI. S. 5. answer may be verified by affi- davit. Payment of money into Court not ordered on a mere admis- sion of circum- stances showing a liability. Eothwell V. Eothwell. Special case of a trustee who is a debtor to his trust estate. but adds that he has made payments, the amount whereof 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 (a). 9. Payment of money into Court is, in general, confined to the cases of a defendant's admission of actual possession of the fund, or of a receipt not followed by any subsequent legal discharge, and is not ordered upon a mere admission of facts from which a liability may be inferred (b). 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 wlU be decreed at the hearing to pay interest ; yet the Court will not order him to pay interest on motion (c), unless he also admit that he has actu- ally made interest, which amounts to a receipt (d). 10. The case of Bothwell v. Eothwell (e) is no exception to this rule, for there the defendant had covenanted with the trustees of his marriage settlement to pay 850Z. within twelve months from the marriage ; and the covenant not having been performed, the children filed a bill against the covenantor and the trustees to have the money raised ; and the defendant admitting "that the 850^. had not been got in, but that it was still in Ms hands," the Court ordered the payment into Court, not on the admission of the debt, but " that it ivas still in his hands." 11. 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 debt by a debtor, but as of monies realised in the hands of the exe- cutor or trustee (/). Thus where A., B., and C. were appointed executors of a wUl, of whom A. andC. alone proved, and A. and B. were appointed trustees, and a bill was filed by A. for the administration of the trusts of the wiU, 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 sum of 11371. 7s. 10|d. was due from the partnership to the estate on the (a) Anon. 4 Sim. 359; and see Prmtdfoot v. Hume, 4 Beav. 476 ; Roy V. Gibbon, 4 Hare, 65. (6) See Richardson v. Banh of Eng- land, 4 M. & C. 174; Peacham v. Daw, 6 Mad. 98. (c) Wood V. Downes, 1 V. & B. 50. {d) Freeman v. Fairlie, 3 Mer. 43 ; see Wood v. Downes, 1 V. & B. 50. (e) 2 S. & S. 217 ; see Richardson V. Bank of England, 4 M. & C. 174. (/) Richardson v. Bank of England, 4 M. & C. 174, per Lord Cottenham. CH. XXXI. S. 5.] COMPULSORY PAYMENT INTO COURT. 823 balance of accounts, and that the debt owing from the partnership, and the monies received from C. the executor, had been treated as part of the assets, and applied partly in payment of testatrix's debts, and as to the residue upon the trusts of the will, the Court held, notwithstanding B.'s disclaimer of having acted, that he must be deemed to have acted as executor and trustee, and as such to have received the monies in question, and ordered him to pay the balance into Court (a). 12. Trustees will not be ordered to pay into Court where they Where trustees have a discretionary power over the fund, and it appears that they ™ean to apply the are intending bond fide, to exercise it ; for this would only lead to expense by occasioning the necessity of another application to have the fund paid out again (6). 13. Lord Langdale once said, that according to the old practice Whether the it was mere matter of course to order trust funds into Court, but °?!f ^V^ matter of coursG. that the question now was whether there existed any sufficient ground for the order, such as danger of the fund, &c. (c). But V.-C. Kindersley subsequently declared his adherence to the old practice (cZ). 14 The Court will occasionally make an order for payment into Payment into Court at the hearing of the cause, " e,x dehito jitstitioe" though it hearing' * ^ 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 (e). And an order for payment into Court will be made at the hearing, if proper, without any notice of motion for that purpose (/). 13. The time to be given for payment of money into Court will Time allowed depend on the circumstances of the case. If it be money in the into^Court" defendant's hands, it will be ordered in forthwith, and an imme- diate transfer may be directed of stock standing in the defendant's name. Where the defendant had improperly lent a sum on per- sonal security, but no insolvency was suggested nor any danger as to the money, the Court ordered it to be paid in on or before the first day of the following term {g). In another ease, where the defendant had lent 820^. upon a mortgage not authorised by the (a) White v. Barton, 18 Beav. 192. (e) Governesses Institution v. Rus- (5) Talbot V. MarshfieU, 2 Drew. & hridger, 18 Beav. 467. Sm. 285. (/) Isaacs y.Weatherstone,\Q>'RaxQ, (c) Ross V. Ross, 12 Beav. 89, Appendix xxx. \d) Robertson v. Scott, W. N. 1866, {g) Vigrass v. Binfield, 3 Mad. 62 ; p. 114. and see Hinde v. Blake, 4 Beav. 597 ; Roy v. Gibbon, 4 Hare, 65. 824 EECEIVBESHIP. [CH. XXXI. S. 6. trust, the Court allowed six weeks, with liberty to apply for further time if the circumstances should then warrant the indulgence (a). Distringas. 16. Where a distringas or injunction has been previously obtained against the transfer of the stock, the Court orders the transfer into Court to be made, " notwithstanding the distringas or injunction.'' SECTION VI. OF RECBIVEESHIP. Receiver will be appointed at the instance of all the cestuis que trust. Also where trus- tee is guilty of misconduct, or is insolvent, bank- rupt, &c. Where executrix a feme covert, and husband abroad. 1. As the cestiois que trust or parties beneficially interested in an estate are in equity the owners of it, should they concur in an application for a receiver and the trustee consents, the Court will at any time make the order (b). But the usual recognisances will not be dispensed with (c). 2. And as each cestui que trust is entitled to have the fund properly protected, a receiver will be granted at his instance if it can be shown that the trustee has been guilty of misconduct, waste, or improper disposition of the trust estate (d), or that he has an undue leaning or bias towards one of two conflicting par- ties (e), or that the fund is in danger from his being in insolvent circumstances (/), or beiag a bankrupt (g), or that one trustee has misconducted himself, the other consenting to the order (A), or that he is incapacitated from acting (i), or that the executor is a person of bad character, drunken habits, and gTeat poverty (k). 3. And a receiver has been appointed where the executrix was a feme covert, and the husband, besides being in indifferent circum- stances, was out of the jurisdiction, for in such a case, said the (a) Wyatt v. Sharrait, 3 Beav. 498 ; Score V. Ford, 7 Beav. 333. (5) Brodie v. Barry, 3 Mer. 695; Beaumont v. Beaumont, cited lb. 696 ; see Browell v. Reid, 1 Hare, 435. (c) Manners v. Furze, 11 Beav. 30 ; TyUe V. Tylee, 17 Beav. 583. (d) Anon. 12 Ves. 5, per Sir W. Grant ; and see Middleton v. Dodswell, 13 Ves. 266; Howard v. Papera, 1 Mad. 142 ; Richards v. Perkins, 3 Y. & C. 299 ; Evans v. Coventry, 5 De Gr. M. &G. 911. (e) Earl Talbot v. Scott, 4 K. & J. 139. (■/) Scott V. Becker, 4 Price, 346 ; Mansfield v. Shaw, 3 Mad. 100 ; and see Anon. 12 Ves. 4 ; Middleton v. Dodswell, 13 Ves. 266 ; Havers v. Havers, Barn. 23. [g) Gladdon v. Stoneman, 1 Mad. 143, note ; Langley v. Hawh, 5 Mad. 46. Qi) Middleton v. Dodswell, 13 Ves. 266. (i) Bainhrigge v. Blair, 3 Beav. 421. (h) Everett v. Prythergch, 12 Sim. 367. 368. CH. XXXI. s. 6.] EECBIVERSHIP. 825: Court, if the executrix waste the assets or refuse payment, the party aggrieved has no remedy, as the husband must be joined in the action (a). 4. And a receiver has been ordered where 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 (&). In another case three trustees had disagreed, and a receiver was appointed (c) : the order was taken by arrangement between the parties, but the Court had previously expressed its opinion that, unless the trus- tees could agree, a receiver must be appointed (d). Where two out of three trustees chose to act separately, and took securities in their own names omitting that of the dissentient trustee, a cestui que trust was held entitled to a receiver (e). And the Court wiU 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 (/). 5. But the Court is not in the habit of granting a receiver, and so taking the administration out of the hands of the trustees, the natural curators of the estate, upon very slight grounds {g). Thus it is no sufficient cause for a receiver that one of several trustees has disclaimed (h), or is inactive, or gone abroad {i). Nor is it a sufficient cause that trustees are in meoM (not insolvent) circum- stances (k), or being trustees for sale have let the purchaser into possession before they received the purchase money, for the Court wiU not necessarily infer this to be misconduct Q). 6. When a receiver is appointed under the authority of the Court, he is appointed for the benefit of all parties interested, and therefore wUl not be discharged merely on the application of the party at whose instance the order was made (m). 7. However, when a receiver had been appointed on the appli- cation of the plaintiff the tenant for life, on the ground of the mis- Eeceiver where trust estate un- protected. Receiver not granted on slight grounds. Eeceiver not dis-i charged at the mere instance of the party pro- curing his ap- pointment. An exception tra- der special cir- cumstances. (a) Taylor v. Allen, 2 Atk. 213. (b) Tidd V. Lkter, 5 Mad. 429. (c) Day V. Croft, May 2, 1839, M . R. {d) See now Hart v. Denham, W. N. 1871, p. 2. (e) Swale v. Swale, 22 Beav. 584. (/) Noad V. Backhouse, 2 Y. & C. Ch. Ca. 529 : Smith v. Smith, 10 Hare, App. Ixxi (,g) See Middleton v. Dodswell, 13 Ves. 268 : Barkley v. Lord Beay, 2 Hare, 306. (h) Browell v. Beid, 1 Hare, 434 ; but .see Tait v. Jenkins, 1 Y. & C. Ch. Ca. 492. (i) Browell v. Raid, 1 Hare, 435, per Sir J. Wigram. (k) Anon, case, 12 Ves. 4; Howard V. Papera, 6 Mad. 142; and see Ha- thornthwaiie v. Russell, 2 Atk. 126. In Havers v. Havers, Barn. 23, the Court considered misapplication pro- bable. (l) Browell v. Reid, 1 Hare, 434. (m) Bainbrigge v. Blair, 3 Beav. 423, per Lord Langdale. 826 COSTS OF SUIT OF TRUSTEES. [CH. XXXI. S. 7. conduct 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 any party of the protection of a receiver, but merely to substitute the trustees in his place ; that the tenant for life ought not unnecessarily to be charged with the costs of a receiver ; that it was not intended to put the tenant for life 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 (a). Expense of re- 8. Where the Court appoints a receiver, the poundage and the ceiver falls on expenses of passing his accounts fall upon the income of the tenant for life (b). SECTION VII. OF COSTS Of SUIT. Costs as between I J^g between stranqms mi the one hand, and trustees and cestuis trustees and strangers. c[ue trust On the other. 1. 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 (c). Thus, if a trustee fail in his application to the Court, he must pay the costs of it (d). Costs where trns- 2. So on a bUl by a stranger against the trustee for specific per- a^tftie?°'^° ^^ ^ formance of a contract, the vendor trustee for sale must, if he cannot make a title, pay the costs of the suit agreeably to the general rule (e). Trustee made a 3. So where trustees or executors are brought before the Court neoeLlry'p^rty. as nccessary parties by a stranger, if the trustees or executors contest the claims of the plaintiff, and the plaintiff recover in the (a) Bainhrigge v. Bfair, 3 Beav. 421 , {d) Ex parte Angerstein,^ L. E. Ch. 423, 424; and see Poole v. Franks, 1 App. 479. Moll. 80. (*) Edwards v. Harvey, G. Coop. (6) Shore v. Shore, 4 Drew. 510. 40 ; and see Hill v. Magan, 2 Moll. (c) Burgess v. Wheate, 1 Eden, 251, 460 ; Elsey v. Lutyens, 8 Hare, 164. pel- Lord Northington. CH. XXXI. S. 7.] COSTS OF SUIT OF TRUSTEES. 827 suit, they are not entitled to their costs ; but if they submit, they will have their costs (a). 4. If a plaintiff fail in his suit, but stands in so hard a case PlaintifE failing that he ought not to pay any costs, the Court will' not oblige him n"ces^sariiy bound to pay the costs of a defendant because the latter happens to sus- *« pay costs of a tain the character of a trustee (h). 5. In a bill of foreclosure against the mortgagor and his trustee Trustee to bar to bar dower, the trustee is not entitled to his costs as against the ^°'"^^- mortgagee (c). 6. Where the biU of a stranger is dismissed with costs, a trustee, Trustee has costs who is a defendant, will not, as is usual between trustee and cestui and*p*a^t'v onr*^^ que trust, be ordered his costs as between attorney and client, but only as between party and party {d). 7. Where money has been paid into Court by a Eailway Com- Trustee re.spon- pany, and the cestuis que trust are petitioners and the trustee a of cestui que respondent, the Company must pay the costs of both, as the trustee *"'^- is justified in appearing separately to inform the Court that the order is right (e). 8. If a creditor file a bill against an executor for payment of a Costs in creditor's 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 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 (/). As the law formerly stood, if Executor(though the assets were not sufficient to cover both the plaintiff's debt and nowheld'e^titfed costs, the executor was not decreed in equity to pay costs per- to his costs in T)rGf6rSllCG to tllG sonally {g), unless he had misconducted himself, as by having plaintiff, satisfied simple contract debts in preference to debts upon spe- cialty Qi) ; but he was not entitled to retain his own costs out of the assets in preference to the claims of the plaintiff {%). And if a bill had been filed by a specialty creditor, and the specialty debt had exhausted the personal assets, the executor could not have claimed to be reimbursed out of the real estate to the prejudice of (a) Rashley v. Masters, 1 Ves. jun. Uvedale v. Uvedale, 3 Atk. 119; but 201, see 205. see Davy v. Seys, Mos. 204. (6) Brodie v. St. Paul, 1 Ves. jun. {g) Tmsletony.Thelwell,}IardL.lG5; 326, see 334. Morony v. Vincent, 2 Moll. 461. (c) HorrocJrs v. Ledsam, 2 Coll. 208. [h) Jefferies v. Harrison, 1 Atk. 468; (d) Mohun v. Mohun, 1 Swans. 201 ; and see Bennett v. Attkins, 1 Y. & C. Saunders v. Saunders, 3 Jur. N. S. 727. 247 ; Wilkins v. Hunt, 2 Atk. 151. (e) Ex parte Metropolitan Railway (i) Humphrey y. Morse, 2 Atk. 408 ; Company, W. N. 1868, p. 204. Sandys v. Watson, 2 Atk. 80; and see (/) Tivisleton v. Thelwell, Hard. 165; Adair v. Shaw, 1 Sch. & Lef. 280. 828 COSTS OF SUIT OF TRUSTEES. [CH. XXXI. S. 7. the testator's heir (a) : 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 (c). Trustee entitled to costs as a gene- ral rule. Charges and ex- penses. Professional charges. II. Of costs as between trustees and cestuis que trust, inter se. 1. The general rule is that a trustee shall have his costs of suit awarded by him at the hearing either out of the trust estate, or to be paid by his cestui que trust (d). And if there be a fund under the control of the Court he will have his costs as between solicitor and client (e). And if there be no fund, still if the cestuis que trust choose to bring the trustees before the Court for obtaining its direc- tions as to the rights of the parties or the mode of administration, and the trustees are free from blame, the trustees are entitled to their costs as between solicitor and client as against their cestuis que trust personally (/). But if plaintiffs file a bill for the purpose of creating a fund, of which the defendants would he trustees for plaintiffs, if plaintiffs succeeded, but the plaintiffs fail, tlie defen- dants are entitled as against the plaintiffs to costs only as between party and party {g). 2. If it appear upon the pleadings, or the Court be otherwise satisfied that the trustee has sustained charges and expenses be- yond the costs of suit, the Court will order him his costs, charges, and expenses properly incurred. But an order made in a suit in this form will not comprise costs, charges, and expenses incurred in defending other suits, unless they be specially mentioned (h). 3. If the trustee be a solicitor, he cannot make tlie usual profes- sional charges, but the Court will not declare that the trustee shall have his costs out of pocket only, but will give him his costs as (a) Uvedale v. Vvedale, 3 Atk. 119 ; and see Nash v. Dillon, 1 Moll. 237. (6) See Uvedale v. Uvedale, 3 Atk. 119 ; Humphrey v. Mcfrse, 2 Atk. 408. (c) Bennett v. Going, 1 Moll. 529; Tipping v. Poiver, 1 Hare, 405 ; Ottley V. Gilby, 8 Beav. 603 ; Tanner v. Dan- cey, 9 Beav. 339. {d) 1 Kq. Ca. Ab. 125, note (a) ; Hall V. Hallett, 1 Cox, 141, per Lord Thurlow; Attorney- General v. City of London, 3 B. C. C. 171 ; Norris^ v. Norris, 1 Cox, 183; Sammes v. Riclc- man, 2 Ves. jun. 38, per Lord Chief Baron Eyre; Bashley v. Masters, 1 Ves. jun. 201; Roche v. Hart, 11 Ves. 68 ; Maplett v. Pocock, Eep. t. Finch, 136 ; Landen v. Gi-een, Barn. 389 ; Taylor v. Glanville, 3 Mad. 176, &c. (e) Mohun v. Mohun, 1 Sw. 201, per Sir T. Plumer; Moore v. Frowd, 3 M. & C. 49, per Lord Cottenhara. (/) Attorney- General v. Cuming, 2 Y. & C. Ch. 155 ; but see Edenhorough V. Archbishop of Canterbury, 2 Russ. 112. (g) Saunders v. Saunders, 3 Jur. N. S. 727 ; Mohun v. Mohun, 1 Sw. 201. {h) Payne v. Little, 27 Beav. 83. CH. XXXI. S. 7.] COSTS OF SUIT OF TRUSTEES. 829 between solicitor and client in the usual way, and leave it to the taxing officer to deal with the effect of the order (a). 4. A singular application of the rules respecting costs as be- Practice in credi- tween trustees and third persons, and as between trustees and suits "whcrffun^d their cestuis que trust inter se, arises in the case of a deficient fund. '^ deficient. If a creditor file a bill for administration and there is a surplus, he can only have costs as between party and party, for that is all that he is entitled to as against the residuary legatees with whom he has no privity ; but if the estate be deficient, and is divisible amongst the creditors pro ratd, the creditor is regarded in the light of a trustee for himself and the other creditors, and then as between him and his co-creditors he is allowed his costs as between solicitor and client. Thus the less the estate the larger the plaintiff's costs. The same principle applies, mutatis mutandis, to a suit by a legatee where the fund, after payment of debts, is insufficient for discharge of the legacies in full (6) ; but otherwise if the fund be insufficient for payment of debts (c). Where the personalty had been exhausted, and a creditor suit was instituted against the devisees of the real estate, which was also likely to prove deficient, the order was that the proceeds should be applied first in payment of the costs of plaintiffs and defendants as between party and party pari passu, and then in discharge of the debts, and if the fund were insufficient for the latter purpose, then as between the plaintiffs and the other creditors the plaintiffs should be paid their extra costs as between solicitor and client (d). 5. Where the trustee did not appear at the hearing, and a decree Trustee not ap- nisi was made against him, and the trustee set down the cause again, P'^^'^^g- 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 curid ; and as he would most un- questionably 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 " (e). 6. But if the decree has been passed, a trustee who has omitted Decree passed, 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 pay- ment of his costs upon presenting a petition (/). {a) Yorh v. Browm, 1 Coll. 260. 3d ed. ; Wettenhall v. Davis, 9 Jur. N. (6) Thomas v. Jones, 1 Drew. & Sm. S. 1216. 134, and cases there cited ; and see {d) Henderson v. Dodds, 2 L. R. Tardrev) v. Howell, 2 GiflF. 530. Eq. 532. (c) Weston v. Clowes, 15 Sim. 610; (e) Norris v. Norris, 1 Cox, 183. Newman v. Hatch, Seton Deer. p. 166, (/) Caiman v. Sarrell, 2 Cox, 206. 830 COSTS OF S.UIT OF TRUSTEES. [CH. XXXI. S. 7. Disclaimer. Co.sts of trustee of a void deed. Suit originated by ttie trustee's misconduct. 7. 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 (a) ; but not with costs as between solicitor and client, for, having refused to accept the office, he stands in the position of any ordinary defendant (&) : and if his answer be un- necessarily long, he wlU only be allowed the reasonable costs of a disclaiiaer (c). 8. If a person be a trustee of a deed void as against creditors, or on other grounds, the plaintiff by praying a conveyaiice by the trustee may elect to treat him in that character, so as to give him a claim to costs {d). Otherwise the so-called trustee is a trustee of a riullity, and he and his cestui que trust cannot have costs as against the true owner (e) ; more particularly if the deed to which the trustee is a party contain a false recital for the purpose only of misleading (/) ; and if the trustee's claim to the expenses of the so-caUed trust be the occasion of the suit, he will be ordered to pay costs {g). If a bill be filed against trustees of an instrument, which is a nullity, for enforcing the void trusts, and the bUl is dis- missed, the quasi trustees will have their costs, but only as between party and party (]i). 9. If any particular instance of misconduct, or a general dere- liction of duty in the trustee {i), or even his mere caprice and obstinacy (k), be the immediate cause why the suit was instituted. (a) Hichson v. Fitzgerald, 1 Moll. 14. (b) Norway v. Norway, 2 M.-& K. 278, overruling Sherratt t. Bentley, 1 R. & M. 655. (c) Martin v. Fersse, 1 Moll. 146. (d) Snow V. Sole, V.-C. of England, March 8, 1 845 ; and see Goldsmith v. Fussell, 5 De G. M. & G. 547, 556 ; Dalcing v. Whimper, 26 Beav. 571; Ponsford v. Widnell, W. N. 1869, p. 81 ; Trams v. Illingworth, W. N. 1868. p. 206 ; Exparte Tomlinson, 3 De G. F. & J.745 ; and see ante, p. 529. (e) Elsey v. Cox, 26 Beav. 95; Crossley v. Elworthy, 12 L. R. Eq. 158. (/) Turquand v. Knight,!^: Sim. 643. {g) Smith v. Dresser, 1 L. E. Eq. 651 ; S. C. 35 Beav. 378. (h) Mohun v. Mohun, 1 Sw. 201. (i) Springett v. Dashwoud, 2 Giff. 521 ; Byrne v. Norcott, 13 Beav. 346 ; Attorney- General v. Robert, Rep. t. Finch, 259 ; Earl Fowlett v. Herbert, 1 Ves. jun. 297 ; Coffrey v. Darby, 6 Vcs. 488 ; Littlehales v. Gascoyne, 3 B, C. C. 73 ; Ashburnham v. Thompson, 13 Ves. 402 ; Hide v. Haywood, 2 Atk. 126 ; Adams v. Clifton, 1 Euss. 297 ; Mosley v. Ward, 11 Ves. 581 ; Fiety V. Stace, 4 Ves. 620 ; Seers v. Hind, 1 Ves. jun. 294 ; Fell v. Lutwidge, Barn. 319, see 322 ; Brown v. How, Barn. 354, see 358; Sheppard v. Smith, 2 B. P. C. 372 ; Haberdashers' Company v. Attorney- General, 2 B. P. C. 370; Franklin v. Frith,^ B. C. C. 433; Whistler v. Newman, 4 Ves. 129; Stacpoole v. Stacpoole, 4 Dow, 209 ; Crachelt v. Bethune, IJ. & W. 586 ; Baker v. Carter, 1 Y. & C. 252, per Lord Abinger, C. B. ; Hide v. Hay- wood, 2 Atk. 120; Wilson v. Wilson, 2 Keen, 249 ; Attorney-General v. Wil- son, 1 Cr. & Phil. 1 ; Lyse v. Kingdon, 1 Coll. 184. (k) Taylor \. Glanville, 3 Mad. 178, per Sir J. Leach ; Smith v. Bolden, 33 Beav. 262 ; May v. Armstrong, W. N. 1866, p. 233, Jones v. Lewis, 1 Cox, 199 ; Earl of Scarborough v. Par- Jeer, 1 Ves. jun. 267 ; Kirby v. Mash, CH. XXXI. S. 7.] COSTS OF SUIT OF TRUSTEES. 831 the trustee, on the charge being substantiated against him, must pay the costs of the proceedings which his OM'n improper behaviour occasioned ; and of course if the trustee be decreed to pay the costs personally, he cannot afterwards deduct them from the trust fund in his hands (a). And he cannot appeal upon the subject of costs only, on the allegation that instead of being payable by the trustees personally, they ought to have been thrown upon the estate (6). 10. But where a bill was filed charging the trustee with a breach Where miscon- of trust both as to realty and personalty, and the charge failed as in part. 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 injustice to make him pay the whole costs, as one part of the biU had failed, and he was therefore ordered to pay the costs of that part of the bill which had suc- ceeded (c). 11. Trustees for sale had purchased in the name of a trustee at Setting aside a an undervalue, but without any imputation of fraud, and hy auction. ^^^^ ^-^^ absence As to so much of the suit as related to calling upon the trustees to of fraud, submit to a resale, and the directions consequential thereon, the Court gave relief against the trustees with costs; but as to the accounts that must have been taken had the sale been unimpeach- able, the trustees were allowed their costs (d). 12. If the suit was occasioned by an innocent mistake of the Mistake or .slight trustee, (such as an investment in good faith and without loss to "r^stTe*. °^ ^^^ the trust fund on a security not strictly correct (e), ) the Court will content itself with not giving him costs (/), or wiU punish him with payTnent of part of the costs only {g), or will even allow him his costs (h). 13. Though, as a general rule, where a trustee commits a breach Administration 3Y. &C.295; Thorbyy. Teates,lY. (/) O'Callagan v. Cooper, 5 Ves. &C.Ch.Ca,. ASS, Hampshire V. Brad- 117; Moulsey v. Carr, 4 Beav. 49; ley, 2 CoU. 34; Pen/old v. Bouch, 4 Attorney - General v. Drapers^ Com- Hare, 271 ; and see Burrows v. Green- pany, lb. 71 ; Devey v. Thornton, 9 wood, 4 Y. & C. 251 ; Hayhow v. Hare, 222. George, and Southwill v. Martm,W. N. (^r) £:ast v. Ryal, 2 P. W. 284. 1869, p. 191. (h) Taylor v. Tabrum, 6 Sim. 281 ; (o) Attorney-General V. Dangers, a Flanagan v. Nolan, 1 Moll. 84; Tra- Beav. 621. vers v. Townsend, lb. 496; Attorney- (b) Taylor v. Dowlen, 4 L. E. Ch. General v. Cains College, 2 Keen, 150 App. 697. Bennett v. Attkins, 1 Y. & C. 247 (c) BococJc V. Reddington, 5 Ves. 800. Fitzgerald v. & Flaherty, 1 Moll. 347 {d) 8andersony.Walher,\Sye&.%Q\. Attorney - General v. Drummond, 2 (e) Fitzgerald \. Fitzgerald, 6 Ir. Conn. & Laws. 98 ; Eoyd* v. iJoyrfs, 14 Ch. Rep. 145. Beav. 64. suit mainly caused by a breach of trust. 832 COSTS OF SUIT OF TRUSTEES. [CH. XXXI. S. 7. Misconduct of the trustee dis- covered, in the progress of the suit. Clearance of default. Costs of discuss- ing a doubtful point of law. Costs to be paid in part and re- ceived in part by the trustee. Trivial miscon- duct. Trustees protect- ing from parental influence. of trust he must pay the costs of a suit to repair it, yet he will be entitled to his subsequent costs relating to the ordinary taking of the accounts {a). 14. If the bill filed did not originate from any necessity of enquiring 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 suit, but only of so much of it as connects itself with his mis- conduct, and as to the rest of the suit will allow him his costs (6). 15. The Court never gives costs to a defaulting trustee while he continues in default, but the Court says, " when you have paid in the balance found due from you, then you shall have your costs " (c). But ' a bankrupt ceases from the date of the bank- ruptcy to be a debtor to the trust estate, and is therefore entitled to his costs from the date of the bankruptcy {d). 16. 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 enquiry what rule the Court ought to adopt with respect to the computation of interest, it was thought hard under the circum- stances to fix the executor with payment of costs even relatively to the breach of trust ; and therefore the Court gave no costs (e). 17. In one case, as to part of the suit, the trustee ought from his misconduct to have -paid the costs, and, as to another, to have been allowed his costs ; and the Court, by a kind of compromise, left each party to pay his own costs (/). 18. Where the breach of trust is trivial, the Court may overlook it altogether, and give the trustee his whole costs {(j). 19. The Court watches with jealousy transactions between parent and child occurring shortly after the child has attained twenty-one, more especially when the transactions had their inception during minority, and trustees acting lionA fide in refusing to convey under such suspicious circumstances will be entitled to their costs Qi). (a) Hewett v. Foster, 7 Beav. 348 ; and see Bate v. Hooper, 5 De G. M. & G. 345; Ee King, 11 Jur. N. S. 899. (6) Tebhs v. Carpenter, 1 Mad. 290, see 308 ; Newton v. Bennett, \ B. C. C. 359 ; Pride v. Fooks, 2 Beav. 430 ; HeigUngton v. Grant, 1 Phill. 600. (c) Birhs v. Michlethwait, 33 Beav. 409. {d) Bowyer v. Oriffin, 9 L. R Eq. 340. But see now 32 & 33 V. c. 71. s. 49. (e) Raphael v, Boehm, 13 Ves. 592. (/) Newton v. Bennet,\ B. C. C. 362. Ig) Fitzgerald v. Pringle, 2 Moll. 534; Bailey v. Gould, 4 Y. & C. 221 ; see 225 ; Knott v. Cottee, 16 Beav. 77 ; Cotton V. Clarlc. 16 Beav. 134. {h) King v. King, 1 De G. & Jon. 663; see 671. CH. XXXI. S. 7.] COSTS OF SUIT OF TRUSTEES. 833 20. If a trustee have a private interest of his own separate and Trustee insti- iudependent from the trust, and oblige the ceshd que trust to come Ms'pnvate ends, 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 ex- ample's sake, he will be decreed to pay the whole costs of the suit [a). 21. If on a bill for an account the defendant says in his answer Trustee falsely he believes the plaintiff is considerably indebted to him, and after pfamtii's claims, a long investigation it proves that the defendant is considerably indebted to the plaintiff, the trustee, thus daring the plaintiff to his account, will be decreed to pay the costs (&). 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 (c), or at least not the costs of the account itself {d). 22. A trustee will be deprived of costs (e) or will even have to Trustee mis-stat- pay costs if he refuse to account (/), or if he wilfuUy mis-state the ™^ '''^ accounts, accounts {g), or if, by any chicanery in his answer, he keep the cestui que trust from a true knowledge of the accounts (/;,), or even if he has kept the accounts in a very confused manner (j). And an executor will be liable to pay costs if he deny assets, and the contrary be established against him (k). But an executor is en- titled to have the accounts taken under the direction of the Court, and, therefore, even where he had obstructed the taking of the accounts, he was not decreed to pay the costs, though he was not allowed to have his costs Q). But in another case where he had unnecessarily and unjustifiably protracted the suit, and multiplied the costs by his litigiousness, he was ordered to pay the costs of a simple administration suit up to the hearing (m). 23. Where a corporation filling the character of trustees for a corporation grammar school by their answer pleaded ignorance of the claims pleading igno- ° . . ranee falsely. of the charity, and the information was afterwards elicited from the documents scheduled to their answer, as the Court inferred [a) Htnley v. Phillips, 2 Atk. 48. (g) Sheppard v. Smith, 2 B. P. C. (S) Parrot v. Trely, Pr. Ch. 254 ; 372 ; and eee Flanagan v. Nolan, 1 Eglin V. Sanderson, 3 Giflf. 434. Moll. 86. (c) Attorney- General v. Brewers^ (h) Avery v. Osborne, Barn. 349; Company, 1 P. W. 376. Beech v. Kennegal, 1 Ves. 123. {d) Fozier v. Andrews, 2 Jones & (i) Nm-bury v. CaZJeci, 2 Moll. 461. Lat. 199. (h) Sandys v. Watson, 2 Atk. 80 (e) Gresham v. Price, 35 Beav. 47. Q) Re King, 11 Jur. N. S. 899. (/) Boynton v. Richardson, 31 Beav. (m) Talbot v. Marshfield, 4 L. R. 340 ; A'mj:! V. B? infants are appointed upon motion. In re Bennett's Trusts, 6 I. R. Eq. 337. The Court will declare the rights of parties upon a petition under the Act ; Be Walker's Trust, 16 Jur. 1154. And where the petitioner, as it turns out, is not himself entitled, the Court, if it be necessary to declare the rights, and the trustees desire the opinion of the Court, will declare the rights and give all the parties their costs, as on a bill under similar circumstances ; Be Wool- lard's Trust, 18 Jur. 1012. A petition may be presented by a person entitled to an aliquot share without bringing the other parties interested before the Court; Be Bef- ford's Will,2l L.T. 164. Apetitionby a person so entitled should ask that the other shares should be carried to the separate accounts of the other persons entitled, in order to save the expense of serving the petition on any future application ; Be Hawke's Trust, 18 Jur. 33. See Be Young, 5 W. R. 400. Or liberty may be given to the other parties entitled to apply at chambers. Winlcworth v. Winlcworth, 32 Beav. 233 ; and see Be Tracey's Trust, 6 Ir. R. Eq. 271. Where the claimants to the fund in opposition to the petitioner reside abroad, the Court will give them time to make out their case ; Be Hodson's Will, 22 L. J. (Ch.), 1055. (a) See Rules 6 & 7 of xli. Consol. Ord. post,^ 843. It was intimated by V.-C. Wood, on a petition by tenant for life for pay- ment of the income, that for the future he should hold it unnecessary to serve the remainden'man ; Be Whitling's Set- tlement, 9 W. R. 830 ; and see Ex parte Peart, 17 L. J. Ch. 168. And where the corpus was only carried over to a par- ticular account, service on the remain- dermen, who were extremely numerous, was dispensed with ; Be Hodges, 6 W. R. 487 ; and in another case the Court gave no costs to the remainderman, who, the Court said, merely came to look after his own interests ; Be Thornton's Trust, 9 W. R. 475. When money has been paid into Court, and part of it has, by an order of the Court, been carried to the separate account of a cestui que trust, the trustees need not be served again on application by the cestid que trust to have it paid out of Court ; Be Young, 5 W. R. 400. If the trustee try to avoid service ; the Court on being satisfied of the fact will make the order without service ; Ex parte Baugham, 16 Jur. 325. Where the trustees had not been heard of for ten years, and the place named for service in the trustee's affidavit had been pulled down, the Court dispensed with service on the trustees, but directed an enquiry at chambers who were the persons en- titled. Be Bolton's Will, W. N. 1869, p. 226. It has been held under the Irish Act, 11 & 12 Vict. c. 68, which is similarly worded, that the Court has no juris- diction to order service upon a person out of the jurisdiction ; Ex parte Craw- ford, 2 Ir. Ch. Rep. 573 ; Ex parte Bernard, 6 Ir. Ch. Rep. 133. (b) The Court under this Act has as ample jurisdiction as upon a bill filed, and may therefore declare the validity or invalidity of a deed without directing a suit, if the Court in the exercise of its discretion do not think a suit necessarv ; Lewis v. Hillman, 3 H. L. C. 607". But in general tlie Court will not allow a deed to be im- peached upon the petition without a bill; Way's Settlement, 10 Jur. N. S. 116(3. In one case, V.-C. Wood, in disposing of a fund on petition, said that if there were creditors or other unascertained claims, a suit might be necessary, but that otherwise the Court had jurisdiction as in a suit, and miglit direct an issue to try a question of 840 TRUSTEE RELIEF ACT. that any such trust funds cannot be safely distributed without the insti- tution of one or more suit or suits, the Lord Chancellor or Master of the Rolls may direct any such suit or suits to be instituted (a). sanity or the like; Re Allen's Will, Kay's Kep. Append, li. Where trustees of a marriage settlement had transferred the fund into Court, and a petition was presented by a person claiming adversely to the settlement, V.-C. Wood disposed of the case upon the petition, no party having ob- jected; but before the Lords Justices, the respondent not consenting, the petition was ordered to stand over that a bill might be filed ; Ee Fozard's Trust, 1 K. & J. 233; 24 L. J. Ch. 441 ; and see In re Bloye's Trust, 2 H. & Tw. 140 ; 1 McN. & G. 488 ; Ex parte Stutely, 1 De G. & Sm. 703. An order made by the Court for maintenance of an infant out of a fund paid into Court, and to which the infant is entitled, constitutes the infant a ward of Court ; Re Hodge's Settle- ment, 3 Kay & J. 213. (a) The Court directs a suit for its own satisfaction only, and will not authorise the petitioner to file a bill because it may be the niore convenient course for making out his title ; Re Harris's Trust, 18 Jur. 721. Though a person be not named as a cestuis que trust in the aifidavit upon which the money was paid in, yet if he can make a. prima facie case, the Court will give him leave to file a bill ; Re Jephson, 1 L. T. (N. S.), 5. When a trustee filed a bill instead of paying in under the Trustee Relief Act, the Court allowed him only such costs as he would huve been entitled to had he paid in under the Act ; Wells V. Malbon, 31 Beav. 48; and see Qunnell v. Whitear, 10 L. R. Eq. 664. The following is a summary of the decisions in reference to costs under the Act : — ■ The trustee who is served with the petition \s, prima fade entitled to his costs ; Re ErsMne's Trust, 1 K. & J. 302; Croyden's Trust, 14 Jur. 54; Re Wylly's Trust, 28 Beav. 458 ; Re Wrights' Trust, 3 K. & J. 419 ; Re Headington's Trust, 27 L. J. Ch. 175 ; Re Robertson's Trust, 6 W. R. 405 ; and it is not thought desirable to hold too strict a hand over trustees paying in trust monies ; Re Wyllys Trust, 6 Jur. N. S. 906; Re Broclclesby, 29 Beav. 652 ; Re Bendyshe, 3 Jur. N. S. 727 ; though it is not matter of course that thev should have their costs ; Re Elgar, U L. T. N. S., 415 ; Re Lane's Trust, 24 L. T. 181 ; and see HanJcey V. Mmiey, 4 Jur. N. S. 234 ; Handley V. Davies, 5 Jur. N. S. 190. In Ireland the costs of lodging a trust fund in Court are restricted in ordinary oases to 8Z. Re Boyd's Trusts 1 Ir. Re. Eq. 489. A trustee objected to act with a proposed new trustee of whom he dis- approved, and on the appointment of such new trustee the old trustee paid the fund into Court, and was allowed his costs ; Re Williams' Trust, 6 W. R. 218. A trustee holding a chose en action to which a married woman is entitled, is justified, having regard to her right to a settlement, in paying it into Court ; Re Swan, 2 Hem. & M. 34. But see c ntra. Re Roberts' Trust, W. N. 1869, p. 88. But a trustee who, after accepting the trust, throws it up from caprice soon after, and pays the money into Court, will not have his costs of ap- pearing on the tenant for life's petition. Re Lealce's Trust, 32 Beav. 135. When the trustee has paid in the fund abusively, as in order to avoid a bill, about to be filed against him, he will have no costs ; Re Waring, 16 Jur. 652 ; and Re Fagg's Trust, 19 L. J. Ch. 175. And on the other hand, where a trustee refuses in a proper case to pay the fund into Court, and ol.liges the cestuis que trust to file a bill, the Court will not allow him all his costs of suit, but only such costs as he would have got had he paid the money into Court, and then the plaintiff had presented a petition, Weller \. Fitzhugh. W. N. 1870, p. 144; Gunnell v. Whitear, 10 L. R. Eq. 664. And where he has trans- ferred the fund into Court without sufficient reason, though he may be allowed his costs of the transfir, he will not be allowed the costs of appear- ing on the petition ; In re Covington's Trust, 1 Jur.N.S. 1157 ; In re Heming' s J'n(Si,3Kay& J.40; and see Cray den's Trust, 14 Jur. 54 ; Re Leake's Trust, 32 Beav. 135 ; and in cases of gross misconduct in paymg in the fund, the TRUSTEE BELIEF ACT. 841 III. Provided always, and be it enacted, That the additional remu- Engulating salsiry ,.,,.', ^1 ■ • of Accountant- neration which the said Accountant- General may receive m consequence Q-eneral. of the operation of this Act shall not have the effect of giving to him any Court has jurisdiction to throw upon the trustee personally the costs of the petition ; Re Woodburii's Will, 1 De G. & Jon. 333 , Re Cater' s Trust, 25 Beav. 361, 366; Re KnigliCs Trusts, 27 Beav. 45 ; Foligno's Mortgage, 32 Beav. 131 ; Re Glendenning, W. N. 1867, p. 191 ; Re Roberts' Trust, W. N. 1869, 88 ; Re Wise's Trust, 3 I. R. Eq. 599 ; Re Elliott's Trusts, 15 L. R. Eq. 194. If the person who pays in is the personal representative of a testator whose will creates the diflSculty, the executor should take his costs of paying in the fund out of the testator's estate, but the subsequent costs come out of the fund ; Ee Cawthorne, 12 Beav. 56 ; Re Jones, 3 Drew. 679; secus, how- ever, if the trust fund has been severed from the testator's estate, and is paid in by a trustee and not by the executor; Re Larimer, 12 Beav. 521 ; Ex parte Lucas, V.-C. Bruce, 6 July, 1849. 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 he,perse, liable to costs ; Re Hodgson, 18 Jur. 786 ; S.C.2 Eq. Ee. 1083 ; nor out of the testator's residuary estate when it has not been paid in ; Re Bartholomew's Trust, 13 Jur. 380; and see Re Sharpe's Trusts, 15 Sim. 470; Re Fdthain's Trusts, 1 Kay & Johns. 534. But see In re Trick's Trusts, 5 L. R. Cli. App. 170. But where five-sixteenths of a fund paid into Court had lapsed, the Court threw the whole costs on the psed shares as constituting part of the residue ; Ham's Trust, 2 Sim. N. S. 106. If a trustee deducts his costs before paying in the fund, the Court has no jurisdiction as to the sum deducted ; In re Bloye's Trust, 1 Mac. & Gor. 504 ; 2 Hall. & Tw. 153 ; Re Barber, 9 Jur. N. S. 1098. Re Fortune's Trust, 4 I. R. Eq. 351. But where the trustee is allowed the costs of the petition, his costs will be taxed, inclu- ding those which he had deducted ; Re Hue's Trusts, 27 Beav. 337 ; and where a trustee has deducted costs improperly, a bill may be filed against him for re- covery of the costs so improperly deducted, and the costs of the suit will be thrown upon the trustee. Beaty v. Curson, 7 L. R. Eq. 194. It has been held, though the policy of the decision may be doubtful, that the trustee who is served with the petition will not be allowed in taxation the costs of taking copies of the affidavits filed by the parties beneficially inte- rested ; In re Lazarus, 3 K. & J. 555. Whether on a petition by tenant for life for payment of the dividends tlie costs should come out of the corpus or out of the income is a point on whicli the practice has much varied. In favour of payment out of the corpus are the following cases : Re Ross's Trust, 1 Sim. N. S.l 96, V.-C. Cranworth ; Re Staples' Trust, 13 Jur. 273, V.-C. E. ; ReField's 2'rusts, 1 6 Beav. 146 ; Re Butler' sTrust, 16 Jur. 324 ; and Re Leake's Trust, 32 Beav. 135, Lord Romilly ; and in support of the contrary view : Ex parte Fletcher, 12 Jur. 619 ; 17 L. J. Ch. 169 ; Ex parte Peart, 12 Jur. 620 ; 17 L. J. Ch. 168, V.-C. Knight Bruce ; Re Loriiner, 12 Beav. 521, Lord Lang- dale ; Bangley's Trust, 16 Jur. 682 : Re Ingram, 18 Jur. 811, V.-C. Kin- dersley; Re Jepson, 6 March, 1859, V.-C. Wood ; and In re Hamersley's Settlement,23 Beav. 267, Lord Romilly. In other cases the costs had been divided, and the costs of the tenant for life thrown on the income, and the costs of the trustees and remainderman on the corpus; Re Whitling's Settlement, 9 W. R. 830 ; In re Tchitchagoff's Will, 12 W. R. 1100 ; Re Hadland's Settle- ment, 23 Beav. 266. In In re Turnley, 1 L. R. Ch. App. 152, Lord Romilly wished the point in question to be submitted to the Lord Chancellor, who directed the costs to be paid out of the corpus. But the costs cannot be thrown on the corpus without service on the re- mainderman; Ex parte Feart, 17 L. J. Ch. 168 ; Re Fletclier, 17 L. J. Ch. 169; or on those who sufBciently represent them; Re Greenland's Trust,iyV .K. 4:6. And as the necessity of serving the remaindermen would lead to great in- convenience and expense, it was re- solved by all the judges that for the future the costs of a petition for payment 842 TRUSTEE RELIEF ACT. claim for a larger income by way of salary or otherwise, in the event of the said office of Accountant-Gen eral being hereafter regulated by com- petent authority, than would have been assigned to him if this Act had not been passed. IV. And be it enacted, That the Lord Chancellor, with the assistance of the Master of the Kolls or of one of the Vice- Chancellors, shall have may make Gene- power and is hereby authorised to make such orders as from time to time ral Orders. , „ r , • •, ■ ■ ,-,•.• shall seem necessary tor better carrymg the provisions of this Act into Lord Chancellor, with Master of the Rolls, &c., effect (o). of dividends should he thrown upon the income, and service upon the re- maindermen be dispensed with; Re Marner's Trust, 12 Jur. N. S. 959, 3 L. U. Eq. 432; Be Cameron, 1 Ir. R. Eq. 258. The rule there- fore now is, that upon a petition for payment of dividends only, while the costs, charges and expenses properly incurred by the trustee in paying the money into Court will, where not pre- viously deducted, be directed to be paid out of the corpus {Re Whitton's Trusts, 8 L. R. Eq. 353), the costs of the petitioners and of all persons ap- pearing on the petition will fall upon the income; Be Mason's Trusts, 12 L. R. Eq. Ill; Be Whitton's Trusts, 8 L. R. Eq. 353. It was held in some cases, that the costs of the trustee's appearance upon the petition were an exception, and ought to be borne by the corpus {Re Gordon's Trusts, 6 L. R. Eq. 335; Re Wood's Trusts, 11 L. R. Eq. 165), but this has since been determined otherwise ; Re Evans' Trusts, 7 L. R. Ch. App. 609 ; Re Smith's Trusts, 9 L. R. Eq. 374. " It is said," observed L. J. James, " that a difference ought to be made with respect to the appearance of the trustees, but I think that In re Mar- ner's Trusts was intended to apply to all the costs of the petition ; and 1 am the more disposed to follow that con- struction, because the reasonable course for a tenant for life to pursue, when about to present a petition, is to write to the trustee and tell him that he does not seek to affect the corpus, but only wants his income, and therefore that there is no occasion for the trustee to incur the costs of appearing. In such a case, if the title of the tenant for life be clear the trustee ought not to appear." But it was probably in- tended by the L. J. that the letter must be accompanied with the tender of a sufficient sum, whether twenty shillings or forty shillings, or in special cases more, to cover the expense of the trus- tee's consulting his solicitor. If a person not appearing by the affidavit to have an interest, but who made a claim, be served with the petition and disclaim at the bar, he will not be allowed his costs ; Re Parry's Trust, 12 Jur. 615 ; Re Smith, 3 Jur. N. S. 659. If the money was paid in from the unreasonable claim of a person who is served with and appears upon the petition, and opposes it, the Court has jurisdiction to throw the costs upon such wrongful claimant; Re Armston's Trusts, 4 N. R 450 ; S. C. 4 De Gex, Jon. & Sm. 454. If the petition be presented by an incumbrancer, whose debt will swallow up the whole fund and be served on a subsequent incumbrancer with notice that his costs of appearing will be re- sisted, such subsequent incumbrancer, if he appear, will not have his costs ; Roherts v. Ball, 24 L. J. Ch. 471. The costs in all cases are in the dis- cretion of the Court ; Roberts v. Ball, 24 L. J. 471. GENERAL ORDER. {a) The following general order relative to this Act has since been issued by the Court : — XLI. CoNsoL. Order. Rule 1. " Any trustee desiring to pay money to the account of, or transfer or deposit stock or securities into, or in the name of the Accountaut-General, TRUSTEE RELIEF ACT. 843 V. And be it enacted, That in the construction of this Act the exprcs- Construction of expression " " Chancellor.' the Lord Chancellor" shall mean and include the Lord Chancellor, expression ''Lord Lord Keeper, and Lords Commissioners for the custody of the Great Seal of Great Britain for the time being. VI. And be it enacted. That this Act may be amended or repealed by ^^^ ™'iy tie any Act to be passed in this present Session of Parliament. ' under the Statute, 10 & 11 Vict. c. 96, shall file an affidavit entitled in the matter of the Act, and in the matter of the trust and setting forth," Art. 1. " Hia own name and address." • 2. " The place where lie is to be served with any petition, or any notice of any proceedings or order of the Court, or of the Judge in Chambers relating to the trust fund." 3. "The amount of money, stock, or securities which he proposes to pay or transfer into, or deposit in Court to the credit of the trust." 4. " A short description of the trust, and of the instrument creating it." 5. " The names of the persons 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 enquiries relating to the application of the money, stock, or securities paid in, trans- ferred, or deposited under the Act, as the Court or the Judge in Chamlsers may think proper to make or direct." Rule 2. " The Accountant-G-eneral, on production of an office copy of the affidavit, shall give the necessary directions for payment, transfer or deposit, and place the money, stock or securities to the account of the particular trust, and such payment, transfer or deposit shall be certified in the usual manner." Rule 3. [Provides in substance, that in the absence of an afiidavit stating that investment is unnecessary, the fund shall be invested and accumulated]. Rule 4. " The trustee, having made the payment, transfer, or deposit, shall forthwith give notice thereof to the several persons named in his affidavit as interested in or entitled to the fund." {a) Rule 5. "Such persons, or any of them, or the trustee, may apply by petition, or, in cases where the trust fund does not exceed 300Z. cash or .SOOl stock, by summons, as occasion may require, respecting the investment, payment out or distribution of the fund, or of the dividends or interest thereof." Rule 6. " The trustee shall be served with notice of atiy application made to the Court, or to the Judge in Chambers, respecting the fund, or the dividends or interest thereof, by any party interested therein or entitled thereto." Rule 7. " The persons interested in or entitled to the fund shall be served with notice of any application made by the trustee to the Court, or to the Judge in Chambers, respecting the fund in Court, or the interest or dividends thereof." Rule 8. " No petition shall be set down to be heard, and no summons shall be sealed, until the petitioner or apphcant has first named in his petition or summons a place where he may be served with any petition or summons, or notice of any proceeding or order of the Court relating to the trust fund." Rule 9. " Petitions presented, summonses issued, and affidavits filed under the said Act shall be intituled in the matter of the said Act (10 & 11 Vict. c. 96), and in the matter of the particular trust." (a) Where a cestui que trust was lowed publication in two New York believed to be in New York, but the papers to be sufficient notice: iJcGoorfs- address vras unknown, the Court al- man's Will, W. N. 1870, p. 152. 844 TRUSTEE RELIEF AMENDMENT ACT. 12 & 13 Vict. Cap. 74. ' An Ad for the further Belief of Trustees." (28th July, 1849.) 10 fell Vict. c. 96. Court oE Chan- cery may, upon application by majority of trus- tees, &c., order payment or transfer of trust monies, stocks, or securities into Court of Chan- cery. Whereas difficulties have arisen in the transfer of securities vested in trustees in certain cases under the provisions of an Act passed in the Session of Parliament holden in the tenth and eleventh years of the reign of Her present Majesty, intituled An Act for better securing Trust Funds, and for the Relief of Trustees, and it is expedient to make further pro- vision for carrying into effect the objects of the said recited Act : 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 if upon any petition presented to the Lord Chancellor or Master of the Rolls in the matter of the said Act it shall appear to the Judge of the Court of Chancery before whom such petition shall be heard, that any monies, annuities, stocks or securities are vested in any persons as trustees, executors, or administrators, or otherwise, upon trusts within the meaning of the said recited Act, and that the major part of such per- sons (a) are desirous of transferring, paying, or delivering the same to the Accountant-General of the High Court of Chancery under the pro- visions of the said recited Act, but that for any reason the concurrence of the other or others of them cannot be had (J), it shall be lawful for such Judge as aforesaid to order and direct such transfer, payment, or delivery to be made by the major part of such persons without the concurrence of the other or others of them ; and where any such monies or Government or Parliamentary securities shall be deposited with any banker, broker, or other depositary, it shall be lawful for such Judge as aforesaid to make such order for the payment or delivery of such monies. Government or Parliamentary securities, to the major part of such trustees, executors, administrators, or other persons as aforesaid, for the purpose of being- paid or delivered to the said Accountant-General as to the said Judge (a) Where of three trustees, one was invalided and two petitioned, the Court made the order ; Re Broadwood's Trust, 8 L, T. N. S. 632. {V) The non-concurring trustee must be served with any petition under the Act. TRUSTEE BELIEF AMENDMENT ACT. 845 shall seem meet ; and every transfer of any annuities, stoclcs, or securities, and QYeij payment of money or delivery of securities, in pursuance of any_ such order, shall be as valid and effectual as if the same had been made on the authority or by the Act of all the persons entitled to the annuities, stocks, or securities so transferred, or the monies or securities so paid or delivered respectively, and shall fully protect and indemnify the Governor and Company of the Bank of England, the East India Company, and the South Sea Company, and all other persons acting under or in pursuance of such order. II. And be it enacted. That this Act may be amended or repealed in Act may be the present Session of Parliament. amended, &c. By 28 & 29 V. c. 99, s. 1, it is enacted, that the County Courts County Courts. shall have and exercise all the power and authority of the High Court of Chancery " in all proceedings under the Trustees Eelief Acts, in which the trust estate or fund to which the proceeding relates shall not exceed in amount or value 500^." And by 30 & 31 V. c. 142, s. 24, it is enacted, that "any monies, annuities, stocks, or securities vested in any persons as trustees, executors, administrators or otherwise, upon trusts, within the meaning of" (the Trustee Eelief Acts), " where the same does not exceed in amount or value the sum of 5001., upon the filing by such trustees or other persons, or the major part of them, to or with the Registrar of the County Court within the district of which such persons or any of them shall reside, an affidavit shortly describing the instrument creating the trust, according to the best of their knowledge, may in the case of money be paid into a Post-ojjice Savings Banh established in the town in which the County Court is held, in the name of the Registrar of such Court, in trust, to attend the orders of the Court," and " in the case of stocks or securities may be transferred or deposited into or in the name of the Treasurer and Registrars of such Court, in trust, to attend the order of the Court," &c. 846 No. II. TRUSTEE ACT, 1850. 13 & 14 Vict. Cap. 60. "An Act to Consolidate and Amend the Laws relating to tlie Transfer of Real and Personal Property vested in Mortgagees and Trustees" (5 Aug. 1850.) Wheeeas an Act was passed in the first year of the reign of His late Majesty King William the Fourth, intituled An Act for amending the Laws respecting Conveyances and Transfers of Estates and Funds 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 late Majesty King William the Fourth, intituled An Act for the Amendment of the Laws relative to Escheats and Forfeitures of Real 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 Act to remove Doubts respecting Convey- ances of Estates vested in Heirs and Devisees of Mortgagees, and. Whereas it is expedient that the provisions of the said Acts 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 autho- rity of the same (a). I. 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. , . - II. And whereas it is expedient to define the meaning in which certain terms. words are hereafter used : It is declared that the several words hereinafter (a) The Court has no jurisdiction disputed question of title; In Re under the Trustee Acts to decide on a Draper's Settlement, 9 W. E. 805. TRUSTEE ACT, 1850. 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 tenui'e or description, whatever may be the estate or interest therein (a) : The word " stock " shall mean any fund, annuity, or security trans- ferable in books kept by any company or society established or to be established, or transferable by deed alone, or by deed accompanied by other formalities, and any share or interest therein (&) : 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 (c), 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 expectancy, in any lands : The words " contingent right," as applied to lands, shall mean a con- tingent or executory interest, a possibility coupled with an interest, whether the object of the gift or limitation 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 formalities required by law to the validity of such conveyance, including the acts to be performed by married women and tenants in tail in accordance with the pro- visions 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 Recoveries, and the substitution of more simple modes of Assurance {d), and including also surrenders and other acts which a tenant of customary or copyhold lands can himself perform prepara- (a) In one case, where the word the equities of the parties are bound by " lands " only was used in the vesting the order of sale, and no vesting order order, and the property comprised as to the equitable estate is required or rent-charges, the order was amended will be made ; Re Williams^s Estate, 5 by adding the word " hereditaments ;" De Gex & Sm. 515. See the analogous ReHarrison,2S&t.oxiDec.S'll,3vdedit. case under the prior Act, Goddard v. (6) The word stock includes shares Macaulay, 6 Ir. Eq. Rep. 221. in joint-stock companies; Re Angela, (d) Thus, where there is an adult 5 De Gex & Sm. 278 ; and shares in tenant for life with remainder to an ships, 18 & 19 Vict. c. 91, s. 10. infant tenant in tail with remainders (c) In suits where all parties bene- over, a vesting order of the infant's ficially interested are before the Court, estate with the consent of the tenant it is sufficient for the purchaser to take for life as protector will bar the entail, a conveyance of the legal estate, for and all remainders over ; Powell v. 847 848 TRUSTEE ACT, 1860. tory to or in aid of a complete assurance of such customary or copy- hold lands (a): 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 transfer such stock from himself to another : The words " Lord Chancellor " shall mean as well the Lord Chancellor of Great Britain as any Lord Keeper or Lords Commissioners 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 Commissioners of the Great Seal of Ireland for the time being • The word " trust " shall not mean the duties incident to an estate con- veyed by way of mortgage (5) ; but, with this exception, the words " trust" and " trustee" shall extend to and include implied and con- structive trusts (c), and shall extend to and include cases where the trustee has some beneficial interest or estate in the subject of the Matthews, 1 Jur. N. S. 973 ; see form of order, Seton on Decrees, p. 809, 3rd edit. (a) See, as to copyholds, Rowley v. Adams, 14 Beav. 130, axidt post, p. 861, note (a). (&) As to the question upon the former Act, 1 W. 4, c. 60, whether the word 'Hrust" included a "■mort- gage," see note (c), p. 836, 3rd edit. (c) A vendor, after a contract, has been held to be a trustee of shares in a joint-stock hank for the purchaser ; He Angela, 5 De Gex & Sm. 278. But in cases of real estate, if not universally, at least where the alleged trustee can possibly dispute the trust, the constructive trust must first have been declared by the decree of the Court, and the infant heir of the vendor who died intestate after having con- tracted to sell real estate is not a constructive trustee for the purchaser unless so declared by decree. Re Carpenter, 1 Kay, 418; Re Burt, 9 Hare, 289; Re DicUnson,ll h.T . iii; Oust V. Middleton, 7 Jur. N. S. 151 ; Re Weeding's Estate, 4 Jur. N. S. 707 ; ReFauldeT,W. N. 1866, p. 85; Jackson V. Miifield, 6 Hare, 538 ; Re Milfield, 2 Fhill. 254. Re Wise, 5 De Gex & Sm. 415 is distinguishable; and see Pro- peri's Purchase, 22 L. J. N. S. Ch. 948. But where a vendor died before accept- ance of the title having devised the estate to an infant, and the executors prayed that the infant might be declared a trustee within the Act, and that the property on payment of the purchase- money might be conveyed to the pur- chaser who had accepted the title, and the prayer was supported by the in- fant's counsel, the Court made the order ; Re Lowry's Will, 15 L. R. Eq. 78. But if the owner of copyholds cove- nant to surrender, and declares that in the mean time he will stand seised upon trustior the covenantee, the cove- nantor is a trustee within the Act ; iJe Collingioood's Trusts, 6 W. E. 536; and s,e,e Steele v. Walker, 28 Beav. 466. And even where there is no such de- claration, yet if the contract be not in fieri, but has been carried out and completed, the covenantor is a trustee within the Act ; Re Cuming, 5 L. R. Ch. App. 72. If the cestui que trmt has sold his equitable interest, and the sale has been completed, the purchaser is then the cestui que trust, and may apply for a transfer of the legal estate ; Re Wil- Icinson's Trust, 10 Jur. N. S. 716 ; Re Groom, 11 L. T. N. S. 336. Where a testator had signed an agreement to convey certain easements in compromise of an action, an infant TEUSTEE ACT, 1850. 849 trust, and shall extend to and include the duties incident to the effice of personal representatire of a deceased person : The word " lunatic '' shall mean any person who shall have been found to be a lunatic upon commission of enquiry in the nature of a writ de lunatico inquirendo : The expression " person of unsound mind " shall mean any person not an infant, who, not having been found to be a lunatic, shall be in- capable from infirmity of mind (a) 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 an 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 mascu- line gender only shall extend to a female. III. And be it enacted, that when any lunatic or person of unsound Power to mate mind (b) shall be seised or possessed of any lands upon any ti~ust (c) or devisee, no title being in question, was held to be a constructive trustee within the Act; In re Taylor, W. N. 1866, p. 15. Where a compulsory sale had been made to a railway company, and the purcha-se-money had been paid and possession taken in the lifetime of the ancestor, the case was held to be within the Act ; lie RvsseWs Estate, 12 Jur. N. S. 224; and see Re Badcoch, 2 W. R. 386. A vendor who refused to convey after tender of a deed settled hy the iudge, or to receive tlie purchase- money, was declared a trustee, and on the purchaser paying his purchase- money into Court, his solicitor was to execute the conveyance for the vendor. Warrender v. Foster, 2 Set. on Decrees, 822, 3rd edit. An executor holding a legacy be- queathed to persons successively is a constructive trustee ; Me Davis^s Trusts, 12 L. R. Eq. 214. Where a feme covert is a trustee of stock, the husband, as the Bank acts upon his directions, is a constructive trustee within the Act ; Re Wood, 7 Jur. N. S. 323. An heir wlio takes by descent, but has bound himself on the doctrine of election to hold upon the trusts of the will is a trustee within the Act ; Dewar V. Maitland, 2 L. R. Eq. 834. Three persons were appointed as- signees of a bankrupt, and one of them resigned his office and went abroad, and his resignation was accepted by the creditors, and the Court held that tlie one who had resigned and gone abroad was a trustee within the Act ; and an order was made for vesting the legal estate in the two acting assignees ; Re Joyce!s Estate, 2 L. R. Eq. 576 ; 12 .Jur. N. S. 1015. (ffl) See Re Wakeford, I Jones & Lat. 2 (under 1 W. 4, c. 60) ; Re Jones, 6 Jur. 545. (6) Where the unsoundness of mind is contested, the case is not within the Act; Re Walker, Cr. & RhiU. 147; Re Campbell, 18 L. T. 202. (c) See definition of trust, p. 818. Ill to lands of a lunatic trustee or mortgagee. 850 TKUSTEE ACT, 1860. Power to discharge any contingent right of a lunatic trus- tee or mortgagee in respect of lands. Power to vest stock or chose cii actionoi a lunatic trustee or mort- gagee. by way of mortgage (a), it shall be lawful for the Lord Chancellor (b), 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 (c) in such person or persons in such manner and for such estate as lie shall direct; and the order shall have the same effect as if the trustee or mortgagee had been sane, and had duly executed a conveyance or assignment (d) of the lands in the same manner for the same estate (e). 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 effect as if the trustee or mortgagee had been sane, and had duly executed a deed so releasing or disposing of the contingent right. V. And be it enacted, that when any lunatic or person of unsound mind shall be solely entitled to any stocJc or to any chose en action upon any trust or by way of mortgage, it shall 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 en action, or any interest in respect thereof (/ ), and when any person or persons shall be entithd jointly (a) See definition of mortgage, ante p. 849. (i) It was doubted whether the Lords Justices, though they are in fact intrusted under the Queen's sign manual with the care, &o., of lunatics, had power to exercise the jurisdiction given by the Act to the Lord Chan- cellor intrusted, &c. Ee WaugKs Trust, 2 De Gex, Mao. & Gov. 279 ; Re Pattirison, 21 Law J. Ch. 280. See now 15 & 16 Vict. c. 87, s. 15, re- moving the doubt, and the 11th section of the Trustee Extension Act. In cases of lunacy or unsoundness of mind, the application must be made exclusively to the Lord Chancellor or Lords Justices, as the M. R. and the V. C. C. have no jurisdiction ; Jeffryes V. Drysdale, 9 W. R. 428 ; Re Ormernd, 3 De G. & Jon. 249, and cases there cited ; and s-ee Re Irhy, 17 Beav, 334 ; Herring v. Clark, 4 L. R. Ch. App. 1 67. As the section speaks of conveyance and assignment, the Court has no authority under it to vest a power tliough an imperative one ; Re Porter's Will, 3 \V. R. 583. See post, p. 865, note. Where one of several trustees is a lunatic, and it is desired to obtain from the Court an appointment of new trustees in the place of the lunatic and others with a vesting order, the petition should be intituled in Lunacy and in Chancery ; Re Davidson, 20 L. J. N. S. Ch. 644. But see now Trustee Extension Act, sect. 10 As to a person " of unsound mind," who is an infant, see p. 851, ^os<, note (c). As to the parties to be served, see p. 868, post, note (c). (c) The vesting order being a con- veyance, should be so worded as to make it clear by the description wliat property passes ; Re Ord's Trust, 3 W. R. 863. Where the circumstances require a severance of tlie property, the Court will make two vesting orders instead of one general one. Brader v. Kerby, W. N. 1872, p._ 174. (d) See definition of conveyance and assignment, pp. 847, 848. (e) As to costs, see sec. 51, axiApost, p. 872, note. (/) Where a person of unsound TRUSTEE ACT, 185 0. 851 witli any lunatic or person of unsound mind to any stock or chose en action upon any trust or by way of mortgage, it shall be lawful fur 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 en action, or any interest in respect thereof, either in such person or persons so jointly entitled as aforesaid (a), or in such last- mentioned person or persons, together with any other person or persons the said Lord Chancellor may appoint (5). VI. And be it enacted, that when any stock shall be standing in the name of any deceased person whose personal representative is a lunatic or person of unsound mind, or when any chose en 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 en action or any interest in respect thereof, in any person or persons he may appoint. VII. And be it enacted, that where any infant (c) 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 {d) to make an order vesting such lauds in sxich person or persons in such manner and for such estate as the said Court shall direct (e) ; and the order shall have the same effect as if the Power to vest stock or chose en action, of a person whose personal representative is a lunatic. Power to vest lauds of an infant trustee or jnort- gagee. mind was entitled to a sum of stock as trustee, and also entitled to another sura of the same stock beneficially, as the Bank would not apportion the past dividend between the trust estate and the beneficial estate, the Court in ap- pointing new trustees vested the right to receive the whole dividend in the new trustees upon their undertaking that they would invest in the name of the old trustee so much as belonged to him beneficially ; Re Stewart, 2 De G. F.sher & Jon. 1. (a) See He White, 5 L. R. Ch. App. 698. (h) The lunatic husband of a feme covert a trustee is within the Act ; Re Wood.. 3 De G-. Fish. & Jon. 125 ; and see Re Bradshaw, 2 De Gex, M. & G. 900. (c) A " person of unsound mind " is defined by the 2nd section to mean " any person not an infant, who, not having been found a lunatic, shall be incapable from infirmity of mind to manage his own affairs." And, there- fore, where an infant trustee is of un- sound mind the case does not fall under the lunacy jurisdiction of the Chancellor, but the ordinary jurisdic- tion of the Court of Chancery ; Re Arroivsmiih's Trusts, 4 Jur. N. S. 1 123. And the infant need not be served with the petition ; Re Tweedy, 9 W. E. 398 ; Re Willan,\h. 689. {d) As to the County Courts, see post, p. 878. (e) It is now settled, notwithstand- ing the doubts entertained at first (see Re Hoivard's Estate, 5 De Gex & Sm. 435), that the Court will make an order, vesting an estate on a purchase to the uses commonly called the uses to bar dower ; but will not incorporate a declaration that no woman shall be entitled to dower, this being no part of the conveyance ; but as uses to bar dower have not that effect as to a woman married since Jan. 1, 1834, a woman so married will be entitled to dower unless otherwise barred ; Re Lush's Estate, 5 De G. & Sm. 436; Davey v. Miller, 17 Jur. 908. An order has been made to vest the legal estate in the devisees of a mort- gagor, subject to a charge created by his will; Re Ellerthorpe, 18 Jur. 669. Where the executor and executrix Ill2 852 TRUSTEE ACT, 1850. Power to dis- charge contin- gent right of infant trustee or mortgagee to lands. Power to vest lauds of a sole trustee out of the jurisdiction. Power to vest lands of a joint trustee out of the jurisdiction. 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 any contingent right in any lands upon any trust or by way of mortgage, it shall be lawful for the Court of Chancery to make an order wholly releas- ing 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 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 (J) seised or possessed of any lands upon any trust (c) shall be out of the jurisdiction of the Court of Chancery (d), or cannot be found («), it shall be lawful for the said Court to make an order vesting such lands in such person or persons in snch 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 con- veyance 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 seised or possessed of any ]ands jointly with a person out of the jurisdiction of the Court of Chancery, or who cannot be found, it shall be lawful for the said Court to make an order vesting the lands in the person or persons so jointly seised or possessed, or in such last-mentioned person or persons (a married woman) of a mortgagee applied for a vesting order, the Court instead of vesting the property in the executor and executrix, when the feme covert in order to part with it would have to acknowledge the deed, vested it in such person or persons as the executor and executrix should appoint, and in default thereof, in the executor and executrix ; In re Powell, 4 Kay & J. 338. (a) Tenant for life with remainder to an infant in tail. A vesting order as to the estate of the infant with the consent of the tenant for life, will bar the entail and remainders over. Powell V. Matthews, 1 Jur. N. S. 973. See the interpretation clause as to the' word.s " convey," and " conveya' ce." (6) A coparcener who has no bene- ficial interest, but holds in trust for the other coparcener, is solely seised as trustee for such coparcener. J/c Murray v. Spicer, 5 L. 11. Eq. 527. (c) An heir who takes the trust estate by the disclaimer of the trustees, is a trustee within the section ; Wilks V. Groom, 6 De G. M. & G. 205. And an heir of a mortgagee who had taken possession has been held to be a trus- tee for the mortgagee's executors ; Se Skitter's Mortgage, 4 W. R. 791 ; see jMst, 855, note (a). A person had contracted to sell an estate, which in equity had converted it into personalty, but before he executed the conveyance died intestate, and it was held that the heir was a trustee for the personal representative ; lie Baj purchase, but formerly not by descent or operation of law, 25. purchasing, could hold until office found, ih. could not sue or be sued touching lands, 36 ; see Trust, inf. may now acquire and holdreal and personal property, 26, 37, 41. Peoceeds OP SALE of real estate, could take, 41, 778. Teust, how far he can create, of real estate, 25. as to real estate, could enforce as against all but the Crown, 40. forfeitable to Crown, without previous inquisition, 85 ; and see 670, note (i). distinction between vrasts perfected and in fieri, 40. Trustee of freeholds or chattels eeal, could not be, 36. of chattels personal may be, 40. Trustee of real estate for, Crown could sue in equity, 40. appointed, by Court by mistake, 865. ALIENATION. Charity estates, of. See Charities (Alienation). Fbtteebd in trusts, generally cannot be, 87, 572. Limitation until, or limitation over upon alienation, &c., 90. what assignment incurs forfeiture thereunder, 90. Powers, whether trustee can exercise, after alienation of estate, 508 ; and see 202, 203, 227. Ebsteaint against anticijiati^m as to separate property ot feme covert, 572, 621, et seq. See Fbme Coveet. ALLOWANCE. Expense, fob ; see Expenses, 525. Time and Trouble, fob ; see Tbouble, 525. Just allowances to trustees in Bankruptcy, 525, note (. trustee one of a bankrupt firm, 746. trading, if authorized to do so, 749 effect of release given to one co-trustee, 749. where co-trustees severally bankrupt, 749. by moiigagee, 456. made by trustee, except where trust is simple, 205. generally all co-trustees must make, 228. bankrupt trustee, how far liable in equity if he does not make, notwithstanding certificate, 748. Trustee under. See Assignees, supra. Trustee, of. See Proof, sup., Ch. xii. s. 2, p. 208. ground for appointment of receiver, 824. trading as such, liable to, 208. proof on, 297. Trust estate, has no effect on, 209. in clear trust, does not pass to assignees, 209. followed, though tortiously converted, if capable of being identified, 216. or if money payable at future day, 210. whether legal estate passes to assignees when bankrupt has beneficial interest, 211. or where trust doubtful, 212, and see Proof, sup. BAR. to equitable relief, 704, et seq. See Limitation op Suit. in charitable trusts, 763, et seq. BENEFIOU. See Advowson, Presentation. BEQUEST. See Legacy, Legatee. Personal estate, of, how made according to Statute of Frauds, and under present law, 52. passes proceeds of land subject to trust for conversion, 685. Residuary. See Residuary (Bequest). " BESEECHING." may raise a trust, 115. BID. Court will not authorize trustee to, if os. q. t. sui juris, 426. BILL IN CHANCERY. See Inpormation. Appointment op new trustees, bill for, 553. not necessary where suit pending, ib. ; and see New Tp.USTEes. Declaration op trust, whether suiEcient to prove, 60, note (e). Filing, trustees may file, where equities doubtful, 308, et seq.; see Special Case. V. q. t by, may compel trustee to do his duty, 696. or to take legal proceedings, or to sue on a covenant, on first indemnifying him against the costs, 696. Omitting to pray for interest, 298. INDEX, 889 BILL IN PAELIA.MENT. application for, by trustees, 489, and see, 470. opposition to, by trustees, 488. BILL OF EXCHANGE. distinguished from money and Bank notes, 731. followed in equity when, %b. trover for, sent to factor, whether it should be against factor or principal, qy. 211. whether trust-money may be transmitted by, 225. BONA VACANTIA, 142, 252. See Ckown. BOND. Administration bond, 420 ; cohabitation bond, 94, note. Given by trustee for due execution of trust, 222, Indemnity, of, whether trustee should take, 308. on appointment of new trustee, 551. Penalty in, creditor cannot claim beyond, 462. Voluntary, creates a debt, how payable out of assets, 71, note. BREACH OF TRUST. See Bond, Payment into Court, Receiver. Charities, remedy for breaches of trust in, 756. See Charities. Debt, constitutes simple contract, 182, 741 ; secus where trustee has signed the deed and it amounts to a covenant, ib. will now support petition in Bankruptcy, 74. Generally, co-trustee allowing, may be removed, 691. duty of, in case of, 242. Receipt op trustee known to contemplate, 259 ; of executor, 419. after, 412. Retire trustee should not, in favour of one who contemplates, 550. Sale cannot be enforced in breach of, 375. Solicitor wilfully advising or concurring in, is liable to be struck off the Roll, 736. Whether relief for, against deceased trustee can be waived, 803, 807. Liability incurred in certain eases. by enabling solicitor to misapply purchase money, 413, 414. by neglect of trustee to enforce covenant, 739, to keep up insurance, ih., to purchase stock, iJ>. ; to register, ib. ; where trustees have discretion of investing on stock or real security, 296 ; to renew, 325. hj purchasing trust estate, 422. when tortious sale by trustee of land, 738, of stock, 294 ; and see Bankruptcy, Proof in. trustee liable even where loser by breach, 742. not excused by accident in case of misfeasance, 742. cannot set off gain in one trust fund against loss in another, 742. not charged with imaginary values, or more than he received, except where great negligence, &c., 743. Nature of Liability. a simple contract debt, 182, 741. unless trustee accepted under hand and seal, 182 ; but deed must contain words equivalent to covenant and be executed by trustee, 183. where co-trustees, Jomi and several, 743, et seq. Protection against. c. q. t. may have administration of trust confided to proper number of trustees, 690. may compel trustee to observe duty, 696, et seq. may restrain trustee from breach of duty, 697. Remedy for. (1) BY following trust ESTATE INTO HANDS OF STRANGER, Ch. xxix. B. 1, p. 699. into hands of purchaser with notice, or volunteer, 699, 700 ; see Purchaser. not in case of disseisor, 219. 890 INDEX. BEEACH OF TUVST- eontinved. Remedy for — continued. as to case of charity, 701. notice of doubtful equity, 702. purchaser without notice. See PuECHABEK, 700. et seq. purchaser of cJiose en action, 704. time within which estate may be followed, 620, et seq. See Limi- tation. (2) by followingt peopekty substituted for trust estate Ch. xxix. s. 2, p. 730. where conversion tortious, c. q. t. has lien as against trustee or those who represent him in right, 730. case of assets employed in trade, 732. Bank notes, bills, Sec, 731. land. See money, inf. money, 731. invested by trustee in land, 733, et seq. where trust money is only part of the purchase money, c. q. t. has lien for trust money and interest, 734. where it is the entirety of purchase money, c. q. t. may take the land itseK, 734. mixed with trustee's money, c. q. t. has lien on the whole, 732. paid into Bank to simple account with trustee, 733. (3) Personal, Ch. xxix. s. 3, p. 735. (a) Civil proceedings by bill against corporation, 738 ; corporators, 801 ; co-trustees, 743 ; see 801, and where two classes of trustees, see 803. person assuming office of trustee, 740, trustee, 737, et seq. ; for improper lease, 476 ; improper sale, 375 ; improper purchase by trustee, 428, et seq. ; neglect to renew, 325 ; to invest or accumulate, 739 ; tortious sale of land, 738 ; neglect to enforce transfer of stock, 739 ; neglect to sell, 739 ; suffering policy to become forfeited, ii. ; neglect to give notice of transfer of c/wse en aetion, ib. representative of deceased trustee liable, 798, 741, see 801, 802. unless he has distributed assets under sanction of Court, 741. legatees or next of kin of deceased trustee where assets dis- tributed, ii. trustee primarily liable, but has his remedy against u. q. t. gaining by breach of trust, 325, 743, 744. account of mesne rents and profits, 727 ; see 165, 428. where redress for wilful default is prayed, 740. hy proof in hanhruptcy , against bankrupt trustee, 297, 746. in case of co-trustee, 749. And see Bankruptcy, proof in. ty stopping partial Interest of c. q. t. who concurs in breach, 744, and see 325, 800. (S) Criminal proceedings under Fraudulent Trustees Act, 735. HOW barred. See Acquiescence, Concurrence, Confirmation, Laches, Limitation op Suits, Ebleasb. whether by notice, 762. not by constructive notice merely, 768. BECKER. trustee who is a, cannot profit by the trust, 248 of trustee improperly disposing of Exchequer bills, 283, note («). BUILDING. equity of stranger, and supposing land to be his own, 591. knowing it to be another's, ii. tenant building oa landlord's land, ii. ; encouraged by landlord, ii. INDEX. 891 BUILDING LEASES. of charity estates, duration of, 480. with consent of charity commissioners, 480. BUT IN. trustees in bankruptcy and trustees for sale not authorized to, 384. BUY UP. See MoRTOAaEE. trustee cannot buy up incumbrance for himself, 244. BYE LAWS. power of making, will not authorise deviation from original intention of charity, 470. CAPEICB. Court does not act on, 682. of c. q. t. trustee not dismissed from, 692. of trustee, 5.53, 830. CATHOLIC CHAEITIES. Komau. Now within Charitable Trusts' Act, 483. See PAPISTRY ACTS. CESTUI QUE *TEUST. See Charities, Costs, Estate Tail, Feme Covert, Infant, Liability, Lien, Parties, Tenant fob Life. AccoimT, right of c. q. t. to have. See AccotmTS, Mesne Rents and Profits. Acquiescence of. See Acquiescence, and 432, 715, et seq. Actions by c. q. t. See Actions. Alien could only be c. q. t. of real estate till oiHce found, 40. Assignee of, may call for legal estate from trustee, 572. Assignment, how c. q. t. may make, of equitable interest, Ch. xxvi. s. 1, p. 573. c. q. t. may assign even a possibility, and without intervention of trustee, ib. ; and see Assignment, Notice. Attainted for felony, position of trustee, if, 261. Bequest by, what requisites for, 595. Breach op trust. See Concurrence, Protection, and Remedy, inf., and Breach of trust. Chattels, c. q. t. entitled to possession of, during his interest, 564 ; case of chattels in possession of banki'upt, c. q. t. for life, ib. ; whether c. q. t. may let heirlooms for hire, 564. Concurrence of, 760, et seq., 800. See 295, 325 and Concurrence. Conpirmation by, 433, 764. See Confirmation. Consent of. See Consent. Conveyance, when c. q t. should Joira in, 390. See 847, note (e). when and how c. q. t. may require trustee to make, 565 ; and see 572, Conveyance. Death of, on, trustee must pay trust fund to his personal representative, 305. Debt, must sue for, in name of trustee, 709. Devise by, requisites for, 593. Disability of, as afEecting remedy in equity, where subject matter of trust is a debt, 709 ; where subject matter is land and possession adverse, 709, where trust of land and party in possession claims by conveyance from trustee, 710. Dividends, c. q. t. usually put in possession of, by power of attorney, 564. Ejectment, c. q. t. cannot recover real estate in, 558. unless surrender can be presumed, 559. must bring his action in name of trustee, ib. i:. q. t. cannot defend by trustee, ib., but must have recourse to equity, ib. Estate of. under simple trust, Ch. xxv. s. 1, p. 556. special trust, Ch xxv. s. 2, p. 568, and see Special Trust, inf. properties of. See Trust. Failure of, 678. See Failure. Fraud of, 750. See Fraud. Gift, cannot make, to trustee, 245. Ignorance of, 434, 708, 712. See Ignorance. 892 INDEX. CESTUI QUE TnVST— continued. iNQtriBiBS of P. q. t., trustee must answer, 391, 570. Inspection of documents, c. q. t. haa right to, 562. Jus Habendi and Jus Disponbndi of, 656. Laches of. See Laches. Land held adversely, must bring ejectment for, in name of trustee, 709. by party who claims by conveyance from the trustee, as to, see 710. Lease by, 560. Legal Estate, may call for or direct conveyance of, 566. Leoal Pboceedings, may require trustee to institute, on giving indemnity, 696 Pernancy op profits op tbust estate, c. q. t. entitled to, 556, et seq. Possession of chattels by c. q. t. See Chattels, Dividends, swj). of 7'eal estate by. c. q. t. where trust simple, c. q. t. will be put in possession, 556. case where other interests affected, 556, et seq. ^ of c. q. t. subject to a charge, 557. of c. q. t. tenant for life, 567. at feme covert entitled /or sepwrate use, 558. c. q. t. entitled to, in equity only, 558. is at lam tenant at mill, 558 ; see Ejectment, snp. Peivileges of, to be juror, 562. but not now to vote for coroner, 205, 562. to sport ; to vote for member of Parliament, 663 ; see 205. Photection of, c. q. t. may compel trustee to observe acts of duty, 696, et seq. may enforce trust, 568. may have proper trustees, 690. See New Thustebs. trust money paid into Court in what cases, 819, et seq. receiver appointed, in what case, 824, et seq. In case of tenant for life refusing to renew, 696. may restrain trustee from breach of duty, 697 ; though damage not irreparable, 698. security ordered from trustee, 696. may have contingent interest secured, 697 j see 820. Eeal estate of. See Ejectment, sup. Release by, 754. See Release. Remaindekman, extension of remedy of, in equity. See Disability, sup. Remedy of, for breach of trust. See Breach op Trust, Mesne Rents, Payment into Court, Receiver, and Protection, stip. by following trust estate into hands of stranger, Ch. xxix. o. 1, p. 699, et seq. by following property into which trust estate has been converted, Ch. xxix. 3. 2, p. 730. personally against trustee, &,c., Ch. xxix, s. 3, p. 736. for tortious conversion, 790. See Conversion. Eights op, in prevention of breach of trust, Ch. xxviii, p. 690. Shake, aliquot, of c. q. t., 804, 820. Simple trust, Ch. xxv. s. 1. p. 556. Special trust, Ch. xxv. s. 2, p. 568. each c. q. t. entitled to enforce, to extent of his interest, 568. where one c. q. t., or all are unanimous, special trust becomes a simple trust, 569. proceeds until c. q. t.'s election known, 570 ; and see Special Trust. Sub MODO, a purchaser before completion is c. q. t., 126. Tenant at will, e. q. t. is at law merely, 558. Title Deeds, how far c. q. t. haa a right to custody of, 560. Trustee, whether c. q. t. may be, 37, 548, 865. Who may be c. q. t., Ch. iii. s. 3, p. 39 ; and see Alien, Crown. Vouchers, c q. t. may iiispect, but pays for copies of, 391 ; see 492. Will, c. q. t. may dispose of his equitable interest by, 593. CHAMBERS. administration order, at, 810. INDEX. 893 CRAMBEnS— continued. jurisdiction of Chancery judges at, in case of charities — with income over SOI. 695, or of City of London Charities, 761. CHANCELLOR. his control over estates of lunatics and idiots, see 790, et scq. ; and as to Jurisdiction of Lord.i Justices under Trustee Act, see 850, note (J), may issue commission de lunatico inqmrendo, under Trustee Act, s. 52, p. 872, of Great Britain sitting in lunacy, has no jurisdiction over lands in Ireland, 873, note (c). may in certain cases be visitor, 465. application to, how made, 465. CHANCERY, COURT OF. has jurisdiction of trusts, 16. has no jurisdiction over king's conscience, 29. its jurisdiction over corporate bodies, 463, et seq. to appoint new trustees under Bankruptcy Act, 693. on failure of trustees, 678, et seq. how far it can act vicariously, 680. in favour of what objects it will execute a power imperative, 684. CHANCERY DIVISION OF HIGH COURT OF JUSTICE, administration of trusts assigned to, 17. and causes and matters affecting portions, 373. CHAPEL. Endowment of, how transmissible at law, 75. MiNlSTEB OF, in case of Dissenters may be removable at will of congrega- tion, 470. how elected, where no directions in deeds of endowment, 469. in possession, retained till cause heard, ib. is tenant at will, of trustees, iJ. Trusts of, trustees cannot change, 468. Teustebs of, how appointed where no direction in deed of endowment, 469. CHARGE. On land ceases as soon as raised, though misapplied, 391 ; not until raised, ib. Cautions as to, when assigned to attend, 605. Debts, or legacies, of, in will, where land sold by Court under, surplus treated as realty, 127 ; raises implied trust in devise, &c., 123. where it implies power of sale, 190 ; see 188, and 402, et seq. See Receipts, (Charge of Debts). Devise by trustee in general terms, its operation on, 199. does not prevent legal fee in mortgage from passing under " securities " for money, 201. on devise distinguished from exception from devise, 135, et seq. Distinguished fxora partial declaration of trust, 129 ; and see Resulting Trust. Duplication of, 114. Bxecutob, power of, to sell real estate to raise charge, as to, see, 402, et seq. FlKST, cannot be kept on foot by creator of second charge, 600. InhekitANCE, whether it can be made to attend, 605. Keeping on foot, mode of, 600 ; eflEect of, 602 ; special cases of, 604. Limitation, late Statute of, mere charge is not an express trust within, 719. secus as to charge coupled with duty, 720. not ban-ed by, whilst secured by unbarred term, 721. Mbrgek of, 599, et seq. See Mebgek. OwNEK op, purchasing equity of redemption, 601. PowEE TO, not a usual power, 112. PuECHASBE, how affected by, 699 ; paying off before completion does not merge charge, 600. may insist on keeping up, 600. Trustee for sale, when he may apply purchase money in paying off, 495. 894 INDEX. CHARGING ORDER, of Stock, Shares, &o., under 1 & 2 Vict. c. 110, s. 14, p. 656. by whom made, 657. does not define the amount of interest charged, 657. where made on partial interest of cestui qite trust, dividends are still pay- able to the trustees, ii. proceedings for having the benefit of, cannot be taken before six months, ib. secus where to protect the interest of the judgment creditor, ib. effect of, as to other incumbrances, 658. CHARITABLE TRUSTS, synonymous with public trusts, 20. CHARITABLE TRUSTS ACT, 1853. See Chaeitt Commissionees, 474, 480, 761 ; Amendment Act, 762 ; Trusts Act, 1860, 763. CHARITABLE USES. Feauds, statute of, within, 48. PUECHASEE without notice from purchaser with, bound by, 701. Stattjtk of, commission under, 757. CHARITIES, 463. See Inpoemation, Moetmain, Visitoe. AccoxmT, 763, et seq. See Remedy, inf. Advowsons held in trust for parishioners are not, 75. Alienation, of charity property by trustees, not permitted, 473. whether absolutely, or for reserved rent, ib. not permitted by granting long, renewable, or reversionary terms, ib. permitted under special circumstances, 474. leases, sale, or exchange can now be made with consent of com- missioners, 474, 481. Altbeation of scheme or purpose, not permitted, 465. notwithstanding power to make bye-laws, 470. trust originally intended will be preserved, 468 ; and see 470. but letter may be contravened, where spirit of trust preserved, 471. Act of Parliament necessary for total alteration, 470. how application for Act authorised, ib, ; and see 763. Bebach op teust, by retainer of Charity Funds, 473. See Inpoemation, Remedy, inf. COMMISBIONEES OP INQUIEY into, 761 ; see 757. CONSTEITCTION OP TEUSTS POE, 465, et seq. ; more liberal than in ordinary trusts, 550. for " chapel," 466 ; " repairing and rebuilding," 472. " free grammar school," " free-school," (see 3 & 4 Vict. c. 77), 471. loans, 473. "master, finding a,'' 472. " minister," 469. " poor, relief of," 472. " promotion of godly learning," 467. rates, in aid of, 466. "repairing," 405, 465. salaries, when augmentation allowed, or reduction ordered, 472. " worship of God," where executed in favour of established form of religion, 467. where in favour of dissenters, 468. species of religious worship i& prima facie determined by trust deed, 468. and if not defined, then by usage, 468 ; and see 7 & 8 Vict. c. 45, s. 2, ib., and note (e) ; see also 691. Duties op trustees poe, Ch. xxi. p. 463. See Alienation, Alteration, s^ip. Exemption of certain, from Charitable Trusts Acts, 480. Incoepoeated, government of corporation belongs to visitor, 463 ; and see title Visitoe. INDEX. 895 CHARITIES- continued. INCORPOEATED — Continued. management of revemie subject to Chancery, 464. new donations distinguished from original endowment, as respects visitatorial power, 464. trustees for charities may now become, 481. INEOLMBNT, conveyance to new trustee requires no, 562. Investment of accumulations, whether in purchase of land, 475. on mortgage, 476. of moneys arising from sale or exchange with consent of com- missioners, 474. Jurisdiction ob' Court, over, 463. Legal Estate, power of majority of trustees to pass, 481. Limitation, Statute of, as to Charities. See Eemedy (V), inf., 723, 763. Leases of chaeiit lands, Charitable Trust Acts, how to be made under, 480. consideration for, fines, rents, &c., 476, et seq. should be adequate, when granted, 477. whether fines might have been taken for, 476. direction by founder that rent should not be raised, not taken literally, 477. tenant who dealt fairly not turned out, 478. allowance to, for permanent improvements, 480. granted at undervalue, who shall compensate charity, 478. covenants for trustee's private advantage should not contain, 476. discretionary powers to grant may be controlled, 614. duration of building leases should not exceed 60 to 99 years, 480 ; see now, 481. husbandry leases, should not exceed 21 years, 479 ; see now, 481. for years determinable on lives, have been sanctioned, 479 ; but see 481. so, for lives on payment of fines, 480. under Charitable Trust Acts, 480. governors cannot lease to, or in trust for, one of themselves, 476. relations of trustees, to, unadvisable, ii. renewable, as to, 473. Mesne bents and pkomts. See Eemedy (i), inf. New trustees, appointment of, 460, 691, 692, 693. as to appointment by the Court under Trustee Acts, see p. 863. delegation by Court of power to appoint, 692. direction to appoint when reduced to a given number, 501. Notice, doctrine of, how far applicable to, 701 . Payment or transfer, of money, stock, &c., held on trust for, to official trustees, by order of Commissioners, is an indemnity, 316. Eeal Estate, bequest to, of proceeds of, where good, 779. Ebalty, conveyance op, upon trust for, what formalities necessary under 9 Geo. 2, u. 86, p. 473 ; see 86. Eemedy for beeach of trust. {a) Mode of, Ch. xxix. s. 4, p. 766. ordinarily by information, ii., where by Mil, ib. note (1). relators joined on account of costs, 757. commissions under Statute of Charitable Uses, ib. by petition under Eomilly's Act, ib. construction of Act, 758, et seq.; cases vrithin, ib. proceedings under, 769. must be signed by the Attorney or Solicitor General, ib. Attorney- General must be a party to subsequent pro- ceedings, 760. 896 INDEX. CSAniTmS—contrnved. Mode of — continued. subsequent proceedings may be by motion, 760. appeal lies direct to the House of Lords, ib, under Charitable Trusts Act, 1853, 761. by equity judge at chambers, where income above 30Z. per annum, or below, if within City of London, 761. by District Court of Bankruptcy and County Court, where income not above 501. per annum, 761. appeal from, when allowed, ib. previous consent of Charity Commissioners to proceedings, when required, 761. (J) Extent op, 763, et seq. Account of mesne rents, what, directed, 762, et seq. Compromise with sanction of Attorney-General, when allowed from hardship, 795. Corporation property, how attached, 766. Inconvenience, how far applicable as a bar, 763, et seq. Limitations, old Statute of, charitable trusts not within, 763. within late stat. 723, 763. MistaJie, trustees acting from, not made to account, 765. Parish, no retrospective account against, 766. Presumption, with regard to corporations and individuals, 765. Removal of master, &c., possession how recoverable on, 469, note (/) Rents, as to raising, 477, and see Leases of Charity lands, sup. Resulting Trusts, inf. Resulting Tbitsts, how far legacies to charities result, 137, et seq. not arise on gift in favour of charity, though object fail ; but Court directs application, 142. increased rents applicable as original gifts, 143. exception to the rule, ib. Sale op lands op, 473. Schemes poe, under Romilly's Act, 759. power of Commissioners to establish, under Act of 1860, 763. Trustees op, entertaining opinions contrary to founder, removed, 691. majority of, binds minority, 228, 474, 481. Court sometimes appoints part of number to act as quorum, 229. how satisfied as to fitness of, 692. jurisdiction of Court in respect of, see Trustee Act, s. 45, p. 870. may make themselves a body corporate, 481. Trusts fob, synonymous with public trusts, 20. Trust for such charity as trustees may appoint, is valid, 94. Visitor, see title Visitor. CHARITY COMMISSIONERS. Advice, may give, and persons acting under are indemnified, 762. Attobnet- General, they may certify cases for his interference, 760. Exchange op lands, may authorise. See Investment, post. Exemption from control of, what charities were, 482. Inquiries, might make, 760, Investment of moneys arising from sale or exchange by, 475. Leases, may authorise building, kc, 481. trustees of charities must have sanction of, for lease longer than 21 years, ib. New trustees, appointment of, their sanction required for, 696, 761. OppiciAL trustee of charity lands, who is, 762. ■of charity funds, ib. ; see 316. Oedbrs, powers to make, under Charitable Trusts Act 1860, 763. Proceedings, before taking, their consent where necessary, 761 . Sale op lands, may authorise, 474. See Investment, siip. Scheme, new, may provisionally approve, (to be submitted to Parliament), 470, 763. CHARTER, charities by, 463 ; subsequent grant of, to private charity docs not oust the jurisdiction of Court, 463. INDEX. 897 CHATTELS. See Administration, Chose bn Action, Deed, Executor, Exe- cutory Trusts, Failure of c. q. t., Porpbitueb, Investment Money, Policy. Assets in hands of executor, 198, et seq., 672, 674. See Executor. Custody of, Gh. xiv. s. 2, p. 260. Devolution op, to administrator, or executor of tnistee, 1 96. Disclaimer op, 177. Execution, taken in, 644, et sej. whether for debt of trustee, 197, 215 : see also 212, and see Execution. Executory trust of, in articles, how construed, 102, and see 99, et seq. in wills, ib. See Executory Trusts. Interest, a chattel, only passes, where trustees take rents for raising a sum 190 ; and see 194. under devise, subject to late Wills Act, 1 95. Limitation at lam by deed, how far chattels capable of, 75 ; by will, ib. chattels may be subjected to, by way of trust, 75. limited by way of trust to A. and his heirs are personal estate, 84. cannot be entailed, ib. ; and see Executory Trusts. Personal, duties of trustees of, Ch. xiv., p. 254. V. q. t. entitled to possession of, 564. money, notes, &c., distinguished from other chattels, 731. trust of, not within Statute of Frauds, 47. once created by parol, not afEected by subsequent parol declaration of settlor, 48. cannot be created by parol in case of mill, see 52. voluntary settlement of, good against purchasers, 67. when void as against creditors, 67. Real, of feme covert. See Feme Covert. assignment of legal estate in, must be by deed, 573. to settlor himself and others, 588. may be limited by way of trust, 75. prerogative probate, when required, for, 197. trusts of, within Statute of Frauds, 47. volmitary settlement of, good against purchaser, 67. Eeputed ownership of, 212, et seq. ; see 564. Settlement of, what, the Court will direct, 103, 110. Special trusts and uses, chattels are subject to, 4. Tenant fob life of, his rights in, 564. Trusts of, 4. See Limitation, sup. of chattels, not afEected by Statute of Uses, 6. CHILD. See Illegitimate Infant. purchase in name of, isprimdfacie an advancement, 151. See Advancement. CHOSE EN ACTION, 62. See Feme Covert, Reduction into Possession. now assignable by statute, 63, 575, 588. assignee of, takes subject to equities, 575. assignment of, by trustee, pomer of attorney how to be qualified on, 890. husband's power over wife's, 23, 611. not generally deemed chattels within order and disposition claixse, 212. notice by purchaser of, how it gives priority, 579, et seq. See Notice. purchaser of, from trustee, holds subject to same equity as trustee, 704. reversionary, 611. trttst once considered in the nature of, 8, secvs, afterwards 10. trustee of, should reduce into possession, if possible, 254. vesting orders as to, see Trustee Acts. CHURCH. trust for by will, how carried out in equity, 75 ; and see Advowson, Chapel. CHURCHWARDENS, AND Overseers. See Parish Peopeety. CIRCUITY. Court of Equity avoids, 723, 730. trustees may avoid, 485. CLAIM". See Bill in Chancery. adverse to c. q. t., trustee should not make, 253 ; see 834. by third persons, 307. M M M 898 INDEX. CLASS, presumption of release weaker in case of, 712, 753. GLBEK. election of, 76. See Paeishionees. CO-ADMINISTBATOES, on same footing as co-executors as to liability for each other's acts, 242. CO-EXECUTOB. See Co-tbustbe, Executoe. COHABITATION, bonds, 93, 94. COLLATERAL. equitaile pmvers may be, 499. COLLECTOR. trustees may employ, of debts, 524, of rents, 623. COLONIES. Enactments passed at home, when they are bound by, 49. Lands in, within Trustee Act, ss. 54, 56, p. 873. Teust may be enforced of personal property in, 43, how far of real estate in. 43. COMMISSION. See Trouble. De Lunatioo Inquiebndo, Court may issue, see Trustee Act, 1850. o. h2, p. 872. BXECUTOES in the East Indies, whether they may charge, 519. Moetgagebs, Teustees, (Sec, cannot charge, 519. secus as to trustees for absentees of estates in West Indies, 519. may be allowed to trustee by settlor, 521. may be stipulated for with c. q. t. 522. or with Court before acceptance of trust, 523. COMMISSIONERS. of charity. See Chaeity Commissioneks. COMMITTEES OP LUNATICS. may not charge for time and trouble, 519. have no interest, and therefore office does not survive, 230. cannot make repairs without previous order, 498. cannot sign receipts for money, 312. COMMON LAW. COUETS have no jurisdiction of trusts, 16, 197 ; see 189, note (a). qu. whether they can notice breach of trust, 33, 551. Ceeation of Teusts at, Gh. V. s 1, p. 45. COMMON. Tenaj^cy in. See Joint Tenancy, Tenancy in Common. COMPANY. See Paeties, 801. Conversion of shares in, where bequeathed in succession, 265 . Public, does not unusually take notice of trusts of shares, &c. 813. Resteaining oedee under 5 Vict. c. 5, s. 4, applicable to shares in, 814, 817. Trading, powers of managers of, 497. COMPENSATION. from person who benefits by breach of trust, 325, 744 ; see 294, 800. next of kin of infant, not entitled to, for necessary outlay on real estate, 793. COMPLICATED. where account is, relief in equity on legal title, 725. trust, whether within Statute of Frauds, s. 10, p. 674, 1 & 2 Vict. c. 110, ». 11, p. 654. COMPOUND INTEREST. when charged, 301, 302, 328. COMPOUNDING. with creditors, whether trustee thereby unfit for office, 691, note (J). debts, powers of trustees as to, 494. COMPROMISE. See Compounding. with Attorney-General, in accounts of charitable trusts, 765. COMPULSORY. payment into Court, Ch. xxxi. s. 4, p. 819. See Payment into Couet. INDEX. 899 CONCEALMENT. of breach of trust, will make co-trustee liable, 242. of fraud, prevents bar to equitable relief, 710, 717, 727. of right to estate, account carried back to accruer of title in, 730. CONCUREENCE. c. q. t. by, estopped from proceeding against trustee, 760, et. seq. secus where e. q. t. a, feme covert or infant, 750 ; except in case ot fraud, ib. or as to feme covert who has separate estate without restraint, 751 ; but as to feme who has general power of appointment, see 751, and conf, 755. or where c. q. t. acta in i/jnorance, 750. CONDITION. part of the common law, and may be fulfilled by feme covert, 33. legacy for charity charged on devise by way of, creates resulting trust, 138. creates a trust in equity, 123. CONDITIONS OP SALE. what trustees for sale may impose, 384. CONFIDENCE. inperson explained, 2, see 504. gradually relaxed as to uses, 9. in what sense a trust said to be a, 14. words expressing testator's confidence may raise a trust, 115. CONFIRMATION by C. Q. T. of breaches of trust, general requisites in, 434, 7.50, 755. feme covert cannot make, except as to separate estate without re- straint, 434, 755. infant cannot make, 434, 750, 755. CONFLICT. of duty in trustee, 521. CONSENT. where required must be given before act, 281. by 0, q. t. to ireach of trust, efEect of, 745 ; and see Concurrence, effect of, in statutory powers of investment, 275. feme covert, of, as co-petitioner with her husband, 28 1 . feme covert, of, required by trust, 290. lord of manor, of, to vesting order, see 801. purchase to be made with, 777. power to be exercised with, of cs. q. t. where one dies, 505. CONSIDERATION. See Chakities (Leases). Geneeally existing debt is a sufficient, 450. necessary, is not, to support a confirmation, 434. what sufficient for release or waiver, 755. is not necessary for a trust perfectly created, 60. See VOLUN- TAET Assurance. will, consideration is implied in, 114. Meeitoeioxjs, agreement ox imperfect irwsi founded on, how far enforced,7l cannot be urged by parent against his child, 71 note («). will not support assignment by felon, 27. Nominal, will not prevent a resulting trust, 127. VALtTABLE, where it exists, trust not averrable, 41, 42 ; ti-ust enforced, 60. deed founded on, may be void as against creditors, 68. expense incurred, in respect of property, amounts to valuable consideration, 66. to whom consideration of marriage extends, 799. CONSTRUCTION. Devise of, to uses, 194. Legal Estate, as to, taken by trustee, Ch. xii. s. 1, p. 186, et seq. ; and see Lboal Estate. PowBES, of, 499. et seq. See Powees. Teusts, of, governed by same rule as construction of legal estate, 96. for charities. See Ghaeitieb (Construction), 465, et seq. executory, in marriage articles, 99, et seq. in wills, 105, et seq. See ExBCUTOEY Trusts. M M M 2 900 INDEX. CONSTEHCTIVE TEUSTS, Ch. X. p. 160. See Tbadb. Bankbuptcy op TEtrSTBB, how affected by, 212. Bill in Pakliamekt, money paid for not opposing, how treated, 169. Cases of agents factors, &o., 166 ; see 162, but see as to agent, 170, 420. attorney violating his duty, 169. decree for sale, person to convey under, 848, note (c), and see 862, note (e). equitahle waste, 167. holder of title deeds how far constructive trustee for remainderman, see 170, 560. notice of trusts, constructive trustee by means of, 170. on renewal of leases, by executors, trustees, &c., 160 ; but see as to executor, 162. mortgagee, 161, but see 163. tenant for life, or other having partial interest, 161. yearly tenant, 161 ; how far by tenant o< roiK, or by sufferance, 162 what circumstances will not vary rule, 162 ; and see note (I), expenses of renewal by tenant for life, 163. how far annuitants should contribute to fine, 164. trustee's lien for, 163. mesne rents and profits and sub-fines, trustee accounts for, 165, 724, et seq. rcjiemal, right of, trustee cannot sell, 162. reversion, how far trustee purchasing, a constructive trustee, 166. terms of assignment, from trustee to c. q. t., 164. vendor of shares, after contract, 848, note (e). volunteers and purchasers with notice from trustee, remedy against, 165. Costs, order to sell estate for payment of, whether it creates a trust within the Trustee Acts, 861, note (e). Decree, how it creates, see Trustee Act, ss. 29, 30, p. 861 ; and Extension Act, s. l.p. 874. Implied Trusts and Trusts by Operation of Law, distinguished from 95, note (1). Mortgagee in possession, how far subject to, 169. Eeliep as to, barred by laches, 165, 719. Statute of Limitations, 704, 719. Solicitor, acting on instructions, is not, 738. Statute of Frauds, how far it affects, 171, etseq. 733. distinction between trust arising on a will and on a conveyance, 172. CONTINGENT INTEREST. See Possibility, equitable, c. q. t. may assign, 672. ovraer of, entitled to have it secured, 697, secus, where possibility only, 697. costs of filing bill for, 309. lands, in, disposable under 8 & 9, Vict. c. 106, 780, note (e). CONTINGENT LEGACIES. not a satisfaction of portions. 369. CONTINGENT EEMAINDERS. Abolished and re-enacted, 338. Destruction of, how formerly possible, 335 ; how now, 337. Effect of Fines and Recoveries Act, 336 ; of 8 & 9 Vict., c. 106, pp. 108, 338. Freehold, where legal in, must be supported by particular estate ; secvs in trusts, 74. Trustees foe preserving, duties of, Ch. svi. p. 355. See Waste, inf. may purchase trust property, 423. Trustee for Preserving, Limitation to, how usually framed, and object of, 336. " and their heirs," whether it can be cut down, 1 92, et seq. whether necessary since 8 & 9 Vict. u. 106, pp. 108, 338. a special trust to preserve not a use within Statute of Uses, 187. Eeceivbe, trustee to preseiTe may be, 248. "Waste, duty of trustee to preserve, to prevent, 338. " CONTINUANCE OF TEUST." power during, 605. INDEX. 901 CONTRACT. See Agrbbmbnt, Covenant, Specific Pebfosmancb. hyfeme covert as to separate property, C25, et seq. under Fines and Eecoveries Act, 625, note (r). private, trustees may sell by, 363. purchase, for, of fee by A, if A. die, executor pays price, but heir entitled to purchase, 772. sale, for, raises implied trust, 124. of laud by A., if A. die, fee descends to heir, price belongs to executor, 772. CONTRIBUTION. charities founded by means of, their trusts, how expounded, 468. co-trustees, amongst, on breach of trust, 744. claim for, may now create specialty debt, it. none where fraud, ih. seevs m favour of trustee in bankruptcy of bankrupt trustee, 749. how worked out, 800. rule of, in renewable leaseholds, 325, et se/i. See Renewable Leaseholds. CONTROL. how far Court will control powers, 511. trustee must not put trust property out of his own, 261, et sea. CONVENIENT SPEED, whai it means, 256. CONVERSION. See Gavelkind, Reduction (into possession), doctrine of, when directed by will, 780. Implied in oases of personal property given in succession. (a) where property is masting, as leaseholds, long annuities, &c., 264 ; see 294. seciis where intention that property should be enjoyed in specie, 264, et seq. e. g. by specific bequest of leaseholds or stock, 264. by mention of rents, 264, et seq. ; and see as to ' dividends,' ih. by direction to convert, &c., at period subsequent to testator's death, 265. {V) where investment not masting, but not authorised by Court, 265 ; see 294. e. g. foreign bonds or stocks, shares in csnals, insurance, rail- way companies, &c. 265. where stoc% (other than 3^. per cents.) specifically be- queathed, 294. India, assets in, as to, 295. (c) where estate cannot be profitably converted tenant for life takes interest on the value, 269. Income accruing before conversion, proportion of, allowed to tenant for life after testator's death, 266, et seq. tenant for life of a residue not entitled to income of property applied in paying legacies, 266. where accumulation directed, and investment, he takes income from end of first year, 266. where investment directed he takes from testator's death, if funds then invested, otherwise from time of investment, if made in first year, 267. before conversion, he takes reasonable fruit of property, 267, see 268, note (a). he must refund if he take undue proportion, 294. and if he is insolvent, semble trustees liable, 295 ; and conf. 744. rule where discretion given to trustees as to time of conversion, 269, 779. rule for determining proportion of tenant for life where the property to be converted is reversionary, 269. Land to be converted taken as money, 140, 777. See Resulting Trust. e. g. passes by general bequest of personal estate, 777. 902 INDEX. COSVE-RSIO^S— continued. Land to be converted &c. — continued. alien may take proceeds, 778 ; goes to personal representative of party entitled, though conversion postponed till after his death, 777 ; who however is only entitled to the rents from the decease, ih. ; is subject to proiate duty, ii. charity, where it may be taken by a, 779. elect, party entitled may, to take as land, 569, 781. See Election. how election presumed or expressed, 788. felony, proceeds forfeitable for, if land in fact sold, 778 ; secus after expiration of punishment, ib. imperative, conversion must be, 779. ■mortgagee selling vmder power of sale, who entitled to surplus pro- ceeds ; 779 ; where mortgagee is trustee for sale, 780. next of kin have no right where land is at home, 778. land not considered at home if actually conveyed to trustees, ib. option to purchase, whether exercise of, effects retrospective con- version, 780. Money to be laid out on land taken as land, 768, et seq. See Resulting Trust. e. g. subject to curtesy, 768 ; quaere, whether to domer, 768. was not personal assets, 770. devised by description of " lands,'' 769 ; not (formerly) by infants will, %b. but formerly bequeathed by unattested will operating by election, 789. escheat, not subject to, 769. forfeiture, not subject to on conviction of felony, 668. so where paid into Court under Act of Parliament, 778. htitchpot, not brought into by child receiving orphanage share, 770. judgment, bound by, 770. personal assets, not accounted, and (formerly) not liable to simple contract debts, ib. heir of A. on whom lands were to be settled, when entitled to money, ib. et seq. (1) entitled as against .stranger. e. g. bequest by stranger to purchase and settle on A. and his heirs, and A. dying before purchase, 770 ; and see note {g). deposit of money in hands of trustees (whether by A. or stranger, &c.), ib. covenant by stranger on marriage of A., ckc, 771. (2) entitled as against A.'s executor (e. g. under covenant by A. on his own marriage) where at A.'s death third person has equitable interest, 771. otherwise not so entitled, i. e. where money " at home " 773. money considered " at home " if received from trustees 775. qucerc whether entitled under voluntary covenant by A. to lay out money on laud, to be settled on A. and his heirs, 775. elect, party entitled may, to take as money, 670, 781, et seq. See Election. how election presumed or expressed, 788. imperative, conversion must be, 776 , and see 770, note {g). considered so, where uses declared exclusively applicable to real estate, 776. notwithstanding power to invest on other security, ib. mere direction to convert at "^request " &c., 776, 777 ; unless where "request" &c., intended to be substantial ingredient, 777. INDEX. 903 CONVERSION— coMNjiMtrf. Tortious, of trust estate by trustee. does not affect rights of c, q. t. 790 ; see 730. case of infant c. q. t., 793. See Infant (Conversion), lunatic c. q. t. 790, et seq. See Lunatic (Conversion), right of 0. q. t. to follow substituted property, Ch. xxix. s. 2, p. 730. See Follow. Will, confined to purposes of, 780. CONVEYANCE. See Geant, Trustee Acts. Court, by order of, under Trustee Acts, 866 ; form of, 856, note (e). decree for, makes legal owner a trustee within Trustee Act, see ss. 29, 30, pp. 861, 862 ; and see 848, note (c). eqititatle estates, of, usual form of, 573 ; precautions in, 581, et seq. parties to, when c. q. t. should join in, 390 ; and see 847, note (c). when administration suit pending, 392. when trustee to bar dower, 567. person to make, under decree. See Decree, svp, person to require, under Trustee Acts. See Trustee Extension Act, s. 2 p. 875. by trustee at direction of c. q. t., 665 ; of assignee of c. q. t., 572. whether compellable to convey in parts, 565 ; and see note (i). by what description, 565 ; not bound to convey fee simple to tenant in tail, ii.- liability for refusing, il). under order of Court of Common Pleas, 33. how to be framed in purchases by trustees, 441. CONVICTION. of felon, c&c, 26 ; of trustee, 219 ; does not work forfeiture of trust estate, see Trustee Act, s. 46, p. 870. appointment of new trustee on, see Trustee Extension Act, s 8, p. 877. and Forfeiture. Act regulating property in case of, 27. COPIES of deeds, what, new trustees are entitled to, 652. of Touchers, whether c. q. t. entitled to, 391 ; of accounts, 571. COPYHOLDS. Admission, fine on, paid by trustees, 206 ; at what rate where co-trustees 207. admission of trustees of a term of years, 206. charged on trust estate, how raised, 333. Court, assurance by order of, uuder Trustee Acts, 860 ; and 861, note (a). Customary Freeholds, copyholds not to be distinguished from, 217. Descent of, same in trust as legal estate, 42, 671. Devisable, how far, at common law, 594. Devise of legal interest in, formerly by will unattested and unsigned, 595. nuncupative will of, whether valid declaration of the uses of a sur- render, 47, note (c). of equitable interest, 594 ; although no preceding surrender, ib. copyholds now subject to late Wills Act, 595. disclaimer, efiiect of on laud, 208. Dower Act does not afEect, 606. Entail of legal and equitable estate in, where possible, 42, and note (c). where no custom to, how to be settled, 42. Pines on admission, 206, 333. Frbbbbnch, estate of trustee subject to, at law, 196. equitable interest in copyholds not subject to, 606. For Lives, how they devolve under 1 Vict. c. 26, s. 6, p. 146. how far purchase of, in name of stranger, raises resulting trust, 144. how far, in name of child, 153 ; see 156, and Purchase, inf. Lord bound by entry of trust on Court roll, 217. Purchase, trustees with power to, should not purchase copyholds /o»' lives. 439. 904 INDEX. COPYHOLDS— co»«mMcA Resulting Teust. See for lives, sup. SuEEENDBB formerly required to pass legal interest by will, 594. on what principle svpplied in equity ; see Devise, siip. Trust may be created of, 42. Trustee of, within Trustee Act, 1850, 848, note (c). Uses op, not within Statute of Frauds, 47, note (c). Vesting order as to, see Trustee Acts. CORONER. trustee in possession votes for, 205, 562. c. q. t. in possession at one time voted for, ib. CORPORATION. See Ovbesbbbs, Paetibs. Beeach of teust, by, 738 ; see 30. property of, how attached for, 766. Bye-laws, may make, but not so as to defeat object of foundation, 470. C. Q. t., may not be, of lands, vrithout license from Crovm, 40, 85 ; see 30. Civil, might, before Municipal Corporation Act, alienate their property and create trusts, 22. secus now without consent of Lords of Treasury, 22, 30. are now trustees of their property, 30. visited hy Crown through Court of Queen's Bench, 465. Costs, instances where visited with, 476, 833. Distinction between corporations and individuals as affected by con- structive notice, 7G5. Ecclesiastical, bound by restraining statutes, 22. Blbemosynaey, where Crown visitors of, visitatorial power committed to Lord Chancellor, 465. Information, amenable to Court of Chancery by, 30. Municipal, 693. Property op, on dissolution, 252, note {d). Trust foe. See c. q. t. sup. Teustee, maybe, 9 ; of j'^i'sonalty, and how of realty, 30, 31. Use, could not stand seised to, 2, 30 ; .secus as to trusts, ili. CORPUS. what is to be regarded as, and not income, 563. COSTS. See Expenses. Generally. apportionment of, where one of several trustees is plaintiffi, 812. as between party and party — where trustee defendant to bill by stranger which is dismissed, 827. as between solioitor and client — allowed in matters between c. q. t. and trustee where fund in Court, 828. cs. q. t., and trustees defending in same interest, one set of costs allowed, 811. conveyance, of, from trustee to his cestui que trust, 568. co-trustees, of, severing defence, 811. contributions to, between, 744. creditors of, in suits for administration as between plaintiff and resi- duary legatee ; as between plaintiff and co-creditors, 829. disclaiming trnstee, of, 176, 830. doubtful construction, case of, 309. See Contingent Intbebst. excessive, how moderated, 527. executors in creditors' suit are entitled to, in preference to plaintiffi, 827 ; rule at lam different, 827. See Of Trustees (J), inf. where personal assets are exhausted, whether may recover out of testator's real estate, 827. deprived of, where having assets they deny it, 888. where, there being no doubt, they denied the relationship of the next of kin, 834. where interest is given against, qy., 834. extra, trustee who has been paid between party and party, where allowed, 526. fraud, trustee of deed tainted by, whether allowed his costs, 830. hiishand, entitled to, as defendant, where feme covert sues for separate use, 813. INDEX. 905 COSTS— continued. Generally — continued. interest on, not allowed, 527. lien of trustee for expenses, 528, but see 529, note {d). lunatic^ mortgagee or trustee, 850, note (b). new trustees, of appointing, 554, et seq. ; and see under Bankruptcy Act, 693, and Trustee Act, 1850, s. 51, p. 871, note (S). petition, trustee cannot obtain order for, by, after decree passed, 829. portio/is, on raising, 364. purchases in, by trustees, 440. recovered, how, by trustee, as against e. q. t. or trust estate, 828, 829 ; see 525. rehearing, none for costs only, 829. relators joined in information for, 756. sale, order for, to raise costs, whether it creates a trust within Trustee Act, 861, note (c). under decree for, petition for vesting order, &o., 874, note (J). solicitor, his costs when trustee, form of order for, 828 ; and see Solicitor. as to c. q. t. obtaining taxation against, 527, note (c), 641. speeifin performance, in suit for, 826, see 381. taxation of, 627, 641. tmst to pay, how construed, 533. Trustee Acts and Trustee Relief Acts, under. See Teusteb Act, Tetjsteb Relief Act, (Costs). void deed, trustee of, where entitled to costs, 830. Of Trustees, &c. , in suits between trustees and cs. q. t. 828. ExECXJTOE fixed with costs. denying assets when they exist, 833. improperly retaining balances, 832 ; and see 298. putting next of kin to proof of relationship, 834. qu. whether, when interest given against them, 834. («) Trustee allowed, 308, 828. to be paid out of trust fund or by c. q. t. 828 ; see 525, 531. and where fund in Court, as between solicitor and client, 828. where allowed also " charges and expenses," ib. solicitor, how far allowed professional charges, ib. not appearing at hearing, and decree nisi against him, may pay costs of day, and have cause re-heard, 829. secus, after decree passed, ib. parental influence, protecting from, 832. (b) Trustee deprived op, or pixed with costs, or portion. accounts, refusing to render, see 571 ; keeping confused, or mis-stating, 833. answer, severing improperly, 811. appointing new trustee after bill filed sometimes pays extra costs, 515. breach of trust. See Misconduct, inf. convey, refusing to, at c. q. t.'s direction, pays costs, 666 ; see 572. defaulting, 822. denying falsely plaintiff's claims, pays costs, 833. disclaiming by answer, 830. documents, suppressing, pays costs, 834. douMful point of lam, discussing, 832. fraud, trustee of deed tainted by, whether allowed his costs, 830. ignorance, falsely pleading, pays costs, 833. instituting suit for his private etuis, pays costs, 833. leasing charity lands with covenants toi private advantage, deprived of costs, 476. misconduct, guilty of, pays costs or portion thereof, 830, et seq. ; what, where misconduct discovered in progress of suit, 832 ; where proved only in part, 831 ; or trivial, 832. in purchase of trust property at auction, 831 , see 422. mistalte, committing, sometimes pays portion of, sometimes deprived of, sometimes allowed, 831. neglect, as to proceedings caused by trustee's, 527 ; see 831. neglecting to make inventory, deprived of costs, 184. 906 INDEX. COSTS — continued. Of trustees, &c., in suits, &c. — oontimied. (S) Teusteb depkivbd of, &c. — continued. purchasing trust estate improperly, pays costs, when, 431. retaining balance. See Executor, sup. retiring, from caprice, pays costs, 654. setting up title of his own, or trust different from existing one, pays costs, 834 ; see 253. severing in defence, as to costs of, 229, 811. void deed, trustee of, where entitled, to costs, 830. Trustees, of, in suit between trustees and strangers, 826, et sec/. trustee refusing to join as co-plaintiff, mulcted in, 811. trustee on same footing as ordinary plaintiff or defendant, 826 ; see 381. made defendant as necessary party and contesting plaintiff's claim, is not entitled to costs if plaintifi successful, 826. secus when trustee submits, 827. case where plaintiff fails in suit, 827 ; see Generally, sup. ; and see as to frame of suit, 811, et seq. trustee to bar dower not entitled to, in foreclosure suit, as against mortgagee, 827 ; and see Generally, sup. CO-TRUSTBES. See Solicitor. Answee, they should generally join in, 811 ; or in suing, ib. Affidavit of, on payment into Court under Tbubteb "Relief Act, 836, note [b). Breach of teust, each is responsible to c. g_. t. for whole liability and costs, 743. each is liable for concealing or permitting, 242. co-trustee permitting, liable to be removed, 691. Contejbution between, 744, 800. Disagreeing, Court will exercise power, 680. receiver appointed, 826. Duties, may not delegate discretion to co-trustee, 222. may not lend trust money to co-trustees, 287. may not permit trust money to remain in hands of co-trustees, 234, et seq. 257 ; and see 240. may not trnst co=trustee even though a professional person, 184; see 226. Indemnity clause, its effect as to co-trustees, 242 ; as to special clause, 243. Joint, their office is, 227 ; see Survivorship, inf. e. g. they must jointly give receipts for principal moneys, 227, 411. but any one may receive dividends or rents, 229. they must all prove in bankruptcy (generally), 228. in public trusts majority binds, 228. Court sometimes allows a part to form a quorum, 229. Legal proceedings, should not sever in, 229. Liability, one is not liable for the acts or defaults of another, 231, see 743. nor for ]oming pro forma in receipts, 232. unless where money improperly raised, 232. and see Breach of Trust, sup. Lien for overpayment on interest of co-trustee, 744. Majobitt, how far acts of, binding, 228. Meecantilb Law Amendment Act, how affected by, 744. Parties, how they must join in suing and defending, 811. necessary, see 796, et seq., and Parties. Payment to, safe to pay into a bank to their joint account, 258. SOLICITOE AND COUNSEL, co-trustees should employ the same, 229. SUEVIVORSHIP OF OFFICE, 230, and ib., note (e), 380, 803. notvrithstanding power to appoint new trustees, 231 ; and see 380. COUNSEL. advice of, 305, 568 ; as to disclaimer, 176. trustee allowed fees paid to, 626. COUNTY COURT. Administers trusts where value not more than 500^., 317. JUEISDICTION OF, in charities whose income under 501., 695, note (c), 761. appeal from, to Chancery, when, ib. INDEX. 907 COUNTY COVUT— continued Payment into, as to, 837, note (a), 845. Peocbedings in, under Trustee Acts, 878. COURT, proper, as to trusts, 16. See Chancery, Common Law, Spieitual, New Tettstebs, Powbes. advice of, how obtained by a trustee, 309, 516. assignment of fund in, 586. Common Pleas, of, can dispense with husband's concurrence in execution of deeds by wife, 33. will authorise a sale to the trustees for sale, 426, 427. as to surplus on sale by order of, 1 27. trust money may be paid into, 315, 835. supreme court of judicature, 17. COVENANT. See Action, Advantage, Beeach of Teust, Lease. " Geant, Baegain, and Sale," under Yorkshire Registry Acts, has force of covenant for title, 567. Form of, in conveyances, &c. by devisees of lessor who has covenanted for renewal, 386, note (/). executors of one who has agreed to take a lease, ih. mortgagees and trustees for sale, 387 ; for production of deeds, ib. on assignment of lease, 388 ; see 164. Not to sub on bond, compared with release, 749. To STAND seised to use of stranger in blood, not enforced in equity, 70. To SETTLE peopeety, 124, 734. acquired during coverture, 124. such property as he shall die seised of, 124. To SEGUEB AN ANNUITY, how far a charge, 124. To TEANSFEE STOCK, liability of trustee for not enforcing, 739. Trustees foe sale, by, 386. to produce deeds, 387, see note {d). Voluntary, carries consideration at law, 70. not specifically executed in equity, 70. payable out of assets before legatees, ih., note (^). to purchase lands to be settled on A. and his heirs, qu. whether A. 'a heir takes under, 770, ct seq. COVEETUBE. See Feme Covert. CRASSA NEGLIGENT^., 270. See Neglect. CREATION OF TEUST. By act of party, formalities required for, Ch. v. p. 45. See Averment ; Feauds, Statute or ; Teansmutation of Possession ; Wills, Statute of. Feauds, might have been bj parol, before Stat, of, 45. and now by simple note in writing signed, ib. Object peoposbd by, Ch. vii. p. 74. See Lawful, Unlawful, Teusts. Parties to, Ch. iii. p. 21. See c. Q. t., Settlor, Teustee. Peopeety, what, may be subject of, Ch. iv. p. 42. See Property. CEEDITORS. See Assets, Costs, Debts, Devisee, Heir. Acquiescence, when bound by, in purchase by trustee, &c., 432 ; see 715, 752. Administrators, how protected against, 317. Adoption of trust deed by, 457. Confirmation, where bound by, 434. Execution, creditors taking out, may purchase goods sold under, 427, 428. taking trust estate under, bound by trust, 215. Executors, how protected against, 317. Fraud upon, by agi'eemeut for preference, 458. Purchase, may, on sale by the Sheriff, 428. Separate property of feme covert, their remedies against, 632, et seq. Subsequent, may override voluntary settlement, when, 68. Teust, their rights cannot be defeated by means of, 88, et seq. for, when irrevocable, 450. Voluntaey settlement, is void against, when, 67, et seq. CREDITORS' DEED. See Debts, Trusts for payment of. generally, 444. fraudulent, 445. valid, 448. whether revocable or irrevocable, 450, et seq. 908 INDEX. CROWN. See 756, Foepbitubb ; Frauds, Stattjtb op ; Pension. Alien's trust of real estate, as to, 40, 85. See Alien. BONUM VACANS, Grown can sue for without inquisition, 40. where c. q. t. dies intestate and without next of kin, Crown takes residuary personalty, 142, 252. but executor where appointed, takes as against the Crown, 54, 252. C. Q. T., Crown may be, 39. Conversion, excluded by doctrine of, 778. Debts, registration of, 658, note (/). Frauds, Ktat. op, qy. hound by, 48. Inquisition, when necessary to perfect title of, 40. Prizes, taken in war, vest in, 22. grant of, to trustees for distribution revocable until distribution, 22. Eights of, in case of conviction of felons, 27. Trust, limv it may create, 21. declaration of, by Crown, 46 ; in favour of, 39. power of enforcing against Crown doubtful, 29. Use, can declare, by letters patent, 46. Visitor, where, 465. Will of Sovereign, 22. CURTESY. Admitted op an equity of redemption or trust, 215, 606. unless where husband an alien, 606. where /cme covert had equitable seisin, ih. notwithstanding trust for separate use, 607. of money to be laid out on land, 606, 768. why curtesy and not dower of a trast, 608 ; see 11. Dower, distinguished from, 608. Excluded, whether it can be, 525. Not admitted of a use, 3, nor where possession of stranger.adverse to wife, 606 Seisin, what required to give, 606. Tenant by, bound by trust, 10, 196, 215 ; not by a use, 3. CUSTODY. of title deeds. See Title Deeds. of trust chattels, Ch. xiv. b. 2, p. 260. CUSTOM. restraining surrender to use ot will, 594, note {g). Op Kent. See Inpant (Feoffment). CUSTOMARY FREEHOLDS. are now regarded as copyholds, 595. Devise op, how effected, 595. Equitable interest in, how devised, 595. Statute op Frauds, are within, 595. CY PRBS. the Court will execute settlement, in marriage articles, 100. DAUGHTERS. Advancement poe, presumed, 157. Included under " heirs female," " heirs of body," or " issue," in articles, 101, 108. how the limitation will be executed, 101. DEBENTURES AND DEBENTURE STOCK, 282. DEBTS. Generally. achnomledgment of, by one trustee, 228. assignee of, is bound by equities affecting assignor, 575, et seq. charge of, the effect of, as to conferring the fee in devises, 193. executor may not sell to pay his own debts, 417, qu. if he be specific or residuary legatee, or jointly with others, 418. husband not liable for debts of wife, where, 24, specialty and simple contract. See Specialty, Simple Con- tract. INDEX. 909 BEBIS—contimied. Generally— continued. trust to pay, implies power to give receipts, 397 ; unless debts sche- duled, 398. trustee may compound, 494 ; may not buy up for himself, 244. now apportioned between tenant for life and remaindermen, 267. Trusts for Payment of, Ch. xx. p. 444 et seq. Cebatbd by act intbe vivos, 444, et seq. {a) void where actual fraud, 444, 445. under old law, person not trader might have created, of all or part of property for all or some creditors, 445. (S) trader could not assign mhole property upon, 445. See Bank- EXJPTCY (Assignment), but assignment was valid as between the parties themselves, 447 ; and was not void as against creditors, if no debt due at the time, ih. ; and in other cases, ib. late Bankrupt Act, 449. Irrevocable, trusts are, where by way of security to, or arrangement with creditor, 450. Voluntary trusts, how far revocable, 460. creditor will not be bound by, if terms of deed not strictly ob- served, 449. whether within 13 Eliz. c. 5, 453, 67. Ckeated by will, 444. for payment of debts out of personalty, nugatory, 444, 455. seciis out of realty, 444. Trustees for Payment of, their duties, Ch. xx. ». 3, p. 453. Debts, what payable. (1) in trust created by deed, debts owing at date thereof ; (2), by will, debts owing at death of testator, 463 ; unless where con- trary intention, 453. construction of " all debts then owing by him and which affect the estates thereby conveyed," 454. creditors who come in within a certain time, clause is directory 456 ; and see 457, note (a), must do some act to testify acceptance, 457. but creditor who repudiates deed cannot afterwards take benefit of it, 467. where trustees have discretion to admit creditors' claims 457. infant, debts contracted by, for necessaries, 465. Limitations, Statute of, debts barred by, at date of deed, or of tes- tator's death, not revived by trust, 454 ; statute will not run afterwards, 454 ; as to trust by will of personalty, see 455 ; as to trust to sell and pay debts where no part of the produce of sale has been set apart, 466. of mortgagee wit?i covenant, or other creditor with specific lien, 456. time, equity will relieve as to, 456. trustees cannot contest debt for which they have permitted the creditor to sign, 457. void, secret agreement by a debtor with some creditor, is, 458. INTEEEST, bond creditors cannot receive more than amount of penalty, 462. specialty debts carry interest to time of payment, even though released by creditors' deed, 461. simple contract debts, on, not allowed under trust, 460. exception to rule, 461. unless creditors have- stipulated for it, 461. Court allows, on all debts, out of surplus assets from date of decree, 464, note (J). Limitations, executor may before decree pay debts barred by Statute of, 493. or retain his own debts, though so barred, ib. OEDEE or PAYMENT, 458. creditors paid before legatees, 458. 910 INDEX. TfEBTS—contimied. Order of payment — continned. all creditors ^aiApa/fi passu, in absence of contrary directions, 458. whether trustee and executor may pay his own debts first, 459. Resumption by trustees of property after parting with it, 458. DECLARATION. Principle op rejecting, when not testamentary (as to wills), 52. See Wills, Statute op. Trust, op, how made at common law, 45. See Averment. how under Statute of Frauds, 47 ; in purchases by trustees, 441. See Frauds, Statute op ; and Voluntary Assurance. DECREE. has the same effect as a judgment, 654 ; but not decree for account merely, ib., note {a). Amendment op, petition for, by c. q. t. who was abroad, 804. Conveyance, for, under Trustee Acts, 861, 874. Costs, trustee should ask for, before decree passed, 829. Exchange, por, makes legal owner a trustee within Trustee Act, see s. 30, p. 862. Lien, creates upon real estate, 677, note (c). Partition, por, makes legal owner a trustee within Trustee Act, see s. 30, p. 862. Sale, for, makes legal owner a trustee within f'^stee Act, see s. 30, p. 862 ; see also 848, note (c), 862, note (e). Court may make vesting order after, see Trustee Extension Act, s. 1, p. 874. Specific pbkpormance, for, makes legal owner a trustee within Trustee Act, see s. 30, p. 862. Suit followed by, paralyses powers of trustees, 497, 515. secus if suit but no decree, 497, sed vide, 515. Trustee, does not release, from his diities, 498. DE DONIS, Statute. Estate pur autre me, not within, 574. Estate tail, created by, 573. DEED. See Infant, Lunatic, Title Deeds. Acceptance op trust, whether it should be by, 178. Chattel interest in land (other than copyholds), assignments of, un- less by deed, Yoid at law, 573. Disclaimer should be by, 175. of married woman's interest in land must be by deed acknow- ledged, 177, 178. Equitable interests usually assigned by, 573. Parties to, where good as between, though void as against others, 448. Will contrasted with, 62 ; and see 75, 172, 190, 192. instances of deed in form, testamentary in character, 153, note (>). DEFENCE, equitable, 660. DEFENDANT. See Costs. cannot read answer of co-defendant, 800. how c. 3'. t. and trustees ought to be brought before the Court as defendants to suit, 806, et seq. where legal process lost through default of, equity aids, 727. DEFINITION. of a trust, 13. of a use, 2. DELAY. See LACHES. DELEGATION. Appointment op attorney or proxy, distinguished from, 227. CONVDYANCB OP TRUST ESTATE does not transfer powers, 202 226. DIBCEBTIONARY TRUST, of, actually void, 226. though to co-trustee or co-executor, 222. Executors, distinguished at law and in equity, as to, 226. INDEX. 911 DELEGATION— coM«i»«erf. Of office of tkubtbe, not permitted, 222. unless by settlors' direction, 223. or where moral necessity for it, e. g. transmission of money, 224, et seci. when trustee acts as agent, lie cannot legally retain money, 223. case of power to give receipts, 411. Trustee for sale may not delegate trust, but may employ agent, 383. DELIVEKY, OF Deed. See Infant (Deed). Of MONEY, VOLUNTABY, whether any resulting trust upon, 128. DEMURRER. See Statute of fbauds. defendant may avail himself of Statute of Limitations by demurrer, 711; whether when bill charges fraud, ii. ; not in case of presumption, ib. DENIAL, false, by answer, &c. See FALSE. DEPOSIT. See Moetgage (Equitable). by way of lien not subject to Bankruptcy Act, 213. on sale by auction, duties of trustees as to, 391. Trustees for purchasing, may make, 437. DERIVATIVE EQUITIES. Trustees not liable for, without notice, 304. DESCENT. See Hbis. Broken, by devise upon trust, case of, 670. Half Blood may now inherit, 671. Proceeds from sale of gavelkind lands, ii. Trust descends as legal estate, 670. though there be lex loci, ii. so in copyholds, 671. possessio fratris of, 596, 671. " DESIRE." may raise a trust, 115, 530. DEVASTAVIT of executor, how it afiects co-executor, 236, et seq. Trustees, improperly releasing debt, liable for, 494. DEVISE. See Copyholds ; Customary Freeholds ; Frauds, Stat, of ; "Wills, Stat. of. Consideration, a devise implies, 114. Equitable interest passes by, 593. in copyholds, 694. General Words where legal estate in trustee passes under, 198, 199. not when charge of dehts or direction to sell, 199. nor where complication of limitations, as devise to A. for life, or in tail with remainders, 201. or devise to woman for separate use, 200. passes where estate contracted to he sold, 204 ; by devise of " my real estates " " to A. and his heirs for his and their own use, &c." 200 ; devise of two as tenants in common in fee, 200 ; to A. and her heirs to be disposed of by her as she may think fit, 200. Implied by the word "trustee,"' 191. Mortmain, devise upon secret trust in, whether void at law, 59 ; and see 56. " Securities for Money," mortgage in fee passes under, 201. Several, to, good as to one, void as to another, 56. to alien and British subject, upon trust, 37. Trust, of, 593, et seq, ; in freeholds, ib. in copyholds, 594 ; in customary freeholds, 595. Trustee, whether he ought to devise trust estate, 201, et seq. ; see General Words, sup. Void, is not altogether, merely because one of the devisees means to execute unlawful trust, 56. secus, if the devise had been procured by fraud, 57. DEVISEE. Creditors, how far devisee a trustee for, 247. Debtor, of, liable to specialty creditor, 183 ; now to simple contract debts, ib. 912 INDEX. DEYISE'E— continued. Devise without any eefeeenoe to Trust, devisee takes beneficially, 53. even though testator leaves unattested declaration of trust, ib. exceptions in case of fraud, 65 ; in case of engagement to execute unlawful trust, 66 ; but see 67, 58. Incumbrance, efEect of devisee's purchasing, 247. Eenewing Lease, where devise subject to debts, &o., holds for benefit of all parties, 161. Secret Trust, devisee must discover, 55, 57, 58. Trust, whether devisee can execute, where trust confided to trustee and "his assigns," 202. Trustee, devisee of, is bound by trust, 215. DEVOLUTION. See Descent. Equitable Estate, of. See Trust. Legal Estate, of, in trustee. See Legal Estate. DIRECT TRUSTS. Ch. viii. s. 1, p. 95. See Express Trusts. DIRECTION" as to maintenance, 120. trustee required to do an act at direction of c. q. t., 612. DIRECTORS of trading company, power of, to borrow money, 496. DIRECTORY. Clause in Will for settlement of chattels, 110. Powers, 501. DISABILITY. See 433. Persons under, when barred by Statutes of Limitation, 624, 625 ; when by late Limitation Act, 709, 718 ; see 729. Trustee, of, statutes remedial of ; see Trustee Acts. DISAGREE. See Co-Teubtees. DISCHARGE. of trustee from office, Gh. xxiv. p. 534 ; and see 221 ; see Relinquishment. DISCLAIMER and ACCEPTANCE of the trust, Ch. xi. p. 174. Copyholds, of, as affecting lord of manor, 208. Costs of disclaiming trustee, 176, 829. Counsel, trustee may take opinion of, as to disclaimer, 176. Deed, should be by, not by wav of conveyance, 175 ; but see note (jj), and 411, 508. Effect of, 178 ; as to parties to suit, 801 ; as to personal contracts, 178 ; on powers, 178, 506 ; as to receipts, 411. trustee who has disclaimed may act as agent to the trust, 176. may pwrcliase trust property, 423. Equity, in, \yj answer, or at iar, 176 ; see Costs, siq>. by evidence of conduct, but this imprudent, 176. Failure op Trustee through disclaimer, relief of c. q. t. against 678. Feme Covert, by, 177. Law, at, what disclaimer will divest legal estate, 176, et seq. as to chattel interest by ^jaroZ, 177. as to freeholds by deed, 176. hj parol (semble), 177 ; by mutter of record, 177. under the Stat, of Uses. 177. Protector op Settlement, by, under Fines and Recoveries Act, 178. Receiver, not appointed in consequence of disclaimer of one of several trustees, 825. Release by trustee with intention of disclaiming operates as, 508. Trustee who has disclaimed may purchase trust property, 423. need not be made a party to suit, 801. Who may Disclaim. whether heir of trustee can, 174. whether trustee who (1) accepts one devise can disclaim another,181 . (2) disclaims trust of will, can accept bounty under same will, 175. trustee having accepted, cannot renounce, 221 ; and see AC- CEPTANCE. DISCOVERY. of secret trust when enforced, 56, et seq. ; see Devisee, Heir. INDEX. 913 DISCRETION. See Discretionaey Tbusts, Fbmb Coveet, Infant. of trustees as to creditors' claims, 457 ; conversion, 269, 776, 779 ; main- tenance, 513 ; oijects of charity, ib. ; objects of trust, 683, et sea. ; renewal, 320. DISCRETIONARY TRUSTS, 18, 19. See Powers Impekative. Court, how far it controls, 511, et seq. ; and see 457, and POWERS. delegation of, void, 226 ; even to co-trustee, ib. ; whether exercisable by trustees appointed by Court, 411. for sale, purchaser cannot question exercise of, 377. " DISPOSING POWER." what is not included in term, as to judgments, 653, note (6). DISENTAIL, 336, 573. DISSEISIN. may be of a trust, 596, et seq outstanding term attending inheritance gained by, 220, note (1). DISSEISOR not bound by a trust, 15, 219 ; and see 721. nor by a use, 3. DISSENTERS. See Chapel. Court will execute trust for, if not contrary to law, 468. how trusts of funds contributed by, are expounded, iJ. DISTRESS, efEect of as to confirmation, 433 ; laches, 433 ; release, 756 ; waiver, 712. DISTRIBUTION. Trust Fund, op, Ch. xiv. s. vi. p. 304 ; et. seq. ; see Release, Trustee Relief Acts. under power of selection, 687. time of, regulates vesting of portions, 340. DISTRINGAS. Ch. xxxi. s. 3, p. 813. Charging order operates as a, 656 ; see Judgment. Effect op, where no trustee, 588. Origin of, 813. Restraining order under 5 Vict. c. 5, s. 4, and practice as to, 814, rt seq. applies to stock, shares in the Bank or any other company, 817. special grounds necessary to obtain it, 814, et seq. Writ op, under 5 Vict. c. 5, s. 5, and practice as to, 815, et seq. applicable only to stocli transferable at the Bank, 817. efEect of, and how and when discharged, 816. employed sometimes for general safeguard, 817. DIVIDENDS. payable to one of several co-trustees, 229. apportionment in respect of, on change of investments, 285. where c. q. t. is tenant for life of, usually received by power of attorney, 564. DIVORCE. efEect of, on wife's clioses en action, 305. on wife's separate estate, 641. vesting order against husband after, 875, note (J). DOMICILE. Personal Estate follows the person, 43. Person domiciled abroad generally not a fit trustee, 37 ; see 543, 546, 690. DOUBTFUL EQUITY. Purchaser, whether bound by notice of, 702. Where it exists, trustee should decline to act without sanction of Court, 308 ; will be allowed costs of application, iT>. ; c. q. t. plaintiff, who fails to establish such claim, if doubtful, allowed costs, 309 ; seeus, in case of contingent interest, 309 ; application to Court under Lord St. Leonards' Act, 309. DOWER. Attaches to legal estate vn feoffee to use, 3. to legal estate in trustee, 8, 196, 215 to equitable fee subject to executory devise, 610. dowress bound in equity by trust, 9, 15, 215. N K N 914 INDEX. DOWB^R—continuea. Attaches — continued. formerly not dowress of trusts or equity of redemption, 11, 606, and why, 608. whether of money to be laid out on land, 768. not of a use, 3. Devise bt Httsbaud, whether a bar to, qy, 609, note (Z). DoWBB Act, 609, 769, does not apply to copyholds, 606, 610, but does to gavelkind lands, 610. DoWEB, uses to bar, no bar to widow married since the late Dower Act, 610. DowEBSS may have account in equity on legal title, 729. Intention to bar, expressed in deed dated before Dower Act inoperative, 610. Trust, out of, formerly none, 606. Trustee cannot be required to join in conveyance, semble, 567. gets no costs in foreclosure suits, 827. DRUNKEN. where executor, and in great poverty, receiver appointed, 824 ; see 698. DUPLICATION. of charges, 114, 442. DURATION. of private trusts limited to a life or lives in being and twenty -one years, 20, otherwise of piMic trusts, ib., see 78. trust exceeding this limit void in toto, ib. DURESS. effects of, as to acquiescence, confirmation, or release, 756 ; see 435, 712. DURHAM. powers of Trustee Act extended to County Palatine of, 857, not in lunacy, ib., note (c). DUTIES OF TRUSTEES. See Bill, Co-teustebs, Executors, Investment. Acceptance of office, consequent on, 182. Advantage, trustee must not derive, from trust, 243. Answer : as to joining in, 811 ; Breach op trust by co-trustee, on, 241 ; see Co-trustee. • Care, trustee should take same, of trust property as of his own, 260. Charities for ; see Charities. Chattels, personal of, C'h.xiv. p. 254. Continqent remainders, for preserving, Ch. xvi. p. 335. Control, trustee must not place trust premises out of his own, 261. Convey, when trustee must convey at direction of c. q. t., 566, 572. Custody of trust chattels, as to, Ch. xiv. s. 2, p. 260. Debts, for payment of, 453 ; see Debts. Decree, not released by, 498. Delegation, trustee must not make, of trust, &c., 222 ; see Delegation. Dispute the trust, trustees must not, 253 ; see 833. Distribution of Trust Fund, ch. xiv. s. 6, p. 304. Expenses, to keep account of, 527. Impartial, should be, as between cs. q. t., 355 ; conf. 280, 382, 569. Information, to furnish to u. q. t. 391, 571 ; to Court, as to trust, 836, note (S). Insurance, as to, 261, 489 ; see 739. Investment, as to Ch. xiv. s. 4, p. 270 ; see Investment. in bank must be paid in to trust account, 261 . Lend to co-trustee, trustee must not, 287, nor leave money in hands of, see 234, et acq., 240, and Control, supra. Mix, trustee must not, trust premises with his own, 263 ; or stranger's, 292. Moral rights against cs. q. t., 253. Mortgage, leading on, 285. how much they should advance, 286. Notice, trustee of equitable interest should give to holder of legal estate, 254 ; see 579, 739. Outstanding property and cJioses en action, to call in, 256 ; see 739. Petition by trustees for opinion of Court, 309. Protector, duty of bare trustee who is, 337. Renewal of leaseholds, Ch. xv. p. 318 ; see Renewable Leaseholds. INDEX. 915 Ebpaieb, 486 ; see 792, (and conf. 498), and 794. Sale, foe, Ch. xviii. p. 374 ; See Sale. Sbttlbmbnts, impeachable, trustees must assume validity of, 253. Spbculatb, trustee must not, with trust property, 245 ; see 300. Suit by trustee, 242, 308 ; trustee concurring in, see 812. Summons by trustee for advice of Court, 309. Teadb, trustee must not employ trust money in, 282, 300 et seq. ; see 732. Teustbb may be compelled to perform duties, 696. EARMARK. meaning of term as applied to money, &c., 210, 731. EAST INDIA COMPANY. securities of, 295. EAST INDIA STOCK. not a Government stock, 261 ; trustee may nam invest in, 284 ; and see as to stock created under the Indian Loan Act, 272. EAST INDIES. conversion of assets in the, 296. whether executors in, may charge commission, 519, and 520 note (a). ECCLESIASTICAL COURTS. have no jurisdiction of trusts, 17. EDUCATION. See PooE. EJECTMENT. See Actions. cannot be brought by o. q. t., unless surrender presumed, 559. may by trustee even against c. q. t., ib. equitable defence cannot be used in action of, ib. ELDEST SON, who regarded as, 340. ELECTING. clerk, mode of, under trusts for parishioners, 78. members of Parliament, who may vote in, 205, 563. ELECTION, by c. q. t., as to land to be converted into money, and vice versa, see 568, et seq. By whom made. Feme covert, general doctrine of, as to, 781, and see ii. note (^). cannot elect by act in pais, 781 ; might by fine, 782. and as to money to be laid out in land, bound by consent in Court of Equity, 782. under Pines and Recoveries Act can dispose of estate, or interest in land, or money to be laid out in land, 782. even contingent interests by 8 & 9 Vic. u. 106, s. 6, p. 782, note (e). reversionary interest in money to arise from sale of land, 783. or semble in legacy raiseable out of land, ib, when tenant in tail, see imf. Infant cannot elect, 781. Lunatic cannot elect, ib. Remainderman, how far he may elect, 783. subject to right of prior owner to call for conversion, ib. Tenant in commwn, &c. cannot simgly elect against sale of Ms share of land to he sold, 784. may singly elect to take as money 7m share of money to be laid out, 784. where portionists are put to, 360. Tenant in tail may elect by sitit as to money to be laid out in land : — 1 . Where remainder limited to himself, 785 ;. 2. With consent of remaindermen, ii. ; see also 786. or even without suit, 786 ; and semble, even since Fines and Recoveries Act, 787. by petition, under 39 & 40 Geo. 3, c. 56, p. 786. under Pines and Recoveries Act may dispose of land, or money to be invested in land, 787. money paid as compensation for entailed property by a Railway Company will be paid to tenant in tail without disentailing deed, 788. N N N 2 916 INDEX. EJjEGTWN— continued. How MADE, by express declaration, 788 ; as to a will, see 789. eyen hj parol, as between real and personal representatives, 789. Presumed, 788 ; what knowledge of e. q. t. necessary, 789. {a) where land to l>e converted ; e. g. by c. q. t., granting lease, reserving rent to himself and his heirs, 789 ; keeping land unsold, 788 ; entering into possession, and taking custody of title deeds, il>. (J) wlmre money to 2>e converted ; e. g. bye. q. t. changing securities, ^c, 788 ; receiving the money, 788 ; not by mere receipt of income, 788 ; from c. q. t.'s will (formerly even unattested), 789. Until made, special trust proceeds, 570. ELEGIT. See Judgment. Equitable interest, bound by, 647 ; formerly held otherwise, 10, 647. what portion of trust estate might formerly be taken in execution under, 649. of equity of redemption, 650. of trust in nature of mortgage, 651. of entirety under 1 & 2 Vict. c. 110, s. 11, p. 663, et seq. whether elegit must be sued out before application to equity, 662. Estate by, in trust toxfeme covert, 617. Origin of, 644. Remedy op, at law, by possession, 649, note (/). as to trust estate under Statute of Frauds, 652, et seq. under 1 & 2 Vict. c. 110, p. 653, et seq. Tenant by, not bound by a use, 3 ; is by a trust, 215. " EMPLOY," query word, implies direction to invest in trade, 282. ENDOWED SCHOOLS ACT, 472. ENFRANCHISEMENT, trustees empowered to make, 497. ENTAILS. of foreign lands, as to, 44. Barred, how, 336. Equitable, how barred, 573. customary estates, in, depend on custom to entail legal estate, 42, and see note (c). history, of, 573. " ENTREATING." may raise a trust, 115. EQUITABLE DEFENCE, 17, 559, 560. EQUITABLE MORTGAGE, 291. EQUITABLE ESTATES. See Merger. even though only a possibility, are assignable, 572. pass by assignment, 63 ; or by a direction to the trustees to hold upon new trusts, 64. assignment of, how made, 573 ; precautions in, 581, et seq. compared with legal, 42, 74, et seq., 95. curtesy of, 11. dower of, no, 11. entail of, there may be an, 42. fee may be created without word "heii's," 95. freehold, in remainder, do not require a, to support them, 74. purchasers, when bound by, 700, et seq. a series of, 568 ; see 802. pass by devise, 593. under old law were devisable by parol, 593. under Statute of Frauds, 594. to be recognized in all the courts, 17, 560. Mortgage op. See Mortgage, Equitable. Powers, over. distinguished from legal, 499. simply collateral or annexed to estate, 499. Restraint on alienation of, void except where u. q. t. is feme covert, 572. Transfer, of, notice should be given of, 254, 579. Trust of, where a valid, created, 63. Waste, aiising from, 166, ct seq. ; and see 488. INDEX. 917 EQUITY. Bars to claims in, 704 ; see Limitations, Mesne Rents. Assignee of equitable interest takes subject to every, 575, et seq. CouBTS alone have jurisdiction of Trusts, 16. can act in personam, 43 ; and see Jurisdiction. Doubtful, 308, whether purchaser bound by, 702. Equal, meaning of the expression, 588. Personal, 43, note (c). Priority in, 588, et seq. Kbdbmption, op ; see mortgage, mortgagee, mortgagor. assets, is, 675. barred by lapse of time when, 707. chattel, of a, may be taken under equitable fi.fa., 646. copyholds, of, where formerly liable as assets, 650, note (1). distinguished from a trust, 218. escheat, does not, 670. forfeitable for treason, 667. judgment creditor entitled to sale of entirety of, 650. sale of, trustee for, may sell subject to mortgage, 378. subject to curtesy, formerly, not to dower, 606 ; and see 608. trustee should not advance money on, 291 ; should not purchase, 439. may release valueless equity of redemption, 495. rules of, to prevail, where there is any conflict between law and equity, 17. Secret, 590. Settlement, to, 612 ; see feme covert. Trustees of mere equity are not necessary parties to suit, 802. ESCHEAT, 215, Chap, xxvi., sec. 10, p. 669. See Failure of c. q. t. Copyholds not properly subject to escheat, 217 ; nor customary free- holds, lb. lord bound by trust entered on the roll, 217. Equitable interest not subject to, Ch. xxvi. s. 10, 669, see 11. Equity of redemption, none of, 674. Felony, on, 26. Law of, now altered by late statute, 27. Lord does not take mortgage in fee on mortgagor's death intestate without heirs, 670. whether bound by a trust, 11, 16, 216, et seq. ; not by use, 3. Money to be laid out on land not subject to, 769. Mortgagee or trustee, estate vested in, does not escheat ; see Trustee Act, s. 46, p. 870 ; as to beneficial interest of, see s. 47, ib. Heal estate escheating is assets in the hands of the lord, 218. Trust in fee of lands is not subject to, 669 ; but the trustee retains the estate, 670. ESCROW, what constitutes an, 66. ESTATE. Pur a utre vie, see Pur autre vie. Trustee, what, he takes at law, Ch. xii. p. 186 ; and see Legal Estate. ESTOPPEL. Court of equity rejects, 239, 179. EVIDENCE. See Affidavit ; Frauds, Stat, op ; Parol ; Trustee Acts. EXCHANGE. Charity lands, of, with consent of commission, 474. Decree for, makes legal owner a Trustee within Trustee Act, see h. 30, p. 862. Power of sale and exchange a " usual power," see 113. whether it authorises partition, 378. signing receipts, 402. EXCHEQUER. Court of, whether it could relieve c. q. t. as against royal trustee, 29. transfer of equitable jurisdiction to Court of Chancery, 30, note {d), 813. EXCHEQUER BILLS. are a " Governcment security," 283. EXECUTED TRUSTS, what are, 97, et xeq. how construed, 97. See Executory Trusts. EXECUTION. Chattels, of, hj fi.fa., 644. See Judgment. from what time chattel interests in land are bound by, 645. 918 INDEX. EXECUTION— <;fl«. case where executor's creditor has express notice of unpaid debts of testator, 418. sale, &o., for executor's private advantage, 419. of chattels specifically bequeathed where pur- chaser has notice that testator's debts have been discharged, ih. where misapplication probable, ib. how far safe to deal with executor after long interval from testator's death, ib. who may impeach fraudulent sale, &c., by executor, 421 ; and see Decree, sup. Probate, can sell and give receipts before, 421. purchaser not bound to pay purchase money until, ib. Promise of subscription, 493. Purchase, executor may not purchase assets, 427. Eeceipts. See Co-executor, Powers, sup. Receiver appointed where husband of executrix out of jurisdiction, 824. Release, entitled to, on final settlement of accounts, 313. Retainer, executor has a right of, though debt barred by Statute of Limitation, 493. Renewal, of lease by, 160. Renounce, having accepted cannot, 221. Renunciation by, effect of, 196. 920 INDEX. EXEOVTO'R—oontinned. Rbsiduaey estate, where entitled to the, 54. Sale or mortgage, by, 408, et seq., 414, et seq. Stock, how transferred by, 31 . SuEVivOEBHip. See Co-executor, sup. Time, allowed, in breaking up testator's establishment, 489 ; in paying legacies, 489. Teadino with assets, 300, see 245, 248, 282. Teustee, executor of, bound by trusts of chattels, 215. specifically bequeathing trust property, qy. whether executor, with specific legatee, can execute trust, 203, conf. 226. when executor converts himself into a trustee, 182. executor of, whether he can sign receipts, 422. EXECUTORY BEQUESTS, see 110. BXECUTOKY TRUSTS, see 98, 110, 702. Construction of, in Marriage Articles, see 99, et seq. Chattels, " heirs of body," applied to, construed limitation to eldest son as heir, and if no son, to daughters, as co-heiresses, 101. notwithstanding death of son or daughter, in parent's life- time, unless contrary implication, 102. agreement to settle on same terms as real estate, what limitations it authorizes, 102, et seq. Joint tenancy in articles construed tenancy in common, 104. Real Estate, " heirs of body," or " issue," applied to, construed first and other sons in tail as purchasers, 100. Exceptions — where husbatid's property limited to heirs of body of wife, 100 ; qjuere, however, since Pines and Recoveries Act, ss. 16, 17, ii. where articles, by limitation of part of estate, to parent for life, remainder to first and other sons in tail, or otherwise negative construction, 101. " heirs female " construed daughters, 101. WOEDS Supplied in articles, 104. Construction of, in Post Nuptial Settlements, 105, 111. Construction of, in "Wills, 105, et seq. Chattels, how executory trusts as to, construed, 110. semhle, that chattels bequeathed as heirlooms, with real estate, vest absolutely in first tenant in tail, though he die an infant, 110. but a limitation over on tenant in tail dying under 21, is lawful, and may probably be inserted where testator manifests inten- tion, 110. how far they can be tied up, 110. Real Estate in wills (a) heirs of the iody construed, to give estate tail to A. c. g. in trust " for A. and the heirs of his body," 105. " for A. and the heirs of his body and their heirs" 105. "for A., for life and after his decease to the heirs of his body," 105. estate " directed to be settled " upon A. and her children, and if she die roitlwid issue, 105. upon A. for life remainder to his heirs male and the heirs male of every such heir male, 105. executory trust for A., and trustees not to give up their' estate till proper entail is made to the heir male by him, 106. devise to A., with directions that estate should be entailed on heir male, how construed, 106. (i) heirs of the body construed first and other sons, &c., where intention shown, 106. as by directing settlement to A. for life, " without im- peachment of waste," or with " limitation " to preserve " contingent remainders," 106, on feme covert for life for separate use, 106. INDEX. 921 EXECUTORY T'RVST&—co)itmued. Ebal bstatk in wills — cont'mned. or by direction to settle on A. and the heirs of his body as counsel sliall advise, &o., 107. or by directing to settle on A. for life without impeach- ment of waste with remainder to his issue in strict settlement, 107. where testator directs settlement, but formally declares limitations, 109, qutere. Generally. Alien, Crown cannot take advantage of executory trust for, 40. BoEOTJGH English Lands, as to, 671. CiTETEST admitted of, where money to be laid out in land, 606. Daughtbbs included in "heirs of body," or "issue," 101, 108. Duplication of charges, 114, 442. Gavelkind Lands, as to, 109. " Heies of the body," and " issue," distinguished, 107. Limitation to teustbes to peeseevb contingent ebmaindees, whether now inserted, 108 ; see 335, et seq. Notice op, 702. Powers, what may be inserted. 111, et seq., and note (/), t5. ; " usual," 112 ; "proper," 113. Peotbctoe, special, whether Court will appoint under Pines and Eecoveries Act, 108. EXECUTRIX, without her husband's consent, may appoint an executor, who thereby becomes executor of the first testator, 198. EXONERATION, what will be an, of a charge, 591. See Contract, Mortgagoe, EXPECTANCY. voluntary assignment of, whether it creates a trust, 65 ; see Voluntary Assurance. EXPENSES. Ch. xxiii. s. 2, p. 525. See Costs, Extraordinary outlay. Allowance for, to trustees, 525 , even where express allowance for trouble, 527. extra costs, 526, 828 ; for fees to counsel, 526 ; for fines, 208, for renewal, 163, for release, 315, for travelling expenses, 525 ; and see New Trustees. Account op, trustee should keep, 527. where none kept, what allowance made, ih. Lien, are a, upon the trust estate, 528 ; and see 163. how far it will be enforced by the Court, 529. how far where trust extends to two estates, 531. secus in respect of trustees' agents, e. g. solicitors or surveyors, 530. or where trustee has been guilty of breach of duty, 529. Moderated, charges may be, and how, 527. Necessary, what are, 794. Reimbursement of, how made, 496, 526, 531, conf., 828. out of what fund, 531. Remedy for, against c. q. t., personally, where, 532. Trust to pay costs, &c., construction of, 532. Void deed, under, 529. EXPRESS. Trusts, Ch. viii., s. 1, p. 95. Technical teems, how far necessary for, 96 ; their force when em- ployed, iJ. Teusts, executed and executory distinguished, 97. what are, within late Limitation Act, 716, 719, et seq. a mere charge is not, secus as to a charge coupled with duty, 719, 720. not within 42nd section of Act as to arrears, 722. mortgage by way of trust for sale is not an express trust within the statutes of limitation, 721. a legacy after the executors' assent is held on an express trust, 723, 724. EXTENT. From Grown, Ch. xxvi. s. 8, p. 664. trust, affected by, ib. lands could not be sold under, at common law, ii., may by stat., ih. equity of redemption may be sold upon, 665. EXTRAORDINARY OUTLAY. by trustee, whether he can charge for, 528. 922 INDEX. FACTOR, 166. See Agent. Bankruptcy Act, operation of, as to goods, &c., in his possession, 210, 213. only takes special property, 211. FAILURE. Of C. q. t. of personalty by death intestate without next of kin, 252. of realty by attainder, 251. by death intestate, without heirs, 250. whether settlor can assert a claim, 252. whether trustee can claim advantage, 250, et seq. where c. q. t. has devised estate to anotJisr on trusts which fan, devisee entitled as against bare trustee, 250. Op Teusteb. relief of o. q. t. against, Oh. xxvi. ; p. 678. iy death of trustee in testator's lifetime, disclaimer, or otherwise, ib. et seq. direction to sell, and no person to sell named, 679. for separate use, and no trustee appointed, ib. of imperative power, 679, et seq. See Powers. FALSE. Answer, by corporation (pleading ignorance), visited with costs, 833. Denial, by agent of his character, 148, 149. by trustee of claim of c. q. t. visited with costs, 833. FAMILY. Trust for, of freeholds, how construed, 117. FARM LEASES. See Leases. FATHER. See Advancement, Parent. FEE. CoNDlTlONAi, what is a, 38. limitation in tail where no custom to entail construed, a, 42. Equitable, the word "heirs " not necessary to create, 95. Fee upon fee, distinction between legal and trust estates as to, 74. Legal, vested in trustee by trust to sell, &c., vrithout " heirs," 190. sec^ls where gift to A. &c., upon trust to pay debts out of rents, &c., ih. what estate taken under grant to trustees and survivor, and heirs of survivor, 190, what under devise, ib. FELON, how far he may deal with chattels, 26. FELONY, 26. See Forfeiture. of c. q. t., 251. of trustee, power to Court to appoint new trustee on, see Trustee Extension Act, s. 8, p. 877. worked forfeiture of equitable chattels, 667. Alteration of law as to, 27. FEME COVERT. Generally. See Fines and Recoveries Act, Husband. Acknowledgment, where dispensed with, 311. Acquiescence, not bound by, in purchase by tnistee, 433 ; generally, 755. except as to separate property without restraint, 433, 755. queer e, where restraint, 755. in husband's receipt of separate estate, 636. Advancement for, by husband, presumed, 158. Bond by, see Engagements, inf. Breach of Trust, as to concurrence in, 750, 631, 642. where guilty of fraud, 750. where separate property without restraint, 751 ; see 756. remedy for, against separate estate, 630, et seq. none where anticipation restrained, 642. by, husband is liable for, 82. Chattels real, husband's power over wife's, 23 ; if equitable, 616. Choses en Action, reversionary, may now dispose of, when, 22 ; whether also possessory, 23. reduction into possession of possessory, 611 ; whether when reversionary, 618. schemes for, 615. her right by survivorship to, whether possessory (but not reduced) or reversionary, 611. INDEX. 923 FEME GOY-EUT—cojitimied. Choses en action — continued. belong to husband surviving, on his taking out administration, 635. CONFIBMATION BY. See Disabilities, infra. Consent- op, 290. Conveyances by, under order of Conimon Pleas, 33. Curtesy, in respect of. See Curtesy. Debts, ante nuptial, 24, 6i3, 611. Disabilities of. cannot confirm or release breach of trust, 755 ; as to purchase by trustee, 433. except as to separate property if without restraint, ii. cannot consent to trustees' relinquishment of office, 534 ; and see Breach of Trust, sup. cannot at common law pass legal estate, 32. Disclaim interest in land, how she may, 177. Discretion of, 32. DowBK, her title to. See Dowbb. Earnings of, protected, 24, 643. Election, cannot make, by act in pais, 781, see note (j). might by fine or consent in Court, 782. may under Fines and Recoveries Act, ih. ; and see Election. Engagements and contracts by. intention, in contravention of, 629. verial, how far they afEect separate property, 527, etseq. ; but see 629, et seq. ; and as to stock, 633. written, 626 ; as by bond, promissory note, bill of exchange, contract, &c., ib. are not appointments, 628. as to real estate under Fines and Eecoveries Act, 625, note (r) ; and see Power, inf. Equity to settlement, origin of, 612 ; as against trustee in bank- ruptcy of husband, 613 ; as against husband's assignee for value, ih. ; none against assignee for value of life estate, 614 ; unless wife deserted at time of assignment or divorced by reason of husband's misconduct, H. whether out of fund under 200Z., 612. out of equitable chattels real, 23, 616 ; out of equitable freeholds, 619 ; out of term in trust for her, forfeited by felony of her husband, 668 ; late statute as to felony, 668. not affected by husband's act alone, 618. how asserted or waived, 612, and note (/). how much wife can claim, 530 ; and form of settlement, 613. right by survivorship distinguished from, 615. may release her, out of personal estate in possession, 23, 612. but must do so in Court, 612. Executrix, assets in hands of, disposable by husband during coverture, 198. she may make a will of such assets without husband's consent, ib, where husband of, abroad, receiver may be appointed, 824. husband of, is a trustee within Trustee Acts, 858, note {a). Feoffment of estate vested in her upon condition, she might make, 33. Fraud, 750. See Breach of Trust, supra ; Power, infra. Gifts from husband to wife, 61. Housekeeping, feme not bound to contribute to from separate use, 637. Mortgage term in trust for, whether assignable by the husband so as to carry the beneficial interest, 618. Outstanding term makes estate sufficiently equitable to entitle wife to a settlement, 620. Power, she may execute power simply collateral, appendant, or in gross, 32. estate appointed under, is not assets, except wheie fraud, 751, and note (/). sues by next friend in respect of execution of, 813. 924 INDEX. FEME OOY'EB.T—contiimed. Peaotice. See Equity to Settlement, mp. ; Sbpakatb Dsb, inf. Peopbety of. See Sbpaeatb TJsb, inf. (a) ^quitaile, not settled to her separate use, her chattels personal, 611 ; chattels real, and contingent interest therein, 23, 616 ; effect of husband's forfeiture upon, 668 ; Ghoses en Action, see sup. ; elegit, estate by, 617 ; freeholds, 618 ; mortgage term, ib, as to effect of getting in legal estate in wife's equitable term, 617. (V) Legal. chattels real, husband may assign, 616 ; seous if they cannot vest during coverture, 616 ; see 23 ; freeholds, 33 ; see 22, 782. (e) Married Women^s Property Act, 2i, 642. Amendment Act, 643, note (d). Peotectoe of settlement, she is, where legal freehold limited to her separate use, 639. Realty of, what estate husband has in, 619, note (/). EESTEAINT against AifTlCIPATION, SBPAEATB ESTATE. See inf. Eevbesiostaey Interests. See Ghoses en Action, sup. in land, or money arising from, or charged on, 783. Settlement by, fraudulently obtained will be set aside, 24. StjevivobshiP, her right by, 615, cannot be defeated by assignment to husband of prior life interest, ib. Tetjst, how far she can create, 22. Teustbb, she ought not to be appointed, 32 ; see 690. whether she can sign receipts, 413. for sale can exercise discretion, 33. Will. See Executrix, sup. ; SbpAEATB Use, mf. Eestraint against Anticipation, nature of, 620 ; and see 572 ; what words will effect, 639, etseq. Aeebaes of income, does not attach to, 642 ; see 23. receiTcd by husband, what recoverable by wife, or her represen- tatives, 642. Bebach of teust, property fettered by, not liable for, semhle, 642, 761, Debts before marriage, does not prevent liability for, where married after 9th Aug. 1870, 24, 643. DISCHAEGBD, where the clause has once attached, cannot be, even by a Court of equity, 641. DIVOECB, effect of, on, 641. Inteeest due but not payable, affects, 642. Maeeia&e, upon, the clause operates during the coverture, 640. Oeioin of clause in, 639. Pbepbttjity may be void for, 641, 87. POWBE OF appointment, how far it affects restraint, 640. Separate Use, or Separate Estate. See Devise. Accumulating her income, case of feme, and requiring her husband to support her, 637. Administration of, on feme's decease, 633. Allowed in teusts, 620 ; though no trustee interposed, 621, 703. husband construed trustee, 621 ; and see 623, 679 ; but see 623. Answbe, may, separately as to, 624 ; bound by submission in, 626, and note ((?). Aeebaes of, 635, 642. received by husband, what recoverable by wife or her represen- tatives, 635, and note (a), 636. where wife is non compos, 636. whether distinguishable from arrears of pin money, 636. Assets, is administered as equitable, but gucere, 633. Assignment of, good against creditors, though after bill filed, 633. Attachment, liable to, for want of answer where answers separately in respect of, 625. Contingency, of, 638. INDEX. 925 FEME COYE'ET—contimted. Separate Use, &o. — continued. CoNTEAOT, bound by, in respect of, 625 ; may enforce contract for pur- chase, 626. Corpus expended, by husband with assent of wife, amounts to gift by her, 637. Costs out of, 626. Cebated by what words, 621. what words insufficient, 622. trust must be clearly expressed, 621. Cbeditoks may file bill for payment out of, after death of feme covert, 633. CUETEST OF, 607. Debts, before marriage, liable to, where marriage after 9th' August, 1870, 24, 643. Destroyed, may be, during discoverture, 623, 566. Engagements. See Engagements, sup. Estate, real or personal, coming Xafeme married after 9th August, 1870, to be held for her separate use, 24, 643. Feme Covert is considered feme sole as to separate property, 23, 534, 624 ; as to realty, 638 ; sues by next friend in respect of, 624, 813 ; and see Acquiescence, Breach of Trust, Disabilities, sup.; and see also 629, 630. Fraud of, 750. Funeral Expenses, whether thrown upon separate estate, 634. Gift of, to husband, what amounts to, 637. Husband receiving cmpus isprima facie a trustee for wife, 637. Judgment, trust for separate use whether within 1 & 2 Vict. c. 110, s. 11, 653, note (S). Legal estate, what, trustees take where limitations for, 187, ct seq. ; may direct conveyance of, after husband's death, 566. Liabilities of feme covert in respect of, 630, 631 ; and see Breach of Trust, Engagements, sup. enforced by bill against her trustees, not against her personally, 632. notwithstanding husband's death, 632. only out of personalty or rents, ii>. ; but see 633. not where restraint, &c. 633. principle, true, as to, 680. after death of wife by creditors' suit, 633. See Assets, suji. Life estate, her, power over, 616. M.iRHiAGE, upon, the clause operates, 623. effect of second, 623 ; as to arrears, 624. Married Women's Property Act, 24, 643. Personal estate settled to, survives to husband in marital right, 635. corpus of, where disposable by feme covert, 637. Possession, when c. g. t. entitled for separate use is put into, 558. Practice as to, in proceedings in equity, 624, 632. wife sues for, by next friend, 813 ; see 290. Eeal estate settled to, whether /erne may dispose of the fee of, 638. Savings out of, belong exclusively to wUe, 634 ; see Arrears, siw. ; Wm, inf. out of household monies belong to the husband, 634. Sequestered, may be, for disobedience to order of Court, 625. Settlement of accounts, in respect of, 641. Statute of LiMiTATlONS,/cme covert sued in respect of, cannot plead, semile, 633. Submission, bound by, in bill, in respect of, 625. Sues as plaintiff by next friend, in respect of, 624. Suit bt, in respect of, how framed, 813. Suspended, on death of husband, but revives on futui'e coverture, 566. Undisposed of, survives to husband, 635. Will, feme covert, may dispose of separate estate and accumulations by, 634. 926 INDEX. FEME SOLE. ought not to be trustee, 34. trustee marrying may be removed, 690. FEOFFMENT. See Foefbitueb (Tenant for Life), 668. Infant, by, not void, but voidable, 24. Lunatic, by, or idiot, voidable only by heir, 25. Use results to feofior on, if without consideration, 145 . FIERI FACIAS, writ of. See Exectjtion ; Judgment. FINE. Effect of, in cases of election, 782. Infant, Idiot, or Lunatic, of, 24, 25. See Eecovbby. NONCLAIM WITH, a bar against constructive trust in favour of a volunteer without notice, 708. no bar in case of notice, 165. FINES. Admission to copyholds, for, 206, 208, 333 ; See Copyholds. Lease of charity lands, upon, 476 ; see 479. Onbeous, how they may be avoided when the , estate devolves on several trustees, 208. Payment of, not a condition precedent to admission to copyholds, 206. Renewals, on, 321, et sec[. See Renewable Leaseholds. Tebated as income of the lord, 563. Undeb-leases of, 325. FINES AND RECOVERIES ACT, 336. See Peotectoe. Acknowledgment hjfeme covert, under, 22, 625, note (r). concurrence of husband where dispensed with, 33. its effect as to her reversionary interest in land directed to be con- verted, 783 ; legacy charged on, ift. Conteact, power of feme covert to, imder, 625, note («•). Effect of, in election hy feme covert, 782 ; by tenant ia tail, 787. as to limitation to preserve contingent remainders, 336. under settlement of husband's property to heirs of body of wife, 100. Equitable estates tail, how barred under, 573, FIRM. how far liable for breach of trust of one of its partners, 738. FOLLOW. Whbee c. q. t. may follow Teust estate itself, if wrongfully converted, Ch. xxix, s. 1, p. 699. See Bebach of Trust (Remedy for, 1). Where peopekty substituted in place of teust estate, Gh. xxix., s. 2, p. 730. where conversion in pursuance of trust, ii. tortious, ih , et seq. See 790, Beeach op Teust (■Remedy for, 2). FORECLOSURE. See Abeoad ; Mortgagee ; Paeties. FOREIGN. See Abroad ; Frauds, Stat, of ; Jueisdiction. Bonds, of a foreign Government, not within Trustee Relief Act, 837, note (t). Entails op lands abroad, 44. Funds, conversion of property invested in, 265. Law, whether trustee or executor presumed to know, 306. Peopeety, how affected by trusts, 44. how far the Court will act as to, ii. Seoueities, what are, 284. FORFEITURE. Chap, xxvi, Sec. ix, p. 665. See Conveesion, Felony, Out- LAWEY. Case of Felony, Outlawey, Treason, 26. as to chattels and goods, took place on conviction, 26, 667. of lands in case of treason, &c., 26. seciis if felon contingently entitled, 668. felon, &c., may sell goods, &c., before conviction, ij. how far he may make a settlement of, 26. money to be laid out in land was not forfeitable as personalty, 668. Equitable intbeests of, none at common law, in trusts of lands, 665. qi/: under 33 H. 8. c. 20, s. 2, p. ib. et seq. INDEX. 927 FOEFEITURE.— fomiM(««). as to investment, 270. as to parties to suits, 30th and 82nd of 26th Aug. 1841, (now VII, 2, Cons. Ord. 1860), 806, et seq. ; and see note (d). as to service of petition for Stop Order, 588, note (a), as to Trustee Relief Act, 842, note (a). INDEX. 929 GENEEAL WORDS. effect of on trust estate, 198. GIFTS. from husband to wife, 61. GOVERNMENT. securities, 272, 277, 284. See Investment. GRAFT. of new property on old settlement, 48. GRANDCHILD. advancement for, presumed, 158. " GRANT." See Covenant. whether inserted in conveyance by trustees, 386 ; see 567. GRANTEE. guilty of mala fides, 128. GREEK BONDS. investment in, 284. GROUND RENTS. lending on security of, 287. whether trustees may purchase, 438. GUARDIAN. Advantage, cannot gain, by his office, 247. INPAUT cannot be, 34. Office survives as to testamentary guardians, 280. seeus, if joint guardians appointed by Court, iJ., note (e). Cannot sign receipt for capital of infant, 311. HARDSHIP. Court will not enforce against trustees a contract which involves, 386. HEIR. See Conversion ; Devise ; Exbcutoby Trusts ; Resulting trust. C. Q. t. attainted, whether his heir may sue trustee, 251. Common law heir, when entitled to proceeds of sale of gavelkind lands , 671. Customary, when entitled to trust estate, 670, 671. Creditors, how far heir a trustee for, 247. Engagement by, to make provision, &c., if estate allowed to descend enforced, 55. Equity of, as against executor, 771, et seq. Failure of. See Escheat, Failure of c. q. t., Trustee Acts. Favoured, whether, more than executor, 755 ; conf., 130. " Heirs Female " in articles, 101. " Heir Male " in will, 106. Incumbrance, efEect of heir's purchasing, 247. Infant, of vendor who has contracted to sell real estate, whether a con- structive trustee for purchaser, 848, note (c). Money to be laid out in land, where heir entitled to, 770, et seq. See Conversion. Persona design ata, when he may claim as, 781. Resulting Trust. See Trustee, inf. (a) heir takes, upon devise on trust where trust not defined by will, if no general residuary devisee, 54, 129, 130. where trust implied but objects uncertain, 116. unattested documents, whether admissible to prove trust, 53, 54. whether case altered by parol information of trust by testator to trustee, 57, 58. upon devise to one without reference to trust in will where engage- ment to execute unlavrful trust, 56 ; and even though such engage- ment does not relate to definite part of estate, 57. defendant must discover the secret trust, 57. case of engagement to execute trust, but no trust declared, 57. (V) HEIR DOES not TAKE, upon devise to one mitlwut reference to trust in will where no com- munication to devisee in testator's life, though testator leave unattested declaration of trust, 53 ; and see 55. 930 INDEX. HEIE — contitmed. Resulting Trust — continued. HEIK DOBS NOT lA.'K^— Continued or where devisee means to execute unlawful trust, 57. heir not excluded from, by mere conjecture, 130 ; whether by a legacy, ib. undisposed proceeds of conversion, where heir takes, 132 ; et sec[.; but see 138, 142 ; and see Resulting teust. whether resulting interest devolves as realty or personalty, 132. Settlor, heir of, when bound by trust, 679. Specialty debts, how heir is liable to, 183. Teusteb, heir of, is bound by trust, 215 ; whether he can disclaim, 174. twenty years' possession by, no bar to heir entitled to resulting sur- plus rents imder express trust, 719, see Creditors, sup. Use, is bound by, 3. HEIRLOOMS. Bequests of, to the same uses as freeholds in strict settlement, how con- strued, 110. See Executory Trusts (Chattels). C. Q. T. his rights in, 564 ; are not forfeited on bankruptcy, ii. "HEIES." devise of equitable estate without the word, may give a fee, 95, secus by deed, 96. "HEIRS OF THE BODY." Equitable entail may be created wdthout these words, 95. construction of, in marriage articles as to chattels, 101. as to freeholds where construed " first and other sons," 100 ; see 702. in mils where construed " first and other sons," lOS, et seq. ; and see 96, 97. and Executory trusts. Include daughters, 101, not synonymous with " issue," 107. Purchaser with notice, whether bound by the construction of these words, 702. HBRIOT. when payable as to copyholds, 206. HIGH COURT OP JUDICATURE, referred to, 17, 373, 805, 806, 808. " HOPING " may raise a trust, 115. HOTCHPOT. See Orphanage Share. HOUSEHOLD GOODS, how c. g. t. of, may use, 564. HOUSEKEEPING. feme covert not bound to contribute to from separate estate, 637. HOUSE PROPERTY, trustees should not purchase, 438. HUSBAND. See Feme Covert. Executrix, husband of, may administer assets during coverture, 198. Effect of gift from husband to wife, 61. Gifts to, where regarded as a portion to his wife, 358. Liable for wife's breach" of trust, 32. Not liable if married after 9th August, 1870, for wife's debts before mar- riage, 24, 643. Trustee of wife's separate estate, construed to be, 679, 703. estate vested in husband and another upon trust (inter al.) for wife, is not a gift for her separate use, 623. Wife's property, how par he may dispose of clwMels personal, 611. chattels real (equitable), 23, 616, et seq., and see 8, 10. chases en act'wn, 23, 611. freeholds (equitable and legal) 618, ctseq. Wife's separate estate, what arrears of, can be claimed from husband, 635 ; as to pin money, see 636. it undisposed of, husband surviving entitled to, 635. suit as to, husband how made party and his costs, 813 ; see 290. HUSBANDRY LEASES. See Leases. INDEX. 931 IDIOT. See Lunatic. IGNORANCE, 197. C. Q. T. of, as to Ms rights. Acquiescence defeated by, 753, 755, and so confirmation, 755. Laches excused by, 433. LoM, ignorance of the, 434, 756. Plea of, by corporation trustees of a charity, where false, entails costs, 833. Presumption of maiver, how far rebutted by, 712. Protects from order and disposition clause, 214, Release defeated by, 755. Statutory iar, not prevented by a, from running in equity, 708. Teustbb, of, as to his true character, 728, oonf., 765. ILLEGAL TRUST. See Unlawful Trust. ILLEGITIMATE CHILD. advancement for, presumed, 157. futui'e, trust for, not good, 84. except he be persona designata, 84. IMAGINARY VALUES. trustee not charged with, 743. IMBECILITY. See Lunatic. IMMORAL TRUSTS are void, 93. IMPEACHABLE SETTLEMENTS, 253, 305. IMPERATIVE POWERS, See Failure of Trustee, Powers. IMPERTINENCE. charge of misconduct on part of trustee is not, 691. IMPLIED. See Notice. Devise, 189, 191. Powers. See Executory Trusts, implied powers. whether charge implies power of sale, 190. Reconversion, where land directed to be taken as personalty, 383. Trusts distinguished, 95, note (1) ; and see Ch. viii. s. 2, p. 114 ; see also 684 . agreement to settle upon, 123, 124. See Settlement. Charge, under, 123. See Charge. Contract for sale, under, 124. See Purchaser. Words precatory, from, 115. no trust created where uncertainty, 116, et seq. discouraged, 120. not a question of mere grammatical import, 118. partial, if, surplus does not result, 120. trustee of, not bound so strictly as by common trust, 120. may take no beneficial interest, 120. may be tenant for life only, 120. Words, " subject thereto," implied, 186. See Resulting Trust. IMPROVEMENTS. Allowance for, on setting aside Charity lease, 478, 480. purchase by trustee, 428, 430. not allowed in case of fraud, semile, 428, tortious sale by trustee, 788. Charity lands, of, 474, note {d). Lasting, lien of trustee for, 163. Of Land Act, 487. ^ On lunatic's estate from his personalty, 791. c. g. for draining, engine at mine, inclosure, 792, and cf. as to infant's estate, 794. Ornamental, by trustee, expense of, not allowed, 486. Tenant for life, by, 486. INACTIVITY. of one co-trustee, whether ground for appointing receiver, 825. INCAPACITY. of trustee, ground for appointing new trustee, 690, et seq. ; see 543, 678. receiver, 824. 2 932 INDEX. INCOME. of tenant for life, on debts recovered, 265, 747, 748 ; from land or money, 777. See Convbebion. what is to be regarded as, and what as corpus, 563. INCOME TAX, there may be a trust for payment of, 93. INCONVENIENCE. of granting belief a bar to suits, 713, et seq. how far applicable as to charities in suits for accounts, 763, et, seq. INCREASE, See Augmentation. INCUMBRANCE. See Charge. Meegeb. trustee cannot buy up for himself, 244 ; efEect of heir, devisee, joint tenant, or tenant for life purchasing, 247. INDEBTEDNESS. of settlor, only a circumstance of fraud, 69. INDEMNITY. See Attoenet (power of). Advice op Chaeity Commisbionbes, persons acting under, indemnified, 762 ; see Payment, iuf. Bank of England, to, on complying with orders under Trustee Acts, see Trustee Extension Act, s. 7, p. 877. Bond of, on appointment of new trustees, 551. on distribution of trust fund, 308. C. Q. T. beinging action in name of trustee must give, 559 ; see 696. Clause of, in trust deeds or wills, 242 ; and special one, 243. CouET, trustee acting under sanction of, obtains without release, 315 ; and see 308. Instalments, where one is paid into Court, how far the order for admini- stration of it is an indemnity as to the others to the trustee, 835, note (a). Leaseholds, when trustees and executors can require, in respect of, 388 ; and see 164. Fund set apart for an, in respect of, 388. Legal liability, trustee who has incurred, at request of c. q. t. may claim indemnity, 532. Payment by trustee, &c., of charity funds to official trustees is an indem- nity, 316. Teust for, is not void for perpetuity, 87. Teusteb cannot, under Trustee Relief Act, require a fund to be kept in Court by way of, against threatened proceedings, 837, note (fT— continued. purchase money of devised estate, if charged on devise, falls on devisee's personalty, 794. Debts contracted by, for necessaries, 455. Deed, his delivery of, its efEect, 24, 35. Deliveey of goods by, only voidable, 35. Disability of, efEect of, 34 ; see Tbustee Act ; and as to settlement of infant's estate on marriage, see 18 & 19 Vic. c. 43. Discretion, he has not any legal, 34. Elect, cannot, 781. Estate tail, of, barred by vesting order, 852, note (a). Bxectttor, where he might formerly have acted as, 35 ; cannot appoint, 35. Exoneration. See Conversion, sup. Feoffment by, not void, but voidable, 24, 35. by custom of Kent, infant of 1 5 years may make, for value, and semMe without, 26. Fine of. See Fine, Recovery, inf. Fraud, may not practise with impunity, 36 ; and see 311, 750. Gift to, presumption that he takes beneficially, 36. Guardian to a minor, he cannot be, 34. Limitation of suit. See Limitation, Stat, of. Mesne Rents and Profits, inf. Maintenance op, 489, et seq. Mesne Rents and Profits, account of, where decreed in favour of, 727 ; may file bill for, on legal title, 725, 729. account barred unless brought within six years after majority, 729. carried back to accruer of title, 730. but where defendant ignorant of true character as trustee, only to filing of bUl, 728, sed qu. ; see 730, Ministerial acts, he may discharge, 35 ; e. g. as lord of manor he may give effect to custom, iJ. Mortgage, vesting order under Trustee Acts. See Trustee Acts. costs of, 872, note. Payment to, by trustee, 311. into Court of money belonging to ; see Trustee Act, ». 48, p. 870. Power of attorney by, void, 86. collateral, cannot execute, if requiring discretion, 35. Purchase in the name of, held to be for advancement, 152. Receiver, he cannot be, 34. Recovery of, formerly reversible only during nonage, 24. Release, he cannot, 755. Relinquishment by trustee of ofiice, he cannot consent to, 534. Seneschal, may appoint, 35. Steward of manor, he cannot be, 34. but acts by him in this character cannot be avoided, 34, note (J). Tenant in tail. See Recovery, Fines and Recoveries Act. Timber cut on infant's estate, whether to be treated as personalty or realty, 794. Trust, how far he can create, 24. created by him would not be enforced to his prejudice, semhle, 24. Trustee, infant ought not to be appointed, 34 ; substitution of new trustee for, 863, note (J), costs of, 872, note (i). for infant, how he may purchase trust property, 427. vesting order in case of. See TRUSTEE Acts. TTSB upon a feoffment, an infant may declare a, 24. Will, cannot make, but formerly might, of personalty if 14 years of age, 25, but not of money to be laid out on land, 769. INFLUENCE, undue, voluntary settlement will be set aside for, 72. INFORMATION, 456. See Duties. C. Q. T. MAY REQUIRE, as to state of trust, 570 ; see 391. Ordinary remedy for breaches of trust as to charities, 756. where an information proper, and where a bUl, ib., note (1). advowson where vested in trustees for parishioners, information by Attorney-General improper, 75, 76. 934 INDEX. INFORMATION— cnnii'Mefi. corporation, against, for removal of governors, not sustainable, 464 ; see 30. but where maladministration of property Court interposes, 464 ; and see 30. INHABITANTS. Election of clbek by, 75. See Paeishionees. Of a place, trustees required to be, 691. INJUNCTION. Beeach of teust, v. q. t. may have, against, 697 ; whether damage reparable or not, 698. where co-trustee should apply for, 242. IMPEOPEE SALE, whether c. q. t. may have against, 384. whether mortgagor, 384, note (6). Lands abeoad, from taking possession of, 44. Paetial ownee, by, 698. Payment into Couet, notwithstanding injunction, 824. TiMBBE, as to, 725. Teustbe, against insolvent, baiikrupt, drunken or dissolute, 698. INQUIRIES. Assignee of equitable interest should make, of trustee, 581. C. Q. T. by, trustee must answer, 391 ; and see 570. Chaeity commissionees, by, 761 ; see 757, et seq^. INQUISITION when necessary to perfect title of the Crown, 40. See Alien. INROLMENT in case of mortmain, 85, 475, 532. on disentail of equitable estate in copyholds, 574. INSOLVENCY. See Banketjptcy, Insolvent. Equity to sbttelmbnt, of feme covert as against assignees, 613. Limitation ovbe, on or until, 90. Maintenance, trust for, at discretion of trustees, how far assignees take under, 88. Paeties to suit, assignees of insolvent can sue, &c., without presence of creditors, 798. Peoop under. See Bankeuptcy (proof ). What is, 90, 91. INSOLVENT. c. Q. T. tenant foe LIFE, goods left in his possession not forfeited, 564. Co-teustee, whether necessary party to suit, 801 ; whether representa- tives of co-trustee who' has died insolvent, 802. Teustee, is not absolutely disqualified from being, 37 ; but see 691, 698. his insolvency a ground for appointing receiver, 824. his discharge barred trust debts, 749 ; but see 750. INSPECTION. Accounts, of, c. q. t.'s right to, 570. Documents, of, e. q. t.'s right to, 560. Vouchees, of, 391. INSTRUMENTAL TRUSTS, 18. INSURANCE. Company, shares in, given in succession should be converted, 265. may pay into Court and get costs, 836, note. BXECUTOE held not liable for omitting, against fire, 261 ; see Trustee, inj. Fines for renewal, payment of, secured by, 261. MOETGAGBE not allowed for, in absence of stipulation, 489. Policy of, voluntary settlement of, may now be void as against credi- tors, 70. Receipts for insurance monies, 258, 395, note (a). Statute 14 Geo. III. c. 48, does not prohibit on life of A. in name of B. in trust for A., when both names appear on poUoy, 92, 93. secvs where B., who has an interest in A.'s life, insures as trustee for C, who has none, 93. Teustee, whether he should effect against fire, 489. when liable for omitting to maintain policy, 739. his lien for premiums, &c., advanced for, ib. has implied power to pay premiums where policy settled, 489. iNPEX. 935 INTENTION. will, if possible, be carried into effect in trusts, 7i ; and see Voluntary Assurance. vrill not control operation of the Statute of Uses, 186. INTEREST. Ch. xiv., s. 5, p. 298. See Investment. Accumulations, what " interest " necessary under Thellusson Act to support, 83. Arrears of, what recoverable under Statute of Limitations, 717. Charged against assignees, executor, receiver, trustee, &o., for moneys improperly retained by them, 298, et seq. ; see as to retainer of charity funds, 473. no excuse that money was not used, 299. but delay may be explained by mutahe, ib., and conf. 765. executors, from what period charged, 303. not on money thatnever came to hand, 303 ; or lying idle through mistake, 303, 307 ; and see Rate, Trade, inf. Compound, charged where accumulation directed, 301 ; and see Trade, inf. Costs, interest on, not allowed to trustee, 527. Debts, on, what allowed under trusts for creditors, 460 ; see Debts. Executor not charged with, for first year after testator's decease, 303. decreed to pay, whether he pays costs also, 834. Fines for renewals, what interest charged in contribution for, 328. Income, not given for arrears of, 298, note (a). Mesne rents and profits, account of, not decreed with interest, 729. nor where purchase by trustee set aside, 428. Motion, payment of, when ordered on, 822. Portions, what raisable for, 361, rate of, 362 ; not allowed where portions charged on rents, 362 ; allowed though portions not vested, 362. Proof for, by c. q. t. on bankruptcy of trustee guilty of breach, 646. Rate op, £4 per cent, charged usually where simple retainer, 300. £5. per cent, where direct breach, &o., 301 ; and see Trade, inf. Trade, money employed in, by trustee ; c. q. t. has option of £5 per cent; or actual profits, 300, 245. whether with rests, 301 ; and see Trade. money lodged at bankers in trustee's name considered as so em- ployed, 300. INTERESTED PERSON not a proper trustee, 87, 548. INTESTACY. c. Q. T., of, as to personal estate without next of kin, executor entitled, 252. as to fee, without heirs, whether trustee entitled, 250, et seq. Of MORTGAGOR in fee without heirs, mortgagee entitled, subject to mort- gagor's debts, 251, 670. Of purchaser op fee without heirs after purchase money paid, but before conveyance, vendor keeps money and estate, 250, Trustee, when he should avoid, as to trust estate, 202, et seq. INTESTATE, Personal estate of, limitation of suit for recovery of, by statute, 724. INTIMIDATION. See Terror. INTRUDER. not bound by a use, 3. INTRUSION, may be of a trust, 598, INVENTORY. when desirable, 184. ti-ustee neglecting, may be deprived of costs, ib. INVESTMENT. See Receipts. Construction of particular expressions, as to caM in securities " not approved of by executors," 257 ; to invest on such securities as trustees " may approve," 288 ; " consent of tenant for life," " of wife " to loan to husband, 281 ; " convert with all convenient speed," 256 ; " to lay out at trustee's discretion," 279 ; " to employ," 282 ; " to lay out on such good security as trustee can procure, &o.," 279 ; " on Government or good secwities," 294 ; " to place out at interest or other way of improvement," 282 ; " to call in and lay out at greater interest," 282 ; trustees " required " to invest on personal security, 279, 280. 936 INDEX. INVESTMENT— cOBiiMttY^. Court of Chancery. Bank Annuities, when Court directs conversion of securities into 3 per cent. Bank Annuities, 294. General Orders, empowered by a recent Act to issue, as to investment of funds under its control, 272. Personal Security, will not invest on, even where express power, 280. Selects for investment £3 per cent. Consols, 277 ; sometimes (on account of time of payment of dividends) allows £3. per cent. Bed., 278 ; but now see order of 1 Feb., 1861, p. 272. Duties &c., of trustees and executors as to investment. See Conversion, East Indies. Bank, private, trustees may invest for temporary purposes to trust account in, 261, but not otherwise, ib., and see 297, 300. Call in, trustee should, personal property outstanding, 254 ; see 257 ; on hazardous security, 514. Consols or Bank Annuities, should not sell out, to invest in irregular funds, 294. Control, must not put money out of his own, 261 ; or under control of co- trustee or co-executor, 241 , 297. Inquiry, should make due, as to value of security, 286. of reversion, 289. as to title of borrower, 286, see 289. - Lend, must not, to co-trustee, 279, 287, conf, 258. Mix, must not, trust property with his own, 263 ; see 732 ; or vrith stranger's, 292. Part with trust money, should not, except on delivery of security, 292. Power op investment, must construe strictly, 280. where no express power, trustee should invest in £3. per cents., 277. especially where successive estates, 294 ; see 265. except where property specifically bequeathed, 264. implies power to vary securities, 401. Productive, should make trust fund, 270 ; see 298. Ebcbipts, whether power to give, implied by trust for investment, 401. See Eeobipts. Solicitor, trustee should not, when lending, employ borrower's solicitor, 297. Tenant for life, trustee must not favour, at expense of remainderman, 280 ; apportionment ni respect of dividends in favour of, on change of investment, 285 ; and see 263, 376, 382. varying securities in favour of, 274. Trade or speculation, must not invest in, 245, et seq. ; 282, 300, 732. VABYlNa securities, trustees who have power of, may sell out stock and invest on mortgage, 284 ; see Receipts, sup. Liabilities incurred by improper investment or non-investment. Capital, as to, mhere money improperly retained. (a) where no direction to invest, 263, 276, 294. (J) where express direction to invest in funds, and neglect so to do, 295 ; and see 297, 739. (c) where direction to invest in funds or real security, 295. ■when stock improperly sold, 296, 746 ; and see Conversion (implied AND tortious). Interest, as to. Ch. xiv. s. 5, p. 298 ; see Interest. Order, as to, recent, 272, Becbipts, power of signing implied in power to invest, 401. Securities, particular kinds, whetlier authorised. (a) Generally. Annuity with policy, 282 ; bank or government annuities, 277 ; bank, private, 261 ; bank stock, 271 ; Bast India Stock, 272, 273 ; exchequer bills, 283 ; foreign bonds, &c., 265, 284 ; government securities, 277, 283, 294 ; Greek bonds, 284 ; judgments, 285 ; leaseholds for lives, 288 ; for years, 288 ; long annuities, 294 ; Mexican bonds, 255 ; mortgage, see inf.; real securities, 277, 288, ct seq. ; joint mortgage, 291 ; navy £5. per cents., 294 ; personal security, inf. ; public securities, 277, 279 ; pur- INDEX. 937 INVE STKE^T— continued. Securities, particular kinds, whetlier authorized — continued. chase, 436 ; railway mortgages, 288 ; rcTersion and undivided share, 289 ; shares of canal, insurance, railway, &c., companies, 265 ; South Sea Stock, 271 ; stock of private company, ib. ; £3. per cent. Consols, 277 ; £3. per cent, reduced, 272 ; £2J. per cent, annuities, 272 ; new £3. per cent, annuities, 272, 278, 833, note ( b) ; tolls and road bonds, 287 ; trade, 282 ; and see Tea db ; terminable securities, 283 ; personal property, 280 ; debentures, 282 ; colonial securities, 284 ; Scotch securities, 290 ; second mortgages, 291 ; equitable mortgages, 291 ; ground rents, 287 ; charges under Land Improvement Act, 290 ; securities guaranteed by Parliament, 279. (b) Pebsonal. executor should call in investments on, 256. trustee should not invest on, 270 ; unless where express authority, 279 ; what equivalent to such authority, see ib. See Court, Trade, sup. nor in stock of private company, 27 1 . may noTv on Bank Stock or East India Stock, 271 ; but see as to New Indian Loan, 272. (c) Kbal. 1. cohere not expressly authorised. qu-cere, whether trustee might formerly invest upon, 276 ; and see 401. not formerly where express direction to invest in the funds, 276 ; but see as to effect of late Act, 277 ; and for recent general order of court, see 272 ; see also Court, supra. 2. wliere expressly authorised. trustees may retain existing mortgages, if sufficient, 287 ; and see 257. trustees may sell out stock, and invest on mortgage, 284 ; even though the stock has fallen in price, if sale be bona fide, 285. should not do so for mere accommodation, as to secure equal amount of stock and interim dividends, 285. secus, where security for equal amount and interim interest, 286. trustees having power to lend on mortgage to three jointly, cannot lend to two only, 287. 3. what property the po7ver authorises. freehold lands, not more than two-thirds actual value should be advanced on, 286 ; buildings used in trade, not so much, 287. not loans on railway mortgages, 288. nor on leaseholds for lives, with policy, 288, {secus as to leaseholds renew- able for ever, ib.) nor on personal security with judgment entered up. 288. qu. as to leaseholds for years, 288 ; reversion, undivided share, 289 ; equity of redemption, 291 ; joint mortgage, 292. when it authorizes road bonds and mortgages of tolls, 287. when mortgage of real security in Ireland under 4 & 5 W. 4. o. 29, 289. lands in Scotland, 290. 4. generally. trustees. Sec, may now invest on real securities in United Kingdom unless expressly forbidden, 277, 290. trust, how kept out of sight on mortgages and transfers, 292. trustees cannot bind themselves not to call in the money, 292. IRREVOCABLE trusts, 450, et seq. IRELAND. See Jtteisdiction. loan on security of lands, 289. lands in, within Trustee Act, 1850 ; see s. 55, p. 873, and note (i). but Lord Chancellor here sitting in lunacy has no jurisdiction over, 873, note (c). unaffected by TheUusson Act, 83. " ISSUE." See Executory Trusts. CONSTRUED in articles, where, to mean first and other sons, 100. DISTINGUISHED from " heirs of the body," 107. Includes daughters as well as sons, 101, 108. Portion, where gift to, is regarded as, to the parent, 358. Purchase, a word of, not of limitation, 107. 938 INDEX. JAMAICA, commission for management of estates in, 519. JOINT. Account, payment to, 261 ; money belonging on, 292. Contract, efiect of disclaimer as to, 178. Co-TEUSTBBS, their joint and several liability for breach of trust, 743, et seq. exercise joint office, 227. See Co-EXBCUTOE, Co-TRUSTEB. JOINT TENANT. See Copyholds (Fines). Dbvisb to two as joint tenants, where one an alien, 37. FoEFBiTxmE by one joint tenant, of chattels, 196. Incumbbanob, effect of joint tenant purchasing, 248. Kbnbwal of lease by, 161. JOUSTT TENANCY. Construed in articles tenancy in common, 104. secus in executory tmsts in wills. 111. except where testator proyides for children or puts himself ^?^ loco parentis, ib. Devise in, if it be void for fraud as to one is void as to all, 56. Implied, in equity, where purchase by several who contribute equally, 145. secus where contribution unequal, 146. not implied in advance on mortgage, ii. ; or in partnership, ib. whether implied at law by grant to two and survivor and heirs of survivor, 190 ; whether on a devise, 190. Minors, between, cannot be severed, 104. JOINTURE. power to charge not authorized in executory trusts under " usual powers," 112. JUDGMENT. See Bond, Decree, Charging Order. Charges under 1 & 2 V. c. 110, p. 656. Chattel interest, does not afiect, tUl actual seizure, whether legal or equitable, 645. Effect of, in equity, 214 ; not greater than at law, 645. as to trusts hj fi.fa., 645. by levari facias, 644, and note (1), ii., and 646. by elegit, 647. (a) cases in mhich judgment creditor has remedy in equity. after death of conusor, 649, 663. for redemption of chattel, 646 ; and mortgage in fee, 647, 650. for removiJig legal impediment, 649. against equitable interest, 649. where money is to be laid out in land, 770. whether against land subject to trust for conversion, 647. vendor's interest after contract for sale, 647. surplus proceeds under trust for sale, or power of sale in mortgage, 649, et seq. (5) Jiow equity facilitates hy sale, 649, note (/). (e) /mm much of estate tahen in executiofi. formerly moiety of trust, 649. entirety of equity of redemption, 646. trust by way of mortgage, qu. 651. now entirety under 1 & 2 Vict. c. 110, s. 11, p. 653. ((Z) mkether elegit, ^c, must he actually sued out, 662. Effect of, at law, 214. at common law, 644 ; under Statute of Westminster, 645. under Statute of Frauds, 652; under 1 & 2 Vict. c. 110, o. 11, p. 653, et seq. ; under 27 & 28 V. c. 112, p. 660. Execution, land muse now be delivered in, 662. Exoneration from, what agreement or covenant amounts to an, 591. Feme sole, of, on marriage is not disposable by her husband except by reduction into possession, 617. Ireland, law of, in, 691. Late statutes relating to. 1 & 2 Vict. c. 110, pp. 653, 656. 2&3 Vict. c. 11, p. 658. 3 & 4 Vict c. 82, p. 659. 18 & 19 Vict. c. 16, p. 659. 22 & 23 Vict. c. 35, 660. 23 & 24 Vict. c. 38, 660. 27&28 Vict. c. 112, 660. INDEX. 939 JUDG WEST— continued. PUECHASEES, as between two, 591. Rbgistbe county, priority of judgments, as to lands in, 663. Eegisteation and ee-eegisteation of, 654, 659, 660, 664. necessary for priority in administration of assets, 677, note (c). Settled and unsettled estates, as between, 692. Trustee's estate, judgments bind, 215. but c. c[. t. will be protected, ib. JUDGMENT CREDITOR. His PEIOEITy in administration of personal assets, 677 note (e). Moetgage in pee, may redeem, 646, 650, 662. Postponed to prior equitable mortgagee, 216, note (/) ; and see 580. Puechasbe for value, judgment creditor is not, 215, note ( f). Taking teustee's legal estate in execution bound by trust, 215. JURISDIGTIOlsr. See Abroad, Ieeland, Scotland, Trustee Acts, West Indies. what constitutes being out of the, 852, note {d). equity can enforce trust of personal property out of, if parties within, 4.3. equities of lands out of, if parties within, and if no obstacle to exe- cution of decree, 43 ; not if such obstacle exist, 44. case where lex loci does not permit equitable estate, or limitations of legal estate, 44. parties out of, may now be served abroad, but this does not enlarge right to relief, 44. what is necessary to found, 40, note (c). JUROR. c. q. t. of lands, when qualified to be, 562. JUS DISPONENDI. of c. q. t., 18, 565, et seq. JUS HABENDI. of c. q. t., 18, 556, et seq. KENT. custom of. See Infant. KING. See Crown. KNIGHT OF A SHIRE. See Member op Parliament. LACHES. See Acquiescence. Bar prom, to relief in equity, 598, et seq., 738. See LIMITATION, account restricted to filing of bill, 728. breach of trust, to relief for, 752, 753. constructive trust, to, 165. impeaching fraud of executor, to, 421. resulting trust, to, 151. setting aside trustee's purchase, to, 432, 433. Creditors, time limited in trust deed for creditors to come in is not of the essence, 466, 457, note (a) Executor or administeator, of, in payment of debts, 298. Not imputable to persons in distress, 433 ; and see 712. or in ignorance, 433. or to remainderman of renewable leaseholds during life of tenant for life, 333. or to subsequent incumbrancers where whole beneficial interest is absorbed by prior incumbrancers, 753. Trustee, of, in enforcing covenant, 739 ; investing trust property, 298,739 ; keeping up policy, 739. " shall not prejudice c. q. t." efEect of the rule, 708, et seq. LANCASTER. powers of Trustee Act, 1850, extended to Duchy Chamber of Lancaster and Counties Palatine of Lancaster and Durham, 857 ; do not extend to Lunacy, iT>., note (c). person within jurisdiction of Court of Chancery is not an absent trustee or mortgagee, as to, 857. 940 INDEX. LAND. See Resulting Tbust. Converted, to be, taken as money. See Convbbsion. DisCHAEOED from trust where money has been raised, 391. TOBTIOUSLY SOLD BT TEUSTEB, u. g'. t. may require purchase of other lands of equal value, 738. or may take proceeds of sale with interest, ii. or present estimated value of lands sold, allowing for improve- ments, il>. Tbust money toetiously invested in, by trustee, may be followed, 645, et seq. LAND IMPEOVEMENT ACT, 290. " LANDS." devise of, will pass money to be laid out on land, 769, 770. LAND-TAX. of limatic's estate, redeemable by sale of timber fit to be cut, 791. LAPSE. of time. See Laches, Time. LAPSED LEGACY. out of real estate. See Lbg-acy. LAWFUL TRUSTS, 19, Ch. vii. s. 1, p. 74. See Unlawful Tbusts. what is necessary to constitute, 94. LEASE. See Chaeities. Leasing, powbb op Covenants, executor of lessee entitled to indemnity against, 388 ; unless he has assented to bequest unconditionally, 388. trustees taking by assignment, for sale, cannot insist on, as regards themselves, 388 ; nor for protection of settlor, ib.; and see, 164. what inserted, when lease granted by devisees in trust, or to executors, 386, note (/). indemnity against, in lease of testator, 388, 389. DUBATION of building, 480. of husbandry, 479, et seq. Teustebs, their power to grant, generally, 496. not to or for benefit of themselves, 424. for sale cannot grant, 377. LEASEHOLDS. See Renewable Leaseholds. CONVEETED, they should be, when bequeathed in succession, 264. unless contrary intention can be collected, ib., et seq. POWEE to purchase, 289. Secubity, when authorised as a, 288, 289. Teustbb OF, liable for covenants, 208. Teustees for sale of, cannot require covenant of indemnity from purchaser, 388. LEASING, POWER OF. Effect of, in determining legal estate taken by trustee, 195. as to efEect of trust for leasing, see 193. " Usual powee," is a, 112 ; so of granting building or mining leases where beneficial, ib. where inserted under executory trust, silent as to powers. 111, 112. Mines, as to, 496. LEAVE of Court to commence or defend a suit, 497, 498 LEGACY. See Legatees, Residuaey Legatee. Chabity, to, out of sale monies, 779. Devised real estate, out of, which lapses or is void, sinks for benefit of devisee, if by way of charge, 129, 135, et seq. if by way of exception, results to heir, 137, et seq. unless subject to residuary devise under 1 Vict. c. 26, s. 25, p. 140. whether it can be passed under gift of residuary personal estate, 141. Executor may appropriate, 489 ; his assent to, 182, 388, 416 ; he may claim though he renounce probate, 175 ; he might disclaim legacy and take com- mission for trouble as to estate in East Indies, 520. Hbie, to, will not necessarily rebut resulting trust, 130. Lapse, none of legacies to creditors in satisfaction of debts proved in bank- ruptcy, 455. INDEX. 941 LEGACY — contimied. Limitation, Stat, of, when legacy is barred by, 723, 724, Portion, regarded as, to a younger child, 357. not where contingent only, 359. Tkustbe of, may be attesting witness to will, 244. LEGACY DUTY. trustees can pass estate free from, 385. payable in respect of debts proved in bankruptcy of which payment is directed by will, 455. payable by beneficial owner on face of the will, though upon a secret trust, 56 LEGAL CHARGE. See Charge, Purchaser. trust distinguished from, 15. LEGAL ESTATE, Ch. xii. p. 186. Assign it, trustee may, 198 ; but assignee bound by trust, unless purchaser without notice, 215. Bankruptcy of trustee, how it is affected by, 209. assignees, if they take trust estate, are bound by trust, 215. Burdens annexed to legal estate in trustee. See Privileges, &c., inf. Chattels, devolution of, to administrator or executor of trustee, 196. subject to trust, 212, 214 ; and see Execution, Executor. CoNVETAifCE or, c g. t. may call for or direct, 665. CURTSST, is subject to, in trustee, 196 ; but tenant by, bound by trust, 215. Devise it, trustee may, or bequeath it, 198. when it passes under general devise, \99,etsej. See Devise. when trustee should devise trust estate, 202. whether devisee can execute the trusts, 202, et seg. Devolution of, in Trustee, Ch. xii. s. 2, p. 196. under Peto's Act, 695 ; under Municipal Corporation Act, &c., 693, 694. Disseisor of trustee is not bound by the trust, 219. DOWEB, in trustee, is subject to, 196 ; but dowress bound by trust, 215. Escheat, estate in trustee formerly subject to, secus now, 196 ; see 219. whether lord taking by, bound by the trust, 21G, et segi. as to copyholds and customary freeholds, see 217, 218. as to equity of redemption, see 218. Equitable interests compared with, 41, 74. Forfeiture, estate in trustee formerly subject to, sccvs now, 196 ; see 219. but the lord was liable to the trust, 216. Heir, devolution of trust estate to, 196 ; bound by trust, 215. Judgments against mortgagee, 655, note ((?), against trustee bind trust estate, but c. q. t. protected, 214 ; and see 215. Outlawry of trustee, its effect, 219. Power of majority of charity trustees to pass legal estate, 481. Privileges, &c., annexed to legal estate in trustee, 204, et seg. V. g. he brings actions, 206 ; see 559, 560 ; proves in bankruptcy, presents to living, appoints steward, 205 ; pays admission fine for copyholds, 206; liable to rates, 206 ; trading as trustee is amenable to bankrupt laws, 208, 209 ; title deeds, as to, 660, et seg. whether entitled to vote for coroner, 205 ; see 562 ; not for member of Parliament, 205, 206, 663. Purchase, trustees for, should get in, 440. Quantity of, taken by trustee, 189. Trusts follow the, except in the hands of a purchaser without notice, 678, 679. Trustee, in, Ch. xii. p. 186. See 484, 558, Privileges, &c. sup. Uses, Stat, of, inf. (1) commensurate with trust if possible, Wi; see 191. legal estate, enlarged, 189 ; supplied in toto, e. g. by nature of trust tox feme covert ib.; by appointment of "trustee," "trustee of Inheritance," by devise to A. as trustee, and nomination by codicil ofB. " as trustee " in place of A., 191. (2) legal estate curtailed, from nature of trust, 191. limitation m fee to trustees to preserve, when cut down, 192. 942 INDEX. LEGAL ESTATE— oontimied. Teustbb, in — continued. fee where trustees take without word " heirs," 189, et seg. where given to trustee on partial trust, remaining interest exe- cuted by Stat, of Uses, see 192 ; and note (6) ; 193, note (/). exceptions where trust for leasing, to raise money by sale, 193 ; discretionary powers in trustees, 194 ; seons, if such powers do not affect fee, 194, 195. late Wills Act, its effect on devises to trustees, 195. UsBS, Statute op, when legal estate executed by, in o. j. t., 186 ; partially, see 192, note (i), 193. special trusts are not within, 187 ; « g. under trust to '' apply rents," " convey" estate, 187 ; see 191 ; ''pay rents," 187 ; see 192 ; preserve contingent remainders," " make repairs," " raise money," "sell," 187 ; so where devise to trustees upon trust for separate use of & feme covert and "her receipts alone to be discharges " — trustee tahes legal estate. seciis where trust under deed "for A. S(c., for her separate use,' 187 ; to permit A. to receive, 187 ; see 192 ; copy- holds " to be transferred," 188 ; or Tnere charge of debts, or annuities, 188. whether under trust " to pay unto, or permit to receive," 188. LEGAL POWEES. distinguished from equitable, 499. LEGAL TITLE. relief upon, in Court of Equity ; see 725. LEGATEE. See Legacy. Accounts, may require inspection of, but no copy, 571. Cebditoe may recover assets from, 313. Feaudulent bale of assets by executor, may impeach, 421. Payment, may claim, when exclusively interested in legacy, 569 ; legacy to purchase annuity, ih. Party, whether necessary, to administration suit, 807. LESSEE. not prejudiced where pm-ohase by trustee for sale set aside, 429. LETTER. may prove declaration of trust, 50. parol evidence may be admitted as to the circumstances under which written, 51. LETTERS PATENT. necessary for declaration of a use by Crown, 46 ; see 21. LEVARI FACIAS. See Judgment. execution under, as to equitable estates, 646. legal estates, 644. writ of, from the Crown, 644, note (1). LEX LOCI. See Jueisdiction. descent of trust is subject to, 670, 671. LIABILITY. See Coepoeation, Co-tbustbb, Executoe, Investment. C. Q. t., of, who has concurred in breach of trust, 750 ; see 294, 295, 325, 745, 746, 801, for trustees' expenses, 631, 532 ; see 828. Feme Coveet, separate property of, 624, et seq., 630, et seq. See Feme Covert. Husband, of, for wife's breach of trust, 34 ; see 198. Solicitor, of, for wilfully advising or concurring in breach of trust, 736, 737. Teustee, of, for breach of trust ; see Bebach op tbubt ; for failure of bank when trust money improperly placed there, 262 ; for improper investment, 294, et seq. ; for selling out improperly, 296 ; for destruction of contingent remainders, 338 ; for improper sale, 375, 376 ; for misrepre- sentation, 581, 801 ; for parting with fund after notice of incumbrance, 581 ; for robbery of the trust property, 260 ; continues notwithstanding appointment of new trustees by Court, see Tkusteb Act, 1850, s. 36, p. 867 ; and see CONVEYANCE. INDEX. 943 LICENCE from the Crown, 40. LIFE. See Tenant for Life. LIEN. See Mortgage (Equitable). c. Q. T., of, on property into which trust estate is tortiously converted, 730, et seq. not against land properly sold, for misapplication of proceeds, 391. Costs of suit when postponed to lien of trustee for expenses, 528, 529. Oeeditoe having specific lien, as to proof of debt by, 456. whether he releases by executing trust deed for payment of debts, ib. Deceees liens on the real estate, 677, note (c). Joint tenant, of, for improvements, 146. Judgment ckeditoe, of, against the heir, 675. Legacy of trustee who has committed a breach of trust is subject to, in favour of co-trustee, 744. PuKCHASEK, personal representative of, dying without heir after payment of purchase-money and before conveyance has a lien, on the estate, 250. without notice of lien, bound by, 699, 700. Tenant fob life, of, who renews, for contribution from remainderman, 164, 327, 331. Tbustbe, of, for expenses, 528. See Expenses. who has renewed, has a lien for improvements, 163 j see 165. on policy for money advanced for premiums, 739. persons employed by trustee have no lien upon trust fund, not- withstanding charges of expenses, 580 ; and see SOMCITOE, 530. secus if positive direction to employ particular agent, ib. Vbndoe, of, may be postponed to equitable mortgage, 589, 590. LIMITATION. Generally. how far chattels capable of, at lam, by will, 75 ; as to deed, ib. by way of trust, 75. words of, how far required to create equitable fee under a mill or deed, 95, et seq. Of suits in equity. See Mesne Eents and Pkofits, Statutes of, inf. (o) by Analogy to statutes, 706, et seq. twenty years an equitable bar by analogy to statute of James, 707 ; but see 713. when time was, as against remainderman of equity of redemption, 707, 708. five years in case of fine by volunteer without notice of constructive trust, 708. notwithstanding distress, ignorance, mistake, poverty, 708, and see note {d), 713. secus in case of concealed fraud, 710, and note (e) ; and see 716, 717, 727, et seq. how defendants should plead statute, 711 ; aud in case of fraud, 711. (J>) from. Inconvenience, 713, et seq. ; as to charities, 763, et seq. when parties dead, and vouchers, &c., lost, 713. whether mere lapse of time a bar, 713, et seq (c) from Laches in application to Court, 714, et seq., see 598. where alleged fraud, 421, 705, 715 ; accounts between partners, 715. purchase by trustee, 432, 433 ; or solicitor, 714 ; in specific performance, 715 ; in constructive trusts, 715 ; where interest reversionary, ib. ; in partnership accounts, ib. where there is a Statute of Limitation, 716. eifect of mere length of time, 714. (tion, 711 et. seq. ; as to chai-ities, 712 ; corporations, 765. when raised, 71 1 ; ground of, ib. ; favoured in law, ib. raised within twenty years where aided by evidence, 712, but see note (1) ; see also 165. sec^l,s where rebutted by evidence, 712. waiver and acquiescence distinguished, ib., 713. not raised in case of ignorance, 712 ; weakened by distress, ih. not raised against a class as against individuals, 433, 712, 753. defendant cannot avail himself of, by demurrer, 713. 944 INDEX. LIMITATION— C()re«m«e(?. Of suits in equity — continued. (e) from Acquiescence ( 1 ), when act was done with full knowledge of PlaintifE, 715, 716. (2), when he stands by without objecting, 716. secns if party dealing with property knew the real owner's rights, 716. Statutes of. Generally. apply as ietween c. q. t. or trustee and stranger, 708. claiming by adverse possession, 220, 708, 721 ; see 71 2, note (1 ). purchaser with notice, 700 ; and see 718 (as to volunteer claiming under trustee, see inf.) query where c. q. t. is an infant, see 709, 718. do not apply as hetroeen c. q. t. and trustee in direct or express trusts, 704, 705, 716, 718, 719 ; see 722, 725, et seq., 734, as to volunteers claiming under trustee. 718 ; and see 699. seems in constructive trusts, 705 ; see 708, 719. charities, they apply to, 763 ; and see 723. deits, how far applicable to trusts for payment of, 454, 455, 720. to charges for payment of debts, 720, 721. query whether when trustee is barred, c. q. t. is also barred, 709. rf debtor borrowed trust money he cannot plead the statute, ib. deits, whether executor liable for paying debts barred by, 493. disability of c. q. t. See G. Q. T. (Disability). intestate, personal estate of, how affected by recent Act, 724. pleaded, how they should be, 7 1 1 ; as to rents and profits, 726. cannot be, where, 734, 738. waste, run from time of, 167. Late Statutes of, 716, et seq. ; their effect as to. Acquiescence, 717. Arrears of rent, &c., six years, 717 ; as to pleading statute, see 726. but in case of express trust c. q. t. may recover all, 722, 725, 728, 729. or where subsisting term under which trustee may recover possession, 723. as to case of express trustee ignorant of his true character see 728. Charities are within the Act, 723, 763. Charge, 717, 719, 720. coupled with duty, 720. express trust, 721. of debts, 454, et seq. Constructive trust, not saved by section 25, p. 719. Disabilities, 717, 718. Disseisin by c. q. t., 722. Disseisor, 637 ; see 219. Dower, arrears of, 729. Express Trusts, 716, 718.719. when time begins to run against, 716. what are, within the Act. 719, et seq. distinguished from mere charge, 719, 720. Feme covert, sued in respect of her separate property cannot plead, semble, 534. Fraud, 717, statute runs from discovery of, iJ. cannot be pleaded by volunteer under a conveyance procured by fraud, 48. Interest, arrears of. 717. Intestacy, 724. Lands, 716, et seq, Legacy, 723, 724. Lessee for value, 718. Mesne rents and profits, account of, how affected by, 723, el seq. where mistake, 726 ; fraud, 727. Possession, effect of, 718 ; by one of several cs. q. t. 722. INDEX. 945 LIMITATION— contimied. Statutes of — contimied. Late Statutes O'e— contimied. Possession — continued. by trustee who pays rents, &c., to wrong person is the possession of the rightful c. q. t., Til ; and no adverse possession by wrongful recipient, iS. adverse, 722. Purchaser, as against, 718. under marriage settlement, 718. Remainderman, 718 ; see 709 ; and conf. 707. Eenta, see Arrears of, sup. Residue, or share of, 724. , Trust to sell and pay debts, 454, 455. Volunteer claiming under trustee, 718. LIS PENDENS. effect of, upon powers, 497, 498, 514, 615, 551. See DEOBiSB, Suit. trustee appointed during, should be sanctioned by Court, 515, 551. may during lis pendens solicit discharge by petition or motion, 553, 554. LOANS. by trustee in breach of trust, affect the borrower with notice, how, 704. trust for, 473. LOCO PARENTIS. who regarded as, 355. LONG ANNUITIES. purchase of by trustees, 294 ; but see 272, et seq. where to be converted, 265, 294. when to be enjoyed in specie, 264, et seq. LORD OP MANOR. See Escheat. infant, may give effect to custom, 35. LORD CHANCELLOR. See Chancelloe. LORDS JUSTICES. jurisdiction of, in lunacy, 850, note (J). LOTS. whether trustee for sale may sell in, 384. LUNATIC. See Chancellor, Committee, Trustee Acts. Conversion of his estate only made for his own benefit, 790, otherwise not, see 792. real estate sold for payment of debts, 791. timber cut on estate ex parte paterna, applied to relief of estate ex parte materna, 791. proceeds of, applied to pay deWs, redeem land tax, ib. not required, go to next of kin, ib. so when felled tortiously by stranger, 793. should not be purchased for repairs, &c. (to serve committee's interest), where it mightbe cut, 792. personalty applied to bring action of trespass, 791 ; to relieve charge on realty, 793 ; for improvements ; necessary expenses, e.g. repairs; renewal or admission fines, 792. as to building farm-house, see 792, note («). Conversion not suffered except where clearly for lunatic's benefit, 792. Deed op, when void, 25 ; feoffment voidable by heir, ib. Disability, how remedied where mortgagee, trustee, &c., 850, et seg. ; and see Trustee, inf. Elect, cannot, 781. Feoffment of, voidable by heir only, 25. Fine or eecovbey by, valid unless reversed, 25. Heir of founder of charity being a lunatic, visitatorial power exercised by Crown, 465. Mortgage debt on real estate of, personal estate not liable for, 793. Payment into Court of money belonging to, see Trustee Act, 1850, s. 48, p. 870. Trust declared by. Court may set it aside, 25. but would not interfere against ^twcAaser m'dlwut notice, 25. P P P 946 INDEX. hVSATIG— continued. Tkustbe, disability of ; see Trustee Acts, and 16 & 17 Vict. c. 70 ; Lunacy Eegulation Act, 1853, s. 137, et seq. ; costs of, 850, note (e). Trustee Belief Act, repayment ordered to guardians out of lunatic's funds of expenses incurred for his support, 835, note (a) Vesting oedbb, as to lands or stock of. See Tkustee Acts (Lunatic). LYING BY. on the part of owners of equities, 590, 591. MAINTENANCE. Cebditoes op Bankrupt, take under trust for maintenance, &c., of bankrupt, 87, 88 ; see 569. seetis where trustees have a bare discretionary power, 89. Directions as to, see Trust, inf. Discretion of trustees, fimd applicable to, at, 513. Infant, may be allowed to, by executor out of interest of legacy, 490 ; and now see late Act, ib. and note (e). in what cases out of capital, 490, 491. whether trustee should allow, when father alive, 491 ; whether to mother after death of father, 492. Power op, whether authorised by executory trust silent as to powers. 111, note(/), 112. Savings out of, allowed to wife on separation, belong to her exclusively, 634. Trust for, a special trust, 187. created by what words, 120, 121. nature of, 121, 122. ceases on forisfamiliation of child, 122 ; whether also on child's attaining twenty-one, ib. Trustee may expend money for, if c. q. t. incapable, 489. Whether right to sue a trustee can be assigned, 672. MAJORITY. of cs. q. t. cannot consent to trustee's relinquishment of trust, 5.34. of co-trustees, 228 ; See Co-Tkustebs. Transfer directed at their instance under Trustee Relief Amendment Act, 316. of creditors, whether they can sanction purchase by trustee, 435. MALINS'S ACT. whether applies to clwses en action in possession, 23. MANAGEMENT. See Powers (General). MARKET OVERT. owner's title to goods sold in, barred, 702 ; but if they came to trespasser again the owner may seize them, ib. MARRIAGE. See Feme Covert, Fbmb Sole, Husband. a valuable consideration, 718 ; to whom it extends, 799. MARRIAGE ARTICLES. construction of executory trusts in. See Executory Trust. MARRIED WOMAN. See Feme Covert. MASTER. of school, trust for finding, 472 ; and see as to salary of, ib. MAXIMS OF EQUITY for regulating trusts, 767, et seq. MEETING-HOUSE. See Chapel. Trust for, devolution of legal estate under Peto's Act, 695. MEMBER OF PARLIAMENT. trustee cannot now vote for, 205, 206 ; but c. q. t. may, ih. 563. MEMORANDUM. See Writing. may prove declaration of trust, 49, 50. MERCANTILE LAW AMENDMENT ACT, 744. MERGER. Charge op, to prejudice of purchaser, how avoided, 599. whether by payment of charge and subsequent acquisition of fee, 604. by ovmer of charge mortgaging estate, ib. INDEX. 947 ME EGE E — continued. Contingency, may be made to depend on a, 600. DOCTSINE OF, in equity, 599. Equitable estate, of, takes place where legal and equitable estates in same person and commensurate, 14. Mistake, not presumed -n-bere, 604. Presumption of, when arises, 602, 603 ; and note (i). on what principle made, ib. ; where tenant in fee, in tail, or for life pays off charge, 603, 604 ; secus in special cases, 604. PuBCHASEK paying off charge pending contract does not work a, 600. Tkustbe, assignment to, not necessary to prevent, ib. ; nor sufficient to form presumption in favour of, 603. Now by statute where there is no merger in equity there is none at law, 605. MEEITOEIOTJS CONSIDEEATION. See Consideration. MESNE EBNTS AND PEOFITS. Account of in equity. («) where legal title and account sought independently of other relief, cannot be had in respect of legal title, except where account com- plicated, plaintiff infant, or in the case of mines or tithes, 725 ; qu. as to timber, ih. ; qw. whether after death of party, by bill for an account of his assets, 726. if had in equity, is confined to legal limit, 726. where former legal remedy has expired equity will not assist, ii. ; except where defendant in fault, 727 ; or fraud or mistake, 726, 727. (J) where legal title and account sought as incident to relief prayed, cannot be had in equity, 729 ; unless plaintiff duivress or infant, ib.; or where plaintiff applies to equity to aid action at law, he may come back for account, 729, 730 ; or being obliged to come to equity on one ground and to avoid circuity, 730. if had in equity is confined to legal limit, ib. unless where defendant guilty of concealvient, fraud, or misrepre- sentation, ib. (c) where equitable title, as where trust estate followed into hands of volunteer, 727, et seq. See Constructive Trusts, inf. Adverse Possessor bona fide, what account directed against, 727, 728. Bill for account of, after bill to recover estate, 729 ; and see Account, snp. Charitable trusts in, extent of, 763, et seq. ; and for limits adopted, see 764. compromise with Attorney-General, 765. how affected by inconvenience, 762, et seq. ; by mistake of trustee, 765 ; in case of parish, 766. Constructive trusts in, 165, 727, et seq. prima facie from time of accruer of title, 727, 728. but not further back than six years before filing of bill, 728 ; only from filing of bill, where defendant's adverse possession bona fide, ib. ; unless where demand of possession before bill filed, ib. so where plaintiff guilty of laches only from filing of bill, ib. or from decree in great laches, ib. Express trusts in, from time when i-ents were withdrawn, 725 ; see 722. secus where trustee ignorant of his tnie character, 728 ; and see Charitable Trusts, sup. Form op order to account for, 728, 729. Fraud, a ground for decreeing an account of, 727. Infancy of plaintiff, a ground for an account of, ib. 728. Laches, from what time account directed in case of, ib. Limitations, account of, not affected by late Statute of, 728. Person to account in first instance is the. assignee of the estate, but without interest, 729. if assignee insolvent, trustee personally liable, ib. Purchase by trustee for sale, on, 428. Eenewal of lease by trustee. Sec, on, 165. MINERALS. cannot be reserved by trustees selling under a power, semble, 382. except with previous sanction of Court of Chancery, 382. p p p 2 9 48 INDEX. MINES. See p. 169, and Waste ; see also 382, and Timber. account of profits of, may be sought on legal title in equity, 725. sale of, separate from surface, 382. Trustees may not purchase, 489. MINING LEASE. See 481. Leasing, powbe of. MINISTER. See Chapel. MINISTERIAL, or Instrumental Trusts, 18. MISCONDUCT of trustee shall not prejudice e. q. t., 790. ground for appointment of receiver, 824 ; but see 825. fixing him with costs for Ms removal, 691 ; application should be by biU, 863, note (c); and see Costs. MISDEMEANOUR. fraud of trustees is a, 735. MISREPRESENTATION. See Feaud. Liability of teustbb for making fraudulent, 801 ; to purchaser of equit- able interest, 681 ; as to accounts, &o., 833. Defendant, of, where plaintiffi kept out of estate by, account of rents from accruer of title, 730. MISTAKE. Grantee does not take ieneficially, where mistake of grantor, 128. Ground for refusing account of mesne rents, &c., against trustees for charities, 765. for seeking account of rents in equity upon legal title, 726. Law, of, whether ground for relief in equity, 434, 435. NON ENTRY on cesser of lease for lives, by mistake, 726. Overpayment by, 307. Presumption of release, mistake rebuts, 712. , Settlement rectified where mistake, 100, and note (^). voluntary, will be set aside on ground of, 72. Statutory bar, mistake does not prevent, from running in equity, 708 ; but see note {c). Trustee, mistake by, as to rights of parties is at his own expense, 303. investing in Bank Stock instead of Bauk Annuities, 271. person assuming ofiice of, by mistake, accountable as trustee, 185, 740. costs of, who has occasioned suit by an innocent mistake, 831. MIXING trust money with his own, case of trustee, 211, 263, 732. MIXTURE OF TRUST AND POWER, 19. distinguished from trust with power annexed, ih. ; and see 499, 500. MONEY. See Resulting Trust. At home, 773. Bills and notes, distinction between, and money, 731, 732. Deposited, may be, in bank to trust account, 225, 226. Distributed, how it may be, to creditors, by assignees, 225 ; and see Dis- tribution. Earmarked, when, 731 ; see 210. Followed in equity, where, 730, et segf.; mixed with trustees' money, 732 ; paid into bank on account of trustee, 733 ; Into land even by parol, 150, 733. Land, money to be laid out in, treated as land. See Conversion. c. q. t. may elect to take it as money, 570. See Election. results, on failure of purpose, to executor, for next of kin, 134. Scrivener, now obsolete, 73. Single trustee, whether may be paid to, 312. Transmitted, may be, through a bank, &o., 225. Trust to raise, is a special trust, 187 ; and see Legal Estate. MORTGAGE. See Equity of Redemption, Mortgagee, Mortgagor, Renewable Leaseholds. Assets, may be left oustanding on, by executor, 286. Cautions in lending on, 286. Costs, dower trustee of mortgagor not entitled to, against mortgagee, 827. Devise of " Securities " for money, mortgage in fee passes under, 200, 201 . INDEX. 949 MOnTGAQB—contintied. Equitable, 291. as to lands in Scotland, 43. overrides subseqaent judgment, 215, note (/). assignee of, is bound by equities affecting assignor, 576. Executor or Administrator may make, of personal estate, 415, 416. with power of sale, 416. Infant's realty, of, whether relieved by his personalty, 794. Investment on. See Investment (Keal Securities). in case of accumulations from Charity Estate, 475. as to value of security, &c. See 286, et seq. whether trustees can release part of security, 495. trust how kept out of sight on, or on transfer of, 292, 293. where trust is disclosed, 293. Judgment creditor, may redeem, 662, 663 ; as to tacking, 650. his right against entirety of equity of redemption, ib. against surplus proceeds under power of sale in, 649. Lapse of time, where equity of redemption barred by, 707. Lunatic's realty, of, not discharged out of personalty, 793. Power op sale in, who are assigns within meaning of, 381, 503, 504. mortgagee may exercise, without mortgagor's concurrence, 390 ; but not after tender of principal and interest, 698, note (a), exercising, covenants against his own act only, 387. surplus under, is personal or real estate of mortgagor according as sale takes place before or after his death, 779, 780. survives where the advance is joint, 381. whether authorised by power to mortgage, 378 ; whether by power to raise money by sale or mortgage, ib. Ebconvby, by what description mortgagee should, 565. Second, trustees should not invest on, 291. Suit for foreclosure or redemption, necessary parties to, 797, 809. Tacking. See 291, 650. Tenancy in common, implied in equity, on advance by several, 1 46. Trust for sale, distinguished from, 780. Trust to, will not authorise sale, 377, 378 ; survives, 380, 381. to sell, whether it authorises mortgage, 377. whether included in the word '' trust," under Lord St. Leonards' Trustee Act, 848, note (S). Trustees, whether they may invest on, without a power, 276. And see Assets, Investment, sup. MORTGAGEE. See Equity of Ebdbmption, Mortgage, Mortgagor. Charge, whether he may buy in, for his own benefit, 244, 245, and note (/). Disability of. See Trustee Acts. Equity of Redemption, in fee takes (subject to mortgagor's debts), where mortgagor dies intestate without heirs, 261, 670. mortgagee buying, may keep his charge on foot as against inter- vening incumbrancers, 601. Executor of, may call on heir to convey, 772. Fee, in, and his heirs, trustee for himself and his executors, 15, and see 772. so where foreclosure, or release after his death, 15, and see note (1) infant, &c. See Trustee Acts. Insure, in absence of stipulation, cannot, 489. Judgments against, 655, note (d). Power of signing receipts, 394. Proof by, in administration suit, bankruptcy, or where trust deed for creditors, 456. Purchase, may, from mortgagor, 427. Receipts, his statutory power of giving, 393, 394. Eenevtal of lease by, 161 ; see 168. Sale by, by virtue of recent Act, 381 ; and see Mortgage (Power of Sale) good, though part of purchase-money remain on mortgage, 390. Trustee, how far a mortgagee is to be so considered, 169, 245, 489. MORTGAGOR. Fee, in, dying without heirs and intestate, 251, 670. heir of, might require exoneration out of personalty, 772 ; but see 17 & 18 Vict. c. 113. 950 INDEX. MORTGAGOR— continued. NOTICB of trust, with, should see to application of trust money, 304, 305. PliECHASiNG under Power of Sale in first mortgage lets in subsequent incumbrancers, 601. MORTMAIN. AcctTMULATiONS from Charity Estate, whether they may be invested (1) in purchase of land, 475, (2) on mortgage, 475, 476. See ChAEITY Com- MISSIONBES. Act merely prescribes mode of alienation, but does not prohibit it, 41. Ghaeitt, trusts of realty for, what formalities required for creating, 85. how varied by late Acts, 85, 86. Dependant bound to answer whether legal estate devised to him on secret trast for, 57, 68. Devise upon trust to sell and pay jpart of proceeds to charity, how far avoided by Act of, 131, note (_d). upon secret ti-usts for, whether void at law, or only in equity, 59. Eneolmbnt for, when to be made, 85, 86. unnecessary on appointment of new trustees, 552. acts dispensing with, 85. FoEMALiTiES required on re-investment in, 474, 475. License, not required on re-investment of charity funds, 475. Legacy to charity, charged on realty, 137, et seq. MOTHER, doctrine of advancement applies to, 158. MOTION for payment into Court ; see Payment into Coukt. Court will not declare mortgagor trustee for mortgagee, on motion to make foreclosure order absolute, 862, note (e). MOVEABLES governed by Lex Domicilii, 43. MUNICIPAL Corporations Act, 693 ; jurisdiction of Court under, 694. MURDER. See Attaindee. NATURALISATION. act of, not retrospective, 37. recent act of, 26. NE EXEAT, writ of, against trustee, 737. NEGLECT. of trustee as to calling in estate, 254, et seq. ; costs of trustee in case of, 831 ; in investment, 270 ; legal proceedings, where cause of, 527 ; to pay premiums, enforce transfer, 739. NEPHEW. advancement for, presumed, 158. NEW TRUST. created vrithout intervention of new trustee, 64. NEW TRUSTEES. See Costs. Couet of Chancbet, appointment by. See Tettstbe Act, s. 32, p. 863 ; Teusteb Extension Act, s. 9, p. 877. application for, under Trustee Act, 696 ; see Tettstbe Act, sa. 32, 37, 40, pp. 863, 867, 868. bill, may be by, but costs may be refused, 865, note, costs of, 872, note, under Bankruptcy Act, 693. in case of charitable trusts, 693, 694, 695, and note (c). requires sanction of Charity Commissioners, 761, 762. where charity is corporation, 693, 694. appointed ly Court, could not until recent act exercise arbitrary powers, &c., 507, and as to receipts, see 411. are assigns within the terms of the power, 507 ; and now see recent Act, 507, 508 ; seciis as to trustees appointed without competent authority, 507. Court will not give to, power of appointing other trustees, 692 ; and see Teustbe Act, s. 33, p. 865. how satisfied as to fitness of proposed, 692, fi93, 858, note (J) ; 865 note ; and see 553, 564. INDEX. 951 NEW TRVSTE'BS— continued. appointment of, iy Court, Gh. xxviii, p. 690. where no trustee or not proper number, &o., ib. on bankruptcy, &c. death, marriage (of feme trustee), misconduct, opinions (of charity trustees), refusal to act, residence abroad, &c., 690, 691, and note (J), on conviction of felony, see Teustbb Extension Act, s. 8, p. 877. not from mere caprice of c. q. t. ; or refusal to exercise power, or mis- understanding of duty, by trustee, 692 ; nor from irregularity in appointment where a long time has elapsed, 691. c. q. t. in remainder may apply for, 690. under Bankruptcy Act, 693, Court exercises discretion as to appoint- ing, ib. Municipal Corporations Act, 693, 694. Charitable Trusts Act, 695. chapel, meeting-house, &c., of, how appointed, 695. Trustee Act, 1860, under, 696. Appointment op, under Trustee Act 1850, and Trustee Extension Act, 1852. application for appointment of, should be by petition, s. 40, p. 868 ; but may be by bill, 865, note, costs of, out of corpus or income, 872, note. consent, need not appear to consent, 865, note ; but may, ib. Court may vest land in, s. 34, p. 866. or the right to call for transfer of stock, &c., s. 35, p. 866. but not the stock itself, ib., note (/) ; but see now Extension Act, s. 6, p. 876, and note (c). may appoint in all cases where there is no existing trustee, 877. evidence on petition, 868 ; of trustee's fitness and consent to act, 865, note ; and see 858, note (J), and 868, note (J). Also see Orders, inf. felon, where trustee is. Court may appoint and vest estate, 877. lunacy, L. C. may make an order in, for appointment of new trustees, without its being made in Chancery, 877, 878. parties to be served, 865, note, and 868, note (c). petition, application for, should be by, p. 868 ; but see supra (Ap- plication, &o.) may be amended, 868, note (a), dismissing, s. 42, p. 869. proceedings on, 868, 869. powers of, a. 33, p. 865. vesting order on, does not affect the liability of the old trustees, s. 36, p. 867. mho may apply for, 867 ; and note (i). Generally. breach of trust, trustee should not retire in favour of one who intends to commit, 550, 551. c. q. t., right of, to require appointment of, 690 ; as where trustee dies in testator's lifetime, &c., ib. charity, of, where deed of endowment does not provide for ap- pointment of, 469. costs of appointment payable out of corpus, 552 ; and see Tetjstee ACT, 1850, s. 51, p. 872, note. if no fund, then often paid by tenant for life, 552 ; and see 554. case of trustee removed for misconduct, 691. directory power to appoint when trustees reduced to a given number, 501, 550. impartial, exercise of power should be, see 550. ineffectual attempts to exercise, powers of old trustees remain, 551 ; and see 539. inquiries to be made by, 552. legal estate transferred in certain cases without conveyance on ap- pointment by Court of trustees, 694 ; and see Vesting Obdbk. lis pendens, after decree in, trustees should not exercise power without sanction of Court, 515, 551. 952 mDEX. NEW T RV STEES— continued. GenekaIiLY — continued. lost, when part of trust estate is, how Court appoints, 554. powers, what, exercisable by trustees appointed under power, 507. appointed by Court ; see Court, siijf. rectification, of bad appointment, 547. severance of estate from powers, 609 ; of trusteeship relating to several estates, whether proper, 549, 550. tenant for life who ha.s sold or mortgaged his estate, whether he can exercise powers, 550. transfer of estate, whether a new trustee is actually such until, 536, 537. vesting estate in new trustee, mode of, 537, 538 ; how effected by recent Act, 538. Number to be appointed ; see 38. Court does not limit itself to original number, 545, 546 ; see 864, note (J). tmo trustees retiring, appointment of single successor improper, 544. one of two retiring, appointment of co-trustee sole trustee improper, 646. appointment of one in place of several improper, 546. cases in which such appointment has been supported, 547. single trustee retiring should not appoint two successors, 544 ; unless authorised, ii., and 546, note {a). Peksons propee for office. See Trustee (who may be), should be within jurisdiction, 37, 546 ; see 543, 690. c. q. t. or near relative undesirable, 37, 548 ; c. j. t. sometimes appointed by Court, 649. c. J. t. entitled to require appointment of, 690 ; donee of power, ■whether he can appoint himself, 649. fitness of, how shown, 692, 693, 858, note (5), 866, note. Power to appoint, usual form of, and suggested additions, 535 ; and notes ; form where several sets of trustees, 535, 536. Construction of " acting," 540, 541, 548, and see 376, 412, 685 ; " incapable to act," does not extend to bankruptcy, 543, or to residence abroad, ib., and see 536 ; " refusing or declining, " includes "disclaiming," 541; and retiring after having acted, ii. ; case of trustee who has paid into Court, ib. ; " refusing or declining or other," 547, 548 ; " said trustees," 548 ; " sur- vivor," 540 ; " unfit," extends to bankruptcy, 543 ; and see 691, 693 ; " departing the United Kingdom " does not in- clude temporary absence, 644. trustee surviving testator, may appoint new trustee in place of one who predeceased testator, 642 ; and see as to recent Act, note (rf), ib. power for tenant for life with consent of " surviving, continuing, or acting trustee " to appoint, how construed, 543. 3fode of appointing under where power to surviving or continuing trustees or trustee, and both, or the survivor, are to retire, two appointments usual, 548. secws, where power to surviving, continuing or other trustee, ib. Mode of vesting trust estate in new tru^stees, 537, et seg. as to money in funds, &c., 537. chattels real, &c., 538 ; and now see recent Act, ib. freeholds, 462, 463. omission of, how supplied under recent Act, 536. Trustee retiring should see thatpomer contemplates precise case, 539. should not part with fund before complete appoint- ment of successor, ib. Powers, presumed to have all powers of old trustees, 652. NEXT OF KIN. See Conversion. C. Q. t. dying intestate without leaving, 142. Construed " nearest of kin," 688. INDEX. 953 NEXT OP 'Km— continued. ENTlTijED to undisposed of interest of money to be laid out on land, 134. See Resulting Trusts. but not to undisposed of proceeds of sale of land. See Residuary Legatee, 132, 133, 142. PEKSON.ai DKSiGNAT.aB, when they may claim as, 781. NOTES, BANK. may be followed in equity, 210, 731, 732. See Bank (Notes). NOTICE. See Puechasee, Voluntbee. Assignee of debts, by, 576, 577. of equitable interest, by, 579, et seg. its effect, 65, et seg. ; not indispensable in all cases, ib. ; see 215, note (/). precautions to be taken by, 581. Clbek, incidental mention to, is not, 585. FOEM OF, 586. How given to trustees, 585, 586. to one of several trustees good during his life, 582. but not after his death, nor where the trustee is the assignor, 583. to all trustees and all dying, 583, 584. time of giving, 584 ; and to whom (written or unwritten) it should be given, 585. where trust fund consists of shares in company, 585, 586. where fund in Court, 586, et seq. See Stop Oedee. Peioeity op Chaege from priority of notice, 579. as between assignees of cJioses en action, ib. as against assignees in bankruptcy 580 ; except where debt re- coverable at lam by bankrupt, semble, 580. whether doctrine applies to real estate, 581, 582. second incumbrancer giving notice, but without making inquiries preferred, 582. Puechasee, with or without. See Puechasee. Railway shaees, effect of, on transfer of, 582, note (a). Recitals, presumed from, 165. SoLiciTOE, implied notice from both parties employing same, 297. Teusteb of equitable interest should give, to holder of legal estate, 254. to, from holder of paramount title, 253 ; of assignment or mort- gage, 304. not necessary to complete assignment as between assignor and assignee, 579 ; but necessary to make trustee liable who pays un- der the original title, 304, 579. to person about to become, 584. VoLUNTAEY ASSIGNMENT of equitable interest, whether it requires notice, 62, et seq., and 64, note {d) ; 215, note (/), 579, 585. "Want of, not a defect in title, 584. Will, of, is notice of its contents, 416, et seq. NUMBER OF TRUSTEES, 690. See Co-Teustees, New Teustebs. only four allowed of Bank Annuities, except in special cases, 39. what is proper, 38 ; and see 544, et seq. NUMEROUS. cs. q. t., when, some may sue or defend for all, 805. relief sought must be beneficial to all whom plaintiff represents, ib. interest of plaintiff and those whom he represents must be iden- tical, 806. what number necessary, ib. OFFICE. of trustee, its general properties, Ch. xiii., p. 221. OFFICIAL TRUSTEES, 316, 762. OPERATION OF LAW. Trusts resulting by, distinguished from implied and constnictive trusts, 95, note (1) ; and see CoNSTEUCTlVB Teusts. how affected by Statute of Frauds, 171, et seq. where intention expressed or presumed, that grantee or devisee should not take beneficial interest, Ch. ix. s. 1, p. 126 ; and see Resulting Teust. 954 INDEX. OPERATIONS OF LAW— comtimied. Tetjsts resulting by — continiied. upon purchases in names of third persons, Oh. is. s. 2, p. 144 ; and see Resulting Teust. OPINION. See Counsel. Charity Commissioners, of, is an indemnity, 762. Court, of, how and when obtained, 309, 515, 516. trustees of chapel holding, contrary to those of founder, 468, 469, 691. OPTION. to convert, 776. '' ORDER OF COURT OF EQUITY. has same efEect as judgment, 664. on decree, see Teustbb Acts, Vesting Oedee. discharging contingent right, 861, 862. obtained without petition, 862, note (a), for specific performance, 862, and notes (J), (c). " ORDER AND DISPOSITION," 212. See 564. " ORDERING AND DIRECTING." may raise a trust, 115. ORDERS, GENERAL. See Gbnbeal Oedees. ORPHANAGE SHARE. money to be laid out on land in favour of child formerly not brought into hotchpot, 770. OUTLAWRY, 26. of trustee, 219. See Attainder, Foefeituee. upon felony equivalent to attainder, 27. in misdemeanors, &c., forfeiture on, 27. OTBR-PAYMENT. by trustee, 312 ; and see 313, note (A). PAPISTRY ACTS. purchase in contravention of, does not raise resulting trust, 148. PARAMOUNT. title to trust, notice to trustees of, 253. PARCELS. by what description trustee should convey, 565. whether trustee can be required to divest himself of trust estate in, ii. PARENT. caimot urge meritorious consideration against child, 71, note (a). PARISH PROPERTY, 75, et seq. PARISHIONERS. ACQUIBSCBNCB, whether bound by, 753. Advowson, trust of, enforced for, by bill, not information, 76 ; and see note (i). Beeach of teust by, retrospective account not ordered upon, 766. Clbek, election O'e, primd facie in trustees, 76 ; when in parishioners, ib. meaning of " parishioners and inhabitants," 76 ,- of " chiefest and discreetest," 77 ; of " rate-payers," 77. vestry not usually the representative of a parish for an election, 77. votes for, whether women, children, and servants entitled to, 76. PARLIAMENT. See Membbe of Paeliament. Act of, necessary for total alteration of scheme of charity, 470. Bill in, money paid for not opposing, how treated, 169. Resulting teust not implied in evasion of, 147. PAROL EVIDENCE. See Avebmbnt. Acceptance of trust, admissible on question of, 182. Admissible to discover secret trust, 57. Advancement, how far it may prove or rebut presumption of, 156. Crown, not admitted to prove declaration of trust by, 21. See Pension. Disclaimer, whether it may be by, 177. See 175, et seq. Election, whether it is sufficient to express, 789. INDEX. 955 PAEOL EVIDENCE— eo»im?(«(?. Executors, how far formerly admitted against title of executors to residue, 54. See Exbcutob. Investment of trust money on land, admissible to prove, 160, 733. Mbeobr, admission of, to prove intention as to, 602, 603. Purchase with another's money, admissible to prove, 148, 149. how far on purchase by agents, 148, 149. Resulting trust not rebutted by, when devisee or grantee is expressly made trustee, 53, 54, 132. seeus if arising from mere presumption, 130. on purchase in name of stranger may be rebutted by, 150. See Eesultino Trust. whether admissible against defendant's denial Try answer, 149 ; whether after his death, ib., 149, 150. Trust, is inadmissible to prove, since Statute of Frauds, 127 ; see 47, 48, 49, 573, where admissible to rebut, 130, and note (A), 131, 132, 150, 155, 156, secvs in case of chattels personal, 47, 48 ; but in case of a will, see 51. Trusts of Wills, how far it is admissible to declare, 52, et seg. PARTIES. To SUITS RESPECTING TRUSTS, Ch. XSxi. S. 1, p. 796. Generally. See 309. General practice, 796, et seg^. (a) under 30th order of 26th Aug. 1841, cs. q. t. represented by devisees in trust for sale, 806 ; but see note {d). order does not apply where consent of another necessary to sale, 806. nor where trust for sale reversionary, ib. nor where object of suit is to adjust equities of es. q. t., inter se, 807. (S) under 32nd order of 26th Aug., 1841 (now 7th order, rule 2, Consol. Ord. Feb. 1860), as to plaintiff having Joirai and several . demand, 807. order does not apply where general account sought, ib. ; does not dispense with bringing representative of deceased trustee who has committed broach of trust, before the Court, ib. (c) under rules of Chancery Amendment Act, s. 42, 808. residuary legatee or next of kin may have decree for adminis- tration without making other legatees or nest of kin parties, 808 ; and so legatee of legacy charged on proceeds of real estate, ib. ; and so residuary devisee or heir without serving co- residuary devisee or co-heir, ib. ; so also one e. q. t. without serving other cs. q. t., ib. ; in matters of waste, one may sue on behalf of others, ib. ; executor, &c., may obtain decree for ad- ministration against one legatee, &c., ib. ; but Court may require any other persons to be parties, ib. ; in all above oases the decree must be served on all parties interested, ib. ; new trustees may be appointed without making all cs. q. t. parties, ib., note (J). where, under rule 9, trustees may represent cs. q. t., 809, 810. order does not apply in foreclosure suit where executrix is also tenant for life, 809. whether cs. q. t. shall be parties is in the discretion of the Court, ib. where trustees are trustees of a settlement only, or are inadequate representatives, order does not apply, ib. nor where one of trustees is c. q. i. as to a share, ib. or trustee's interests conflicts with that of v. q. t., 810. under s. 47, where real estate in trustees by devise, as to applica- tion in chambers for administration, 810, and note (e). under s. 51, Court may adjudicate in presence of so7n,e only of parties interested, and as to portion only of trust estate, and without taking accounts; 810 ; and see 819. (tio)i,ib. in joint purchase where purchasers contribute equally, ib. ; or in joint undertaking in trade, ib. where contribution is equal, joint tenancy is implied, 145, 146 ; un- less circumstances show contrary intention, 146 : and see Joint Tenancy. jhow far rule applies in purchase of copyholds for lives, 146, 147 ; and see 144 ; and as to persoialty , 145. rule does not apply to advance by A. not in the character of pur- chaser, but by way of loan, 145. nor to purchase in contravention of Act of Parliament, or of ship, or for giving votes, 147, 148. As to ships, see the exceptions, ib. LACHES, resulting trust may be rebutted by, 151. Parol, purchase is prorable by, though otherwise expressed in purchase deed, 148 ; or against defendant's denial, 149. 974 INDEX. RESULTING TUVSTS— continued. Purchase, in cases of— continued. Parol — continued. or after death of nominal purchaser, semble, 149, 150. but evidence must be clear, 149 ; and see Feauds, Stat. of. seciis where purchase l>y agent and no money paid by employer, 148, 149. resulting trust may be rebutted by, 150. subsequent declaration, effect of, ib. (6) PuECHASB by father in name of child, &c., implies advancement, and no resulting trust, 161, ei iej'.; see ADVANCEMENT. RETAINER. of trust funds by trustees in Bankruptcy, 298, 299 ; executors, ib. ; receiver, ib. ; trustees, 298 ; of charity-fund, 473. RETIREMENT. of trustee from the office ; see New Teustbbs, Relinquishment. REVERSION. Bankeuptcy Act affects chattels in, 209, 213. CONVBESION of, in favour of tenant for life, 269. Laches, effect of, in suit to set aside purchase of, 714, 715. MOETGAGB, of, 289. Oedbe and Disposition clause, as to, 213. POETIONS, how raised out of, 365. Renewable leaseholds, of, how far trustee purchasing, is a constructive trustee, 166. Separate use, as to, 637. RETOCABLE. trusts, 22, 450 ; see Debts, (Trusts for payment of). REVOCATION OF WILL, 595. REVOKED. a voluntary settlement is, by sale for value, 66, 67. not by a subsequent voluntary deed, »6. ROBBERY. of trust property, 260. ROMILLY'S ACT. as to charities, 757, et seq. construction of, ib. proceedings under, ib. RULE OF COURT. when within the judgment Act 1 & 2 Vict. c. 110, s. 18, p. 654, note (a). RULES. as to Trustee Relief Act, 842, 843. SALE. See Abeoad, Purchaser, Receipts, Specific Performance, Trustee Acts (Petition), Voluntary Settlement. Charity Lands, of, 473, 474, 759, note (A). Conditions op, trustee for sale may insert special, 384. Contract foe, raises implied trusts, 124. how usually entered into by c. q. t., 375. after institution of a suit, can only be entered into subject to approval of Court, 374. Court, when land is sold by the, under a charge of debts, surplus proceeds treated as realty, 127. Decree foe, binds equities of parties when, 847, note (c). makes legal owner a trustee within Trustee Act, see ss. 29, 30, p. 861, 862 ; Extension Act, s. 1, p. 874. Devise upon trust to bell passes the /ce, 189, 190. Direction foe, in will, raises a trust, 123. Mortgagee, by, by virtue of recent Act, 381. PowEE OF; see ExECUTOES (Power), Moetgaoe. effect of the Drainage Acts upon the power, 379. implied, where, by charge, 190 ; see 193. INDEX. 975 SALE — continued. PowBR OP — cmitinucd. mortgage with power of sale whether authorised by power to mort- gage, 378 ; whether by power to raise money by sale or mortgage, ib. personal estate, on deficiency of, 393. partitwn is not authorised by power of, qu. whether by power to sell and exchange, 378. receipts, power of signing, is not implied in, 402. usual, in settlement, effect of, 379 ; whether exercisable unless trustees have another purchase in view, ib., et seq. Tortious sale op land, remedy for, 738. Trust for, whether a, ministerial trust, 18; survivorsJiip of, 380; though there be a power to appoint new trustees, 381 ; see Sale, Trustees for. distinguished from mortgage, 780. to mortgage, does not authorise a sale, 377, 378. effect of administration suit upon, 391, 392. SALE, TRUSTEES FOR. See Mortgagee ; Sale, Trust for; Timber. Generally. Attested copies, when they must give, 387, Auction, cannot buy in at, without authority, 384, 385 ; but now see recent Act, 385. Charge, may apply purchase money in paying off, when, 496. Conthaot, may now rescind private, 385. Conveyances by, conciirrence of cs. q. t. where necessary In, 390 ,- covenants, what, trustees must enter into, 386 and note ( /) ; for production, 387 ; of indemnity on sale of leaseholds, 388 ; grant, effect of, 386 ; note(e). ; power of attm-ney, form of, on assignment of clwses en action, 389, 390. Court, trustees may sell without applying to, 374 ; secus where suit pending, ib., 391, 392. Covenants, what, they enter into, 386, 387. Discretion of trustees, sale at, purchaser cannot question Its exercise, 377. Duties of : should sell to greatest advantage of all cs. q. t. impartially, 375 ; and see 379 ; should ascertain the value of the property, 375. should not delegate the trust, 383 ; see 376 ; and see Court, sup.. Preliminaries, Quantity, Time, inf. Equity of redemption, may sell subject to mortgage, 378. Feme Covert as trustee, can exerdise discretion, 32, 33. Lease, trustees for sale may not in general grant, 377. Mode of conducting sale by agents, 383 ; auction or private contract, by, ib. and note (J>) ; buying in, conditions of sale, as to, 384, 385 ; lots, trustees may sell in, 384 ; possession to purchaser, when to be given, 386 ; see 825 ; receipt of purchase money, 383 ; as to powers under recent Act, see 384 ; and see Receipt, Preliminaries, Quantity, inf. Mortgage, trustees for sale have no power to, 377. Partition, not authorised to make, 378. PAYMENT of DEBTS, for, 392, 393. Personal estate, trust for sale on Its insuflficienoy for debts, 393. Portions, when raisable by trustees for sale, 371. Powers of ; leases, they may not grant, 377 ; and see 424 ; mortgage, whether they may make, 377 ; and see Receipts ; and Quantity, inf. Preliminaries : advertisements, if by auction, 384 ; title should be investi- gated before sale, 381 ; valve of property should be ascertained, 375. Quantity, whether trustees may sell larger, than trust requires, 393. Request, sale at, &c., how it must be testified, 380. Specific performance, costs of, 38 1 , 826 ; not enforced if involving breach of trust, 375 ; whether when involving hardship, 386. Succession duty attaching on the money, does not prevent ti-ustees making a good title, 386. Surviving trustee can make a good title, 380 ; though there be a power to appoint new trustees, 381, 976 INDEX. SALE, TEUSTEES FOB,— continued. Generally. — oontinued. Time foe sale : reasonable time allowed, 376 ; trust to sell with " all con- venient speed," it. ; see 501 ; " after death of A." 380 ; within limited period, 376 ; after death of the testator, 415, et .seq. trustees neglecting to sell within reasonable time must make good the depreciation, 376. where portions are raisable, 365, et seq. Title, bound to show a good, 381 ; may do all reasonable acts for the pur- pose of clearing, 385. covenants for, by, 386 ; and note (/), 387, 388. Their disability to purchase the trust property, Ch. xviii. is. 3, p. 422, and see Lease. (a) Rule applies to trustee puechasing prom himself, ob co- TEUSTEB, 422, 423 ; trustee for sale cannot purchase by means of agent, oxasagentfor anothe7;i2i: ; at awc^ioaor by private contract, 422 ; however fair the transaction, 422, 423 ; in name of trustee or another, 422 ; whatever the trust property , ib. applies to administrators, executors, receivers, trustees for creditors, &c., 427 ; does not apply to execution creditor on sale by sheriff, or to surviving partner or mortgagee, ib., 428 ; or to trustee who has disclaimed, 423 ; or to merely nominal trustees, ib. reason of the rule, 423. a trustee cannot sell to himself and his co-trustees, 439. (V) Trustee mat purchase from c. q. t., if relation of trustee and u. q. t. dissolved, and no concealment, 424, 425. cases where purchase sustain ed/rom conduet of c. q. t., 426 ; whether c. q. t.'s solicitor can authorise purchase, 426. cs. q. t. creditors, whether all must sanction purchase, ib. OS. q. t. sni juris, Court cannot authorise trustee to bid, if, 426 ; secus where cs. q. t. are infants, 427. (c) Confirmation of purchase, 433, et seq. ; requisities of, 434 ; con- sideration, it does not require, ib. (d) Laches, when a bar to relief, 432, 433, see 715 ; in case of class (as creditors), feme covert, infant, 433. no laches in case of ignorance, 433 ; whether in case of distress, ib. (e) Teems on which purchase set abide, 428. 1. c. q. t. may require reconveyance on payment of purchase money and interest at il. per cent., 428. trustee accounts for rents (without interest) ; compensates for wilful deteriorations ; but allowed for repairs and (unless where fraud) lasting improvements, ib. trustee paying money into Court not entitled to a. rise in stock, 429. reconveyance when ordered, ib. ; without prejudice to bond fide lessees, &c., ib. 2. u. q. t. (even a single creditor) may pray re-sale, 429, 430. trustee, where no advance, held to his purchase, 429. how allowed for repairs and improvements, 430. whether re-sale in lots can be required, ib. 3. if trustee devise the estate and the sale be then set aside, qv. does the purchase money belong to heir or personol representa- tive, 431, 432. u. q. t., remedy of, in case of sliares. 431. against subsequent purchasers, 430. costs follow decree, 431 ; not where plaintiff guilty of delay, ib. ; see also 831, 832. (/) Time within which relief must be sought, 432, 433 ; see Laches, sup. SALE AND EXCHANGE, Power of. whether authorised by " usual powers " in executory trusts, 112, and see 113 ; under covenant to settle realty similarly to stock, where power of varying securities, 114. whether it authorises partition, 378. whether it implies power lo' give rcreii>ti, 397, note (ft). INDEX. 977 SATISFACTION. doctrine of, 353. distinguished from ademption, 360. applies only to parents and persons loco parentis, 354. is matter of presumption only, 356. SCANDAL. charge of misconduct on part of trustee is not, 691. SCHOOL, chapel for, 472. " free grammar and free school," 471, et seq. trust for poor applied to school-house, &o., 472. SCOTLAND. Deposit of deeds in, creates no lien, 43. Equities in respect of lands in, administered here, 43 ; but see 44, and JlTEISDICTION. EXEOUTOES here not bound to know the law of, 306. Ebal sbciteitibs in, whether trustees may now invest on, 277, 290. Thbllusson Act, formerly excepted from, 83, secu's now, ib. Tetjsteb Act, excepted from, 873. SECRET EQUITY, 590. SECRET TRUSTS. discovery of, where enforced, 55, 56, 57 ; see Dbvisee, Hbie. as to, under deed enrolled under 9 Geo. 2, c. 36, p. 85. SECRETARIES OF STATE not trustees as to monies in their hands, 531. SECURITIES. See Investment. Foe money, gift of, in will may pass mortgage in fee, 201. Negotiable, where they may be followed, 210, 731, et segi. Real, tolls and road bonds are, 287. Teeminablb, 283. SECURITY. See Investment. Agent, trustee not called upon to require, from, 225. C. Q. t., by, on taking possession, 557. Tenant foe life op ebnewaelb leaseholds, what he gives, where fine paid by remainderman, 329, 331. Teustbb required to give, for due execution of trust, 696, 697. Vaey, power to, 379 ; a " usual power," 112. SEISIN. CUETBSY, what, required to give, 606. Equitable, 596 ; what required to give curtesy, ib., 606. Ex parte matbena, 670. Infants, of, ex parte materna of leaseholds may be changed to seisin em ■parte paternd, 794, 795. Possessio fratris of a trust, 596, and see note (i). SELECTION. power of, 19, 513, 684, 687, note (c). SEPARATE USE. See Feme Covbet. SEQUESTRATION. of estate of c. q. t. who does not appear, 804. of rents ordered where tenant for life of renewable leasehold refuses to renew, 333, 696. SERVICE. under trustee act, 868. under general orders of Court as to investment, 275. SET-OFF. may be in equity though not at law, 577, 578. agreement for, when presumed in equity, 578. assignee of debt bound by right of, against assignor, 576, 577. in equity ; one or both of the cross demands must be equitable, 578 ; cross demand must not be in autre droit, ib. right of, between banker and customer, 577. where bankrupt trustee (indebted to trust) has beneficial interest, 744, et seq. SETTING ASIDE. deed, creditors, 68, 69. purchases by trustees, 428, et seq. E E K 978 INDEX. SETTLED. account, opening, against solicitor trustee, 521. SETTLEMENT. Equity to. See Feme Covert. Executory trust, what directed under. See Exbcutoey Trusts. Impeachable, 253, 305. New property, op, on old trusts, 48. Personal estate, of, strict, 87, 102, 103. Postnuptial, executory trusts in, construed as in wills, 111. Protector of. See Protector Op realty, usual frame of, see Ch. xvi. p. 335. effect of usual power of sale in, 379. object of limitation to trustees to preserre in, 335. Rectipication op, how far by means of articles, 99, 100. not when settlement executed ^Hor to marriage, 100. unless stated to be made in pursuance of articles, or where mistake, 100. sewible not against a purchaser, 100, note (^). Separate use of feme covert, for ; see Feme Covert. " Strict," on a female, 111. Voluntary, of lands or chattels real (but not of personalty) defeated by subsequent sale by settlor, 66, 67. of any property void as against creditors, when, 67, 68 ; see Volun- tary Settlement. SETTLOR. Bankruptcy, cannot settle Ms own property with trust to go over on, except on marriage, 91, 92. Retaining possession of voluntary settlement duly sealed and delivered, is bound, 66. Whether he can claim benefit on failure of c. q. t., 252. Who may be. Oh. iii. s. 1, p. 21. See also Alien, Bankrupt, Crown, Corporation, Feme Covert, Husband, Infant, Insolvent, Lu- natic ; and as to Felon, Outlaw, Traitor, see 26. SEVERANCE. of trusteeship, 519 ; of estate from powers, 509. by trustees in legal proceedings generally, 229. in answers, 811, 812. of trustee and c. q. t. in suits, 811. SHALL AND MAT. in Acts of Parliament, force of, 231, note ((Z). SHARE. Aliquot, payment of, into Court sometimes ordered, 820. C. Q. T., of, who should be parties in suit for, 804 ; see 809, 810. MoRTOAGE of undivided, whether authorised, 289. Sale of undivided, 505. SHARES. See Charging Order. Choses in Action, not comprised under, 212, note (d). Charging order under 1 & 2 Vict. u. 110, its effect, 656, et seq. Companies, in, loans upon, 282. restraining order under 5 Vict. c. 5, s. 4, applicable to, 814, 817. in canal, insurance, railway companies, &c. when to be con- verted, 265. Constructive trustee of, vendor after contract for sale is, 848, note (c). Purchase of, by trustee, 431. Standing in one name only, 283. SHELLEY'S CASE. rule in, applicable to trusts executed, 96, 97. See Executory Trusts (Heir of Body). SHIP. no resulting trust on purchase of, in stranger's name, 147 ; see exceptions, ib. registry Acts do not apply to transfers by mere operation of law, ib. SIGNATURE. required for declaration of trust, 51 ; by whom, it. INDEX. 979 SIMONY. direction to purchase next presentation in favour of persona designata falls within, 92. so purchase of advowson on the footing of immediate possession, 92. SIMPLE CONTRACT DEBTS. See Beeach of Trust. Lands of trustee trading are liable for, under Sir S. Eomilly's Act, 208, 209. Monet to be converted into land was not formerly liable for, 770. Real assets, they are now payable out of, 183, 184, 209, 218, 398, 399. as to device for payment of debts, see 444. Trusts fob payment of debts, how paid umler, 453, et seq., 458 ; and see 797, 798 ; and Debts. interest on, not allowed, 460 ; but see 461, note (J). SIMPLE INTEREST. usually charged for improper retainer of trust money, 298, 801. SIMPLE TRUST. See Special Trust. explained, 2, 18. in what the e. q. t.'s estate consists, Ch xxT. s. 1, p. 556. SINGLE TRUSTEE. should not be appointed or be left to act, 38. . V will not be appointed by the Court, except under special circum- ■ ' stances, 864, note (S). whether money may be paid to a, 312. SOLE TRUSTEE. See Single Trustee. SOLICITOR. See Attorney. may not receive purchase money, 205, 413, 414. Borrower of, undesirable for lender to employ, 297. C. Q. T., of, whether he can authorise trustee to purchase, 426. Constructive trustee, case where solicitor violating his duty held to be, 169, 170. Costs, may set off, against receipts, 530. Co-trustees should employ one only, 229. Money now invested by, as a money scrivener, 73. Purchase in name of son (a solicitor), held not an " advancement " from the relation of solicitor, 159. Security to, for professional charges set aside, when, 621. Settled account containing professional charges opened against, 521. Trustee, solicitor of, has no lien on trust fund, 580 ; taxation against, at instance of c. q. t., 527, note (c), 531, note {a). Trustee, who is, cannot charge for time and troxiMe, but only for costs out of pocket, unless where special contract, 249, 521 ; as to nature of contract, see 522, 523 ; rule same where co-trustee is one of a firm, 249 ; costs of snit how ordered, 828. Court will never allow professional charges where trust does not authorise them, but only a salary, 523. proportion of costs allowed to country solicitor (executor) defending suit by agent, 249 ; none allowed to single trustee defending himself by his partner, ib. ; unless by the articles the trustee is not to have any profit, ib. trustees may employ a solicitor, but not one of themselves, 525. SOUTH SEA. stock and annuities, trustees may not invest in, 271, and note (e). SOVEREIGN. See Crown. Declaration of trust by, 21, 22 ; in favour of, 39. Will of, as to private property, 22. SPECIAL. Case, 309. Occupant, heir taking as, may disclaim, 175. Trust, nature of, 3, 18. in what c. q. i.'a estate consists, Ch. sxv. o. 2, 568, ct scq. how converted into simple trust, 569. proceeds till countermanded by c q. t., 570. Uses, Stat, of, is not within, 187. E E K 2 980 INDEX. SPECIALTY. See Bbeach of Trust, Simple Contract Debts. heirs where bound by, 183 ; see 677, 741. SPECIALTY CREDITOR. devise avoided against, 183. trust for payment of debts, his claim under, 454, 458, et aeq. ; for interest, 461, 462. SPECIE. enjoyment in, a question of intention, 264 ; and see note (S). SPECIFIC. Bequest distinguished from direction to enjoy in specie, 264, and note (i). Chaesbs on realty, persons having, where necessary parties, 798. Performance, costs of trustee in suits for, 381, 826. decree for, makes legal ovmer a trustee within Trustee Act ; see s. 30, p. 862. enforced, is not, against trustees who have sold improperly, 375 ; whether where hardship, 386. nor where it causes a breach of trust, 375. whether under a trust for sale for paymetit of debts, where sale has been long postponed, 393. whether in favour of heir of trustee for sale who has bought by an agent, 424. laches in suit for, effect of, 714, 715. ^.. lands abroad, as to, when enforced, 43, 44. ^fff parties to snit for, 798. person who has made a previous voluntary settlement cannot enforce, against purchaser 67 ; but purchaser may enforce, iA. Trustee Acts, provision for, under, 862. voluntary contract, not enforced, 70 ; and see Covenant. SPIRITUAL COURTS. have no jurisdiction of trusts, 17. SPORTING. trustees not entitled to, where it can be let, 244. qualification of u. q. t. for, under old law, 563. STAMP DUTY. payable on orders under Trustee Acts. See Trustee EXTENSION Act, s. 13, p. 878. STATUTES. See Frauds, Stat. of ; Limitations, Stat, of ; Uses, Stat, of ; Wills, Stat, of ; Trustee Acts ; Trustee Relief Acts. Edward I. 11 (Statute Merchant), 214. 13, St. 1, c. 1 (De Donis), 573. St. 1, c. 18 (Elegit), 214, 645. St. 1, c. 39 (Levari Facias), 644. St. 3 (Statute Merchant), 214. Edward II. 9, st. 2 (Sheriffs), 205. Edward IIL 27, st. 2, c. 9 (Statute Staple), 214. Richard II. 15, c. 5 (Mortmain), 40. Richard III. 1 , c. 1 ( Cestui que Use empowered to pass Legal Estate), 4, 510. Henry VII. 19, c. 15 (Execution against Uses), 7. Henry YIII. 14, co. 4, 7, 8, p. 3. 26, c. 13 (Forfeiture), 26, 666, et seq. 27, c. 10 (Statute of Uses), 510, 665, et seq. 32, c. 15 (Statute of Wills), 593, 672. 33, 0. 20 (Forfeiture), 665, et seq. Elizabeth. 13, c. 4 (Extents), 664. — c. 5 (Creditors), 67, 445, 453. 27, c. 4 (Purchasers), 66, 67, 653. 29, c. 5 (Creditors), 445. 43, c. 2 (Relief of Poor), s. 7, p. 492. c. 4 (Charitable Uses), 757. James I. l, c. 16, s. 13 (Bankruptcy), 580. 21, c. 16 (Limitations), 728 ; and see Limitations. Charles II. 22 & 23, c. 25 (Game Act). 563. 29, c. 3 (Statute of Frauds), 148, 594, 672, 674. s. 5 (Devises of Land), 5 1 . s. 7. (Creation of Trusts of Land), 47, 733. INDEX. 981 STATUTES— continued. Charles II. — co7itinned. 29, c. 3, a. 8 (Exception of Implied Trusts), 171, 733. a. 9 (Assignment of Trusts), 573. s. 10 (Judgments against cestui que trust), 652, 654. s. 12 (Estates j??(rffi«tre vie), 146. s. 16 (Writ of Fieri Facias), 645. William and Maey. 8 & 4,c. 14 (Action against Devisee), 183, 676. Anne. 4, c. 16, s. 22 (Subpoena), 814. 6, c. 35 (Yorkshire Registry), 567, 663. 7, c. 19 (Infant Trustees), 872. Gboeoe II. 2, c. 22 (Set-off), 578. 8, c. 6 (Yorkshire Registry), 567, 663. 8, c. 24, 3. 5 (Set-off), 578. 9, 0. 36 (Mortmain), 41, 59, 85, 475. 14, c. 20, s. 9 (Estates ;««• autre vie), 146. Geobge III. 25, c. 35 (Extents), 664. 38, c. 87, s. 6 (Executors), 35. 39 & 40, 0. 36 (Bank of England), 814. c. 56 (Disentailing money-land), 786. 0. 88, s. 10 (Will of the Sovereign), 22. c. 98 (Thellusson Act), 79 ; and see Limitations. 47, c. 74 (Traders' Lands, Assets), 209, 675, 676. 52, 0. 101 (Komilly's Act), 694, 757, et seq. 54, c. 145 (Corruption of Blood), 26. 55, 0. 192 (Surrender to use of Will), 594. 58, c. 91 (Charity Commissioners), 760. 0. 95, s. 2 (Right of voting for Coroners), 205, 562. 59, c. 12 (ReUef of Poor), 467. c. 81 (Charity Commissioners), 760. c. 91 (Charity Commissioners), 760. George IV. 6, c. 16 (Bankruptcy Act), 448, 525. c. 50 (Jurors), 562. 7, c. 45 (Entailed Money), 786. c. 57 (Sales under Insolvent Debtors' Act), 883. 9, c. 85 (Charities), 85, 475. William IV. 11 G. 4. & 1 W. 4, c. 40 (Executor Trustee for next of kin), 54, 263. u. 47 (Action against Devisee, Assets), 183, 209, 444, 676. c. 60 (Lord St. Leonards' Trustee Act), 802, 848, 849, 862, 856, 859, 862, 868, 872. 1 & 2, c. 32 (Game Act), 568. 2. c. 57 (Charities), 693. 3 & 4, c. 27 (Limitation of Actions and Suits), 220, 455, 713, 716, et seq., 768 ; and see Limitations. 0. 74 (Fines and Recoveries), 14, 38, 100, 178, 574, 618, 625, 782, 786, 787. c. 104 (Assets), 209, 218, 898, 444, 674, et seq. 770. c. 105 (Dower), 606, 609, 768, 769. c. 106 (Inheritance), 596, 671. 4 & 5, c. 23 (Escheat), 196, 870. c. 29 (Lynch's Act), 289. c. 76 (Poor Law Amendment Act), ss. 56, 57, p. 492. c. 92 (Fines and Recoveries, Irish), 178. 5 & 6, c. 76 (Municipal Corporation Act), 22, 31, 693. Victoria. 7 W. 4, & l Vict. c. 26 (Wills Act), 24, 59, 147, 189, 195, 595, 769, 789, 795. 1 & 2, >^. 110 (Insolvency, Judgments), 288, 883, 633, 646, 649, 653, d^isg'., 677. 2 & 3, c. 11 (Judgments), 658, et seq. 3 & 4, c. 77 (Grammar School Act), 471. c. 82 (Judgments), 656, 659. c. 105 (Arrest on Mesne Process, Irish), 288. 5, c. 5 (Abolition of Equity Exchequer Jurisdiction), 30, 814, et seq. 982 INDEX. STATUTES— contiyiued. Victoria — continued. 5 & 6, c. 33 (Income Tax), a. 73, p. 93. 6 & 7. c. 18, s. 74 (Right of Voting), 205, 563. ' -c. 73 (Solicitors' Act), 530. 7 & 8, c 45, s. 2 (Dissenters' Religious Property Limitation Act), 468. c. 66 (Aliens), 25. c. 76 (Transfer of Property, now repealed), 338. c. 92 (Right of voting for coroners), 205, 562. 8 & 9, c. 16 (Companies' Clauses Act), 813. 0. 18, s. 132 (Lands Clauses Act), 567. c. 106 (Real Property Amendment Act), 108, 178, 193, 335, 338, 386, 434, 567, 573, 668, 782. 10 & 11, c. 96, (Trustee Relief Act), in extense, p. 835 ; and see title Tbustbe Relief Acts. 11 & 12, i^. 68 (Irish Trustees Relief Act), 839. 12 & 13, u. 74 (Further Trustee Relief Act), in extenso, 844. and see title Tetjstee Rblibp Acts. c. 106 (Bankrupt Law Consolidation Act), 26, 212, 445, 448, 449, 580, 693. 13 & 14, c. 28 (Peto's Act), 469, 695. c. 35 (Sir G. Turner's Act), 309, 317. c. 60 (Trustee Act, 1850), in extenso, 846 ; and see title TstrsTEB Acts. 15 & 16, c. 51, s. 32 (Enfranchisement), 497. c. 55 ( Trustee Extension Act), m extenso, 874 ; and see title Teusteb Acts. c. 86 (Chancery Amendment Act), 309, 808, ct scq., 815, 820. c. 87 (Relief of Suitors), 850, 878. 16 & 17, c. 51 (Succession Duty), 385. c. 70 (Idiots and Lunatics), 862. c. 137 (Charitable Trusts Act, 1853), 470, 474, 482, 694, 761, et seq., 870. 17 & 18, c. 82 (Chancery Amendment Act, Lancaster), 857. 18 & 19, c. 15 (Judgments), 658, 659. c. 91 (Merchant Shipping), 847. c. 124 (Charitable Trusts Amendment Act), 1855, 316, 474, 475, 482, 762. 19 & 20, c. 50 (Sale of Parish Advowsons), 76. c. 76 (Roman Catholic Charities), 483. c. 94 ( Uniform Administration of Estates), 770. c. 97 (Mercantile Law), 744. 20 & 21, c. 64 (Fraud), 735. c. 57 (Feme Covert), 22, 612, 615. c. 76 (Roman Catholic Charities), 483. c. 77 (As to the Court of Probate), 197. 21 & 22, c. 51 (Roman Catholic Charities), 483. 22 & 23, c. 35 (Lord St. Leonards' Act), 271, 404, et seq. s. 13, p. 382. s. 14, pp. 404, 410. s. 15, p. 405. s. 16, pp. 408,409. s. 17, p. 405. s. 18, pp. 405, 406, 410. s. 21, p. 538. s. 22, p. 660. s. 23, pp. 259, 393, 409. s. 26, p. 311. s. 27, p. 389. 6. 29, pp. 317, 741. s. 30, pp. 309, 515. s. 31, p. 243. 3.32, pp. 271, 276, 290. c. 39 (Indian Loan Act), 272. INDEX. 983 STATUTE S —continued. VICTOBIA — continued. 22 & 23, c. 50 (Roman Catholic Charities), 483. c. 61, s. 5 (Divorce), 641. 23 & 24, c. 34 (Petitions of Right), 30. 0. 38 (Law of Property Amendment Act), 272, 660 724. s. 1, p. 660. s. 3, p. 677. s. 4, p. 677. s. 5, p. 660. s. 9, pp. 310, 516. s. 10, p. 272. s. 11, p. 284. s. 12, pp. 277, 279, 290. =. 13, pp. 713, 724. s. 14, p. 317. c. 124, s. 20 (Renewal of Leases), 321. c. 134, s. 5 (Roman Catholic Charities), 468, 483. c. 136 (Endowed Charities), 469, 474, 695, 761, 763. c. 145 (Trustees and Mortgagees), 320, 381. s. 1, pp. 383, 384, 385. s. 2, p. 385. s. 8, p. 321. n. 9, pp. 321, 326. s. 12, p, 259. s. 25, pp. 279, 284. s. 26, p. 490. s. 27, pp. 507, 508, 535, 536. 542. s. 28, p. 542. s. 29, pp. 269, 394, 405. s. 30, p. 494. s. 34, pp. 259, 394. 24, c. 9 (Charitable Uses), 85. 24 & 25, c. 94 (Accessories and Abettors), 735. u. 96 (Fraudulent Trustees' Punishment Act), 735. c. 134 (Bankruptcy Act, 1861), 449. 25 & 26, c. 17 (Charitable Uses), 85, 86. c. 108 (Sale, Minerals), 382. 26 & 27, c. 106 (Charitable Uses), 85. 27 & 28, c. 13 (Charitable Assurances, Inrolment), 85, 86. c. 112 (Judgments), 660. c. 114 (Improvement of Land Act), 290, 291, 488, 664. 28 & 29, c. 99 (County Courts' Equity Jurisdiction), 317, 837, 878. 29 & 30, 0. 57 (Charitable Assurances, Inrolment), 86. 30 & 31, c. 102 (Voting for Parliament), 206. u. 132, (East India Stock), 272. u. 142, s. 8 (Transfer of Suit), 317. B. 24 (Trust Funds), 317. c. 144, s. 1 (Policies), 395. 31 & 32, c. 44 (Mortmain), 86. 82 & 83, c. 46 (Assets), 209, 677. 32 & 83, c. 56 (Endowed Schools), 472. c. 71, s. 6 (Petition in Bankruptcy), 741. s. 15 (Trust Estates), 210, 449. (Order and Disposition), 212, 739. (Ohoses en Action), 212, s. 49, (Discharge), 750. s. 91 (Bankruptcy of Settlor), 124, 209. s. 117 (New Trustees), 693. c. 110, s. 12, (Majority of Trustees), 228, 474, 481. 33 c. 14 (N"aturali3ation Act, 1870), 26, 37, 41. 33 & 34 c. 23 (Forfeiture and Escheat), 27, 668. c. 34 (Investment on Real Securities), 277, 476. c. 56 (Improvement of Land), 488. 0. 93 (Married Women's Property Act), 241, 642. 34, c. 13 (Mortmain), 86. 984 INDEX. STATVT'ES— continued. Victoria — continued. 34, c. 27 (Debenture Stock), 282. 34 & 35, c. 47, s. 13 (Consolidated Stock of Metropolitan Board of Works), see Addenda. 35 & 36, c. 24 (Charitable Trustees Incorporation Act), 481, 482. s. 13 (Inrolment), 86. 36 & 37, 0. 66, (High Court of Justice), 17, 63, 395, 483, 560, 575, 588, 605, 724, 813. s. 26, rule 3 (Waste), 169. rule 6 (Choses en Action), 63. c. 87, s. 17 (Endowed Schools), 472. 37 & 38 c. 50 (Married Women's Property Amendment Act), 643. 0. 57 (Beal Property Limitation), 717, et seq. STATUTE MERCHANT. tenant by, bound by a trust, 9. STEWARD. of manor. See Infant. trustee appoints, but must observe direction of c. q. t., 205. STOCK. See Payment into Coubt. Chakging okdeb under 1 & 2 "Vict. c. 110 ; see Charging Oeder. Co-executors, transfer by, 240. Creditor, how available to ; see Charging Order. Distringas, writ of, applicable to, 813, et .teq., 817. Dividends, c. q. t. is put in possession of, by power of attorney, 564. Feme Covert, of, settled to separate use, is liable for her engagements, 633. Investment upon, 294, et seq. ; and see 272, et seq. Private company, trust money must not be iuvested upon stock of, 271. Public, investment upon, 295. See Investment. case of trustees improperly selling out, 294. where power to do so, 284, 285. neglect to purchase, 739. Restraining order, under 5 Vict. c. 5, s. 4. See Charging Order. Trustee liable for neglecting to enforce transfer of, 739. Vesting order as to. See Trustee acts. Vesting order. Voluntary settlement of, may now be void as against creditors, 70. STOP ORDER. on whom it should be served, 587, 588, and note (a), practice respecting, 688, note (a), priority given by, 587. See Notice. STRANGER. Advancement for, whether presumed, when purchaser has placed himself in loco parentis, 168. Parties to suits respecting trust by, or against, 796, et seq.; and see Parties. Purchase in name of, where it creates resulting trust, see Purchase. Trust, to, without notice, not a necessary party to suit by e. q. t., 801. "STRICT" SETTLEMENT on a female, 111. in directions for purchase, 443. SUBP(ENA. origin of, 1. issue of, before bill- filed under/old practice, 813. SUCCESSION DUTY.'^ ^■^-.'^'^^f-i''" '"'-.. M -U'' " -=- attaching on the money does not prevent trustee for sale making a good title, 385. trustee is liable for, 566. SUIT. See Costs, Decree, Parties. not to be instituted by a trustee where it would have no useful result, 267. Barred by lapse of time, when ; see Limitations. Court may direct institution of ; see Trustee Act, s. 53, p. 872 ; and 837, note (»). Decree in, takes administration from trustee, 374, 391, 392, 399, 497 ; and see 515. INDEX. 985 SUIT — contimted. Frame op, 308. Trust foe bale, effect of suit for administration upon, 374. Trustee, ioT protection of, 308. , appeals at his own risk, ii. should see that proper parties are before Court, ib. should sustain rather than originate, ib. instituting suit instead of paying into Court under Trustee Relief Act may be mulcted in costs, 308. for removal of, 690, 691: and see 552, et sea. SUMMONS. application by, for opinion of Court under recent Act, 809, 516. SUPPLYING WOKDS. in articles, 104 ; and see 136, 189. SUPREME COURT OP JUDICATURE. 17. SURFACE. 382. SURRENDER. See Copyholds, Customary Freeholds. SURVEYOR. has no lien on trust estate, 530. SURVIVORSHIP. See Feme Covert, Guardian. Administratorship or executorship, of, 230. Babe power, not any, of, 230, 510. Committeeship of lunatic, not any, of, 230. Power op sale in mortgage, of, 381. Powers of trustees, of, 509. See Powers. Trust, of, 230, 231 ; even where power to appoint new trustees, 231, 381, of., 802. Trust fob sale, of, 230, 380. TACKING. See Mortgage. TAXATION. when directed by Court at instance of c. ([. t., 527, note (e), 531,_note (a) ; and see Costs. TAXES. See Rates. TECHNICAL TERMS. how far necessary for creation of express trusts, 95. their force when employed, 96 ; and see Executory Trusts. TENANCY IN COMMON. See Joint Tenancy. Devise, by way of, if void as to one may be good as to the other, 56. Elect, how far tenant in common can, 784. See Election. Implied in case of joint loan, 146 ; or where two possessed of mortgage term purchase equity of redemption, ib. ; in joint purchase, where pur- cliasers contribute unequally, ib. ; or in joint undertaking in trade, ib. Mortgagee, tenant in common of equity of redemption, time does not run against, 707, 708. Presumption of ouster does not arise between equitable tenants in common, 712, note (1) ; but see 722. TENANT AT WILL. c. ^. t. is, to trustee, 558 ; see 722. renewal of lease by his executor does not raise a constructive trust, 162. TENANT FOR LIFE. Appointing improper person trustee, is personally liable for costs of removing him, 551. Breach op trust, instigating, liability of, 744, 745. participating in, his interest may be stopped for compensation, 744, 745. Chattels or heir-looms, his rights, as to, 564. Conversion, his proportion in income accruing before, 266, 267. See Con- version (income), having wrongly received whole income, when conversion ought to have been made, is liable to refund, 294. Costs of suit instituted for relinquishment of trust by trustees on account of incumbrances by him, he bears, 554, 655. Dividends, how put in possession of, 564. 986 IXDEX. TENANT FOE LIFE— continued. Feme covert, as to the equity to settlement of, 614 ; and power of dispo- sition, 615, 637. FOEPEITUEB by, 668. Impeovbmbnts and repairs, by, i86. Income op, in respect of debts recovered, 747, 748. See Convbesion. Incumbeancb, efEect of tenant for life purchasing, 248. Powers, whether. having sold or mortgaged his estate, he can exercise power of appointing new trustees, 550. Real estate, his rights in, 657, et seq. Receiver, appointed by Court, expense falls on, 826. Renewable leaseholds, of, fines, entitled to, on under-leases, 325. how provided for as between tenant for life and remainder- man, 325, et seq. ; and see Renewable Leaseholds. liability in case of neglect to renew, 325 ; see 31S, et seq. refusing to renew, 333. regarded as trustee for renewal, when, iJ. renewing is trustee for those in remainder, 169, 318, 319. Rbpaies by, 486, 487. Rights, 568. Sale bt, to trustees for purchase, 439. Stock, apportionment in respect of dividends on, in favour of, on change of investment, 285. Trust foe sale, he may buy under, though his consent necessary to sale, 423. Trustee poe sale, tenant for life who is, cannot profit by postponing sale, 268, 269. Title deeds, whether entitled to, 560, 561, and notes (J), and {g). Waste by, 166, 167, 486. See Waste. TENANT IN TAIL. See Uses. AssieNMENT of equitable interest by, 673, et seq. Election by, 785, et seq. ; see Election. Equitable, cannot require trustee to convey legal fee, 566. TENANT TO PRECIPE, 337 ; see 335 ; Equitable, 674. TENANT, YEARLY. renewing lease is trustee for remainderman, 161. TENANT RiaHT, 166. TERM. attendant. See Attendant Teem. outstanding, trustee of, is not a necessary party, to suit, 802. TERMINABLE SECURITIES, 283. TERROR. confirmation must not be obtained by, 435, 756. TESTAMENTARY DISPOSITION. See Will. Expenses, costs of taking the opinion of the Court are not, 632, 533. THELLUSSON ACT, 79, et seq. See Ireland, Scotland. Accumulation can be for one only of the periods allowed by statute, 80. commencing after testator's death, must end at 21 years from such death, 80. trust exceeding limits of Act, but not of common law, is good^ro tanto, 80. Act applies to simple and compound accumulation, and where enjoyment sit^pended, though right vested, 80. whether Act applies where accumulation only implied by instrument of trust, 80, 81. Charge, void under, sinks into the land, 82. Exceptions from the Act, and their construction, 82. Excess, to whom it belongs, 82. resulting for heir or personal representative, 82. Subsequent li.mitations, where accelerated, 81. Wills Act, under, void accumulations of realty, go to residuary devisee ; of personalty, to residuary legatee, 82, and where residue is settled form capital, ib. INDEX. 987 THELLUSSON ACT.— continued. Wills Act — continued. void accumulations from residue itself result, if realty, to heir, if personalty, to next of kin, ib. THINNINGS OF WOOD treated as income, 563. TIMBER. See Waste. ACCOXWT OF, in equity on legal title without injunction, qy. 725. On infant's estate, see Infant (Conversion). On lunatic's estate, see Liwatic (Conyersion). Teustees may not buy wood estate in favour of tenant for liJEe, sans waste, 438 ; whether may purchase a timbered estate generally, 438 ; their power to cut, 488 ; with power of sale, may not sell the timber separately from estate, 382 ; but see as to efiect of recent statute, ib. Repairs, legal tenant for life may cut, for, 486 ; in what case he is a trustee of the proceeds, 167. whether trustee may also do so, 486. underwood treated as income, 568. TIME. Bae from. See LACHES, Limitation of Suits. Cebditob's deed, time limited in, is not of the essence, 456, 457, note {a). Payment of fund into Couet, what, allowed for, 823, Peioeity, how it affects, 588, et seq. Trust foe sale, within what it should be executed, 376 ; and see 380, 393, 399, 419, 420, 421. Teustbe not entitled to any allowance for his time, 518 ; and see Teouble. TITLE. trustee cannot set up adverse, against his c. q. t., 253. power of vendor to sign receipt for purchase money is a matter of, 394. trustee for sale is bound to make a good title, 381. trustees for purchasing must see to, 437. TITLE DEEDS. Custody of, who entitled to, where legal estate in trustee, 560, 561. right of tenant for life to, ib. ; and notes {b) and (^), 561. c. q. t. entitled absolutely in possession, 561. tenants in tail, 561, note (i). may be committed to care of one of several trustees, 562. HOLDKE OF, how far a constructive trustee for remainderman or part owner, 170 ; may gain priority over earlier incumbrancer, 590 ; but not if they be obtained wrongfully, or by accident, ib. Leaseholds, of, executor may hold, till debts paid, 561, and note (i). PuECHASEH, if not delivered to, assignees must give attested copies, and covenant for production, 387. TOMBS trusts for maintaining, are void, 94. TORTIOUS. CoNVEESiON of trust property, 211, 730, 790 ; and see Conversion, Follow. Sale of land by trustees, 738. of stock by trustee, 296, 297. TRADE. See Partner, Peofits of Teadb. Allowance for management is given to constructive trustee, 520 ; secus as to express trustee, ib. Bank, money lodged in, to executors' account considered to be traded with, 300. Buildings used in, trustees should not lend so much as half actual value on security of, 287. Following trust of property employed in, 732. Investment in, when authorized, 282. Tenancy in common implied on joint advance for, 146. Trustee employing trust money, charged at option of c. q. t. with profits, 300 ; see 245 ; or with interest at 51. per cent., 300. whether with compound interest, 302, 303. TRADER. See Bankrupt, Debts. TRAITORS. See Forfeiture. 988 INDEX. TRANSFER OF CHANCERY SUIT TO COUNTY COURT, 317. TRANSMUTATION OF POSSESSION. See Voluntaey Assurance. where there is, the trust though voluntary will be enforced, 60. and where there is not, if trust be perfectly created, 60. TRAVELLING. Expenses, trustee allowed, when proper, 525. TREASON, 26. See Forfeiture. TROUBLE. See TRADE. Allowance, none for, to trustees, generally, 518. nor to committees of lunatics, executors, mortgagees, receivers, &c., 519 ; and see Solicitor. Commission, whether allowed to executor in East Indies, 519, 520 ; and see note [a). when to trustees or mortgagees of West India Estates, 519. Contract, whether trustee may, with c. q. t. for allowance for, 522, et seq. must be fulfilled to the letter, 522. trustee may with Cov/rt, before accepting trust, 523. whether mortgagee may for allowance, ib. Settlor may direct the trustee an allowance, 521. it will not cease on institution of a suit, 522. amount where not known, settled by reference, 522. " TRUE OWNER," whether bare trustee is, within the bankrupt laws, 214. TRUST. See Abroad, Advowson, Alien, Breach of Trust, C. q. t.. Feme Covert, Infant, Legal Estate, Ovbksbbrs, Trustee, Will. Accumulation, for, 78, et seq. ; see Accumulation, Thbllusson Act. Administration of, assigned to Chancery division of Supreme Court of Judicature, 17. Alienation, restriction of, not allowed by way of trust, 87. Annexed in privity to the estate, 15. to the person, 16. Averrablb at common law, 45. Chapel, for, how created, 75. Charitable or public trusts, 20 ; see Charities. Church, for, how created, 75. Classified, Ch. ii., p. 18. Common, with power annexed, 19. Consideration for, 60, et seq. ; see Consideration, Covenant, Volun- tary Assurance. Construction of, 96 ; et seq. ; see Construction. Constructive, Ch. x., p. 160 ; distinguished, 95, note (1) ; see Construc- tive Trusts. CoNTiNaENT Remainders, for preserving, Ch. xvi., p. 335. See Con- tingent Remainders. Copyhold, of, cannot be declared by parol, 47. Created, how ; see Creation op Trusts. when perfectly, Ch. vi., p. 60, et seq. Creditors, for, Ch. xx., p. 444 ; see Debts. cannot be defeated by means of trust, 87, et seq. Debts, for payment of, on insufficiency of assets, 392. Declared, how trusts may be, 45, etseq. ; see 49, 50 ; and see Ch. viii., p. 95. Defined, 13. Delegation of, not permitted, 222, et seq^. See Delegation. Discretionary, 18; see Discretionary. Duration of, 20, 78, et seq. Enforced, where consideration valuable, or if perfectly created, 60. Estate tail in, 42, 573. Executed and Executory distinguished, 97 ; see Executory Trusts. Express, Ch. viii. p. 95 ; how affected by Stat, of Limitation, 716, 719 ; see Express Trusts. Frauds, Stat, of, how it affiects trusts, Ch. v., s. 2, p. 47. See Frauds, Stat. of. Immoral, is void, 93. Impeachable, 253, 305. Imperfect, 60, et seq. Implied, Ch. viii., o. 2, p. 114, et seq. ; distinguished 95, note (1). INDEX. 989 TRUST, &c.— continued. INSTKUMBNTAL, explained, 18. Intention will be followed where lawftd, 41, 72, 74, et seg. IBEBVOCABLE, 450, et SCJ. Lawful, 19, and Ch. vii., s. 1, p. 74 ; see 19, 93, and Unlawful Trusts. Law, by opbbation of, 95, note (1) ; see Opbeation of law. Limitation of, compared with legal limitations, 41, 74, et seq^. Maintenance, for ; see Maintenance. MiNiSTEEiAL, explained, 18. Monet followed into land, 150, 733, 734 ; see 730. may be paid into Court, 315. MOETMAIN, in, 85. See Moetmain. Natueb and oeigin of, 1, 15 ; of modem trust, 6. administered at first on the principles of uses, 8 ; afterwards treated as an estate, 10, 11. Objects of, Ch. yii., p. 74. Oeigin of modem trust, 6. Paeol, as to chattels personal, 47, 48 ; but see 51, 52. Peefect, 60, et seq. ; see Cohsideeation, Voluntaey Assueance. Pbepetuitt cannot be created by, 20, 78, 86 ; see Public Teusts. POOE of parish, for, how created, 75. POWBES, distinguished from, 19 ; see 118, 393, 510, 679, et seq. Pebcatoey, 115. et seq.; see Implied Teusts. Peinciples, governing, at present day, 11. Peivate, 20. Peopbetibs of, in analogy to legal estates, Ch. sxvi., p. 572. assignment of a trust, 572, etseq.; assets, a trust as, 672, etseq.; curtesy and dower of a trust, 606, et seq.; descent of a trust, 670, et seq. ; devise of a trust, 593, et seq. ; escheat, whether it affects a trust, 669, et seq. ; extents from the Crown against a trust, 664 ; feme covert, her estate in a trust, 527, et seq. ; forfeiture of a trust, 665, et seq.; judgments, how they affect trusts, 556, et seq.; seisin and disseisin of a trust, 610, et seq.; and see these titles. Peopeety, what, may be made the subject of a trust, Ch. iv., p. 42. Public, explained, 20. Kecommendation, whether raised by, see 115. Eenewablb leaseholds, of, Ch. xv., p. 318 ; see Renewable Leaseholds. Bepaie, to, a painted window or monument in a church is valid as a chari- table gift, 94. Resulting, Ch. vs.., p. 126 ; see Resulting Teusts. Revocable, 450, et seq. Sale, Ch. xviii. p. 374 ; see SALE, Teustebs foe. Seceet, 57, et seq. 85 ; see Hbie, Devisee. Sepaeate use of feme covert, for, 620, et seq. ; see Feme Covert. Settloe, who may be, Ch. iii., s. 1, p. 21 ; see Sbttloe. Simple, 2, 18, 576, et seq. Special, 2, 18, 568. SUEVIVOEBHIP of, 230, 231 ; see SuEvrvoESHip. Unlawful, 19, 84 ; see Unlawful Teusts. Use, anciently known as a, 13. Uses, Stat, op, special trusts not within, 6, 187. Voluntaey, 60, et seq. ; see Debts, Voluntaey Assurance. What may Ije the subject of a, Ch. iv., p. 42. WOEDS precatory, &c. may raise a trust, 115. TRUSTEE. See Acceptance, Accident, Beeach of Trust, Chaeities, Con- structive Trust, Contingent Remainder, Cohpoeation, Costs, Co-teustees, Covenants, Debts, Disclaimbe, Dowbe Teusteb, False, Foegbet, Feaud, Implied Teust, Indemnity, Insolvent, INSUEANOB, Investment, Judgments, Legal Estate, Lien, Mis- conduct, Mistake, Neglect, Notice, Quasi-teustee, Receipt, Sale, Solicitoe. Absent, Court may make decree where, see Trustee Act, s. 49, p. 871. Accounts, he must be ready with, 570, 571 ; and see 391, 527. Acting, every accepting trustee is an, 227. Actions, where to be brought in his name ; see Actions. Advantage, shall not derive, from trust, 243, et seq. ; see Advantage, but see Failuee of c. q. t. 990 INDEX. TB.VST'EE— continued. Agent, one trustee acting aa, for the other, 227. commission, 2i9. Allowakcbs to, Oh. xxiii. p. 518 ; see COSTS, EXPENSES, Trouble. Atjctioneee, 24:9. Bankbe, ib. Bankeuptoy of 209, 211, 212, 691, 693, 746, 807 ; see Bankeuptct. Baeb, 248, 337, 423, 510. Baee equity, of, 802. Beokbe, 249. Burdens of, 204, et seq. Cestui que trust should not be, 37. Chaege, cannot generally, for personal services, 248. Chattels personal, duties of trustees of, Ch. xiv., p. 254. Claim adveesely to c. q. t., must not, 253 ; see 834. CONCUB with other owners of estate in selling, how far may, 496. Conveyance by, at request of c. q. t., 565 ; of assignee of c. q. t ., 572. on sale, 386, et seq. ; see Convbttance. Copyholds, fines payable by trustees on admission to, 206, 207. Custody of trust chattels by, 260 ; of title deeds, 560, 561. Debts, may not buy up, for himself, 244. Delegation, may not make, of his office, 222 ; see Delegation. Devise, whether he may, trust estate, 201. Devises to, rule regulating, 194. Disability of ; see Sale, Teustee Acts. DiCHAEGE of, how obtained ; see Indemnity, Keleasb, Eblinquish- ment. DISTEIBUTION of trust fund by, 304, et seq. Duties, how compelled to observe, 696, et seq. ; and see Duties. Enfeanchisement by, 497. Executor converting himself into, 182. Failure of, remedy of c. q. t. on, Ch. xxvii. p. 678. Feme Coveet, how far capable of executing a trust, 32. Gift, cannot take, from o. q. t., 245. Heie of, whether he can disclaim, 174. Implied (as a man who has contracted to sell), how far he is accountable, 124. INJOINED, may be, against breach of trust, 697. Insure, duty to, 261. Laches of, its efEect as to right of o. q. t., 706, et seq. ; see Laches. Legal estate taken by trustee, its devolution, projperties and quantity, Ch. xii. p. 186 ; see Legal Estate. Legal Proceedings, may be compelled by c. q. t. to institute, on having indemnity, 696. Liability of ; see Co-teustebs, Liability. he is not liable for defaults of his predecessors, 184 ; is liable for rates, 206. is not liable for acts, of his intention to do which he had given notice to c. q. t. without e. q. t.'s interfering, 485. not liable without notice to persons claiming derivative equi- ties, 304. Mortgagee, how far he is ; see Mortgagee. New, appointment of ; see New Trustees and Trustee Acts. Necessary qualifications for being a, 29. Number of, what is proper, 38, 690 ; see Number. Office of, Ch. xiii. p. 221. Outstanding trust estate, he should get in, 254. Payment by, 310. et seq.; see Payment, Receipts. Possession of trust estate, how he may obtain, in court of law, 252, 559. Powers of, 184 ; general, 484 ; special, 499 ; and see Powees. Pee-paymbnt of chose en action, may accept, 255. Peivileges and burdens of, 204, et seq. Purchase op Teust estate by, 422, et seq. ; see Sale, Trustees foe. Qualifications for office of, 29. Receipts by, 392, et seq. Receiver, he cannot be, of trust c=itate, 248 ; unless he be a mere trustee to preserve contingent remainders, H. INDEX. 991 TRUSTEE— co«ti»«ed. Eblation of cestui que trust objectionable, 37. Eblbasb by or to, 313, et seq. Eblinquishmbnt of office, Ch. xxiv., p. 534 ; see Relinquishment. Ebnewal of lbasb, by, 321, et seq. Rbnouncb, cannot, baring once accepted, 221. Betiking, money paid to, must be accounted for, 245. Sbvbkancb by, in legal proceedings, 229. Shakes, of, liable as owner, 209. Single, see single trustee. Sub modo, a man who has contracted to sell is a trustee, 125, 204. Suit by, 308, 553, 554, 743, 744, 804. SuEViviNG, has right to appoint a new trustee, 305. as to payment to, 312. TOET OF, 185 ; and see 730, 790. Tkading WITH TRUST ESTATE, must account for profits, 245. is amenable to bankrupt laws, 208. Void Deeds, costs of trustees of, 529, 830. Who may be, Ch. iii. s. 2, p. 29. alien may be, of chattels personal, 37 ; formerly, might not be of freeholds or chattels real, 36 ; Secus, under the recent Act, 37 ; Sank of England cannot be, 31 ; hankrnpts not absolutely disqualified, 37 ; see 691, note (6) ; e. q. t. or relation is- generally undesirable, 37, 548, 549 ; corporation may be, except where in contravention of Statute of Mortmain, 30, 31 ; Crown may be, but qu. as to remedy of c. q. t., 29, 30 ; feme covert or sole may be, but undesirable, and why, 32, 33, 34 ; see 690 ; infant ought not to be appointed, 34, 863, note (i) ; person domiciled abroad generally not a fit trustee, 37, and see 543, 545, 690. WoEDS " trustee," trustee of inheritance," construction of, in devise, 191. TRUSTEE ACTS. Trustee Act, 1850, and Extension Act, 185S, in extenso, 846 ; et seq. Absent trustees, 871, and note {a). Absolutely entitled, meaning of, 859, note (a-)- Chaeities, jurisdiction of Court In respect of, under, s. 45, p. 870, and note (a). Choses bn action, vesting order respecting, ss. 5, 6, 22, 23, 24, 35, p. 850, et seq. ; effect of, s. 27, p. 860. direction of Court as to, s. 31, p. 863. Colonies, as to, ss. 54, 56, p. 873. Contingent eights ; see ss. 4, 8, 11, 12, 16, 18, 29, p. 850, et seq. Conveyance undee, 856, note (c) ; see 866, note {a) ; as to copyholds, 861, note (6) ; and see 856, note (a), and 875. of legal estate gives suificient title where all parties before the Court, 847, note (c). Copyholds, vesting order as to, s. 28, p. 860, and 861, note (a), 875, note (e). as to form of, 861, note (J). Costs under, generally, s. 51, p. 871, and note iV) ; infant trustee, &c. ih. in case of lunatic mortgagee or trustee, 872, note ; of sale, 874, note (c). Deceee foe conveyance, exchange, partition, sale, specific performance, makes legal owner a trustee within, 861 ; see ss. 29, 30, but see also 861, 862, note (c) ; and as to sale, see Extension Act, s. 1, p. 874. Difficulty or expediency of appointing new trustees, &c., 863, note (J), and following notes. Disentail of infant's estate under, 847, note (Jl). Disputed question of title. Court cannot decide, 846, note Dividends accrued subsequently to date of request, or to accrue, 859, note id). DuEHAM and Lancastbe, lands in, ». 21, p. 857. Equities of paetibs when bound by order of sale under, 848, note (c). BXECUTEIX, husband of, is a trustee within the Act, 858, note (o). Existing teustee, where none, Court may appoint new trustees, see 864, note (J) ; Extension Act, o. 9, p. 877. 992 INDEX. TRUSTEE ACTS— continved. Trustee Act, 1850, and Extension Act, 1852— continued. Infant trustee or mortgagee, power of Court to vest lands of, ss. 7, 8, pp. 851, 8.52 ; as to stock of, see Extension Act, o. 3, p. 875 ; see also 863, note (J), 872, note. lEKLAND ; see ss. 55, 56, p. 878, and notes (J) and (c). JUEISDICTION, trustee out of, ss. 9, 10, 11, 12, 22, p. 852, et seq. ; where also infant or lunatic, 857, note (rf) ; personal representative out of, s. 25, p. 859 ; mortgagee out of, s. 19, p. 855 ; temporary absence is not within the Act, 852, note (d) ; but see 857, note (rf). Lunacy, jurisdiction of Lords Justices in, 850, note (J). in case of, to whom application should be made, ii. Lunatic, where personal representative of deceased is, Court has power to make vesting order, s. 6, p. 851 ; so in case of lunatic who is trustee or mortgagee, see ss. 3, 4, 5, pp. 849, 850 ; and as to vesting order, see 862, note (d), but cf. 869, note (a). MOETGAGBB, vesting order in case of infant, lunatic, cScc, who is, see ss. 4, 5, 7, 8, 19, p. 850., et seg. New tbustebs, appointment of, under s. 32, pp. 863, 864, and notes ; and Extension Act, ss. 8, 9, p. 877. Number of trustees appointed by Court, 864, note {i). Orders made under, by Court, allegations in, are made evidence, o. 44, p. 869. Petition, who may present, ss. 37, 40, pp. 867, 868 ; in lots, 874, note (_d) ; service of, 868, note (_o) ; and see 868, note (A), for investment of money paid into Court, s. 48, p. 870. Refusing trustee, power of Court to make vesting order in case of, ss. 23, 24, pp. 858, 859 ; Extension Act, ss. 2, 4, 5, pp. 875, 876. Rentchabgbs pass by term " hereditaments," 847, note (a). ScOTiiAiJD, Trustee Act does not extend to, s. 54, p. 873 ; see s. 56, ib. Served, who should be, 850, note (6) ; 868 note (c). Sole Trustee, meaning of, see 858, note (/). Stamp DUTT, conveyances by vesting order are subject to, 878. Stock, Court may direct Accountant-General, &c. , to transfer without making a vesting order, 856. but if one trustee is capable he must join in the transfer, 857, note (b). Court may vest the right to transfer, or receive dividends, in any person, 875. will vest the right to receive dividends on, without disturbing the capital, 868, note (c). vesting order as to, ss. 5, 6, 22, 23, 24, 25, 26, 35, pp. 850, et seq. ; Extension Act, s. 3, p. 875. direction of Court respecting, s. 31, p. 863. what the term includes, 847, note ( J). Suit, Court may direct a, to be instituted, s. 53, p. 872. Title op Act, s. 58, p. 873. Trustee within the Act, husband of executrix is a, 858, note (a). Court must be satisfied as to fitness of, appointed under a power, 858, note (J), refusing to obey the Order of the Coui-t, 859, note (6). Trustees witliin the Act, who are, see 848, note (e) ; 851, note (6) ; 852, notes (6), () ; to uses to bar dower, ib. as to barring estate tail of infant, 852, note {a). of land in new trustees, s. 34, p. 866 ; or in new and continuing trustees as joint tenants, 866, note [e). as to stock, 866, note (/) ; and see 876, note (b). under Charity Acts, 695. wording of, 850, note (c). effect of, 860. may be made on motion, when, 876, note (c). conveyances by, are subject to stamp duty, 878. TRUSTEE BELIEF ACTS. See LtENATic, Majoeity, Payment into Couet. Tritstee Belief Act (1847), 835, et seq.; Ftjether Teitstee Belief Act (1849), 844, et seq. See also 315, 316. affidavit, by trustees, 836, note (J) ; Petition, inf. application by petition (not motion, nor in the first instance at Chambers), 838, note id), accoimt, heading of, 836, note {d). bonds of foreign governments are not within the Act, 837, note (J). charity, as to money, &c. belonging to, see 18 & 19 Vict. c. 124, s. 22, p. 316. costs of trustees, 837, note {d) ; 838, note (., 755. of relief against deceased trustee, where breach of trust, 801 ; but see 807. V. q. t. taking what he can from the wreck of the trust does not thereby waive right to full relief, 753. WARD. See Guardian. WASTE. Collusion, in respect of, 168. Equitable, 167, now made legal waste, 169. Mines, 169, and 166, et seq. Permissive, by equitable tenant for life, 486, 487, by legal tenant for life, ib. Statutes op limitation, in respect of, 167. Tenant for life without impeachment of, trustees should not purchase wood estate in his favour, 438. Timber, to whom it belongs when felled, 167, et seq., and note (li). Trustees to preserve, then- duty to prevent, 338. Trustees for purchasing, should frame conveyance with reference to, 442. WASTING PROPERTY. as leaseholds, long annuities, where to be converted, 263, 264 ; see 294 ; and see Conversion. WEST INDIES. equities relating to estate in, enforced here, 43 ; and see Jurisdiction. trustees for estates there, whether entitled to commission, 519. WESTMINSTER Stat of, 645. WIFE. See Feme Covert. WILFUL DEFAULT. account for not given on further directions, 740 ; nor on common admini- stration order at chambers, ii. where directed, 728, 729 ; see 742, 743. WILL. See Deed ; Executory Trusts ; Wills, Stat. op. Ambulatory till testator's death, 52. Consideration, it implies, 114. Copyholds, of, 47, note (c); of equitable estate in, 512 ; where no custom to devise legal estate, iS. under late Wills Act, 513. Customary freeholds, of, ii. ; equitable estate in, ii. Declaration of trust of, must not be by parol, 52. Executory trusts, construction of, in wills, 105, et seq. ; see Executory Trusts. Feme Covert, of, as to separate estate, 549. Freeholds, of, under Stat, of Frauds, 51 ; equitable estate in, 594, 595. under late Wills Act, 595. Infant of fourteen might formerly make, of personal estate ; secns now, 25. Land to be converted into money, of, 777. Money to be laid out in land, of, 769. Nuncupative, of copyholds, 47, note (c). Power to appoint by, contemplates those who answer description at death of donee, 118, 685 f and see ASSETS. Personal estate of, under Statute of Frauds, 51 ; under late Wills Act, 595, 789. Revocation of will, whether effected by dealing with equitable estate, 595 ; or with legal estate, ib. Sovereign, of, 22. Stock, of, how formerly made, 32, note («). Use, devise of, 593. INDEX. 997 WILL — contimicd. TTSES, construction as to devise to, 194. " WILLING AND DESIRING." may create a trust, 115. WILLS, STATUTES OF, Ch. v. s. 3, p. 51. See Legal Estate, Eesidtjaey (Devise), trusts cannot be created by devise or bequest without formalities required for wills, 61, 52 ; see as to personal estate, 64. except in case of fraud, 65. devise to uses, 194. WINDFALLS. to whom belong, 169. " WISHING AND DESIRING." may create a trust, 115. "WISHING AND REQUESTING." may create a trust, 116. WOMAN. married. See Feme Coveet. WOOD ESTATE, 438. WORDS. See Consent, Constetjction, Exbcutoby Trusts, Grant, Invest- ment, Technical Teems. " grant " does not imply a warranty, 386 ; but see 567. " heirs," 96 ; " heir male," 106 ; " heirs female," 101 ; " heirs of the body," (see this title) ; " issue," 102, 105, 107 ; " it shall be lawful," see 320 ; " shall and may," in Act of IParliament, 231, note (d) ; "request," "re- quire," &c., (see those titles) ; " subject thereto," 186 ; "trust," in Trustee Act, 1850, 848 ; " trustee," " trustee of inheritance," 191 ; " unfit," 543. " trust," or " trustee," do not necessarily exclude a beneficial gift, 131. implying separate use, 622, 623 ; trust, 115 ; but see 118. supplied in articles, 104 what words create a trust for maintenance, 120, 121. WORSHIP OF GOD, construction of trust for maintaining, 467, et seq. WRITS OF. distringas, see Distringas, 813, et seq. execution at common law, 644. necessity for issuing and registering under late Act, 660, 661, ne exeat, against trustee, 737. WRITING. Assignment of equitable interest by, 673. Request for sale to be testified by, 380. Trust, note in writing (not under seal) is sufficient to declare a, 45. but in case of vrills, see 51, 52, 53, 54. Trustee may sue before accepting the trust by, 182. YORKSHIRE. Registry Acts imply covenants for title in words " grant, bargain, and sell," 567. YOUNGER. children, who regarded as, 340, 346. THE END. DKYDEN PKESa: J. DAVT AND SONS, 137, LONG ACRE, LONJJON. ^