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 ilataljaU lEquttg (Eollertum 
 
 (Sift of 
 
 S. 31. Marshall, 3C.2I. 1. 1B94 
 
CORNELL UNIVERSITY LIBRARY 
 
 3 1924 084 249 980 
 
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/cu31924084249980 
 
BECKETT 
 
 ON 
 
 TRUSTS AND TRUSTEES 
 
 (ILLINOIS) 
 
 BY 
 
 J. B. BECKETT 
 
 OP THE CHICAGO BAR 
 
 THIS WORK COVERS VOLUMES i TO 245 INCLUSIVE, OF 
 THE ILLINOIS SUPREME COURT REPORTS, AND 
 VOLUMES 1 TO 150 INCLUSIVE, OF THE ILLI- 
 NOIS APPELLATE COURT REPORTS. 
 
 CHICAGO 
 
 T. H. FLOOD & CO. 
 
 1912 
 
Copyright 1912 
 
 BY 
 
 T. H. FLOOD & CO 
 
 STATE JOURNAL PRINTING COMPANY. 
 
 Printers *m> Stebkotypbrs, 
 
 madison. wis. 
 
ifbtratum 
 
 This work is dedicated to the memory of the writer's father, James 
 D. Beckett, whose recent death, preventing him from seeing it issued 
 in book form, will be the more keenly regretted by the writer. 
 
PREFACE. 
 
 From the viewpoint of the average practitioner that 
 reference work is of the greatest service which places 
 before him all of the decisions of the courts of review 
 of his own State, bearing directly upon the question in 
 hand, with the, smallest expenditure of time. 
 
 Digests are notoriously defective in that the drudg- 
 ery almost always involved in delving through their 
 labyrinthine cross-references gives no assurance of ob- 
 taining in the end all of the cases relating to the par- 
 ticular question. 
 
 "While investigating the law applicable to a certain 
 division of the subject of trusts, the writer was im- 
 pressed by the large number of decisions thereon which 
 had accumulated in the reports of the Illinois Supreme 
 Court, and which were not covered sufficiently by either 
 the general text-books or the local digests; almost un- 
 consciously, therefore, the investigation of an interest- 
 ing subject widened until the writer, in quest of every 
 case pertaining to trusts and trustees had made two 
 journeys through all of the volumes, then in print, of 
 the Illinois Appellate and Supreme Court decisions. 
 This work is the result. 
 
 In the ratio that property rights are increasing with 
 the growth of population, and more intricate methods 
 are being constantly evolved for the safeguarding of 
 such rights, just so is the number of trust cases in- 
 creasing before the nisi prius and reviewing courts. 
 
 Keeping in mind the well known fact that a text 
 book's usefulness depends in no small degree upon the 
 index, the writer has striven to place each point in it 
 
IV - PBEFACE. 
 
 in such manner and in such places that it may be read- 
 ily found by those who fail to look under the stereo- 
 typed heading. 
 
 In the citations in the foot notes, the first page- 
 number of each case is followed by the page-number 
 where the particular point may be found. 
 
 As indicated on the title, page the law upon any par- 
 ticular question may be brought down to date by ex- 
 amining the reports issued subsequently to Volume 
 245 of the Supreme Court and Volume 150 of the Ap- 
 pellate Court. 
 
 The chief hope of the writer is that his work may 
 prove to be both useful and accurate. 
 
 J. B. B. 
 
 Chicago, March 1912. 
 
TABLE OF CONTENTS 
 
 (The numbers refer to sections.) 
 
 CHAPTER I. 
 
 The Origin and Development of Trusts 1 
 
 CHAPTER II. 
 
 The Nature and Classification of Trusts 10 
 
 CHAPTER III. 
 
 Declarations of Trust and Consideration 18 
 
 CHAPTER IV. 
 
 Equity Jurisdiction and Changing Trust Provisions 30 
 
 CHAPTER V. 
 
 Public Trusts and Public Policy .* 53 
 
 CHAPTER VI. 
 
 Charitable Trusts 72 
 
 * CHAPTER VII. 
 
 Church Property 94 
 
 CHAPTER VIII. 
 
 Voluntary Trusts and Gifts 108 
 
 CHAPTER IX. 
 
 Dower and Trusts for Wives 119 
 
 CHAPTER X. 
 
 Trusts for Children 139 
 
VI TABLE OF CONTENTS. 
 
 (The numbers refer to sections.) 
 CHAPTER XI. 
 
 Quasi Trusts — Estates of Decedents and Guardianships 156 
 
 CHAPTER XH. 
 
 Quasi Trusts Continued — Co-partnerships, Corporations, Railways 
 and Receivers 186 
 
 CHAPTER Xni. 
 
 Banks and Commercial Paper 226 
 
 CHAPTER XrV. 
 
 The Statute of Frauds and Parol Trusts 245 
 
 CHAPTER XV. 
 
 Secret Trusts, Creditors and Spendthrift Trusts 266 
 
 CHAPTER XVI. 
 
 Active and Passive Trusts and the Statute of Uses 301 
 
 CHAPTER XVn. 
 
 Express and Implied Trusts — Precatory Words 316 
 
 CHAPTER XVIII. 
 
 Resulting or Presumptive Trusts 331 
 
 CHAPTER XIX. 
 
 Constructive Trusts and Fiduciary Relations 374 
 
 CHAPTER XX. 
 
 Laches and the Statute of Limitations 407 
 
 CHAPTER XXI. 
 
 Mortgages and Pledges 420 
 
TABLE OF CONTENTS. Vll 
 
 (The numbers refer to sections.) 
 
 CHAPTEE XXII. 
 
 Parties in Chancery — Presumptions — Evidence 436 
 
 CHAPTER XXIH. 
 
 Notice and Estoppel 465 
 
 CHAPTER XXIV. 
 
 Trusts of Personal Property 477" 
 
 CHAPTER XXV. 
 
 Trusts of Real Property 490 
 
 CHAPTER XXVI. 
 
 Perpetuities 503 
 
 CHAPTER XXVII. 
 
 Testamentary Trusts 526 
 
 CHAPTER XXVIII. 
 
 The Trustee and His Office 547 
 
 CHAPTER XXIX. 
 
 The Trustee's Legal Estate 566 
 
 CHAPTER XXX. 
 
 The Trustee's Conveyances 589 
 
 CHAPTER XXXI. 
 
 The Trustee's Duties 598 
 
 CHAPTER XXXH. 
 
 Breaches of Trust 606 
 
 CHAPTER XXXin. 
 
 The Trustee's Powers and Discretion 623 
 
Vlii TABLE OF CONTENTS. 
 
 CHAPTER XXXIV. 
 
 The Trustee's Liabilities 648 
 
 CHAPTER XXXy. 
 
 Vacancies in the Trusteeship 663- 
 
 CHAPTER XXXVI. 
 
 Revocation and Termination 671 
 
TABLE OF CASES 
 
 [The numbers refer to sections.] 
 
 A. 
 
 Abend v. Endowment Fund, 79, 
 
 84, 568a, 655a. 
 Abernathy ads. Lauterman. 
 Ackley v. Croucher, 375. 
 Adams v. Adams, 248. 
 Adams ads. Bbey. 
 Adlard v. Adlard, 127a, 448. 
 Adsit v. Smith, 364a. 
 Albers ads. Dick. 
 Albrecht v. Huneke, 382. 
 Albrecht v. Wolf, 246, 413, 472, 
 
 549. 
 Alden ads. Arnold. 
 Alden v. St. Peter's Parish, 71, 
 
 78, 81, 95, 97a. 
 Alden ads. Waterman. 
 Aldrich ads. Maher. 
 Alexander t. Tarns, 3336, '334, 
 
 363. 
 Allen ads. Fitzgerald. 
 Allen v. Jackson, 375, 556c. 
 Allen ads. Reece. 
 Allen ads. Waterman. 
 Allen v. Woodruff, 265&. 
 Allen Medical Assn. ads. Culver. 
 Ailing v. Wenzel, 207c. 
 Allmon v. Pigg, 5276. 
 Alpaugh ads. Coulson. 
 Alsop ads. DeKoven. 
 Alton v. Garrett Institute, 896. 
 Alwood v. Mansfield, 15, 375, 
 
 429a, 613. 
 Alwood ads. Mansfield. 
 Ambs ads. Towle. 
 
 Am. Ex. Bank v. Walker, 291a, 
 
 291&. 
 Am. Ex. Nat. Bank ads. Atwater. 
 Am. Ex. Nat. Bank v. Loretta 
 
 Mining Co., 231. 
 Am. T. & S. Bank ads. Bayor. 
 Ames v. Ames, 174. 
 Ames v. Witbeck, 607. 
 Ames Co. ads. Ellsworth. 
 Anderson v. Anderson, 174. 
 Annis v. Bonar, 267. 
 Andrews v. Andrews, 12, 78, 81, 
 
 97a, 99c. 
 Andrews v. Scott, 265. 
 Anheuser ads. Hutmacher. 
 Anslow ads. Giles. 
 Anstruther ads. Cunningham. 
 Antioch ads. Irish. 
 Appell v. Appell, 21. 
 Argo ads. Coffin. 
 Armstrong v. Barber, 5116, 512, 
 
 514. 
 Armstrong ads. Ward. 
 Arnhold ads. Bergmann. 
 Arnold v. Alden, 555. 
 Arnold ads. Trustees. 
 Arthur ads. Guilfoil. 
 Ash ads. Baulos. 
 Askey ads. Johnson. 
 Association ads. Bourland. 
 Atkin v. Merrill, 120. 
 Atkyns ads. Wright. 
 Atlas Nat. Bank v. Morse, 206a. 
 Atty. Gen. v. 111. Agr. Col., 746. 
 Atty. Gen. v. Newberry Library, 
 30, 54, 89a, 438, 604. 
 
TABLE OF CASES. 
 
 [The numbers 
 
 Atwater v. Am. Ex. Nat. Bank, 
 
 200a. 
 Aurora v. Railway, 57. 
 Ayres ads. Clinefelter. 
 Ayres ads. Hutchinson. 
 
 B. 
 
 Babcock v. Farwell, 409, 417. 
 Bacon ads. Rexford. 
 Badgley v. Votrain, 111, 146. 
 Baehr v. Wolf, 658. 
 Bailey v. West, 124. 
 Bails v. Davis, 502. 
 Baker v. Scott, 497, 498a. 
 Bakewell ads. Bd. of Education. 
 Balch ads. Harvard College. 
 Baldridge v. Coffey, 49. 
 Baldwin v. Campfield, 143. 
 Ball ads. Snell. 
 Bank ads. Lobdell. 
 Barber ads. Armstrong. 
 Barbour ads. Phares. 
 Barclay v. Piatt, 308a. 
 Barcroft ads. Rankin. 
 Barker v. Smiley, 124. 
 Barnes ads. Emig. 
 Barnes ads. Paine. 
 Barnes ads. Schwitters. 
 Barnum y. Reed, 110, 112, 481. 
 Barrett ads. 'Richards. 
 Bartlett ads. German Ins. Co. 
 Barton v. Moss, 403. 
 Bates v. Woodruff, 596. 
 Bauerle ads. Penn. Co. 
 Baulos v. Ash, 568c. 
 Baum v. Hartman, 182. 
 Bavin ads. Fairman. 
 Bay v. Cook, 115, 144, 2686, 448. 
 Bayard ads. McGraw. 
 Bayor v. Am. T. & S. Bank, 230, 
 
 618a. 
 Beach v. Dyer, 390, 391. 
 Beach v. First M. E. Church, 106. 
 
 refer to sections.] 
 
 Beach v. Miller, 200, 200a. 
 
 Beach ads. Scott. 
 
 Beach v. Shaw, 431, 6426. 
 
 Beach v. Wilton, 69-376. 
 
 Beall v. Dingman, 384, 407c, 473. 
 
 Beatty v. Western College, 29, 
 
 117. 
 Becker ads. Schneider: 
 Becker v. Williams, 274, 277. 
 Beckwith ads. Otis. 
 Bedford v. Bedford, 123, 152, 181, 
 
 660. 
 Beers v. Myers, 413, 413a. 
 Beesley ads. Jacksonville Nat. 
 
 Bank. 
 Beidler v. Crane, 267a. 
 Bell ads. Gilman. 
 Belohradsky v. Kuhn, 240a, 456c. 
 Bennett v. Bennett, 296, 301, 
 
 304a, 478, 501, 667. 
 Bennett ads. Hay. 
 Bennett v. Hay, 164, 485. 
 Bennett ads. Vallette. 
 Benson v. Dempster, 256, 409a, 
 
 410a. 
 Benson ads. Nelson. 
 Bergmann v. Arnhold, 568, 640a. 
 Best "v. Fuller, 258, 267. 
 Bethel v. Sharp, 393. 
 Bigelow v. Cady, 504, 5076, 647. 
 Biggins v. Biggins, 255. 
 Biggins v. Lambert, 639c. 
 Billings ads, Kerfoot. 
 Billings v. Warren, 209, 614a, 
 
 653a. 
 Binns v. LaForge, 270, 270a, 642a. 
 Black v. C. B. & Q. R. R., 56. 
 Black ads. Trafton. 
 Blair v. Follansbee, 163. 
 Blair v. 111. Steel Co., 2066, 206c. 
 Blair v. Sennott, 161. 
 Blake ads. Bostwick. 
 Blake ads. Muller. 
 
TABLE OP CASES. 
 
 XI 
 
 [The numbers refer to sections.] 
 
 Blanchard ads. Brush. 
 Blanchard v. Chapman, 324. 
 Blatchford v. Newberry, 89a. 
 Blatchford ads. Newberry. 
 Blinn v. Gillett, 209. 
 Bloomington & Normal Ry. ads. 
 
 Gray. 
 Bloomlngton ads. Mason. 
 Blowney ads. Wachter. 
 Blowney ads. Webster. 
 Blunt ads. Tomlin." 
 Board of Education v. Bakewell, 
 
 74a. 
 Board of Education ads. Walser. 
 Board of Review ads. McClellan. 
 Board of Review ads. Sisters of 
 
 St. Francis. 
 Bogue ads. Hyman. 
 Bogue ads. Wales. 
 Boltes ads. Germain. 
 Bonar ads. Annis. 
 Bond v. Lockwood, 178. 
 Bond v. Moore, 528d. 
 Bonfield ads. Cushman. . 
 Bonner ads. 111. L. & L. Co. 
 Bonny v. Bonny, 27. 
 Boone v. Clark, 26. 
 Boone ads. O'Neal. 
 Bordeaux ads. People. 
 Borders v. Murphy, 67, 607. 
 Bostwick v. Blake, 258, 267. 
 Bourg ads. Hyman. 
 Bourland v. Association, 87a. 
 Bourland v. Peoria, 252a. 
 Bouton v. Dement, 201. 
 Bowman ads. Thomas. 
 Boyd v. Boyd, 464a. 
 Boyd v. McConnell, 545, 555. 
 Bradley ads. Donlin. 
 Bradley ads. Fuller. 
 Bradley v. 'Luce, 656. 
 Bradshaw ads. Metcalfe. 
 Brady v. Huber, 386. 
 
 Bragg v. Geddes, 606. 
 
 Braman ads. DeWalsh. 
 
 Braner ads. Trustees. 
 
 Brant ads. Lill. 
 
 Breit v. Yeaton, 276, 38, 408a, 
 
 4676, 613, 624a. 
 Brennaman v. Schell, 256a, 333a, 
 
 333c, 357. 
 Brennan ads. Walsh. 
 Bressler ads. Dinsmoor. 
 Bressler ads. Golder. 
 Brinkerhoff v. Brinkerhoff, 170a. 
 Brokaw ads. Field. 
 Brooner ads. Witham. 
 Brophy v. Lawlor, 607/. 
 Brower v. Callender, 676. 
 Brown v. Brown, 609a. 
 Brown ads. Cadwell. 
 Brown ads. Curtiss. 
 Brown ads. Harts. 
 Brown v. Holzman, 469. 
 Brown ads. Lake. 
 Brown ads. People. 
 Brown v. Pitney, 476a. 
 Brown v. Trustees of Schools, 
 
 56(2, 416. 
 Brown ads. Williams. 
 Browne-Chapin ads. Union Nat. 
 
 Bank. 
 Bruce v. Roney, 331. 
 Brunnenmeyer v. Buhre, 98. 
 Brunshwiler ads. Ehrich. 
 Bruschke ads. Wright. 
 Brush v. Blanchard, 180, 613. 
 Bryan v. Howland, 10, 321, 583. 
 Buckingham v. Morrison, 556. 
 Buehler v. MoCormick, 430d. 
 Buhre ads. Brunnenmeyer. 
 Bunting ads. Meacham. 
 Burbach v. Burbach, 16, 304a, 
 
 567a, 678. 
 Burch ads. Commercial Nat. 
 
 Bank. 
 
Xll 
 
 TABLE OF CASES. 
 
 [The numbers refer to sections.] 
 
 Burchell ads. Supervisors. 
 Burdette ads. Willin. 
 Burdick ads. Hemstreet. 
 Burgess ads. Munn. 
 Burleigh v. Keek, 586. 
 Burnham Hospital ads. People. 
 Burnside ads. Kingsbury. 
 Burton v. Perry, 400, 474. 
 Bush v. Sherman, 406. 
 Bush v. Stanley, 364a, 407. 
 Bushnell ads. King. 
 Butler v. Butler, 197a, 441a. 
 Butler v. Huestis, 6396. 
 Butler ads. Bobbins. 
 Butler ads. Ward. 
 Butz ads. Fischer. 
 Byers ads. Wilson. 
 
 C. 
 
 Cadwell v. Brown, 611. 
 Cadwell ads. Pike County. 
 Cady ads. Bigelow. 
 Cagney v. O'Brien, 455a. 
 Cahill ads. Dwyer. 
 Caldwell ads." Crane. 
 Caldwell ads. Mason. 
 Caldwell ads. Oswald. 
 Caldwell ads. Welch. : 
 Calkins v. Cheney, 99e. 
 Calkins v. Worth, 376a\ 
 Call ads. McDaid. 
 Callender ads. Brower. 
 Calvert ads. Shup. . 
 Cameron ads. Chicago. 
 Cameron ads. Gage. 
 Camfield v. Plummer, 469. 
 Camp ads. Shaw. 
 Campbell v. Powers, 390a. 
 Campbell ads. Remington. 
 Campfield ads. Baldwin. 
 Canavan ads. Casey. . 
 Candler v. Tlllett, 159. 
 Cannon ads. White. 
 
 Capps v. Hiekman, 176, 6046. 
 
 Carlisle ads. Grove. 
 
 Carmichael ads. Perry. 
 
 Carpenter v. Browning, 304a. 
 
 Carpenter v. Carpenter, 4346, 
 474a. 
 
 Carpenter v. Davis, 262. 
 
 Carpenter ads. Wallace. 
 
 Carr ads. . McDonald. 
 
 Carr ads. Vanatta. 
 
 Carrington ads. Walker. 
 
 Carter v. Carter, 528a, 640e. 
 
 Carter v. Tice, 183. 
 
 Cartwright v. Wise, 357a. 
 
 Gary v. Slead, 308c, 532. 
 
 Case ads. Delano. 
 
 Casey v. Canavan, 632, 670. 
 
 Cash ads. Poll. 
 
 Casner ads. Preston. 
 
 Cassell v. Fitzsimmons, 164. 
 
 Cassell v. Ross, 431a, 468e. 
 
 Castle ads. Swift. 
 
 Catlett ads. Dougherty. 
 
 Chadwick v. Clapp, 465. 
 
 Chamberlain ads. Williams. 
 
 Chambers ads. McCrory. 
 
 Chambers v. Prewitt,- 273, 4281 
 
 Champlin v. Champlin, 246, 251, 
 255. 
 
 Chapin v. Nott, 110a, 1106. 
 Chapin v. _ Wabash R. R. Co., 
 
 619a. 
 Chapman- ads. Blanchard. 
 Chapman v. Cheney, 295, 509, 
 
 519a. 
 Chapman v. Ferns, 375, 3816. 
 Chase v. Cheney, 37, 94. 
 Chemical Bank v. Hartford De- 
 posit Co., .579. 
 Cheney ads. Calkins. 
 Cheney ads. Chapman. 
 Cheney adsi. Chase. 
 Cherry v. Greene, 596, 629,- 630c. 
 
TABLE OF CASES. 
 
 Xlll 
 
 [The numbers refer to sections.] 
 Republic Life Ins. Clark v. Lott, 13, 110. 
 
 Chetlain v. 
 
 Co., 207a. 
 Chicago v. Cameron, 220. 
 Chicago, B. & Q. R. R. ads. Black. 
 Chicago & E. I. R. R. Co. v. Hay, 
 
 4096, 491. 
 Chicago Cricket Club ads. Don- 
 
 ahoe. 
 Chicago City Ry. ads. Doane. 
 Chicago ads. Hibbard. 
 Chicago v. StrattOn, 60a. 
 Chicago ads. Thomas. 
 Chicago Fire Place Co. v. Tait, 
 
 629a. 
 Chicago Hansom Cab Co. v. 
 
 Yerkes, 205, 608. 
 Chicago T. R. R. Co. v. Winslow, 
 
 303, 304a, 
 Chicago Title & Trust Co. v. 
 
 Smith, 206, 278a, 446a. 
 Chicago Trust & S. Bank ads. 
 
 Russell. 
 Chickering v. Failes, 417a. 
 Chilvers v. Race, 28, 111, 125. 
 Chouteau ads. Lear. 
 Christian ads. Henshaw. 
 Christian Church v. Church of 
 
 Christ, 95, 96, 98, 99a, 996. 
 Christian Church v. Cox, 1026. 
 Christie ads. Sayles. 
 City of Alton v. Garrett Insti- 
 tute, 896. 
 City of La Salle ads. Union Coal 
 
 Co. 
 City of Peoria ads. Bourland. 
 Clapp ads. Chadwick. 
 Clapp v. Emery, 35a, 172, 399, 
 
 613. 
 Clapp v. Peterson, 204. 
 Clapp ads. Potter. 
 Clapp ads. Young. 
 Clark ads. Boone. 
 Clark v. Clark, 629a. 
 
 Clark v. Manning, 4376. 
 
 Clark ads. Martin. 
 
 Clark v. Quackenbos, 149. 
 
 Clark ads. Steele. 
 
 Clarkson v. Erie Dispatch, 199. 
 
 Clayburgh ads. Wilson. 
 
 Clayton ads. Morgan. 
 
 Cleland v. Fish, 382. 
 
 Clemmer v. Drovers Nat. Bank, 
 
 2346. 
 Clifford ads. Holmes. 
 Cline v. Cline, 130a, 380, 460. 
 Clinefelter v. Ayres, 630c, 632, 
 
 666, 668. 
 Clogan ads. Hoeffer. 
 Close v. Stuyvesant, 496. 
 Coates v. Woodworth, 360. 
 Cochrane v. Moore, 118. 
 Cockerill ads. Gunnell. 
 Coffey ads. Baldridge. ■ 
 Coffin v. Argo, 38, 41, 146, 155. 
 Coffing v. Coffing, 636. 
 Cole ads. Dodge. 
 Colehour ads. Roby. 
 Coleman v. Connolly, 632, 6426, 
 
 663a, 666. 
 Coleman v. Howe, 2076. 
 Coleman ads. Marshall. 
 Collins v. Smith, 5696. 
 Commercial Nat. Bank v. Burch, 
 
 204.. 
 Commercial Nat. Bank ads. 
 
 French. 
 Commons ads. Stead. 
 Comstock ads,. Empire Co. 
 Comstock ads. Lord. 
 Conant v. Riseborough, 426a, 456, 
 
 608, 611a. 
 Condell ads. Glover. 
 Condict v. Flower, 284. 
 Conklin ads. Ward. 
 Conlee ads. McFarland. 
 
XIV 
 
 TABLE OF OASES. 
 
 [The numbers 
 
 Conn. Life Ins. Co. v. Stinson, 
 
 612. 
 Connolly ads. Coleman. 
 Constant v. Matteson, 556a, 559. 
 Cook ads. Bay. 
 
 Cook v. Gilmore, 556, 556a, 5566. 
 Cook ads. Greene. 
 Cook v. Patrick, 345, 447a, 460. 
 Cook ads. Seaman. 
 Cook Co. Sav. Bank ads. Troike. 
 Cooksey ads. Hensan. 
 Cookson v. Richardson, 348, 4016. 
 Cool v. Jackman, 650. 
 Cooper v. McClun, 269, 556c. 
 Cordell ads. Krebaum. 
 Corder v. Corder, 461. 
 Corn Belt Bank ads. McMulta. 
 Cornell ads. Harris. 
 Coryell v. Klehm, 30, 412, 413i, 
 
 592. 
 Coulson v. Alpaugh, 324a, 326, 
 
 327. 
 County Commrs. v. People, 620. 
 County of Pike v. Cadwell, 416. 
 Coward v. Coward, 607. 
 Cowls v. Cowls, 174, 185. 
 Cox ads. Christian Church. 
 Cox ads. Kirkland. 
 Cox v. Milner, 466. 
 Cramer v. Hoose, 3506. 
 Crandall ads. Woodhouse. 
 Crane ads. Beidler. 
 Crane v. Caldwell, 363d. 
 Crane Co. ads. Hall. 
 Crapnell ads. Stevenson. 
 Cravener ads. Hale. 
 Crawford v. Mound G. C. Assn., 
 
 528c. 
 Crerar v. Williams, 72, 78. 
 Crocker v. Lowenthal, 424, 549. 
 Crone v. Crone, 188, 355. 
 Cross v. Weare Commission Co., 
 
 259, 474. 
 
 refer to sections.] 
 
 , Crossman v. Keister, 255, 264, 
 
 381. 
 Crouch v. First Nat. Bank, 186, 
 
 278. 
 Croucher ads. Ackley. 
 Culver v. Allen Medical Assn., 
 
 562. 
 Cummings ads. Waldo. 
 Cunningham v. Anstruther, 640a. 
 Curtin ads. Gavin. 
 Curtis ads. Evans. 
 Curtis ads. Higgins. 
 Curtiss v. Brown, 49, 126, 133. 
 Curtiss ads. Webber. 
 Cushman v. Bonfleld, 218. 
 Cushman ads. King. 
 
 D. 
 
 Dalrymple v. Leach, 326, 327. 
 Daly ads. St. Patrick's Church, 
 
 105. 
 Dancer ads. Ebrand. 
 Daniel ads. Tyler. 
 Dapray ads. Pope. 
 Daugherty v. Monroe, 272. 
 Daughetee ads. Ohio Oil Co. 
 Davenport v. Kirkland, 513,^537, 
 
 629, 637a. 
 Davidson ads. Miller. 
 Davis ads. Bails. 
 Davis ads. Carpenter. 
 Davis v. Hamlin, 67a, 402. 
 Davis ads. Matthewson. 
 Davis v. Stambaugh, 2476, 251, 
 
 390. 
 Dawes v. Dawes, 480. 
 Day v. Wright, 458. 
 Dean v. Long, 138, 312. 
 Decius ads. Gibson. 
 DeClerq v. Jackson, 369. 
 Dee v. Dee, 567a. 
 Deiterman v. Ruppel, 164. 
 
TABLE OF OASES. 
 
 XV 
 
 [The numbers refer to sections.] 
 
 DeHaven v. Sherman, 533. 
 DeKoven v. Alsop, 209. 
 Delano v. Case, 236. 
 Dement ads. Bouton. 
 Dempster ads. Benson. 
 Dempster v. Lansingh, 564. 
 Dempster v. West, 397. 
 Denegre v. Walker, 51. 
 Dennis ads. Heintz. 
 Dennis ads. Hunter. 
 Dennis v. MeCagg, r 608. 
 Derby ads. Wallwork. 
 Desjardins ads. Speyer. 
 Deters ads. Forthman. 
 Deuter v. Deuter, 127, 448. 
 DeWalsh v. Braman, 413a, 655. 
 DeWolf v. Royal Trust Co., 579. 
 Dick v. Albers, 380, 381a. 
 Dick v. Dick, 2476, 337. 
 Dick v. Ricker, 527a\ 
 Dicken v. McKinley, 254. 
 Dickinson ads. Gritten. 
 Dickson ads. Hempstead. 
 Dickson v. N. Y. Biscuit Co., 
 
 569e, 596, 614, 625, 644. 
 Dietrich, ads. Green. 
 Dillow ads. Verble. 
 Dingman ads. Beall. 
 Dingman v. Beall, 550, 600, 637c. 
 Dinsmoor v. Bressler, 398, 405a. 
 Diversey v. Johnson, 619. 
 Dixon ads. First M. E. Church. 
 Doan ads. Voris. 
 Doane v. C. C. Ry. Co., 60a. 
 Doane ads. Lockwood. 
 Docker ads. Pool. 
 Dodge v. Cole, 342, 401c. 
 Dodson ads. Dorsey. 
 Dohm ads. Koenig. 
 Dole v. Olmstead, 33, 618c. 
 Donahoe v. Chicago Cricket Club, 
 
 20, 359c. 
 Donahue v. Quackenbush, 224. 
 
 Donlin v. Bradley, 347, 350a, 460. 
 Doolittle ads. Jenkins. 
 Doolittle v. Jenkins, 269. 
 Dorenkamp v. Dorenkamp, 31, 
 
 33. 
 Dorman v. Dorman, 3576, 411a. 
 Dorset Co. ads. Winston. 
 Dorsey v. Dodson, 536. 
 Dougherty v. Catlett, 254. 
 Dougherty v. Hughes, 175a. 
 Dougherty ads. Rice. 
 Douglas ads. Harris. 
 Douglass v. Martin, 32, 33a. 
 Dowie v. Driscoll, 458. 
 Downen v. Rayburn, 100. 
 Downer ads. Hamilton. 
 Downing ads. Linn. 
 Doyle v. Murphy, 32. 
 Doyle v. Teas, 4916. 
 Drake ads. McKnight. 
 Drake v. Steele, 302, 308, 308a, 
 
 568, 5686, 630. 
 Draper ads. Roberts. 
 Dreyer v. People, 58. 
 Driscoll ads. Dowie. 
 Drovers' Nat. Bank ads. Clem- 
 
 mer. 
 Drovers' Nat. Bank ads. Hanna. 
 Drovers' Nat. Bank v. O'Hare, 
 
 231. 
 Drur/ ads. Lequatte. 
 Dubs v. Egli, 93a, 443. 
 Duffy ads. Stewart. 
 Dunaway v. Robertson, 386. 
 Durand ads. Heacock. 
 Durand ads. Kassing. 
 Dwyer v. Cahill, 39, 510, 5116, 
 
 513a, 666a'. 
 Dwyer v. O'Connor, 1156, 458c, 
 
 612. 
 Dyer ads. Beach. 
 Dyer v. Dyer, 141. 
 Dyke ads. Irwin. 
 
XVI 
 
 TABLE OF CASES. 
 
 [The numbers refer to sections.] 
 
 E. 
 
 Barnes v. Hardin, 338, 431e. 
 
 Eastman ads. Galford. 
 
 Eastman v. Littlefield, 4346. 
 
 Ebelmesser v. Ebelmesser, 170. 
 
 Ebey v. Adams, 568. 
 
 Ebrand v. Dancer, 143. 
 
 Eckard ads. Thomas. 
 
 Edgar ads. Howell. 
 
 Edsall ads. Phillips. 
 
 Egli ads. Dubs. 
 
 Enrich v. Brunshwiler, 385. 
 
 Eldred ads. Kohtz. 
 
 Eldred v. Meek, 304a, 504a, 518a. 
 
 Ellett v. Tyler, 616. 
 
 Elliott ads. Shackelford. 
 
 Ellis v. Hill, 333a, 353. 
 
 Ellis v. Ward, 203, 211, 4186. 
 
 Ellsworth v. Ames Co., 365, 403, 
 483a. 
 
 Elting v. First National Bank, 
 607, 649. 
 
 Ely v. Dix, 626, 632, 663, 664. 
 
 Ely ads. Harper. 
 
 Ely ads. Parsons. 
 
 Ely v. Pike, 596, 645. 
 
 Emery ads. Clapp. 
 
 Emig v. Barnes, 655a. 
 
 Emmons v. Moore, 363a, 469. 
 
 Empire F. P. Co. v. Comstock, 
 5906. 
 
 Emrich ads. Ryder. 
 
 Endowment Fund ads. Abend. 
 
 England ads. Preachers' Aid So- 
 ciety. 
 
 English v. Lindley, 430. 
 
 Ennor v. Hodson, 241. 
 
 Enos v. Hunter, 344, 346. 
 
 Erie Dispatch ads. Clarkson. 
 
 Erringdale v. Riggs, 126. 
 
 Erwin -v. Hall, 469. 
 
 Evans v. Curtis, 357. 
 
 Evans ads. Est. of Smythe. 
 Evans ads. Williams. 
 Everett v. Foley, 578. 
 Ewing ads. Porter. 
 
 F. 
 
 Fahrney ads. McCoy. 
 Failes ads. Chickering. 
 Fairman v. Bavin, 402, 574. 
 Farmer's L. & T. Co. v. Lake St. 
 
 El. Co., 210. 
 Farmer's L. & T. Co. ads. Racine 
 
 & Miss. R. R. Co. 
 Farrar v. Payne, 607a. 
 Farson ads. Pain. 
 Farwell v. Gt. Western Tel. Co., 
 
 3766, 408. 
 Fast v. McPherson, 18, 21, 249, 
 
 454, 455. 
 Fay ads. Streit. 
 Feather ads. Hays. 
 Fell v. Young, 452a, 4556, 590a, 
 
 628. 
 Fellows ads. Flanner. 
 Fellows ads. Stewart. 
 Fellrath v. Peoria Assn., 199, 
 
 407, 440. 
 Felsenthal v. Kline, 163. 
 Feltgen ads. Mette. 
 Fenton v. Hall, 16, 166, 604a\ 
 Fergus v. Wilmarth, 425a\ 604c. 
 Ferguy ads. Harris. 
 Fern ads. Chapman. 
 Ferns v. Chapman, 3816. 
 Ferraria v. Vasconcellos, 98. 
 Fidelity Trust Co. v. Poole, 610. 
 Field v. Brokaw, 4306. 
 Field v. Flanders, 274. 
 Fifth Nat. Bank v. Hyde Park, 
 
 235, 4696, 615. 
 Finley v. McConnell, 268a. 
 First Nat. Bank ads. Crouch. 
 First Nat. Bank ads. Elting. 
 
TABLE OF CASES. 
 
 XV11 
 
 [The numbers refor to sections.] 
 
 First Nat. Bank v. Kurtz, 469a. 
 First Nat. Bank v. Leech, 15, 179, 
 
 322, 456d\ 468a. 
 First Nat. Bank v. Schween, 
 
 567d. 
 First Nat. Bank ads. Warren. 
 First M. E. Church ads. Beach. 
 First M. E. Church v. Dixon, 101. 
 First M. E. Church ads. United 
 
 Brethren Church. 
 First Presbyterian Church v. 
 
 First Cumberland Church, 37, 
 
 94, 986, 98o\ 
 First Presbyterian Church v. Mc- 
 
 Colly, 102a. 
 Fischer v. Britz, 639a. 
 Fish ads. Cleland. 
 Fish v. Fish, 376, 458. 
 Fishbeck v. Gross, 255, 3786, 655. 
 Fisher v. Fairbank, 637c. 
 Fisher ads. Weaver. 
 Fisher ads. Whitman. 
 Fitz ads. West. 
 Fitzgerald v. Allen, 145, 449. 
 Fitzgerald ads. CHalloran. 
 Fitzgerald ads. Tenn. Co. 
 Fitzsimmons ads. Cassell. 
 Flanders ads. Field. 
 Flanner v. Fellows, 5116, 567a, 
 
 568, 629, 637a. 
 Fleming v. McHale, 331. 
 Fleming ads. Wilkinson. 
 Fletcher ads. Johnston. 
 Fletcher v. Root, 47, 543. 
 Fletcher ads. Williams. 
 Flint v. Lewis, 31. 
 Flood v. Forst, 225. 
 Floring ads. Heneke. 
 Flower ads. Condict. 
 Fogler ads. Penn. 
 Foley ads. Everett. 
 Follansbee ads. Blair. 
 
 Follansbee v. Kilbreth, 401a, 608. 
 Follansbee ads. Walton. 
 Forbes v. Hall, 364a. 
 Forbes ads. Williams. 
 Ford ads. McOullotigh. 
 Ford v. Marcall, 469a. 
 Forst ads. Flood. 
 Forsyth ads. Mayfield. 
 Forthman v. Deters, 4916. 
 Foster v. Latham, 423. 
 Fourney ads. Hazeltine. 
 Fowler ads. Hetfield. 
 Fowler ads. Hunt. 
 Fox ads. Long. 
 Fox ads. Middaugh. 
 Francis v. Roades, 447, 460. 
 Frankenstein v. North, 192, 194, 
 
 264, 355, 459e. 
 Frankenthal v. Meyer, 10, 436. 
 
 Franklin v. McEntyre, 344. 
 
 Franklin Savings Bank v. Tay- 
 lor, 596. 
 
 Frazier ads. Stokes. 
 
 Frederick v. Frederick, 591, 5916, 
 600. 
 
 Freeman v. Hartman, 376. 
 
 Freer v. Lake, 4256, 493. 
 
 French v. Commercial Nat. 
 Bank, 558. 
 
 French v. Northern Trust Co., 
 647, 666, 668. 
 
 French ads. Street. 
 
 Frohlich v. Seacord, 67a, 397. 
 
 Fuller ads. Best. 
 
 Fuller v. Bradley, 491. 
 
 Fulmer ads. Gottschalk. 
 
 Funk ads. Lawson. 
 
 Funk ads. Mosher. 
 
 Furber v. Page, 192a, 341, 343, 
 449a\ 
 
 Furness ads. Shipherd. 
 
 Fussell v. Hail, 37, 94, 96. 
 
xviii 
 
 TABLE OF CASES. 
 
 G. 
 
 G. C. & S. Ry. v. Kelly, 67, 213, 
 
 475. 
 Gage v. Cameron, 4266. 
 Gage ads. Heffron. 
 Galbraith v. Tracy, 195, 397, 607, 
 
 608a. 
 Galford v. Eastman, 607d. 
 Gallagher ads. Northrup, 261. 
 Gallagher v. Northrup, 267a. 
 Gait ads. Wilson. 
 Gand ads. Weer. 
 Gannon ads. White. 
 Gardner ads. Moll. 
 Garrett Institute ads. Alton. 
 Garrison v. Little, 72, 77a. 
 Garrity ads. McNamara. 
 Garrison ads. Parker. 
 Gary v. Newton, 267a, 469. 
 Gavalon ads. St. Patrick's 
 
 Church. 
 Gavin v. Ourtin, 49. 
 Gay v. Kohlsaat, 202. 
 Gay ads. Wright. 
 Geddes ads. Bragg. 
 Germain v. Boltes, 976. 
 Germain ads. St. Peters. 
 German Ins. Co. v. Bartlett, 25, 
 
 289, 463. 
 Gettins v. Scudder, 425c. 
 Gibson v. Decius, 2706. 
 Gibson v. Gibson, 4826. 
 Gibson v. Rees, 274. 
 Gilbert ads. Stoddard. 
 Giles v. Anslow, 325. 
 Gillespie v. Smith, 6426. 
 Gillet ads. New Market 
 
 Bank. 
 Gillett ads. Blinn. 
 Gillett v. Hickling, 31, 33, 
 Gilman v. Bell, 285. 
 Gilman C. & S. Ry. v. Kelly, 67, 
 
 213, 475. 
 
 [The numbers refer to sections.] 
 
 Gilman v. Hamilton, 74a. 
 
 Gilmore ads. Cook. 
 
 Gilmore v. Lee, 88, 114, 449a. 
 
 Gleyre ads. Winstanley. 
 
 Glover v. Condell, 173, 301, 478, 
 
 486, 497, 517, 538, 588, 644a. 
 Glover ads. White. 
 Godschalk v. Fulmer, 254, 255. 
 Goelz v. Goelz, 127, 335, 337, 343, 
 
 344, 4310-, 447, 448, 4526. 
 Goetz ads. Union National 
 
 Bank. 
 Golder v. Bressler, 4466, 580, 587, 
 
 589, 664, 666, 667a. 
 GofE v. Pensenhafer, 640/. 
 Goldstein v. Goldstein, 615. 
 Golladay v. Knock, 640e. 
 Goode ads. Scott. 
 Goodnow ads. Sutherland. 
 Goodrich ads. Hurd. 
 Goodrich ads. Knowles. 
 Goodwin v. Mix, 450. 
 Goodwin ads. Smith. 
 Gordon v. Reynolds, 262, 267. 
 Gorman v. Mullins, 50. 
 Gottlieb v. Miller, 186, 199,.200a„ 
 
 206, 280. 
 Goutzer v. Schmelz, 427a. 
 Gover ads. Gregory. 
 Governor, The, v. Woodruff, 415.. 
 Graff ads. Low. 
 Graham v. Graham, 170, 613. 
 Graham ads. Jolly. 
 Graham ads. Sloan. 
 Grand Prairie Seminary v. Mor- 
 gan, 74, 79, 80. 
 Grand Tower M. & T. Co. v. UH- 
 
 mann, 219. 
 Granger ads. Hopkins. 
 Granger v. Trustees, 571. 
 Grant ads. Green. 
 Grant v. Odiorne, 399, 4596. 
 Graves, Estate of, 86. 
 
 Sav. 
 
 4256. 
 
TABLE OF OASES. 
 
 XIX 
 
 [The numbers 
 
 Gray v. Bloomington & Normal 
 Ry., 217. 
 
 Gray -ads. Holderman. 
 
 Gray v. Merriam, 228a. * 
 
 Gray v. Robertson, 425, 431gr. 
 
 Graybill ads. Kurtz. 
 
 Great Western Tel. Co. ads. Far- 
 well. 
 
 Green v. Dietrich, 367, 410a, 491a. 
 
 Green v. Grant, 568, 630c. 
 
 Greene ads. Cherry. 
 
 Greene v. Cook, 3336. 
 
 Greenwood v. Greenwood, 638. 
 
 Gregory v. Gover, 363c. 
 
 Gridley v. L. B. & M. Ry. Co., 
 221. 
 
 Griffin v. Marine Co., 429, 431c. 
 
 Griffin ads. Pratt. 
 
 Griffin ads. Truitt. 
 
 Gritten v. Dickerson, 124. 
 
 Gross ads. Fishbeck. 
 
 Grove v. Carlisle, 131. 
 
 Grove v. Jaeger, 110. 
 
 Grover v. Hale, 6426. 
 
 Gruell ads. Hill. 
 
 Gruhn v. Richardson, 262, 3786. 
 
 Guignon v. Union Trust Co/, 427, 
 559a. 
 
 Guild ads. Quayle. 
 
 Guilfoil v. Arthur, 74, 437a, 476. 
 
 Gunn ads. Hayward. 
 
 Gunnell v. Cockerill, 424, 567e. 
 
 H. 
 
 Hagan v. Varney, 316, 470a, 581. 
 Hageman v. Hageman, 4986. 
 Hail ads. Fussell. 
 Haines v. Hay, 1696, 650, 652a, 
 
 653a, 659. 
 Hale v. Cravener, 494. 
 Hale ads. Grover. 
 Hale v. Hale, 15, 50, 66, 174, 318, 
 
 506, 507a, 629a. 
 
 refer to sections.] 
 
 Hale ads. Kellogg. 
 
 Hall v. Crane Co., 271. 
 
 Hall ads. Erwin. 
 
 Hall ads. Fenton. 
 
 Hall ads. Forbes. 
 
 Hall v. Irwin, 547c. 
 
 Halle v. Nat. Park Bank, 33a, 
 
 244, 273, 428, 456a, 6126. 
 Hallesy v. Jackson, 419, 4416. 
 Hamilton v. Downer, 326, 328, 
 
 527e. 
 Hamilton ads. Gilman. 
 Hamilton ads. King. 
 Hamlin ads. Davis. 
 Hammer v. Johnson, 616. 
 Hamsher v. Hamsher, 976. 
 Hancock v. Harper, 418, 4196, 
 
 429a. 
 Hanford v. Prouty, 154. 
 Hanna v. Drovers National Bank, 
 
 233. 
 Hanson ads. Pearson. 
 Happy v. Morton, 37, 94, 96. 
 Hardin ads. Barnes. 
 Hardin v. Barnes, 431e. 
 Hardin v. Osborne, 268a. 
 Harding ads. Sheldon. 
 Harmlson ads. Taylor. 
 Harness ads. Henderson. 
 Harper v. Ely, 431c. 
 Harper ads. Hancock. 
 Harris v. Cornell, 3086. 
 Harris v. Douglas, 538c. 
 Harris v. Ferguy, 304a, 527a. 
 Harris ads. Heuser. 
 Harris ads. Hoare. 
 Harris v. Mclntyre, 246, 331, 340, 
 
 351, 4076. 
 Harris ads. Scott. 
 Harrison v. Longbrake, 275. 
 Harrison ads. Owsley. 
 Harrison v. Owsley, 543. 
 Harrower ads. Lewis. 
 
XX 
 
 TABLE OF CASES. 
 
 [The numbers 
 
 Hart v. Seymour, 191, 303, 304, 
 508, 5670. 
 
 Hartford Deposit Co. ads. Chem- 
 ical Bank. 
 
 Hartgrpve ads. Mason. 
 
 Hartman ads. Baum. 
 
 Hartman ads. Freeman. 
 
 Harts v. Brown, 2066. 
 
 Harvard College v. Baleh, 640e. 
 
 Harvey ads. Hough. 
 
 Harward v. Robinson, 169. 
 
 Harwood v. Tucker, 229a. 
 
 Hauk v. "Van Ingen, 619a. 
 
 Haward v. Peabody, 646a. 
 
 Haward v. Peavey, 536a, 638. 
 
 Hawthorn v. Ulrich, 639c. 
 
 Hay ads. Bennett. 
 
 Hay v. Bennett, 485. 
 
 Hay ads. C. & E. I. R. R. Co. 
 
 Hay ads. Haines. 
 
 Hayner ads. Nelson. 
 
 Hays v. Feather, 153, 449a. 
 
 Hayward v. Gunn, 413a. 
 
 Hazeltine v. Fourney, 129, 4546. 
 
 Heacock v. Durand, 560a. 
 
 Heermans ads. Wellington. 
 
 Heffron v. Gage, 586. 
 
 Heffron v. Rice, 562. 
 
 Heintz v. Dennis, 613. 
 
 Hempstead v. Dickson, 531. 
 
 Hemstreet v. Burdick, 629. 
 
 Henderson v. Harness, 270, 281. 
 
 Henderson ads. Latham. 
 
 Henderson ads. Willis. 
 
 Heneke v. Floring, 410a, 460. 
 
 Hensan v. Cooksey, 376c. 
 
 Henschel v. Mamero, 246, 378a, 
 435a. 
 
 Henshaw v. Christian, 233a. 
 
 Henshaw v. State Bank, 233a. 
 
 Henry County v. Winnebago, 55, 
 746. 
 
 Herbert v. Herbert, 130. 
 
 refer to sections.] 
 
 Herr v. Payson, 319, 407a, 410, 
 414, 414a, 609, 609a. 
 
 Herrington ads. Kane Co. 
 
 Hetfield v. Fowler, 553. 
 
 Heuser v. Harris, 274. 
 
 Hewitt v. Normal School Dis- 
 trict, 607c. 
 
 Hibbard v. Chicago, 60. 
 
 Hickling ads. Gillett. 
 
 Hickman ads. Capps. 
 
 Hicks ads. Yokem. 
 
 Higgins v. Curtis, 67, 607a. 
 
 Higley ads. Summers. 
 
 Hill ads. Ellis. 
 
 Hill v. Gruell, 199. 
 
 Hill ads. Sifferman. 
 
 Hiner ads. McElroy. 
 
 Hinrichsen v. Hinrichsen, 640e. 
 
 Hinsey v. Supreme Lodge, 613, 
 614, 649. 
 
 Hiss v. Hiss, 18, 21, 251, 253, 454, 
 4546, 591c. 
 
 Hitchcock v. Watson, 603. 
 
 Hixon ads. Norton. 
 
 Hoare v. Harris, 590. 
 
 Hobbie v. Ogden, 5926. 
 
 Hodge ads. Howe. 
 
 Hodge & Homer Co. ads. Maye. 
 
 Hodson ads. Ennor. 
 
 Hoeffer v. Clogan, 78, 80, 88. 
 
 Hoff ads. Lux. 
 
 Hoffman v. Reichart, 200. 
 
 Hogan ads. McGillis. 
 
 Hogue v. Steel, 460. 
 
 Holcomb ads. Hovey. 
 
 Holder v. L. B. & M. Ry. Co., 221. 
 
 Holderman v. Gray, 464. 
 
 Holland Trust Co. ads. Morse. 
 
 Hollenback ads. Smith. 
 
 Holmes v. Clifford, 354. 
 
 Holmes v. Holmes, 331. 
 
 Holmes v. McDonald, 237, 479, 
 598a. 
 
TABLE OF CASES. 
 
 XXI 
 
 [The numbers refer to sections.] 
 
 Holzman ads. Brown. 
 
 Home Bank v. Peoria Soc, 27a, 
 
 234a, 4686, 469. 
 Hooker v. Midland Steel Co., 
 
 204a. 
 Hoose ads. Cramer. 
 Hopkins v. Granger, 30, 431. 
 Hopkins v. Medley, 521. 
 Hopkins ads. Taylor. 
 Hopkins ads. Yourt. 
 Home v. Ingraham, 196, 319, 
 
 3336, 417, 418a. 
 Horsly ads. Moore. 
 Horton ads. Jackson. 
 Hossack v. Ottawa Assn., 212. 
 Hough v. Harvey, 556a. 
 Hough ads. 111. Linen Co. 
 Houston v. Maddox, 2676. 
 Hovey v. Holcomb, 262. 
 Hovland ads. McNeil. 
 Howe ads, Coleman. 
 Howe v. Hodge, 504a, 510. 
 Howe ads. Olney. 
 Howe ads. Sargent. 
 Howell v. Edgar, 268. 
 Howell v. Moores, 35, 157, 163. 
 Howland ads. Bryan. 
 Hubbard v. U. S. Mortgage Co., 
 
 31, 409a, 417. 
 Huber ads. Brady. 
 Hudnall ads. Humphrey. 
 Hudson v. Hudson, 145, 449, 
 
 449a. 
 Hudson v. Maze, 269. 
 Huestis ads. Butler. 
 Huffman ads. People. 
 Huggins v. Rider, 555, 557. 
 Hughes ads. Dougherty. 
 Hughes ads. Link Belt Co. 
 Hughes v. People, 178, 651. 
 Hughes v. Washington, 635a. 
 Hughes ads. Zeigler. 
 
 Humphrey v. Hudnall, 167, 252, 
 
 383, 468c, 538d\ 637/. 
 Humphrey ads. Sayer. 
 Huneke ads. Albrecht. 
 Hunt v. Evans, 90, 251, 539. 
 Hunt v. Fowler, 74, 75, 776, 80. 
 Hunter v. Dennis, 348a, 360, 360a, 
 
 4116, 4176. 
 Hunter ads. Enos. 
 Hunter ads. Knox. 
 Huntington ads. Massey. 
 Hurd v. Goodrich, 565, 650. 
 Husser ads. Schweiker. 
 Hutchin ads. Monson. 
 Hutchinson v. Ayres, 441. 
 Hutchinson ads. Smith. 
 Hutmacher v. Anheuser, 655a. 
 Hyde Park ads. Fifth Nat. Bank. 
 Hyman v. Bogue, 595. 
 Hyman v. Bourg, 4286. 
 
 III. Agl. Coll. ads. Atty. Gen. 
 111. L. & L. Co. v. Bonner, 529. 
 111. L. & L. Co. ads. Peterson. 
 111. Linen Co. v. Hough, 211. 
 111. S. Z. Co. ads. Manhardt, 39. 
 III. Steel Co. ads. Blair. 
 111. Steel Co. v. O'Donnell, 2066. 
 111. T. & S. Bank ads. Sherwood. 
 111. T. & S. Bank ads. Zeigler. 
 I I. & I. R. R. v. Swannell, 214, 
 
 4706, 596, 598c. 
 Ingraham ads. Home. 
 Ingraham v. Ingraham, 15, 74, 
 
 78, 79, 320, 643. 
 Irish v. Antioch, 666. 
 Irving ads. Skahen. 
 Irwin v. Dyke, 4586. 
 Irwin ads. Hall. 
 Irwin v. Sample, 376. 
 
XX11 
 
 TABLE OF CASES. 
 
 [The numbers refer to sections.] 
 
 J. 
 
 Jackman ads. Cool. 
 
 Jackson ads. Allen. 
 
 Jackson ads. DeClerg.. 
 
 Jackson ads. Hallesy. 
 
 Jackson v. Horton, 4706. 
 
 Jackson ads. Jenks. 
 
 Jackson v. Kraft, 127c, 127a\ 
 
 127e, 343, 358. 
 Jackson v. Lynch, 408. 
 Jacksonville Acad. ads. Strawn. 
 Jacksonville Nat. Bank v. Bees- 
 ley, 264a, 333, 344. 
 Jacobs ads. McGinnls. 
 Jacobs ads. Mutual Ace. Assn. 
 Jaeger ads. Grove. 
 Jarrett v. Johnson, 164, 557, 649. 
 Jeffries ads. Powell. 
 Jenkins ads. Doolittle. 
 Jenkins v. Doolittle, 290, 563, 
 
 650. 
 Jenks V. Jackson, 541, 637e. 
 Jennings v. Neville, 112. 
 Joice ads. McDowell. 
 
 Johns v. Johns, 48. 
 
 Johnson v. Askey, 530, 5590. 
 
 Johnson v. Buck, 48, 498, 537. 
 
 Johnson ads. Diversey. 
 
 Johnson ads. Hammer. 
 
 Johnson ads. Jarrett. 
 
 Johnson v. Lee, 15, 304a, 487a, 
 638. 
 
 Johnson v. Leman, 405a, 561. 
 
 Johnson ads. Patterson. 
 
 Johnson v. Preston, 512, 519. 
 
 Johnson v. Prosperity L. & B. 
 Assn., 422. 
 
 Johnson v. Ward, 226. 
 
 Johnston v. Fletcher, 611a. 
 
 Johnston v. Johnston, 262, 357, 
 448, 457, 458e. 
 
 Johnston v. Keener, 198. 
 
 Jolly v. Graham, 386. 
 
 Jones v. Jones, 324, 540, 643. 
 
 Jones v. King, 258, 267. 
 
 (Tones v. Lock, 27, 118, 648c. 
 
 Jones v. Lloyd, 247, 408, 459. 
 
 Jones ads. McLaflin. 
 
 Jones v. Sacramento Church, 
 
 104. 
 Julia F. Burnham Hospital ads. 
 
 People. 
 Jurgens ads. Svanoe. 
 
 K. 
 
 Kadish v. Lyon, 575. 
 
 Kain ads. Lyon. 
 
 Kane Co. v. Herrington, 246, 
 
 347a, 369. 
 Karr ads. Walden. 
 Karraker ads. Sitter. 
 Kassing v. Durand, 258. 
 Katzenstein ads. Markham. 
 Keck ads. Burleigh. 
 Keener ads. Johnston. 
 Keep ads. Taylor. 
 Keister ads. Crossman. 
 Keith v. Miller, 337, 344, 345, 358. 
 Keith ads. Sturges. 
 Kellett v. Shepard, 530. 
 Kellogg v. Hale, 14, 131a, 2656, 
 
 304, 304a, 305, 566. 
 Kellogg ads. Matteson. 
 Kellogg v. Peddicord, 247. 
 Kellogg v. Western Elec. Co., 
 
 336, 4076, 484a. 
 Kelly ads. G. C. & S. R. R. 
 Kelly v. Kelly, 350. 
 Kelly ads. Morrison. 
 Kelly v. Parker, 526, 641, 673. 
 Kelsey v. Snyder, 345a, 462a. 
 Kemmerer v. Kemmerer, 15, 39, 
 
 74, 75, 776, 77c, 527. 
 Kemper v. Mette, 331, 344. 
 
TABLE OF CASES. 
 
 mil 
 
 [The numbers refer to sections.] 
 
 Keplinger ads. Kinney. 
 Kerfoot v. Billings, 412a. 
 Kerr ads. St. L. & P. R. R. Co. 
 Kerrison v. Stewart, 437. 
 Kessner v. Phillips, 294. 
 Keyes v. No. Trust Co., 507, 639. 
 Keys v. Wohlgemuth, 540, 655. 
 Kidwell ads. Kirkwood. 
 Kilbreth ads. Follansbee. 
 Kilpatrick ads. Rowan. 
 Kimball v. Lincoln, 195. 
 Kimball ads. Stow. 
 Kimbell ads. Smith. 
 King v. Bushnell, 124, 265. 
 King v. Oushman, 428a, 608. 
 King v. Hamilton, 188, 193, 418a, 
 
 559, 613. 
 King v. King, 299, 507a, 534a, 
 
 568a. 
 King ads. Mix. 
 Kingsbury v. Burnside, 15, 18, 
 
 249, 333, 454. 
 Kingsbury v. Powers, 653. 
 Kinney v. Keplinger, 160c, 166a. 
 Kirby ads. Wilson. 
 Kirkland v. Cox, 14, 301, 303, 314, 
 
 452, 478, 568. 
 Kirkland ads. Davenport. 
 Kirkpatrick v. Kirkpatrick, 629a, 
 
 640e. 
 Kirkwood v. Kidwell, 594. 
 Kirkwood ads. Lloyd. 
 Kirwin ads. School Trustees. 
 Klehm ads. Coryell. 
 Kline ads. Felsenthal. 
 Klock ads. Walter. 
 Knapp v. Marshall, 612c. 
 Kneisley v. Weir, 619a. — 
 Knepper ads. Linkeman. 
 Knight v. Knight, 555. 
 Knight ads. Larmow. 
 Knock ads. Golladay. 
 Knowles v. Goodrich, 656. 
 
 Knowles v. Knowles, 665. 
 Knox v. Hunter, 431e. 
 Knox College ads. Moshier. 
 Koenig v. Dohm, 255, 257a, 469, 
 
 491c. 
 Kohlsaat ads. Gay. 
 Kohtz v. Eldred, 304, 307. 
 Kol'berson ads. Lawson. 
 Koster v. Miller, 358, 464. 
 Kraft ads. Jackson. 
 Krebaum v. Cordell, 127c, 359. 
 Kristufek ads. Silverman. 
 Kroeschell ads. Springer. 
 Kruse v. Steffens, 170. 
 Kuhn ads. Belohradsky. 
 Kuhn ads. Security Ins. Co. 
 Kuhn ads. Spengler. 
 Kuns v. Robertson, 37, 94, 96. 
 Kurtz v. Graybill, 637c. 
 Kyle v. Wills, 262, 3486, 380, 
 
 410a. 
 
 L. B. & M. Ry. Co. ads. Holder. 
 L. B. & M. Ry. Co. ads. Gridley. 
 LaForge ads. Binns. 
 LaPorge v. Binns, 585, 6666. 
 Lagger v. Mut. Union Assn., 170, 
 
 468d, 607, 607a. 
 Laing ads. Price. 
 Lake v. Brown, 6666. 
 Lake ads. Freer. 
 Lake St. El. Co. ads. Farmers L. 
 
 & T. Co. 
 Lamar Ins. Co. ads. Melvin. 
 Lamb ads. Mulligan. 
 Lambert ads. Higgins. 
 Lancaster v. Springer, 332, 410a, 
 
 413, 609a. 
 Landfleld, In re, 186. 
 Lang v. Metzger, 170, 430e, 468a, 
 
 622. 
 Langlin v. Leigh, 454d. 
 
XXIV 
 
 TABLE OF OASES. 
 
 [The numbers 
 
 Lansingh ads. Dempster. 
 Lantry v. Lantry, 255, 331. 
 Larmon v. Knight, 255, 375, 3786. 
 Larmon ads. Madison. 
 Larrafbee ads. Ogden. 
 Lash v. Lash, 568, 629. 
 Latham ads. Foster. 
 Latham v. Henderson, 3636. 
 Laughlin v. Lee, 480. 
 Laiiterman v. Atiernathy, 240. 
 Lawlor ads. Brophy. 
 Lawrence v. Lawrence, 27, 304a, 
 
 568, 585a. 
 Lawrence v. Ogleshy, 527c. 
 Lawrence v. Smith, 509, 510, 
 
 5346. 
 Lawson v. Funk, 267a. 
 Lawson v. Kolberson, 96. 
 Lawson v. Lawson, 262. 
 Leach ads. Dalrymple. 
 Leach v. Thomas, 41. 
 Lear v. Chouteau, 362. 
 Lee ads. Gilmore. 
 Lee ads. Johnson. 
 Lee ads. Laughlin. 
 Lee v. Pennington, 554. 
 Leech ads. First Nat. Bank. 
 Lehmann v. Rothbarth, 373, 377, 
 
 405, 650, 651. 
 Lehnard v. Sipecht, 89, 540, 640. 
 Leigh ads. Langlin. 
 Leman ads. Johnson. 
 Leman ads. Sherman. 
 Leman v. Sherman, 631, 666o\ 
 Lemon ads. Temple. 
 LeNeve v. LeNeve, 465. 
 Lennartz v. Estate of Popp, 164, 
 
 435, 603a. 
 Lequatte v. Drury, 410a. 
 Leshe v. Moser, 166c. 
 Lewis ads. Flint. 
 Lewis v. Harrower, 5286. 
 Lewis ads. Selberling. 
 
 refer to sections.] 
 
 Liddard v. Liddard, 3246. 
 
 Light v. Scott, 641a, 673. 
 
 Lill v. Brant, 366. 
 
 Lill v. Neafle, 425a. 
 
 Lincoln ads. Kimball. 
 
 Lindley ads. English. 
 
 Link Belt Co. v. Hughes, 579. 
 
 Linkeman v. Knepper, 257a, 434a. 
 
 Linn v. Downing, 270, 282. 
 
 Little ads. Garrison. 
 
 Littleneld ads. Eastman. 
 
 Lloyd ads. Jones. | 
 
 Lloyd v. Kirkwood, 410a. 
 
 Lobdell v. Bank, 276, 6776. 
 
 Lock ads. Jones. 
 
 Lockwood ads. Bond. 
 
 Lockwood v. Doane, 288. 
 
 Lockwood v. Mills, 459<Z, 6076. 
 
 Loften v. Witboard, 359. 
 
 Long ads. Dean. 
 
 Long v. Fox, 382. 
 
 Longbrake ads. Harrison. 
 
 Longworth v. Riggs, 49, 133,- 
 
 151a. 
 Loomis v. Loomis, 336. 
 Lord v. Comstock, 478, 499, 568, 
 
 630c, 640. 
 Loretta Mining Co. ads. Am. Ex. 
 
 Bank. 
 Lott ads. Clark. 
 Lovejoy ads. Rail-back. 
 Low v. Graff, 360. 
 Lowenthal ads. Crocker. 
 Luce ads. Bradley. 
 Lunt v. Lunt, 504a, 5116. 
 Lunz ads. Stanbaugh. 
 Lurie v. Sabath, 4566, 480. 
 Lux v. Hoff, 358. 
 Lynch ads. Jackson. 
 Lynch v. Swayne, 132, 303, 566. 
 Lynde ads. Patterson. 
 Lynn v. Lynn, 27, 38a, 110c, 110d", 
 
 111. 
 
TABLE OP CASES. 
 
 XXV 
 
 [The numbers 
 
 Lyon ads. Kadish. 
 Lyon v. Kain, 417a. 
 Lyon v. Worcester, 401. 
 
 M. 
 
 Maddox ads. Houston. 
 
 Madison y. Larmon, 506, 511a, 
 
 528a\ 
 Madison v. Madison, 162, 345d. 
 
 3590, 411, 4746. 
 Maghee v. Robinson, 469a. 
 Mahan v. Schroeder, 110a, 112, 
 
 115a, 137, 380, 449c, 4566, 480, 
 
 481. 
 Maher v. Aldrich, 15, 245, 316, 
 
 319, 417, 440a, 4876, 613, 614. 
 Maher v. O'Hara, 317, 5386. 
 Mahler v. Sanche, 387. 
 Mahoney v. Mahoney, 344, 346. 
 Mamero ads. Henschel. 
 Manhardt v. 111. S. Z. Co., 39, 173, 
 
 644, 668. 
 Mann ads. Stanford. 
 Manning ads. Clark. 
 Mansfield ads. Alwood. 
 Mansfield v. Alwood, 429a, -649a. 
 Mansfield v. Mansfield, 47, 543, 
 
 636. 
 Mansfield v. Wallace, 607. 
 Manusos ads. Papailion. 
 Marie Church v. Trinity Church, 
 
 95, 95a, 99a. 
 Marine Bank v. Rushmore, 227. 
 Marine Co. ads. Griffin. 
 Markham v. Katzenstein, 255, 
 
 2626. 
 Marlow v. Marlow, 1306. 
 Marsh v. Reed, 49, 51. 
 Marshall v. Coleman, 376. 
 Marshall ads. Knapp. 
 Martin v. Clark, 287. 
 Martin ads. Douglass. 
 Martin v. Martin, 108. 
 
 refer to sections.] 
 
 Mason v. Bloomington, 74, 74c, 
 
 85, 87, 441a, 666. 
 Mason v. Caldwell, 6486. 
 Mason v. Hartgrove, 394. 
 Mason v. Mason, 43, 304a, 593a. 
 Mason v. Showalter, 370. 
 Mason v. Wait, 642. 
 Mason ads. Wilson. 
 Massey v. Huntington, 13, 27, 
 
 111, 112, 526. 
 Mather ads. Natl. Life Ins. Co. 
 Mathers ads. St. L. & J. C. R. R. 
 Mathis v. Stufflebeam, 363c. 
 Matteson ads. Constant. 
 Matteson v. Kellogg, 397. 
 Matthern v. Rankin, 304a. 
 Matthews ads. Walker. 
 Matthewson v. Davis, 599, 607, 
 
 621, 650, 652. 
 Maxwell v. Maxwell, 127, 448, 
 
 457. 
 Maye v. Hodge & Homer Co., 
 
 200a. 
 Mayfield v. Forsyth, 262, 333, 352. 
 
 410a. 
 Mayfield v. Turner, 468. 
 Mayfield ads. Wyatt. 
 Maynard ads. Wagner. 
 Maywood Co. v. Village, 60a. 
 Maze ads. Hudson. 
 McArthur v. Scott, 437. 
 McCagg ads. Dennie. 
 McCartney v. Osburn, 568. 
 McCartney v. Ridgway, 17, 22, 
 
 110, HOe, 112, 481, 495, 552. 
 McClellan v. Board of Review, 
 
 171. 
 McClintock ads. Stephenson. 
 McClun ads. Cooper. 
 McColly ads. First Presbyterian 
 
 Church. 
 McConnell ads. Finley. 
 McCormick ads. Buehler. 
 
XXVI 
 
 TABLE OF CASES. 
 
 [The numbers refer to sections.] 
 
 McCormick ads. Strode. 
 McCoy v. Pahrney, 150. 
 McCrory v. Chambers, 92, 236a. 
 McCullouga v. Ford, 358. 
 McOulliim ads. Thorp. 
 McDaid v. Call, 469. 
 McDonald v. Carr, 359, 3596. 
 McDonald ads. Holmes. 
 McDonald v. Starkey, 48. 
 McDonald v. Stow, 333, 367, 368, 
 
 410a. 
 McDonald v. Western Refrig. Co., 
 
 376e. 
 McDowell v. Joice, 191. 
 McDowell ads. Wardwell. 
 McDowell ads. Wilson. 
 McElroy v. Hiner, 386. 
 McEntyre ads. Franklin. 
 McFall v. Kirkpatrick, 132, 304a, 
 
 307a, 310, 314, 488, 497, 500, 
 
 548, 5696, 569d, 569e, 591e, 
 
 640«Z, 677a. 
 McFarland v. Conlee, 612a. 
 MeGillis v. Hogan, 559a. 
 McGinn ads. Stoff. 
 McGinnis v. Jacobs. 
 McGovern v. Union Mut. Life, 
 
 431ft. 
 McGraw v. Bayard, 441a. 
 McHale ads. Fleming. 
 McHenry ads. Perry. 
 Mclntyre ads. Harris. 
 McKinley ads. Dicken. 
 McKnight v. Drake, 189. 
 McLaflin v. Jones, 234, 319, 410, 
 
 414, 4696, 615. 
 McLaughlin v. McLaughlin, 145, 
 
 449. 
 McLaurie v. Partlow, 135, 247, 
 
 467a. 
 McLean v. Thomas, 654. 
 McMulta v. Corn Belt Bank, 207. 
 McNab v. Young, 314, 469. 
 
 McNamara v. Garrity, 246, 339, 
 4146. 
 
 McNeil v. Hovland, 258. 
 
 McPherson ads. Fast. 
 
 McQuality ads. McVey. 
 
 McVey v. McQuality, 470. 
 
 McWhirter v. Newell, 62. 
 
 Meacham v. Bunting, 126, 312, 
 4176. 
 
 Meacham v. Steele, 14, 304. 
 
 Medley ads. Hopkins. 
 
 Meek ads. Bldred. 
 
 Meier ads. Rickman. 
 
 Meisser ads. Thompson. 
 
 Melvin v. Lamar Ins. Co., 207. 
 
 Mensch ads. Zion Church. 
 
 Merchants L. & T. Co. v. North- 
 ern T. Co., 546, 640ff. 
 
 Merriam ads. Gray. 
 
 Merrill ads. Atkin. 
 
 Messinger ads. Strong. 
 
 Metcalfe v. Bradshaw, 547. 
 
 Mette v. Feltgen, 485. 
 
 Mette ads. Kemper. 
 
 Mettler v. Warner, *68, 160, 5116, 
 512, 514, 549a, 5676. 
 
 Metzger ads. Lang. 
 
 Metzger v. Schopp, 636. 
 
 Meyer ads. Frankenthal. 
 
 Meyers v. Meyers, 20. 
 
 Meyers ads. Phillips. 
 
 Michaelis ads. Roth. 
 
 Middaugh v. Fox, 408. 
 
 Midland Steel Co. ads. Hooker. 
 
 Miles v. Wheeler, 170, 397, 413. 
 
 Millar ads. Parsons. 
 
 Miller ads. Beach. 
 
 Miller v. Davidson, 292. 
 
 Miller ads. Gottlieb. 
 
 Miller ads. Keith. 
 
 Miller ads. Koster. 
 
 Miller v. Mowers, 498. 
 
 Miller ads. Nicoll. 
 
TABLE OP CASES. 
 
 XXV11 
 
 {The numbers refer to sections.] 
 
 Miller v. Rich, 170, 655. 
 
 Miller ads. Richelieu. 
 
 Miller v. Riddle, 95, 107. 
 
 Miller ads. Robinson Bank. 
 
 Milner ads. Cox. 
 
 Mills ads. Loekwood. 
 
 Mills v. Newberry, 15, 74, 77, 
 324. 
 
 Miner v. Miner, 174. 
 
 Minkler v. Simons, 47, 543. 
 
 Missouri & 111. Coal Co. ads. 
 Reichert. 
 
 Mitchell v. Sawyer, 267a. 
 
 Mix v. King, 4346. 
 
 Mix ads. Goodwin. 
 
 Moll v. Gardner, 304, 306. 
 
 Moll v. Sanitary District, 439. 
 
 Moninger v. Security T. & T. Co., 
 619o. 
 
 Monroe ads. Daugherty. 
 
 Monson v. Hutchin, 262, 262a. 
 
 Montgomery ads. Newell. 
 
 Moore ads. Bond. 
 
 Moore ads. Cochrane. 
 
 Moore ads. Emmons. 
 
 Moore v. Horsly, 117a, 131a, 255, 
 262, 305, 332, 333a, 347. 
 
 Moore v. Mainn, 309. 
 
 Moore v. Pickett, 249, 403. 
 
 Moore ads. Scott. 
 
 Moore v. Wood, 258, 267a. 
 
 Moores ads. Howell. 
 
 Moran v. Pellifant, 419a. 
 
 Morgan v. Clayton, 252. 
 
 Morgan v. Owens, 376. , 
 
 Morgan ads. Grand Prairie Semi- 
 nary. 
 
 Morris v. Thomas, 605. 
 
 Morrison ads. Buckingham. 
 
 Morrison v. Kelly, 466, 666c. 
 
 Morse ads. "Atlas Nat. Bank. 
 
 Morse v. Holland Trust Co., 210. 
 
 Morse v. Richmond, 1926. 
 
 Morse v. Thorsell, 120. 
 
 Mortimer v. Potter, 238a. 
 
 Morton ads. Happy. 
 
 Morton v. Nelson, 20, 192c, 247, 
 3336, 353, 390. 
 
 Mound G. C. Assn, ads. Craw- 
 ford. 
 
 Mowe ads. Seiter. 
 
 Mowers ads. Miller. 
 
 Moser ads. Leslie. 
 
 Mosher v. Funk, 247. 
 
 Moshier v. Knox College, 364a. 
 
 Moss ads. Barton. 
 
 Moss v. Moss, 359. 
 
 Moss ads. Prouty. 
 
 Mullanny v. Nangle, 46, 663, 674. 
 
 Mullanphy Sav. Bank v. Schott, 
 2066. 
 
 Mullarkey ads. O'Melia. 
 
 Muller v. Blake, 672. 
 
 Mulligan v. Lambe, 1606. 
 
 Mullins ads. Gorman. 
 
 Mnlvihill v. White, 161, 399. 
 
 Munn v. Burgess, 406, 450. 
 
 Munn ads. Moore. 
 
 Murphy ads. Borders. 
 
 Murphy ads. Doyle. 
 
 Musham v. Musham, 4116, 4916 
 
 Mutual Ace. Assn. v. Jacobs, 229, 
 613, 617. 
 
 Mutual Union Assn. ads. Lagger. 
 
 Myers ads. Beers. 
 
 Myers v. Myers, 265a, 2656, 313, 
 454a. 
 
 Myers v. Trustees of Schools, 40, 
 56a. 
 
 N. 
 
 Nangle ads. Mullanny 
 Nat. Life Ins. Co. v. Mather, 223, 
 232, 586. 
 
xxvm 
 
 TABLE OF CASES. 
 
 Nat. Park Bk. ads. Halle. 
 
 Nat. Park Bk. v. Halle, 44, 619, 
 648. 
 
 Neafle ads. Lill. 
 
 Nelson v. Benson, 98c. 
 
 Nelson v. Hayner, 67, 195, 397. 
 
 Nelson ads. Morton. 
 
 Neville ads. Jennings. 
 
 Nevitt v. Woodburn, 487a, 519, 
 5346, 547a", 602, 653, 655. 
 
 New York Biscuit Co. ads. Dick- 
 son. 
 
 Newberry v. Blatchford, 438. 
 
 Newberry Library ads. Atty. 
 Gen. 
 
 Newberry ads. Blatchford. 
 
 Newberry v. Blatchford, 89a, 93. 
 
 Newberry ads. Mills. 
 
 Newell v. Montgomery, 165, 370. 
 
 Newell ads. McWhirter. 
 
 New Market Sav. Bank v. Gillet, 
 5906. 
 
 Newton ads. Gary. 
 
 Niagara Fire Ins. Co. v. Scam- 
 mon, 425. 
 
 Nichols v. Sargent, 177, 5906. 
 
 Nicoll v. Mason, 121a. 
 
 Nicoll v. Miller, 121a, 1216, 309, 
 665. 
 
 Nicoll v. Ogden, 121a. 
 
 Nicolls v. Rugg, 98. 
 
 Nicols v. Thornton, 344. 
 
 Normal School District ads. 
 Hewitt. 
 
 North ads. Frankenstein. 
 
 Northern Trust Co. ads. French. 
 
 Northern Trust Co. ads. Keyes. 
 
 Northern Trust Co. ads. Mer- 
 chants' L. & T. Co. 
 
 Northern Trust Co. ads. Patter- 
 son. 
 
 Northern Trust Co. ads. Ray- 
 mond. 
 
 [The numbers refer to sections.] 
 
 Northrup ads. Gallagher. 
 North Western Univ. ads. Parks. 
 Norton v. Hixon, 36. 
 Nott ads. Chapin. 
 
 O. 
 
 O'Bannon ads. Vigus. 
 O'Brien ads. Cagney. 
 O'Brien ads. Wetherell. 
 Ochiltree ads. People. 
 O'Connor ads. Dwyer. 
 Odiorne ads. Grant. 
 O'Donnell ads. 111. Steel Co. 
 O'Donnell v. Robson, 56a. 
 Odgen ads. Hobbie. 
 Ogden v. Larrabee, 15, 67, 428a, 
 
 609c, 650. 
 Ogden ads. Nicoll. 
 Oglesby ads. Lawrence. 
 O'Halloran v. Fitzgerald, 403, 
 
 476. 
 O'Hara ads. Maher. 
 O'Hare ads. Drover's Nat. Bank. 
 Ohio Oil Co. v. Daughetee, 45, 
 
 572, 634. 
 Olcutt v. Tope, 15, 568, 6376. 
 Oleson ads. Thor. 
 Oliver v. Oliver, 41. 
 Olmstead ads. Dole. 
 Olmstead v. Vance & Jones Co., 
 
 207c. 
 Olney v. Howe, 110. 
 O'Melia v. Mullarkey, 308. 
 Onasch v. Zintzel, 343, 350. 
 O'Neal v. Boone, 469. 
 Opp ads. Roberts. 
 Orr v. Yates, 10, 18, 30, 151, 527, 
 
 643, 666a. 
 Osborne ads. Hardin., 
 Osburn ads. McCartney. 
 Oswald v. Caldwell, 526. 
 Otis v. Beckwith, 110c, 148, 4836. 
 
TABLE OF CASES. 
 
 XXIX 
 
 [The numbers refer to sections.] 
 
 Ottawa Assn. ads. Hossack. 
 Owens ads. Morgan. 
 Owsley v. Harrison, 516. 
 
 P. 
 
 Padfield v. Padfield, 13, 27, HOd", 
 
 111, 146, 148, 4836. 
 Page ads. Furber. 
 Pahlman v. Shumway, 283, 432. 
 Pahlman v. Smith, 663. 
 Papailion v. Manusos, 37, 94, 
 
 101a. 
 Pain v. Farson, 2046, 336, 356. 
 Paine v. Barnes, 645. 
 Parker v. Garrison, 32, 484, 573. 
 Parker ads. Kelly. 
 Parkes v. N. W. Univ., 81, 91. 
 Parsons v. Ely, 52. 
 Parsons v. Millar, 47, 543. 
 Partlow ads. McLaurie. 
 Partridge ads. Snyder. 
 Pasquay v. Pasquay, 536. 
 Patrick ads. Cook. 
 Patterson v. Johnson, 549, 633, 
 
 643, 671. 
 Patterson v. Lynde, 207. 
 Patterson v. Northern Trust Co., 
 
 431i. 
 Patton ads. Smith. 
 Patton ads. Telford. 
 Payne ads. Farrar. 
 Payne ads. State Nat. Bank. 
 Payson ads. Herr. 
 Payson v. Ross, 556a. 
 Peabody ads. Haward. 
 Pearce ads. Renfrow. 
 Pearson v. Hanson, 300. 
 Pearson ads. Perry. 
 Pease ads. Trubey. 
 Peavey ads. Haward. 
 Peddicord ads. Kellogg. 
 ■Pellifant ads.- Moran. 
 
 Penn v. Fogler, 168, 173, 197a, 
 5986, 599a. 
 
 Penn Co. v. Bauerle, 589, 632. 
 
 Pennington ads. Lee. 
 
 Pensenhafer ads. Goff. 
 
 People v. Bordeaux, 36, 442, 5516, 
 661. 
 
 People v. Brown, 471. 
 
 People ads. County Commission- 
 ers. 
 
 People ads. Dreyer. 
 
 People v. Huffman, 550. 
 
 People ads. Hughes. 
 
 People v. Julia P. Burnham Hos- 
 pital, 82. 
 
 People v. Ochiltree, 415. 
 
 People v. Petrie, 169a, 5526, 669. 
 
 People ads. Prickett. 
 
 People ads. Ramsey, Est. of. 
 
 People v. Ravenswood Hospital, 
 82a. 
 
 People v. Seelye, 175, 552a. 
 
 People v. Sholem, 188, 192. 
 
 People ads. Wackerle. 
 
 Peoria ads. Bourland. 
 
 Peoria Assn. ads. Pellrath. 
 
 Peoria Soc. ads. Home Bank. 
 
 Perisho v. Quinn, 258. 
 
 Perry ads. Burton. 
 
 Perry v. Carmichael, 164. 
 
 Perry v. McHenry, 15, 331, 334. 
 
 Perry v. Pearson, 204a, 610a. 
 
 Petefish ads. Trustees of Schools. 
 
 Peterson ads. Clapp. 
 
 Peterson v. 111. L. & L. Assn., 
 199, 204. 
 
 Petrie ads. People. 
 
 Peyton ads. Russell. 
 
 Phares v. Barbour, 244, 395. 
 
 Phelps v. Reeder, 404. 
 
 Phillips v. Edsall, 34. 
 
 Phillips ads. Kessner. 
 
 Phillips v. Meyers, 38, 125, 134. 
 
tcttc 
 
 TABLE OF CASES. 
 
 Phillips ads. Pool. 
 
 Phillips v. South Park Commrs., 
 
 247, 250. 
 Pickett ads. Moore. 
 Pickler v. Pickler, 331, 344, 460. 
 Pigg ads. Allmon. 
 Pike ads. Ely. 
 
 Pike County v. Cadwell, 59, 416. 
 Pitney ads. Brown. 
 Pitzel v. Schneider, 509. 
 Piatt ads. Barclay. 
 Plummer ads. Camfleld. 
 Plummer ads. Schoonmaker. 
 Poll v. Cash, 47, 543. 
 Pool v. Docker, 29a, 44. 
 Pool v. Phillips, 115, 127, 127a, 
 
 3576, 448. 
 Pool v. Potter, 46, 640c. 
 Pool ads. Wingate. 
 Poole ads. Fidelity Trust Co. 
 Pope v. Dapray, 15, 257, 375, 381. 
 Popp, Est. of, ads. Lennartz. 
 Porter v. Ewing, 121, 492., 
 Post v. Rohrbach, 518a. 
 Potter v. Clapp, 262, 333a. 
 Potter ads. Mortimer. 
 Potter ads. Pool. 
 Potter ads. Ridgway. 
 Poulter v. Poulter, 629a. 
 Powell v. Jeffries, 390. 
 Powell v. Powell, 3506, 360. 
 Powers ads. Campbell. 
 Powers ads. Kingsbury. 
 Pratt v. Griffin, 13, 110. 
 Pratt v. Stone, 407, 469. 
 Preachers Aid Soc. v. England, 
 
 76, 568. 
 Preemption Church ads. Whit- 
 
 sitt. 
 Presbyterian Hospital ads. Seav- 
 
 erns. 
 Press v. Woodley, 439a, 445. 
 Preston v. Casner, 255. 
 
 [The numbers refer to sections.] 
 
 Preston ads. Johnson. 
 Prettyman v. Wilkey, 475a. 
 Prevo v. Walters, 364. 
 Prewitt ads. Chambers. 
 Price v. Laing, 291. 
 Price v. School Directors, 81a. 
 Prickett v. People, 83. 
 Prosperity L. & B. Assn. ads. 
 
 Johnson. 
 Prouty ads. Hanford. 
 Prouty v. Moss, 262a. 
 
 Q. 
 
 Quackenbos ads. Clarke. 
 Quackenbush ads. Donahue. 
 Quayle v. Guild, 196, 413, 418. 
 Quick ads. Rodman. 
 Quinlan v. "Wickman, 519a. 
 Quinn ads. Perisho. 
 
 R. 
 
 Race ads. Chilvers. 
 
 Racine & Miss. R. R. Co. v. Farm- 
 ers L. & T. Co., 215. 
 
 Rackeman v. Tilton, 30, 298, 560, 
 604a. 
 
 Railsback v. Lovejoy, 189. 
 
 Railsback v. Williamson, 410a. 
 
 Ramsay, Est. of, v. People, 61, 
 551c. 
 
 Ramsey ads. Smith. 
 
 Randall v. Randall, 325, 326. 
 
 Rankin v. Barcroft, 18, 274, 454, 
 611a. 
 
 Rankin ads. Matthern. 
 
 Ravenswood Hospital ads. Peo- 
 ple. 
 
 Ray ads. Wicker. 
 
 Rayburn ads. Downen. 
 
 Raymond v. Northern Trust Co., 
 507. 
 
 Reece v. Allen, 5696. 
 
TABLE OF CASES. 
 
 YTTfl 
 
 [The numbers refer to sections.] 
 
 Reed ads. Barnum. 
 
 Reed ads. Marsh. 
 
 Reed v. Reed, lild, Vile, 334, 
 
 343, 380, 459c. 
 Reeder ads. Phelps. 
 Rees ads. Gibson. 
 Reese v. Wallace, 263, 483. 
 Reeve v. Strawn, 362. 
 Reeve ads. Sutherland. 
 Regan v. West, 441a, 550a, 567. 
 Reichert ads. Hoffman. 
 Reichert v. Mo. & 111. Coal Co., 
 
 301, 307a, 310, 314, 478, 488, 
 
 551a, 571, 580, 585, 587, 592a, 
 
 664, 666, 667a. 
 Reid, Murdoch & Co. v. Sheffy, 
 
 387. 
 Reid v. Vorhees, 509, 518a. 
 Reilly ads. State Nat Bank. 
 Remington v. Campbell, 331, 333. 
 Renfrow v. Pearce, 193, 397. 
 Republic Life Ins. Co. ads. Chet- 
 
 lain. 
 Reynolds ads. Gordon. 
 Reynolds v. Sumner, 333, 334, 
 
 409a. 
 Rexford v. Bacon, 534. 
 Rhoads v. Rhoads, 49, 504a. 
 Rhodes ads. Williams. 
 Rice v. Dougherty, 343. 
 Rice ads. Heffron. 
 Rice v. Rice, 180. 
 Rich ads. Miller. 
 Richards v. Barrett, 40, 48. 
 Richards ads. Roberts. 
 Richardson ads. Cookson. 
 Richardson ads. Gruhn. 
 Richardson v. Richardson, 116, 
 
 243. 
 Richelieu v. Miller, 619a. 
 Richeson v. Ryan, 664a. 
 Richmond ads. Morse. 
 Ricker ads. Dick. 
 
 Rickman v. Meier, 376. 
 
 Riddle ads. Miller. 
 
 Rider ads. Huggins. 
 
 Ridgeway v. Potter, 442, 551, 662. 
 
 Ridgeway v. Underwood, 538a. 
 
 Ridgway ads. McCartney. 
 
 Riggs ads. Erringdale. 
 
 Riggs ads. Longworth. 
 
 Riley ads. Stokes. 
 
 Riseborough ads. Conant. 
 
 Rissman v. Wierth, 4986. 
 
 Roades ads. Francis. 
 
 Robbins v. Butler, 610. 
 
 Roberts v. Draper, 112, 481. 
 
 Roberts v. Opp, 3636, 364a. 
 
 Roberts v. Richards, 290. 
 
 Roberts ads. Woods. 
 
 Roberts ads. Dunaway. 
 
 Robertson ads. Gray. 
 
 Robertson ads. Kuns. 
 
 Robinson ads. Harward. 
 
 Bobinson ads. Maghee. 
 
 Robinson Bank V. Miller, 189. 
 
 Robinson v. Roos, 193, 193a. 
 
 Robinson v. Sharp, 398. 
 
 Robinson ads. Wickliff. 
 
 Robson ads. O'Donnell. 
 
 Roby v. Colehour, 23, 1926, 264, 
 376, 396, 409a, 449e, 459a, 6076, 
 609, 611a, 655. 
 
 Rockford Grocery Co. v. Stand- 
 ard Co., 200a. 
 
 Rodman v. Quick, 431/. 
 
 Rogers v. Simmons, 179a, 256, 
 331. 
 
 Rogers v. Tyley, 23, 192a, 1926, 
 246a, 591a, 601, 637a\ 
 
 Rohrbach ads. Post. 
 
 Roll ads. Springfield Homestead 
 Assn. 
 
 Roney ads. Bruce. 
 
 Roos ads. Robinson. 
 
 Root ads. Fletcher. 
 
xxxu 
 
 TABLE OF CASES. 
 
 [The numbers 
 
 Roseboom v. Whittaker, 200a. 
 Ross ads. Cassell. 
 Ross ads. Payson. 
 Ross ads. White. 
 Roth v. Michaelis, 526. 
 Rothbarth ads. Lehmann. 
 Rowan v. Kilpatrick, 178. 
 Royal Trust Co. ads. DeWolf. 
 Rugg ads. Nicolls. 
 Ruppel ads. Deiterman. 
 Rushmore ads. Marine Bank. 
 Russell v. Chicago T. & S. Bank, 
 
 280. 
 Russell v. Peyton, 411, 413, 417, 
 
 450, 450&, 472a, 5696, 611a. 
 Russell ads. White. 
 Ryan ads. Richeson. 
 Ryder v. Emrich, 349a. 
 Ryder v. Ryder, 24, 255, 262, 379, 
 
 449c, 458<J, 460. 
 Ryder v. Topping, 440&. 
 
 S. 
 
 Sabath ads. Durie. 
 
 Sackett ads. Smith. 
 
 Sacramento Church ads. Jones. 
 
 Saint John's Church ads. Stubbs. 
 
 Saint Louis Co. v. Sandoval Co., 
 199. 
 
 Saint L. & P. R. R. Co. v. Kerr, 
 4376. 
 
 Saint L. J. & C. R. R. v. Math- 
 ers, 67c, 216. 
 
 Saint Patrick's Church v. Daly, 
 105. 
 
 Saint Patrick's Church v. Gava- 
 lon, 102a. 
 
 Saint Peter's Parish ads. Alden. 
 
 Saint Peter's v. Germain, 97. 
 
 Sample ads. Irwin. 
 
 Sanche ads. Mahler. 
 
 Sandoval Co. ads. St. Louis Co. 
 
 refer to sections.] 
 
 Sanitary District ads. Moll. 
 Santa Clara Acad. v. Sullivan, 81. 
 Sargent v. Howe, 425a. 
 Sargent ads. Nichols. 
 Sawyer ads. Mitchell. 
 Sayer v. Humphrey, 639<J, 6406. 
 Sayles v. Christie, 153, 449a, 458. 
 Scammon ads. Niagara Fire Ins. 
 
 Co. 
 Scanlan v. Scanlan, 257, 406a, 
 
 426a, 6076. 
 Schaeffer v. Schaeffer, 527d. 
 Schaub ads. Wobbe. 
 Scheerer v. Scheerer, 344. 
 Schell ads. Brennaman. 
 Schmelz ads. Goutzer. 
 Schneider v. Becker, 460. 
 Schneider ads. Pitzel. 
 Schofield, Est. of, 167a. 
 School Directors ads. Price. 
 School Directors v. School Di- 
 rectors, 414, 416, 4196. 
 School Trustees v. Kirwin, 613, 
 
 618. 
 Schoonmaker v. Plummer, 262c. 
 Schopp ads. Metzger. 
 Schroeder ads. Mahan. 
 Schott ads. Mullanphy Sav. 
 
 Bank. 
 Schuknecht v. Schultz, 4756, 
 
 518a, 544. 
 Schulz v. Schulz, 372. 
 Schween ads. First Natl. Bank. 
 Schweiker v. Husser, 98d, 6426, 
 
 642c. 
 Sehwitters v. Barnes, 670. 
 Scott ads. Andrews. 
 Scott ads. Baker. 
 Scott v. Beach, 344a. 
 Scott v. Goode, 56c. 
 Scott v. Harris, 15, 255, 606a. 
 Scott ads. McArthur. 
 Scott ads. Light. 
 
TABLE OF CASES. 
 
 xxxm 
 
 [The numbers 
 
 Scott v. Moore, 349. 
 
 Scudder ads. Gettins. 
 
 Seacord ads. Frohlich. 
 
 Seaman v. Cook, 3632). 
 
 Sears v. Vaughn, 376, 458. 
 
 Seaverns v. Presbyterian Hospi- 
 tal, 430a, 596. 
 
 Security Ins. Co. v. Kuhn, 567c, 
 568, 588. 
 
 Security Title & Trust Co. ads. 
 Moninger. 
 
 Seelye ads. People. 
 
 Seiberling v. Lewis, 26. 
 
 Seiter, Est. of, v. Mowe, 619a. 
 
 Sennott ads. Blair. 
 
 Sennott ads. Zimmer. 
 
 Seventh Day Baptists ads. Ward- 
 ner. 
 
 Seymour ads. Hart. 
 
 Shackelford v. Elliott, 359, 361. 
 
 Sharp ads. Bethel. 
 
 Sharp ads. Robinson. 
 
 Shaw ads. Beach. 
 
 Shaw v. Camp, 116, 243. 
 
 Shedd ads. Torrence. 
 
 Sheffy ads. Reid, Murdoch & Co. 
 
 Sheldon v. Harding, 333. 
 
 Shepard ads. Kellett. 
 
 Shepard ads. "Walker. 
 
 Sherman ads. Bush. 
 
 Sherman ads. DeHaven. 
 
 Sherman v. Leman, 556a, 653a. 
 
 Sherman ads. Watson. 
 
 Sherman ads. White. 
 
 Sherwood v. 111. T. & S. Bank, 
 2086. 
 
 Shipherd v. Furness, 163. 
 
 Sholem ads. People. 
 
 Sholty v. Sholty, 472 6, 619. 
 
 Sholtz v. Sholtz, 614. 
 
 Showalter ads. Mason. 
 
 Shumway ads. Pahlman. 
 
 Shup v. Calvert, 590. 
 
 refer to sections.] 
 
 Sifterman v. Hill, 275, 343." 
 
 Silverman v. Kristufek, 190, 302, 
 303, 315. 
 
 Simmons ads. Rogers. 
 
 Simons ads. Minkler. 
 
 Sisters of St. Francis v. Board 
 of Review, 82. 
 
 Sitter v. Karraker, 197. 
 
 Skahen v. Irving, 115, 127, 127a, 
 144a, 361. 
 
 Skiles ads. Switzer. 
 
 Slead ads. Cary. 
 
 Sloan v. Graham, 6076. 
 
 Slocum v. Slocum, 615. 
 
 Smiley ads. Barker. 
 
 Smith ads. Adsit. 
 
 Smith ads. C. T. & T. Co. 
 
 Smith ads. Collins. 
 
 Smith ads. Gillespie. 
 
 Smith v. Goodwin, 5496, 579. 
 
 Smith v. Holleniback, 255. 
 
 Smith v. Hunter, 630a, 630c. 
 
 Smith v. Hutchinson, 629a, 635a. 
 
 Smith v. Kimbell, 517. 
 
 Smith ads. Lawrence. 
 
 Smith ads. Pahlman. 
 
 Smith v. Patton, 267. 
 
 Smith v. Ramsey, 188. 
 
 Smith v. Sackett, 331, 369. 
 
 Smith v. Smith, 331, 480. 
 
 Smith ads. Star Cutter Co. 
 
 Smith v. Willard, 359, 364, 410a. 
 
 Smith v. Winsor, 530. 
 
 Smith v. Wright, 364a. 
 
 Smyth v. Taylor, 637c. 
 
 Smythe, Est. of, v. Evans, 676, 
 2006. 
 
 Snell v. Ball, 239. 
 
 Snyder ads. Kelsey. 
 
 Snyder v. Partridge, 400, 467. 
 
 South Park Commrs. ads. Phil- 
 lips. 
 
 Spaids ads. Union Mut. Life Co. 
 
XXXIV 
 
 TABLE OF CASES. 
 
 [The numbers refer to sections.] 
 
 Speakman v. Tatum, 436. 
 
 Specht ads. Lehnard. 
 
 Spencer v. World's Columbian 
 
 Exposition, 579. 
 Spengler v. Kuhn, 568a, 629, 642, 
 
 647, 663, 677. 
 Speyer v. Desjardins, 15, 120, 
 
 192, 264, 355, 487. 
 Sprague ads. Whetsler. 
 Springer v. Kroescnell, 344, 364. 
 Springer ads. Lancaster. 
 Springer v. Springer, 340, 410a, 
 
 460. 
 Springfield Homestead Assn. v. 
 
 Roll, 268a, 469a. 
 St. John's Church ads. Stubbs. 
 St. Patrick's Church v. Daly, 105. 
 St. Patrick's Church v. Gavalon, 
 
 102a. 
 St. Peter's v. Germain, 97. 
 St. L. & J.-C. R. R. v. Mathers, 
 
 67c, 216. 
 St. Louis Co. v. Sandoval Co., 
 
 199. 
 Stahl v. Stahl, 42, 255, 375, 378, 
 
 468a. 
 Stambaugh ads. Davis. 
 Stambaugh v. Lunz, 344, 345&. 
 Standard Co. ads. Rockford Co. 
 Stanford v. Mann, 6096. 
 Stanley ads. Bush. 
 Star Cutter Co. v. Smith, 230a, 
 
 675. 
 Starr v. Moulton, 645. 
 Starr v. Willoughiby, 6416. 
 Starkey ads. McDonald. 
 State Bank ads. Henshaw. 
 State Bank v. Union Bank, 206. 
 State Bank of Nauvoo v. Lob- 
 dell, 6776. 
 State Nat. Bank v. Payne, 2346, 
 
 436. 
 State Nat. Bank v. Reilly, 234. * 
 
 Stead v. Commons, 54. 
 
 Steel ads. Hogue. 
 
 Steele v. Clark, 32, 2706, 415a. 
 
 Steele ads. Drake. 
 
 Steele ads. Meacham. 
 
 Steffens ads. Kruse. 
 
 ■Stephenson v. McClintock, 343, 
 
 345<J, 4496, 461. 
 Stephenson v. Thompson, 3336. 
 Stevenson v. Crapnell, 332, 3336. 
 Stewart v. Duffy, 376. 
 Stewart v. Fellows, 127d, 358, 
 
 426, 584. 
 Stewart ads. Kerrison. 
 Stewart ads. Trustees. 
 Stewart ads. Wilkinson. 
 Steib y. Whitehead, 70, 281, 294, 
 
 295. 
 Stice ads. Wright. 
 Stinson ads. Conn. Life Ins. Co. 
 Stoddard v. Gilbert, 291a. 
 Stoff v. McGinn, 1606. 
 Stokes v. Frazier, 33. 
 Stokes v. Riley, 439. 
 Stone ads. Pratt. 
 Stone ads. Williamson. 
 Stow v. Kimball, 169c. 
 Stow ads. McDonald. 
 Strain v. Sweeney, 517. 
 Stratton ads. Chicago. 
 Strawn v. Jacksonville Acad., 
 
 47, 543. 
 Strawn ads. Reeve. 
 'Streamer ads. Sturman. 
 Street v. French, 496. 
 Streit v. Fay, 527<J, 537, 582. 
 Strode v. McCormick, 591d. 
 Strong v. Messinger, 460, 462a. 
 Stubbs v. St. John's Church, 
 
 101a. 
 Stufflebeam ads. Mathls. 
 Sturges v. Keith, 227. 
 Sturman v. Streamer, 240. 
 
TABLE OF CASES. 
 
 XXXV 
 
 [The numbers 
 
 Stuyvesant ads. Close. 
 Sullivan ads. Santa Clara Acad. 
 Summers v. Higley, 540, 6356. 
 Sumner ads. Reynolds. 
 Supervisors v. Burchell, 55. 
 Supervisors v. Thompson, 55. 
 Supreme Lodge ads. Hinsey. 
 Sutherland v. Goodnow, 15, 317, 
 
 491. 
 Sutherland v. Reeve, 398, 607a, 
 
 609. * 
 
 Svanoe v. Jurgens, 163. 
 Swannell ads. I. I. & I. R. R. Co. 
 Swayne ads. Lynch. 
 Sweeney ads. Strain. 
 Swift v. Castle, 593, 624. 
 Switzer v. Skiles, 269, 608. 
 
 T. 
 
 Tait ads. Chicago Fire Place Co. 
 Tams ads. Alexander. 
 Tatum ads. Speakman. 
 Taylor ads. Franklin Savings 
 
 Bank. 
 Taylor v. Harmison, 112, 481. 
 Taylor v. Hopkins, 431, 6426. 
 Taylor v. Keep, 746, 78, 81. 
 Taylor ads. Smyth. 
 Taylor v. Turner, 32, 4846. 
 Taylor v. Walson, 641. 
 Taylor ads. Woolverton. 
 Teas ads.- Doyle. 
 Tedens ads. Vallette. 
 Telford v. Patton, 112, 481. 
 Temple v. Lemon, 207. 
 Tenn. Co. v. Fitzgerald, 32. 
 Teufel ads. Weston. 
 Thomas v. Bowman, 606. 
 Thomas v. Chicago, 65, 128, 323, 
 
 346, 451. 
 Thomas v. Bckard, 270a. 
 
 refer to sections.] 
 
 Thomas ads. Leach. 
 Thomas ads. McLean. 
 Thomas v. Whitney, 69, 376, 458. 
 Thompson v. Adams, 41a, 45, 
 
 5686, 625, 629a. 
 Thompson v. Meisser, 207c, 238. 
 Thompson ads. Stephenson. 
 Thompson ads. Supervisors. 
 Thor v. Oleson, 287a. 
 Thornton ads. Nicols. 
 Thornton ads. Wenner. 
 Thorp v. McCulIum, 607. 
 Thorsell ads. Morse. 
 Tice ads. Carter. 
 Tillett ads. Candler. 
 Tilton ads. Rackeman. 
 Toman, Fanny, In re, 178. 
 Tomlin v. Blunt; 100a. 
 Tope ads. Olcutt. 
 Topping ads. Ryder. 
 Torrance ads. Worrell. 
 Torrence v. Shedd, 470. 
 Towle v. Ambs, 394, 558. 
 Towle v. Wadsworth, 246, 344a, 
 
 362, 460. 
 Tracy ads. Galbraith. 
 Trafton v. Black, 74, 776. 
 Trinity Church ads. Marie 
 
 Church. 
 Troike v. Cook Co. Sav. Bank, 
 
 227. 
 Trubey v. Pease, 113, 481. 
 Truitt v. Griffin, 260. 
 Trustees v. Arnold, 413. 
 Trustees v. Braner, 566. 
 Trustees ads. Granger. 
 Trustees of Christian Church 
 
 ads. Cox. 
 Trustees of Preemption Church 
 
 ads. Whitsitt. 
 Trustees v. Stewart, 96. 
 Trustees of Schools ads. Brown. 
 
XXXVI 
 
 TABLE OP CASES. 
 
 [The numbers refer to sections.] 
 
 Trustees of Schools ads. Myers. 
 Trustees of Schools v. Petefish, 
 
 84a. 
 Tucker ads. Harwood. 
 Turner ads. Mayfleld. 
 Turner ads. Taylor. 
 Tyler v. Daniel, 348a, 3636. 
 Tyler ads. Ellett. 
 Tyler v. Tyler, 258, 454c. 
 Tyley ads. Rogers. 
 
 U. 
 
 Ullman ads. Grand Tower M. & 
 
 T. Co. 
 Ulrich ads. Hawthorn. 
 Underwood ads. Ridgeway. 
 Union Bank ads. State Bank. 
 Union Coal Co. v. City of La 
 
 Salle, 60a, 436, 569. 
 Union Mut. Life ads. McGovern. 
 Union Mut. Life v. Spaids, 430c, 
 
 635. 
 Union Nat. Bank v. Browne-Cha- 
 
 pin, 463a. 
 Union Nat. Bank v. Goetz, 387, 
 
 613, 617. 
 Union Trust Co. ads. Gulgnon. 
 Union Trust Co. v. Weber, 222, 
 
 586. 
 United Brethren Church v. First 
 
 M. B. Church, 99d\ 302, 311, 
 
 319, 374, 388, 567a, 569c. 
 Ure v. Ure, 301, 303, 304a, 478. 
 U. S. Mtg. Co. ads. Hubbard. 
 
 V. 
 
 Vallette v. Bennett, 475a. 
 
 Vallette v. Tedens, 376/, 608. 
 
 Van Buskirk v. Van Buskirk, 
 333, 334, 339, 343, 344, 345, 
 345«, 369, 409a, 411, 414a, 4476, 
 461, 462, 657. 
 
 Vance & Jones Co. ads. Olmstead. 
 
 Vanatta v. Carr, 607e, 619. 
 
 Van Ingen ads. Hauk. 
 Varney ads. Hagan. 
 Vasconcellos ads. Ferraria. 
 Vasconcellos v. Ferraria, 98a. 
 Vaughn ads. Sears. 
 Verble v. Dillow, 179, 322. 
 Vigus v. O'Bannon, 414c. 
 Village of Maywood ads. May- 
 wood Co. 
 Vorhees ads. Reid. 
 Voris v. Doan, 49. 
 Votrain ads. Badgley. 
 
 W. 
 
 "Wabash R. R. Co. ads. Chapin. 
 "Wachter v. Blowney, 464, 474. 
 Wackerle v. People, 174, 184. 
 Wadsworth ads. Towle. 
 "Wagner v.. Maynard, 353. 
 Wagner v. Wagner, 294, 296, 297, 
 
 515. 
 Walden v. Karr, 246, 293, 413, 
 
 556c. 
 Wales v. Bogue, 5696. 
 Waldo v. Cummings, 477, 503, 
 
 553. 
 Walker ads. Am. Exch. Bank. 
 Walker v. Carrington, 406. 
 Walker ads. Denegre. 
 Walker v. Matthews, 274, 290. 
 Walker v. Shepard, 376, 376c. 
 Wallace v. Carpenter, 246, 342. 
 Wallace ads. Mansfield. 
 Wallace ads. Reese. 
 Wallace v. Wallace, 136, 646. 
 Wallwork v: Derby, 4316. 
 Walser v. Board of Education, 
 
 56e. 
 Walsh v. Brennan, 4256. 
 Walson ads. Taylor. 
 Walter v, Klock, 256, 331. 
 Walters ads. Prevo. 
 Walton v. Follansfoee, 454, 568, 
 
 568a", 5696. 
 
TABLE OF CASES. 
 
 XXXV11 
 
 [The numbers refer to sections.] 
 
 Ward v. Armstrong, 340, 403. 
 Ward v. Butler, 4§8. 
 Ward v. Conklin, 114. 
 Ward ads. Ellis. 
 Ward ads. Johnson. 
 Wardeer v. Seventh Day Bap- 
 tists, 636. 
 Ward-well v. McDowell, 632, 663. 
 Warner ads. Mettler. 
 Warren ads. Billings. 
 Warren v. First Nat. Bank, 200a, 
 
 206e, 242. 
 Warren v. Warren, 122, 633, 655. 
 Washington ads. Hughes. 
 Waterman v. Alden, 598a, 5986, 
 
 653, 655a. 
 Waterman v. Allen, 40, 598a. 
 Waterman Hall v. Waterman, 
 
 413a, 419c. 
 Watson ads. Hitchcock. 
 Watson v. Sherman, 406. 
 Watson ads. Wixon. 
 Weare Commission Co. ads. 
 
 Cross. 
 Weaver v. Fisher, 32, 35a, 365, 
 
 397, 403, 608, 649. 
 Weaver v. Weaver, 112, 118, 146, 
 
 148, 148a, 481, 4836. 
 Webber v. Curtiss, 425. 
 Weber ads. Union Trust Co. 
 Webster* v. Blowney, 363d. 
 Weer v. Gand, 32, 163. 
 Weir ads. Kneisley. 
 Welch v. Caldwell, 74, 75, 78, 
 
 535. 
 Wellington v. Heermans, 114a. 
 Wenner v. Thornton, 160a. 
 Wenzel ads. Ailing. 
 West ads. Bailey. 
 West ads. Dempster. 
 West v. Fitz, 46, 446c, 542, 567, 
 
 568, 585a, 590, 630c, 6666. 
 West ads. Regan. 
 
 Western College ads. Beatty. 
 Western Elec. Co. ads. Kellogg. 
 Western Refrig. Co. ads. McDon- 
 ald. 
 Weston v. Teufel, 458. 
 Wetherell v. O'Brien, 613, 617. 
 Wheeler ads. Miles. 
 Whetsler v. Sprague, 249, 419, 
 
 4766, 576. 
 Whipple v. Whipple, 361. 
 White v. Cannon, 257, 577. 
 White v. Gannon, 255. 
 White v. Glover, 6306, 6370. 
 White ads. Mulvihill. 
 White v. Ross, 69, 1146, 153, 247, 
 
 247a, 262, 381, 449a. 
 White v. Russell, 35, 158. 
 White v. Sherman, 475, 599a, 
 
 6116, 613, 614, 651. 
 Whitehead ads. Steib. 
 Whitman, In re Est. of, 637. 
 Whitman v. Fisher, 47, 543. 
 Whitney ads. Thomas. 
 Whitsitt v. Preemption Church, 
 
 99, 102. 
 Whittaker ads. Roseboom. 
 Whittemore v. Coleman, 558. 
 Wicker v. Ray, 499, 568. 
 Wickliff v. Robinson, 607. 
 Wickman ads. Quinlan. 
 Wierth ads. Rissman. 
 Wilkey ads. Prettyman. 
 Wilkinson v. Fleming, 219a. 
 Wilkinson v. Stewart, 180, 252a, 
 
 608. 
 Willard ads. Smith. 
 Williams ads. Becker. 
 Williams v. Brown, 360, 364a. 
 Wiljiams v. Chamberlain, 13, 
 
 110. 
 Williams ads. Crerar. 
 Williams v. Evans, 489, 642a, 
 
 672a. 
 
xxxvm 
 
 TABLE OF CASES. 
 
 [The numbers refer to sections.] 
 
 Williams v. Fletcher, 187, 469. 
 Williams v. Forbes, 116, 243. 
 Williams v. Rhodes, 6076. 
 Williams v. Williams, 255. 
 Williamson ads. Railsback. 
 Williamson v. Stone, 425. 
 Willin v. Burdette, 376. 
 Willis v. Henderson, 4376. 
 Willoughby ads. Starr. 
 Wills ads. Kyle. 
 Wilmarth ads. Fergus. 
 Wilson V. Byers, 392. 
 Wilson v. Clayburgh, 654. 
 Wilson v. Gait, 627. 
 Wilson v. Kirby, 32, 164, 4846. 
 Wilson v. Mason, 265, 589, 642. 
 Wilson v. McDowell, 434. 
 Wilson v. South Park Commrs., 
 
 5696. 
 Wilton ads. Beach. 
 Wingate v. Pool, 170, 648a. 
 Winnebago County ads. Henry 
 
 County. 
 Winslow ads. Chicago T. R. R. 
 
 Co. 
 Winsor ads. Smith. 
 Winstanley v. Gleyre, 194. 
 Winston v. Dorset Co., 207d. 
 Wise ads. Cartwright. 
 Witbeck ads. Ames. 
 Witboard ads. Loften. 
 Witham v. Brooner, 14, 302, 566. 
 Wixon v. Watson, 477. 
 Wobbe v. Schaub, 468a, 619, 650. 
 Wohlgemuth ads. Keys. 
 Wolf ads. Albrecht. 
 Wolf ads. Baehr. 
 Wood ads. Moore. 
 Woodburn ads. Nevitt. 
 Woodburn v. Woodburn, 1666. 
 Woodhouse v. Crandall, 27, 450a, 
 
 6186. 
 Woodley ads. Press. 
 
 455c, 
 
 Woodruff ads. Allen. 
 Woodruff ads. Bates. 
 Woodruff ads. The Governor, 
 Woods v. Roberts, 153. 
 Wood-worth ads. Coates. 
 Woolverton v. Taylor, 202. 
 Worcester ads. Lyon. 
 World's Columbian Exposition 
 
 ads. Spencer. 
 Worrell v. Torrance, 613. 
 Wright v. Atkyns, 324a. 
 Wright ads. Day. 
 Wright v. Bruschke, 612. * 
 Wright v. Gay, 256, 257, 
 
 608. 
 Wright ads. Smith. 
 Wright v. Stice, 183a. 
 Wright v. Wright, 1276, 448a. 
 Wyatt v. Mayfield, 116, 286. 
 
 Yates ads. Orr. 
 
 Yeaton ads. Breit. 
 
 Yeaton v. Yeaton, 48, 375, 624. 
 
 Yerkes ads. Chicago Hansom 
 
 Cab Co. 
 Yokem v. Hicks, 481. 
 Young v. Clapp, 222, 279, 586. 
 Young ads. Fell. 
 Young ads. McNab. 
 Yourt v. Hopkins, 433. 
 
 Z. 
 
 Zeigler 
 
 v. Hughes, 398 
 
 
 Zeigler 
 
 v. 111. T. & S. 
 
 Bank, 
 
 376a, 
 
 458a. 
 
 
 Zimmer v. Sennott, 
 
 324, 
 
 5386. 
 
 
 
 Zinkel 
 
 ads. Onasch. 
 
 
 Zion Church v. Mensch, ' 
 
 452c. 
 
 
 
 64, 
 
 329,. 
 
 103„ 
 
TRUSTS AND TRUSTEES 
 
 (ILLINOIS) 
 
 - CHAPTER I. 
 
 THE ORIGIN AND DEVELOPMENT OF TRUSTS. 
 
 § 1. The origin and development of trusts must be 
 sought across seas where anglo-saxon moulds have 
 shaped the law of trusts with a precision and refine- 
 ment of reasoning approaching the mathematical. 
 
 The word trust itself is derived from the old anglo- 
 saxon verb trostian and the noun gitrost with a long 
 Gothic pedigree extending back to the Aryan matrix. 
 One may readily find in the modern word tryst a varia- 
 tion from the same root-stock. 
 
 § 2. It would serve little, if any, real need, so far 
 as the province of this treatise extends, to trace the 
 probable development of the law of trusts to the Ro- 
 man sources which had such a mighty effect upon 
 anglo-saxon polity and institutions both before and 
 after the Renaissance. The indefatigable investigator 
 might, if he chose, begin at the dawn of Roman codifi- 
 cation with the XLT Tables in 450 B. C, and work 
 downward through the ages. The XII Tables would 
 be found to be the base upon which all the subsequent 
 structure of Roman jurisprudence was built; with 
 them began the processes of legal interpretation in 
 which the lawyer of to-day is as pleased to extend him- 
 
2 TRUSTS AND TEUSTEES. 
 
 self as his Roman counterpart. It would be found 
 that the Edicts of the City Praetor (Praetor Urbanus) 
 of Rome, laying down his interpretations of the XII 
 Tables as applied to cases heard before him, together 
 with his deductions therefrom, ^crystallised into the 
 body of law known as the jus civile which was applied 
 to Roman citizens alone and not to aliens. As Roman 
 citizenship was extended, first to latin towns and later 
 to the confines of the empire, the jus 'civile went also. 
 The investigator would trace also, with the extension 
 of Roman law to the ends of the then known world, 
 the gradual appearance of a body of trained jurists, 
 a kind of literary lawyers who gave opinions on cases 
 referred to them and had what we term an office-prac- 
 tise as contradistinguished from practising at the bar. 
 These were the men who had the greatest hand in the 
 development of the practical as well as the theoretical 
 side of Roman jurisprudence, giving it catholicity and 
 liberality as well as authoritativeness. In this con- 
 nexion the names of Papinian, Ulpian and Gaius will 
 be recalled as jurisconsults and masters of the law. 
 
 § 3. Sketching merely long periods of time the in- 
 vestigator would pass through the final days of the 
 Republic and the early periods of the Empire until 
 Justinian sitting at Constantinople in the Eastern Em- 
 pire commissioned the eminent jurist, Trebonian, 
 about 530 A. D. to direct a codification of the writings 
 of the great legal authors. This Justinian Code con- 
 sisted of four parts : 1, The Pandects, a digest of the 
 scientific treatises on the law; 2, The Codex, a sum- 
 mary of imperial legislation; 3, The Institutes, a sort 
 of text book on the Pandects and Codex; and 4, The 
 Novels, which supplemented the Code as it was pub- 
 lished and sought to supply its deficiencies as such ap- 
 
ORIGIN AND DEVELOPMENT OF TRUSTS. 3 
 
 peared. Here then was a body of law called the Cor- 
 pus Juris Civilis which filtrated throughout Europe in 
 the middle ages through the efforts of the ecclesiastics 
 as well as such universities as those of Bologna and 
 Salamanca. In England, too, the study of Eoman law 
 was revived about the 12th or 13th Century, continu- 
 ing vigorously until about the 16th Century. The Cor- 
 pus Juris Civilis had an effect, thus, which can scarcely 
 be overestimated, on all the States of Europe in for- 
 mulating principles of private rights. 
 
 § 4. The Eoman law entered England first, of 
 course, with the Eoman legions there to stay some 
 four centuries until they were withdrawn about 410 
 A. D. to assist Eome in her futile struggle with the in- 
 vading horde of Teutonic barbarians which swept in 
 upon her from the north, and it is but fair to assume 
 that Borne 's principles of justice had so permeated 
 her Celtic subjects that they could not be torn out root 
 and branch by the coming of the Angles and Saxons 
 in 449 A. D. Papinian, mentioned above, went him- 
 self on circuit (so to speak) into England and must 
 have contributed greatly to the respect with which the 
 . natives viewed Eoman doctrines of law. 
 
 Then, too, there must have been many descendants 
 of the Eoman legionaries left in Britain whose tend- 
 ency would be to preserve Eoman customs. But this 
 is a mere conjecture. 
 
 § 5. It is safe to believe, therefore, that Saxon law 
 did not wholly supersede Eoman law in England. In 
 truth when the Saxon laws were codified the clergy 
 were the instrumentalities employed and their models 
 and standards were almost, if not entirely, those of 
 Eome. The text writers of this period, such as Brae- 
 
4 TRUSTS AND TRUSTEES . 
 
 ton and Glanvil were men skilled in the intricacies of 
 Roman deductive legal reasoning. 
 
 The coming of the Norman-French in 1066 could not 
 but have strengthened and added to the Eoman foun- 
 dation on which the laws of the Germanic invaders had 
 thus been reared. Indeed it has been shown that the 
 laws of Henry I (1100-1135) were in greater part 
 taken bodily from well established Eoman principles. 
 
 § 6. The ecclesiastical courts dispensed their justice 
 always upon the basis of the jus civile and the Corpus 
 Juris Civilis, and not only did these courts administer 
 upon all estates in England, but upon all trusts as well 
 until less than a century ago. Equity procedure as 
 we know it was deduced through the Court of Chan- 
 cery whose first chancellors were the dignitaries of the 
 Church, and whose later chancellors were lawyers, 
 such as Lord Mansfield, who were deeply informed in, 
 and imbued with, the principles of the Eoman civil 
 law. It has been said, therefore, that England has 
 drawn so freely from Eoman sources that her whole 
 system of jurisprudence is indelibly marked therewith, 
 with the exception of the law of real property. The 
 chancellor at the beginning of the 12th century was 
 only a presiding officer, in the absence of the king, over 
 the Permanent Council when it sat in a judicial capac- 
 ity, but by the end of the 14th century the Court of 
 Chancery had been fully evolved "to keep the king's 
 conscience" and to grant redress to those who were 
 without, as we say still, "adequate relief at law." 
 
 § 7. As said before it would not be within the scope 
 of the present work to consider at length the effect 
 which Eoman law has had upon the development of 
 the law of trusts, but the bare outline given above for 
 the use of the student, who, for amusement or profit, 
 
ORIGIN AND DEVELOPMENT OF TRUSTS. 5 
 
 may care to pursue the investigation more thoroughly, 
 indicates that Eoman principles have been deeply en- 
 grafted upon the law of trusts as we know it. Even 
 the Code Napoleon, which obtains in at least one juris- 
 diction in the United States, is nothing if not based 
 upon the Code of Justinian. The word "use" is sim- 
 ply the Latin "usus" and was the ancient word ex- 
 pressing a trust. 
 
 § 8. It has been said 1 that the chief impulse given 
 to uses and trusts in England was due mainly to the 
 cleverness of the clergy in seeking to avoid the inhibi- 
 tions of the statute Be religiosis better known as the 
 Statute of Mortmain of 1279, in the reign of Edward I, 
 by which gifts of land to the clergy were forbidden 
 because land in such case was exempt from the pay- 
 ment of feodal dues. 
 
 § 9. Prior to the enactment of the famous Statute 
 of Uses of 27 Henry VTJI (1536) a use was a confidence 
 which a feoffor of land reposed in the feoffees that the 
 former and his heirs might be permitted to retain the 
 rents, issues and profits, and that the latter would 
 make such estates out of the land as the former should 
 desire to limit. The feoffees were therefore styled 
 "feoffees to uses." 
 
 As to trusts there was the lawful kind, as where the 
 confidence reposed was that the feoffee should re-en- 
 feoff his feoffor at the time specified, and the unlaw- 
 ful kind which was designed principally to hinder cred- 
 itors and the operation of the Statutes of Mortmain. 
 
 Upon these rights to enjoyment of the lands so con- 
 veyed upon uses and trusts courts of law turned a cold 
 shoulder, so that the only remedy left a beneficiary in 
 
 i Taylor's Eq. Juris. Sec. 739. 
 
6 TBTJSTS AND TRUSTEES. 
 
 case of any violation of the confidence by way of use 
 or trust was to sue out a writ of subpoena from tbe 
 Court of Chancery. 2 
 
 And so the text writers quote my Lord Hardwicke 
 and Sir Eobert Atkyns to the effect that uses and 
 trusts were born of the same parents, fraud and fear, 
 and had the same nurse, a Court of Conscience. 
 
 2 Bispham's Bq. Sec. 52. 
 
NATURE AND CLASSIFICATION OF TBTJSTS. 
 
 CHAPTER II. 
 
 THE NATURE AND CLASSIFICATION OF TRUSTS. 
 
 § 10. A trust has often been denned as such a con- 
 fidence reposed in another that no action would lie 
 thereon at law. This, is only partially true, as we 
 shall see later, beoause in some cases there is a concur- 
 rent remedy at law and in equity and who would doubt 
 that a beneficiary could employ an appropriate action 
 at law if a trustee had been empowered to let the bene- 
 ficiary into possession of the trust estate for a certain 
 period of time and a stranger should interfere with 
 such possession. 1 
 
 A trust may also be said to exist where the legal 
 title is in one or more persons or a corporation, but the 
 beneficial ownership is in some other person or per- 
 sons or corporation who are said to have the equitable 
 title. 
 
 As a matter of fact a definition of a trust is a su- 
 pererogation as it may be fairly taken for granted that 
 everybody has a sufficiently definite idea of the nature 
 of a trust in its technical sense as opposed to those 
 monopolies which are commonly termed "trusts" and 
 with which this work has absolutely nothing to do. 
 
 § 11. Trusts, in general, may be considered from 
 many viewpoints. Thus, one will naturally ask first 
 whether a given trust be lawful or unlawful. A law- 
 ful trust would be one created to further some private 
 or public purpose which the law considers worthy of 
 
 iOrr v. Yates, 209 111. 222-240; Bryan v. Howland, 98 111. 625- 
 630; Franfeenthal v. Meyer, 55 App. 405-415. 
 
8 TKTJSTS A!ffD TRUSTEES . 
 
 aid or furtherance, as a trust for the support of de- 
 pendent relations, spendthrift trusts, trusts for the 
 payment of creditors pro rata and impartially, and 
 especially trusts for charitable purposes. An unlaw- 
 ful trust would be one created in contravention of 
 some law expressed as a statute or implied as public 
 policy, such as trusts to hinder creditors, or to accumu- 
 late funds for a period of time so long as to violate the 
 so-called Rule Against Perpetuities which has now 
 hardened into a statute with narrower limits. 
 
 § 12. If we view trusts in their public and private 
 aspect the former would include not only the duties 
 and liabilities imposed upon all government officials 
 to conserve the interests confided to them by the com- 
 monwealth and the smaller municipalities and to ac- 
 count honestly for all monies received and disbursed 
 by them as officers of the public, but would include also 
 -the important division of trusts known as "charities" 
 which owe their existence to private as well as public 
 sources, and are designed to promote the welfare of 
 large numbers of citizens of the various municipalities, 
 or of certain classes of persons, such, for instance, as 
 the orphans of deceased members of some fraternal or 
 religious society. In passing it should be said that 
 charitable trusts occupy an unique position in that 
 they are not amenable to the Rule Against Perpetui- 
 ties; 2 they may continue indefinitely so long as their 
 endowments last and they are administered within 
 their designated spheres. 
 
 Private trusts, as we have seen above, cover the vast 
 field where private needs are served, where the cre- 
 ators of trusts may provide for their own old age, for 
 
 2 Andrews v. Andrews, 110 111. 222-230. 
 
NATURE AND CLASSIFICATION OF TRUSTS. 9 
 
 the support of others, and for a multitude of like pur- 
 poses which the ingenuity of both the ancient and the 
 present-day lawyer have never permitted to be nar- 
 rowed within any definite confines. This field has not 
 only been a fertile one for the lawyer in the early days 
 of Illinois' Statehood, what with drafting marriage 
 settlements before the Married Woman's Act of 1861, 
 as well as wills creating trusts, but the field is ever 
 spreading in perspective as the wealth of the com- 
 munity mounts high and the complexity of existence 
 in such a community increases. With growing wealth 
 grow hot only new powers, but new responsibilities, 
 new dangers, new pit-falls for the unwary off-spring 
 for whom the successful collector of wealth is natur- 
 ally solicitous. The lawyer will, therefore, be called 
 upon more and more to devise ways and means of 
 protecting heirs, devisees, legatees and donees from 
 their own improvidence and this he will accomplish by 
 turning his attention more and more to the vehicle af- 
 forded by trusts. 
 
 § 13. Trusts may also be considered as executed or 
 executory. The former includes all those trusts which 
 may be said to be complete and perfect, there being 
 nothing further to do but to carry their terms and pro- 
 visions into effect. 3 The latter includes all those 
 trusts where the legal title has not passed, where only 
 an intention to create a trust is stated, as, for instance, 
 where one has made a memorandum of a proposed 
 gift, or where a deed has actually been drafted but has 
 never passed out of the dominion or control of the 
 grantor. 4 Whether a trust is executed or executory 
 depends largely upon what intention the creator of it 
 
 s Massey v. Huntington, 118 111. 80-90. 
 
 ♦ Clark v. Lott, 11 111. 105; Pratt v. Griffln, 184 111. 514-519. 
 
10 TBTJSTS AND TRUSTEES. 
 
 had in mind and such intention must be determined by 
 a court of equity. 5 If the executory trust were purely 
 voluntary, without consideration, a court of equity 
 would refuse its aid to reform an imperfect convey- 
 ance. 6 
 
 § 14. An active or special trust is one in process of 
 administration, where the purposes and objects of the 
 trust have not been accomplished and the beneficiary 
 is not entitled to a conveyance of the legal title from 
 the trustee, unless the objects of the trust have become 
 defeated and performance is impossible. 7 
 
 A passive or simple, dry, naked, trust is one in which 
 the trustee holds the bare legal title, either never hav- 
 ing had active duties to perform in respect of it, 8 or, 
 having fully performed suoh duties and the purposes of 
 the trust having been fulfilled, the beneficiary is in a 
 position to demand the legal title. The Statute of 
 Uses, as we shall see, has much to do with passive 
 trusts in real property but not in personal property. 9 
 
 § 15. Another division of trusts is where they are 
 express or implied. 
 
 Express trusts are those which are created by in- 
 struments or declarations in writing, deeds and wills, 
 and the statute requires "declarations or creations of 
 trust" in respect of real estate, to be "manifested and 
 proved" in writing. 10 The meaning of these words 
 "manifested and proved" will be considered further 
 in the subsequent chapter on the Statute of Frauds. 
 
 o Padfleld v. Padfield, 72 111. 322-326. 
 
 eBispham's Eq. 2nd Ed. Sec. 66; Williams v. Chamberlain, 165 
 111. 210-217. 
 t Meacham v. Steele, 93 111. 135-145. 
 s Witham v. Brooner, 63 111. 344-346. 
 
 » Kellogg v. Hale, 108 111. 164-168; Kirkland v. Cox, 94 111. 400. 
 io Kingsbury v. Burnside, 58 111. 310-328. 
 
NATURE AND CLASSIFICATION OF TRUSTS. 11 
 
 It has been decided many times that no direct or par- 
 ticular language, or even the use of the words "trust" 
 and "trustee," is necessary to create an express trust, 
 so long as the intention so to do is fairly apparent 
 upon the face of the instrument. 11 
 
 While trusts of personal property in general are not 
 within the terms of the Statute of Frauds, 12 yet that 
 class of property called "chattels real," such as lease- 
 hold estates, is required to be manifested and proved 
 by some writing. 13 It happens frequently, however, 
 that the doctrine of Equitable Conversion is applied 
 so that realty is held in equity to be personalty and 
 vice versa, the commonest example being where a tes- 
 tator has directed his executor or trustee to sell land 
 and distribute the proceeds among the beneficiaries ; 14 
 and trusts in personalty, and in land so deemed to have 
 been converted, as well as land bought with the pro- 
 ceeds thereof, may be proven by parol. 15 
 
 Implied trusts arise (a) where the words used fail 
 to express sufficiently an intention which is apparent 
 from the nature of the transaction; ie (b) by operation 
 of law .where equity presumes a proper intention to 
 have existed without regard to what may have been 
 the actual intention; 17 and (c) where, without any pre- 
 sumptions of intention, equity places a construction 
 upon the acts of parties and raises a trust therefrom 
 
 " Hale v. Hale, 125 111. 399; Olcutt v. Tope, 213 111. 124; Kem 
 merer v. Kemmerer, 233 111. 327-333. 
 12 Spencer v. Desjardins, 144 111. 641-648. 
 is Lewin on Trusts, Sec. 53. 
 1* Johnson v. Lee, 228 111. 167. 
 is Maher v. Aldrich, 205 111. 242-255. 
 ie Ingraham v. Ingraham, 169 111. 432-470. 
 " First Natl. Bank v. Leech, 207 111. 215-219. 
 
12 TEUSTS AND TRUSTEES. 
 
 by reason of such acts. 18 Under "(a)" above an or- 
 dinary example would be where a testator had used 
 precatory words, i. e. words of entreaty or recommen- 
 dation, from which a command would be implied. 19 
 Under "(b)" above come Resulting trusts. Eesulting 
 trusts may arise in a number of ways, the two most 
 usual being where one man furnishes the money to 
 purchase land and another man through whose hands 
 the money passes takes the title to the land in his own 
 name without the knowledge or consent of the one who 
 furnished the money ; also, where a trustee, co-partner 
 or other fiduciary uses the trust funds to purchase 
 property and takes the legal title thereto in his own 
 name. 20 Under "(c)" above we find what are termed 
 Constructive trusts, which arise from breaches of fidu- 
 ciary relations irrespectively of any actual or pre- 
 sumed intention to commit a breach, and irrespectively 
 of any actual fraud, although fraud may be implied or 
 public policy contravened. 21 Thus, a trustee may not 
 purchase property at his own sale without violating 
 rules of public policy, and without acquiring a better 
 title than one which is voidable in equity. In such 
 case there may be, and usually is, no actual fraud, and 
 equity need not even imply fraud, that being a sepa- 
 rate head of equity jurisdiction. 22 A constructive 
 trust may arise also out of a contract, as where upon 
 a contract of sale of land and before a deed has been 
 made the vendor is said to hold the legal title in trust 
 
 "Alwood v. Mansfield, 59 111. 496-507. 
 i» Mills v. Newberry, 112 111. 123-132. 
 20 Perry v. McHenry, 13 111. 221-225. 
 2i Pope v. Dapray, 176 111. 478-485. 
 22 Ogden v. Larrabee, 57 111. 389-406. 
 
NATURE AND CLASSIFICATION OF TRUSTS. 13 
 
 for the vendee while the vendee holds the purchase 
 money in trust for the vendor. 23 
 
 All of these implied trusts, whether arising by opera- 
 tion or construction of law are expressly excepted 
 from the effect of the Statute of Frauds. 24 
 
 § 16. Some general terms used in connexion with 
 trusts may be mentioned briefly. The creator of a 
 trust is called the settlor where he makes a voluntary 
 settlement on his wife, family or other recipients of 
 his bounty; or tne donor where he makes a gift as to 
 charity; or in the case of wills creating trusts he is 
 usually and simply styled the testator. The person, 
 or persons, or corporation to whom the execution and 
 administration of the trust is confided are called the 
 trustee or trustees, as may be. The executor of a will 
 may, and often does, act in the dual capacity of execu- 
 tor and trustee thereunder, but, however, with quite 
 distinct duties to perform, and under different respon- 
 sibilities. 25 
 
 The settlor may constitute himself the trustee, and 
 the trustee may even be the beneficiary in a portion of 
 the trust fund or estate, — so long as there are other 
 beneficiaries. 26 
 
 The beneficiary is called the cestui que trust. 
 
 § 17. To raise a trust it is requisite that there be 
 certainty of the subject, certainty of the object and cer- 
 tainty of the terms of the trust. 27 
 
 2s Sutherland v. Goodnow, 108 111. 528-536. 
 z* Scott v. Harris, 113 111. 447-457. 
 25 Fenton v. Hall, 235 111. 552. 
 MBurbach v. Burbach, 217 111. 547-550. 
 27 McCartney v. Ridgway, 160 111. 129-153. 
 
14 TBTXSTS AND TRUSTEES. 
 
 CHAPTER III. ^ 
 
 DECLARATIONS OF TRUST AND CONSIDERATION. 
 
 § 18. After the legal title has- vested in the trustee it 
 is competent for him to make a declaration of the trusts 
 upon which he holds 1 and he may make a declaration of 
 trust by way of letter, schedules in bankruptcy, will, or 
 by any other instrument in writing. 2 
 
 § 19. If it can be gathered from an entire instrument 
 which attempts to declare a trust that it is reasonably 
 certain in declaring the subject matter, second, the 
 beneficiary, third, the nature and extent of the bene- 
 ficial interest, and fourth, the manner in which the trust 
 is to be. carried into execution, it will not be void for un- 
 certainty or vagueness. No particular form of words 
 is necessary to show the donor 's or testator 's intention. 3 
 
 § 20. An oral agreement to make a written declara- 
 tion of trust is within the statute of frauds. 4 Where 
 land has been conveyed under an oral express trust, 
 only the grantee may make a declaration of trust, and, 
 the grantor having attempted to make conveyances af- 
 terwards to some of his children, who pleaded the stat- 
 ute of frauds as against the alleged parol trust, the 
 answer of the trustee admitting an express trust will 
 be binding on the various claimants so as to preclude 
 
 i Kingsbury v. Burnside, 58 111. 310; Past v. McPherson, 98 111. 
 496-503; Rankin v. Barcroft, 114 111. 441-454; Gallagher v. North- 
 rup, 114 App. 368. 
 
 2 Rankin v. Barcroft, 114 111. 441-454; Hiss v. Hiss, 228 111. 414- 
 423. 
 
 s Orr v. Yates, 209 111. 222-236. 
 
 * Morton v. Nelson, 145 111. 586-593. 
 
DECLARATIONS OF TEUST AND CONSIDERATION. 15 
 
 them from insisting on the application of the statute 
 of frauds ; 5 and where the heirs of a deceased grantor 
 claimed a resulting trust, but the grantee testified that 
 the parol trust was for the benefit of the survivor of the 
 grantor and his wife, the wife having survived was en- 
 titled to the land. 6 
 
 § 21. A declaration of trust contained in an instru- 
 ment which has been lost or destroyed, or which the de- 
 fendant fails to produce upon notice, may be proven by 
 parol evidence which is reasonably clear and certain, 
 as, e. g., that a will made by a person to be charged as 
 trustee contained a valid declaration of trust for the 
 benefit of the grantor of land to such declarant. 7 A de- 
 claration of trust which was not to be effective unless 
 signed by all of the beneficiaries, will not be enforced 
 according to its provisions against those who did sign 
 upon such an understanding. 8 A declaration of trust 
 which might be fraudulent as to creditors is neverthe- 
 less good as between the parties themselves and a 
 trustee will not be heard to deny the trust on that 
 ground. 9 
 
 § 22. An executory agreement to transfer the title to 
 property by way of a trust will not be permitted by the 
 court to operate as a declaration of trust, because the 
 relation of trustee and cestui que trust cannot thus be 
 made to arise out of an imperfect instrument before the 
 transfer of the property. A court of equity will not 
 aid a volunteer to enforce an agreement to make a 
 gift. 10 
 
 s Meyers v. Meyers, 167 111. 52-64. 
 
 «Donahoe v. Chicago Cricket Club, 171. 111. 351. 
 
 7 Hiss v. Hiss, 228 111. 414-423. 
 
 sAppell v. Appell, 235 111. 27-31. 
 
 s Fast v. McPherson, 98 111". 496-504. 
 
 io McCartney v. Rfdgway, 160 111. 129-157. 
 
16 TRUSTS AND TRUSTEES. 
 
 § 23. Where the declaration of trust shows that the 
 cestuis que trustent in a land speculation are entitled 
 only to the net profits in certain proportions, they take 
 no interest in the land but their relations are those of 
 co-partners. 11 But if they are declared to have specific 
 interests in the land which the trustee is to convey on 
 request by the cestuis que trustent, then the latter are 
 not co-partners. 12 If the declaration of trust shows 
 that the cestuis que trustent had not only specific inter- 
 ests in the land, but, in case of sale of the land they 
 should be entitled to specific shares of the proceeds the 
 trustee would not have the right to divide the land and 
 sell what he might consider to be equal to the undivided 
 interest of a cestui que trust and require the latter to 
 take the proceeds of sale of that part without the lat- 
 ter 's consent or request so to sell and convey. 13 
 
 § 24. Declarations made by a grantor of real estate 
 subsequently to the conveyance and out of the presence 
 of the grantee to the effect that the latter held merely 
 for life are not admissible. And the alleged declara- 
 tions of the grantee to third persons which are denied 
 by the grantee are not given great weight when a trust 
 ex mhleficio is sought to be fastened upon the land. 
 Positive fraud or deceit must have induced the execu- 
 tion of the deed. 14 
 
 § 25. A declaration of trust, not of record, made by 
 a husband that his wife's money paid for land and that 
 he held title in trust for her is admissible in evidence as 
 secondary evidence in a proceeding brought by his 
 creditors, provided it appear that the declarant is de- 
 
 ii Roby v. Colehour, 135 111. 300-336. 
 12 Rogers v. Tyley, 144 111. 652-660. 
 is Rogers v. Tyley, 144 111. 652-661. 
 i* Ryder v. Ryder, 244 111. 297-310. 
 
DECLARATIONS OF TRUST AND CONSIDERATION. 17 
 
 ceased and that lie was informed of the facts and that 
 the declaration was against his interest. Declarations 
 that another's money was used are of greater weight 
 than those stating that a trust exists. 15 
 
 § 26. A vendor, after having made a contract of 
 sale of land subject to a blanket mortgage, executed a 
 declaration that he held the title in trust for certain 
 cestuis que trustent. The vendee made payments for 
 a time to the vendor until the mortgage covering the 
 land, as well as other lands, was put in process of fore- 
 closure. The vendor attempted to forfeit the contract 
 but it was held, under the facts, that he could not do so, 
 and that the vendee could recover the payments made 
 by him as the privity of contract was between the ven- 
 dor and vendee. 16 Any equitable right acquired under 
 a declaration of trust must, of course, be subject to a 
 mortgage given for the purchase money. 17 
 
 § 27. "Where the trust created is complete and exe- 
 cuted a lack of consideration for the benefits conferred 
 thereby is of no consequence. 18 
 
 § 27a. The fact that a deed recites only a nominal 
 consideration is not necessarily notice that the grantee 
 took upon some trust. (But it would be better to make 
 enquiries when purchasing from the grantee.) 19 
 
 § 276. The record of a deed containing a nominal 
 consideration from a wife, as donee of a power, and 
 from her trustee to her husband, and not executed in 
 
 is German Ins. Co. v. Bartlett, 188 111. 165-173. 
 i« Seiberling v. Lewis, 93 App. 549. 
 • it Boone v. Clark, 129 111. 466-490. 
 
 is Padfield v. Padfleld, 72 111. 322-326; Massey v. Huntington, 118 
 111. 80-90; Lynn v. Lynn, 135 111. 18-22; Lawrence v. Lawrence, 181 
 111. 248-252; Bonny v. Bonny, 36 App. 129-132. And see the English 
 case of Jones v. Lock in the last section of chapter VIII, post. 
 i» Home Bank v. Peoria Soc, 206 111. 9-13. 
 2 
 
18 TEUSTS AND TBTTSTEES. 
 
 accordance with the form prescribed by the trust in- 
 strument requiring it to be attested by three witnesses 
 is sufficient notice to purchasers that there was a lack 
 of consideration moving from the husband therefor. 20 
 
 § 28. Marriage has always been a sufficient consid- 
 eration for a voluntary settlement on a wife by a deed 
 in trust both at law and in equity, unless there were 
 existing liens. 21 
 
 § 29. Where a gift has been executed by a delivery 
 of the property to the donee, or some one in trust for 
 the donee, the fact that the gift is burdened with the 
 payment of an annuity to the donor will not invalidate 
 it, and if such gift be by way of a promissory note pay- 
 able upon the maker's death for the benefit of a charity 
 there will be a sufficient consideration to support a 
 claim therefor against the maker's estate. 22 
 
 § 29a. It is sufficient consideration for the creation 
 of a trust for the benefit of claimants to a decedent's 
 property that they dismiss their bill to contest the will 
 of the decedent. 23 
 
 . 20 Breit v. Yeaton, 101 III. 242-270. 
 ai Chilvers v. Race, 196 111. 71-80. 
 
 22 Beatty v. Western College, 177 111. 280-290. 
 
 23 Pool v. Docker, 92 111. 501-510. 
 
EQUITY JURISDICTION, ETC. 19 
 
 CHAPTER IV. 
 
 EQUITY JURISDICTION AND CHANGING TRUST PROVISIONS. 
 
 § 30. It is one of the oldest heads of chancery juris- 
 diction to execute and control trusts and trust funds, 
 to construe the instruments creating trusts, to give the 
 trustee directions as to his powers and duties there- 
 under, and to compel the trustee to make conveyances 
 of the trust property when equity so demands. 1 
 Equity has jurisdiction, either at the suit of the trus- 
 tee or the cestui que trust, or, perhaps at the instance 
 of an interested third person, to construe all instru- 
 ments creating trusts, and, having taken jurisdiction 
 for one purpose, it may construe the entire instrument 
 in all its other phases, although only legal titles might 
 be involved were it not for the alleged trust. 2 
 
 § 31. Eelief may always be had in equity against 
 the fraudulent or unauthorised acts of the trustee in 
 respect of the trust fund, except as against bona fide 
 purchasers for a valuable consideration and without 
 notice 3 and equity will retain jurisdiction in such 
 cases even though there be a remedy at law, the juris- 
 diction being concurrent. 4 
 
 § 32. Equity will not, as a general rule, take juris- 
 diction to enforce contracts in respect of personal 
 
 i Hopkins v. Granger, 52 111. 504-510; Attorney General v. New- 
 berry Library, 150 111. 229-236; Coryell v. Klehm, 157 111. 462; Orr v. 
 Yates, 209 III. 222-227; Rackeman v. Tilton, 236 111. 49-61. 
 
 2 Orr v. Yates, 209 III. 222-227. 
 
 s Flint v. Lewis, 61 111. 299-305. 
 
 « Hubbard v. U. S. Mortgage Co., 14 App. 40-46; Gillett v. Hick- 
 ling, 16 App. 392-399; Dorenkamp v. Dorenkamp, 109 App. 536. 
 
20 TBUSTS AND TETJSTEES. 
 
 property, especially where the remedy at law is ample. 
 A failure to perform a contract relating to chattels is 
 usually susceptible of being compensated at law by 
 way. of damages, whereas in respect of land specific 
 performance may be the only adequate remedy. But 
 where a trust does exist in personal property equity 
 will enforce it, and so, too, where the vendor of chat- 
 tels or goods has received payment therefor in full, 
 and nothing remains unperformed in regard to the con- 
 tract but to deliver the personalty to the vendee, then 
 in such case the vendor is deemed to be a mere trustee 
 for the vendee, and equity will take jurisdiction. 5 As 
 to bailments of personalty to a factor, while they par- 
 take to some degree of the nature of trusts, yet, upon 
 the factor's refusal to pay the proceeds to the bailor, 
 there is such an adequate remedy at law for money 
 had and received that equity will not take jurisdiction 
 and deprive the defendant of his right of trial by jury 
 in this class of cases. 6 Where confidence merely is 
 reposed in one, such credit in the integrity of the one 
 who is trusted will not give a court of chancery juris- 
 diction in the absence of a strict trust; and one who 
 converts to his own use securities which he has wrong- 
 fully abstracted from the_ possession of another cannot 
 be held to have established by such act, the relation of 
 trustee and cestui que trust between himself and the 
 defrauded owner. 7 But an agent who uses his princi- 
 pal's property to make a profit for himself therefrom 
 
 'Parker v. Garrison, 61 111. 250-254. 
 
 « Taylor v. Turner, 87 111. 2&6-302; Tenn. Co. v. Fitzgerald, 140 
 App. 430. 
 
 ' Doyle v. Murphy, 22 111. 502-508; Steele v. Clark, 77 111 471- 
 474; Taylor v. Turner, 87 111. 296-302; Weer v. Gand, 88 111 490- 
 492; Wilson v. Kirby, 88 111. 566-571; Douglass v. Martin, 103 111. 
 
EQUITY JTJKISDICTION, ETC. 21 
 
 so far violates his fiduciary position as to render him- 
 self liable to account in equity as a trustee. 8 
 
 § 33. Where the grain belonging to various bailors 
 has been intermingled in a warehouse, and it appears 
 that the quantity of grain has shrunken to less than 
 that called for by the warehouse receipts issued, an as- 
 signee of the warehouseman, having purchased some 
 of the grain receipts, cannot remove the full amount 
 of the grain evidenced by such receipts as he is a trus- 
 tee for all of the owners, and a court of equity will 
 compel all of the owners to share the loss pro rata? 
 And where municipal bonds were deposited by con- 
 tractors as collateral security for a loan to them it was 
 held that the pledge was so much in the nature .of a 
 trust as to give a court of chancery jurisdiction to re- 
 quire an accounting and to distribute the fund, al- 
 though the court expressed the belief that they were 
 carrying the rule to its furthest limit. 10 If the vendor 
 of an equity of redemption in land reacquire title to 
 the equity therein as security for his own debt, with 
 power to sell and account for the surplus, equity has 
 jurisdiction to enforce the trust, regardless of any 
 remedy at law which might exist, and if such trustee 
 die in the meantime the claim need not be presented 
 to the probate court. 11 The fact that a cestui que trust 
 may have a right of action at law against a trustee for 
 money had and received will not bar the jurisdiction 
 of a court of equity which has a natural and primary 
 jurisdiction over trusts in addition to any concurrent 
 rights at law which the cestui que trust may have. 12 
 
 s Weaver v. Fisher, 110 111. 146-152. 
 
 » Dole v. Olmstead, 36 111. 150-154. 
 
 io Stokes v. Frazier, 72 111. 428-431. 
 
 « Gillett v. Hickling, 16 App. 392. 
 
 12 Dorenkamp v. Dorenkamp, 109 App. 536. 
 
22 TRUSTS AND TRUSTEES. 
 
 § 33a. Equity has jurisdiction over a misapplica- 
 tion of pledges or collaterals given by a debtor to his 
 surety or endorser for the better security of the debt, 
 as such collaterals are held in trust not only for any 
 other surety, but for the creditor as well until the lat- 
 ter is paid. 13 But the mere delivery of money by A 
 to B to pay C as fees in case C should succeed in get- 
 ting D acquitted of a criminal charge does not raise a 
 trust for C's benefit of which equity will take cogni- 
 sance, there being an adequate remedy at law ; the ben- 
 eficiary must first be vested with an equitable title to 
 the fund by agreement of the parties, or the circum- 
 stances must be such that equity will declare a lien ex- 
 ists. 14 
 
 § 336. A vendee of a patent right having failed to 
 pay for the same before the statute of limitations had 
 run, the mere fact that there would be difficulty in as- 
 certaining upon an accounting what the patent was 
 worth when sold will not create the relationship of 
 trustee and cestui que trust so as to give equity juris- 
 diction of such a stale claim. 15 
 
 § 34. If a client assign to his attorney a portion of a 
 cause of action, such a trust will be involved that 
 equity will enforce the contract, and, moreover, there 
 can be no remedy at law where only a part of a debt 
 or chose in action is assigned. 16 
 
 § 35. As we have seen above there is frequently a 
 concurrent remedy at law as well as in equity, in en- 
 forcing a trust, and if a court of equity obtains juris- 
 diction of a cause before a court of law it will retain 
 
 is Halle v. Nat. Park Bank, 140 111. 413-419. 
 
 i* Douglass v. Martin, 103 111. 25-29. 
 
 15 Kellogg v. Western Elec. Co., 168 111. 240 (afl'g 67 App. 53). 
 
 ie Phillips v. Edsall, 127 111. 535-547. 
 
EQUITY JTJEISDICTION, ETC. 23 
 
 it, notwithstanding there may be a statute providing a 
 remedy at law, as in the Administration Act which 
 permits claims against a decedent for monies received 
 in trust by him in his lifetime to be allowed against 
 his estate as of the 6th instead of the 7th class. The 
 legislature has no power to take away from courts of 
 chancery their original and constitutional jurisdiction 
 over trusts. The court which takes jurisdiction first 
 will retain its precedence. 17 [The jurisdiction to con- 
 trol testamentary trusts given the Probate and County 
 Courts by the Act of 1909 (Hurd's Stat. Chap. 37, 
 Sec. 239 f ) will doubtless be held as merely concurrent, 
 in view of the foregoing. 18 ] In White v. Eussell 19 an 
 insolvent partner in an insolvent firm used the firm's 
 money to acquire property in his wife's name, and 
 died soon afterwards; the surviving partner filed and 
 had allowed his claim in probate and then filed his bill 
 in chancery to subject the equitable estate to the pay- 
 ment of debts, and, while ordinarily a creditor who 
 has had his claim so allowed must depend upon the ad- 
 ministrator to sell, yet, in a case like the foregoing, 
 where there was fraud and an attempt to hinder cred- 
 itors equity would not deny its aid, as the administra- 
 tor could have the proceeds of sale applied in the same, 
 proceeding in chancery to the claims of the creditors. 
 § 35a. In Clapp v. Emery 20 a son had collected and 
 invested his mother's money for her during his life- 
 time under a power of attorney from her, and, after 
 
 it Howell v. Moores, 127 111. 67-69. 
 
 is Since the text was written the Act of 1909 has been held uncon- 
 stitutional in re Estate of Mortenson. 
 
 i» White v. Russell, 79 111. 155-158. 
 
 20 Clapp v. Emery, 98 111. 523-531; see also Weaver v. Fisher, 110 
 111. 146-152. 
 
24 TEXJSTS AND TKUSTBBS. 
 
 his death, she was permitted by her bill in chancery 
 to establish the trust, identify the fund used, and to 
 have an accounting from the son's administrators as 
 to the transactions between the son and his mother in 
 his lifetime, such an accounting between a trustee and 
 cestui que trust being one of the recognised subjects of 
 equity jurisdiction, and being a right which might also 
 be enforced as against the administrators of the de- 
 ceased trustee. 
 
 § 36. If officers of the public, such as sheriffs, as- 
 signees, etc., misapply assets and otherwise violate 
 trusts committed to them, although there may be an 
 adequate remedy at law on their official bonds, never- 
 theless equity will take jurisdiction. 21 
 
 § 37. In matters affecting purely church or relig- 
 ious questions ecclesiastical courts are the best judges 
 thereof, and courts of chancery will not take jurisdic- 
 tion unless it be shown clearly that there has been an 
 abuse or perversion of a trust, either by the trustees, 
 or a majority of the society, and not merely some slight 
 and unsubstantial change in the polity or foundational 
 faith of the society or church. 22 It is only where a 
 property or a, civil right is involved that a court of 
 equity will interfere with ecclesiastical authority, and 
 not where the latter 's rules and regulations alone are a 
 matter of controversy. 23 
 
 § 38. Trusts for wives and children, and especially 
 for minors, are always favoured, so long as creditors 
 
 si Norton v. Hixon, 25 111. 439-452; People v. Bordeaux, 242 111. 
 327-334. 
 
 22 Happy v. Morton, 33 111. 398; Kuns v. Robertson, 154 111. 394- 
 414; Papailion v. Manusos, 108 App. 272. 
 
 23Fuasell v. Hail, 233 111. 73-77; Chase v. Cheney, 58 111. 509-537; 
 First Presbyterian Church v. First Cumberland Church, 245 111. 
 74-90. 
 
EQUITY JURISDICTION, ETC. 25 
 
 are not injured thereby. 24 In the case of a marriage 
 settlement where the wife had made a defective execu- 
 tion of a power for the benefit of her husband equity 
 refused its aid because it was not a mere matter affect- 
 ing the form but was one of substance that her prop- 
 erty should be protected from the pressure of undue 
 influence brought to bear upon her, 25 and the right of 
 minor cestuis que trustent, against whose interests a 
 decree has been rendered, is well established in Illinois 
 to maintain a bill to impeach such decree for error ap- 
 pearing upon the face of the record in the former 
 cause. 26 
 
 § 38a. Equity may reform the misdescription of 
 land contained in a deed in trust made for the benefit 
 of a daughter where the trustee had taken possession 
 of the right land, was performing his duties, and the 
 trust was, therefore, a complete and executed one, not- 
 withstanding no monetary consideration had moved 
 from the daughter of the settlor, and that it was a vol- 
 untary settlement. 27 
 
 § 39. The ancient maxim that equity will not suffer 
 a trust to fail for want of a trustee is applied where, 
 although an instrument fail to use the words "trust" 
 or "trustee," if equity can gather an intention from 
 the four corners of the instrument to create a valid 
 trust such trust will be enforced ; if it be a will giving 
 the executor trust duties to perform he will be deemed 
 a trustee by implication, and, if he refuse to act equity 
 will appoint a trustee in his stead 28 and where a will 
 
 2* Phillips v. Meyers, 82 111. 67. 
 25 Breit v. Yeaton, 101 111. 242-263. 
 2« Coffin v. Argo, 134 111. 276. 
 27 Lynn v. Lynn, 135 111. 18-23. 
 
 ssKemmerer v. Kemmerer, 233 111. 327-333; Manhardt v. 111. S. Z. 
 Co., 90 App. 315-322. 
 
26 TRUSTS AND TRUSTEES. 
 
 which created an active trust provided that the trustee 
 should be the person who might be appointed admin- 
 istrator with the will annexed, the chancery court was 
 the only court which had power to appoint a trustee 
 because the county or probate courts had no power to 
 make an administrator a trustee. 29 
 
 § 40. Where negligence is alleged against trustees, 
 who are also acting in the dual capacity of trustees and 
 executors under a will, for their failure to collect notes 
 belonging to the trust fund, it matters not that they 
 were also negligent as executors, and the question of 
 their liability as trustees will not on that account be 
 left solely to the county or probate court. 30 So long 
 as the trustees are not negligent, and are administer- 
 ing the trust fund properly equity will not take juris- 
 diction to disturb their possession. 31 An unfaithful or 
 insolvent trustee may be removed, but an express, act- 
 ive trust cannot be terminated by the court, nor can 
 the court appoint a receiver with directions to pay 
 over the fund to the cestuis que trustent. 32 
 
 § 41. Although a trustee who is appointed by a 
 court of chancery is not thereby invested with the legal 
 title to the trust property (in the absence of a statu- 
 tory enactment or of a conveyance to him), yet he is 
 by such decree given the power to execute the trust 
 and may proceed in his own name in all suits in 
 equity. 33 Where a trustee appointed by the court has 
 had the legal title to lands conveyed to him, and holds 
 the same in trust for certain heirs and their creditors, 
 
 29 Dwyer v. Cahill, 228 111. 617-625. 
 
 so Waterman v. Allen, 144 111. 90-105 (Revers. 42 App. 294). 
 
 si Myers v. Trustees of Schools, 21 App. 223. 
 
 32 Richards v. Barrett, 5 App. 510. 
 
 33 Leach v. Thomas, 27 111. 457-461. 
 
EQUITY JURISDICTION, ETC. 27 
 
 and the court finds it necessary that the trust estate 
 be sold, such sale may be made without proceeding un- 
 der the Partition Act, there being liens against the 
 land whose removal would be proper in administering 
 the trust estate. 34 If there were no liens established 
 against the land, or other equitable reasons shown re- 
 quiring its sale such a sale could not be claimed valid 
 as a partition unless commissioners were appointed 
 who reported that the land was not susceptible of divi- 
 sion, and such steps would be necessary whether the 
 proceeding were called a bill in chancery or a petition 
 under the Partition Act. 35 
 
 § 41a. Thompson v. Adams 36 went so far as to hold 
 that even where no trust exists if it be necessary to 
 protect the interests of life tenants and remaindermen 
 by a sale of the land, equity may, even against the ex- 
 press wishes of a testator, appoint a trustee for the 
 purpose of selling and conveying the land. Equity 
 could not, of course, invest him with the title but only 
 a power to sell and convey. In Gavin v. Curtis 37 there 
 was no trust in the first instance, merely a devise to a 
 life tenant with remainders over, and the court ap- 
 pointed trustees and attempted to vest the title in them 
 by its decree. But the earlier case of Walters v. Wal- 
 ters 38 announced the correct rule : that was a case 
 where a father had made an oral contract with a son 
 that if the son would remain on the farm homestead 
 and support his parents therefrom then at the death 
 of the father the son should have the land as his own 
 upon the payment of certain sums to the other chil- 
 
 34 Oliver v. Oliver, 179 111. 9-14; but see Coffin v. Argo, below, 
 ss Coffin v. Argo, 134 111. 276. 
 
 36 Thompson v. Adams, 205' 111. 552-560. 
 
 37 Gavin v. Curtiss, 171 111. 640-645. 
 
 as Walters v. Walters, 132 111. 467-477. 
 
28 TKTJSTS AND TRUSTEES-. 
 
 dren. The son entered into performance of the oral 
 contract, married, had children of his own, and died 
 before his father, thus leaving the contract uncom- 
 pleted. The widow of the son sought to have the land 
 decreed to her children ; the Statute of Frauds was not 
 pleaded and the chancellor appointed a trustee to man- 
 age the land until the death of the old father, then to 
 pay the sums contracted for out of the personal prop- 
 erty on the farm whereupon the fee should vest in the 
 heirs of the dead son. The Supreme Court, in revers- 
 ing the chancellor, pointed out that his decree was er- 
 roneous, not only in appointing a trustee and thus 
 making the latter 's compensation a burden on the in- 
 come (for which burden the owner had not contracted), 
 but also in attempting to vest a legal title which a 
 court of chancery could never do even by way of par- 
 tition until authorised by statute, and also in attempt- 
 ing before the old father's death to change the opera- 
 tion of the Statute of Descents; that the Administra- 
 tion Act provided for the fulfillment of the contracts 
 of a decedent by his administrator. It follows, there- 
 fore, that equity has no jurisdiction or power to invest 
 a trustee appointed in a court of chancery with the le- 
 gal title to land, in the absence of an enabling statute, 
 and where no conveyance has been made to such trus- 
 tee a purchaser should be wary of the title offered. 
 
 § 42. When a constructive trust is established in 
 land the court has jurisdiction to impress the land with 
 the trust and to require the trustee to convey it to 
 those entitled by a short day, and, in default of making 
 such conveyance, to decree that a master in chancery 
 
 convey — and this is the proper practise in such cases. 3 ' 
 i 
 
 3» Stahl v. Stahl, 220 111. 188-191. 
 
EQUITY JURISDICTION, ETC. 29 
 
 § 43. Equity -will not set aside deeds made by trus- 
 tees with discretionary powers of sale, unless the bill 
 alleges, and it is established that fraud or collusion 
 entered into the sales, or that they were made at a 
 grossly inadequate price. 40 
 
 § 44. As to matters of accounting courts of equity 
 are always open to cestuis que trustent who desire 
 their trustees to render an account as to funds dis- 
 posed of or on hand, as well as the condition of such 
 funds. | 
 
 Any one who receives money as a trustee is bound 
 to account for it no matter what may have happened 
 to the fund, whether mixed with his personal funds or 
 not. 41 And where a bill had been filed to contest a will, 
 and, in consideration of its dismissal, a trust was ar- 
 ranged for the equal division of the property among 
 the claimants, some of whom were to hold the legal ti- 
 tle and account to the others for the rents and profits 
 until the property could be sold and the proceeds di- 
 vided, there could be no question that equity might 
 compel those holding the legal title to account to the 
 other claimants. 42 
 
 § 45. Another well recognised division of equity ju- 
 risdiction is that of preserving the corpus of funds 
 subject to equitable remainders as well as legal re- 
 mainders. This subject is usually spoken of when 
 there has been an interposition of a trust to save a con- 
 tingent remainder from extinction by the termination 
 of a precedent estate established before the vesting of 
 the remainder. At this point, however, reference is 
 made only to the power of the courts of equity to en- 
 
 *o Mason v. Mason, 219 III. 609-615. 
 
 4i Nat. Park Bank v. Halle, 41 App. 19-21. 
 
 « Pool v. Docker, 92 111. 501-509. 
 
 \ 
 
30 TKUSTS AND TRUSTEES. 
 
 join trustees from wasting estates or funds to the det- 
 riment of the remainderman, whether vested or contin- 
 gent. And so a trustee for a life tenant was enjoined 
 from developing new mines and removing the minerals 
 as a waste of the inheritance, and a lease by a trustee 
 to remove the oil and gas so long as they might be 
 found in paying quantities is not within the powers of 
 a trustee to lease and control. A contingent remain- 
 derman may enjoin future waste of the freehold, even 
 though he could not recover for a past waste. 43 Where 
 it appears to be necessary for the best interests of re- 
 maindermen in land that it should be sold, the Supreme 
 Court have held that, even though no trust exists, and 
 even against the express wishes of a testator, a court 
 of chancery may appoint a trustee for the purpose of 
 selling and conveying the land. 44 
 
 § 46. Vacancies in a trusteeship which have not 
 been provided against in the trust instrument can only 
 be filled by the decree of a court having chancery juris- 
 diction upon proper notice to all concerned, and such 
 decree should require the proper conveyances to vest 
 the legal title to the trust estate in the new trustee, un- 
 less such vesting occur under a statutory provision. 45 
 
 Pool v. Potter. 46 This was an agreement made by 
 the heirs of an estate to have a trustee in the nature 
 of an agent to manage, dispose of, and divide the es- 
 tate, and that the trustee should be appointed by the 
 circuit judge upon giving a good and sufficient bond to 
 be approved by the judge. The judge, acting in his 
 personal capacity, under the powers in the instrument 
 
 *3 Ohio Oil Co. v. Daughetee, 240 111. 361-365. 
 "Thompson v. Adams, 205 111. 552-560. 
 45 West v. Fitz, 109 111. 425-442. 
 *« Pool v. Potter, 63 111. 533-538. 
 
EQUITY JURISDICTION, ETC. 31 
 
 appointed a person who gave a bond which was ap- 
 proved by the judge, but which bond was not "good 
 and sufficient" within the terms of the instrument un- 
 der which he was to act, and it was held that equity 
 had jurisdiction to prevent the appointee of the circuit 
 judge from acting as trustee because of the insuffi- 
 ciency of the bond, and because it was doubtful 
 whether the judge could require his appointee to give 
 a new bond without a bill in chancery filed for the pur- 
 pose of invoking his judicial powers thereto, he having 
 once acted under the terms of the instrument, and hav- 
 ing, therefore, probably exhausted his powers. 
 
 So long as some one of the trustees nominated by a 
 trust instrument is able and willing to act there is no 
 vacancy which a court of equity can fill, unless the in- 
 strument requires a certain number of trustees to exe- 
 cute the trust. 47 
 
 § 47. Equity will take jurisdiction to construe wills 
 if a trust or a power be involved, although the trust 
 may have to be executed at a later period. 48 Where 
 legal titles only are involved the court will refuse to 
 construe wills, and will not take jurisdiction simply be- 
 cause of provisions therein which may give rise to a 
 trust at a later date, 49 and the Supreme Court were in 
 error in Parsons v. Millar 50 in stating that the objec- 
 tion that only legal titles were involved should be taken 
 "before appeal, and if the executors of a will could not 
 agree upon the proper manner of making a distribu- 
 tion directed to be made by the will, then one executor 
 might file a bill in chancery against the other to obtain 
 
 «Mullanny v. Nangle, 212 111. 247-255. 
 
 *8 Poll v. Cash, 234 111. 53; Fletcher v. Root, 240 111. 429. 
 
 <o Strawn v. Jacksonville Academy, 240 111. 111. 
 
 -bo Parsons v. Millar, 189 111. 107-112. 
 
32 TRUSTS AND TRUSTEES. 
 
 a construction of the will, and for directions in mak- 
 ing a distribution. There happened to be a trust in- 
 volved in Parsons v. Millar. Jurisdiction in such case 
 cannot be conferred upon the court by the consent of 
 the parties 51 nor can a life tenant create a necessity 
 for the construction of a will by making a contract to 
 convey the fee. 52 But if the duties required of execu- 
 tors are different from those imposed upon them by 
 Statute, a special trust arises which gives the court 
 jurisdiction. 53 
 
 § 48. Change of Provisions. Neither the settlor of 
 a trust nor the trustees have power to change the terms 
 of the settlement 54 and the question whether the terms 
 and provisions of an active and express trust can be 
 changed by a court of equity has presented some diffi- 
 culty, especially where convenience and expediency 
 would thereby be aided and greater profit result to the 
 trust fund. It may be said generally that the court 
 cannot and should not attempt to break into the terms 
 of an expressed trust and change the terms thereof in 
 the absence of pressing necessity to protect the fund, 
 or to provide for the immediate wants of the cestuis 
 que trustent, although the income of the trust fund 
 might be increased by the proposed change ; 55 nor 
 should the court attempt to terminate an active trust, 
 appoint a receiver, and direct the payment of the fund 
 to the cestuis que trustent, although the court could re- 
 
 5i Fletcher v. Root, 240 111. 429-132. 
 
 =2 Mansfield v. Mansfield, 203 111. 92-98. 
 
 58 Whitman v. Fisher, 74 111. 147-156; Minkler v. Simons, 172 111. 
 323-326. 
 
 64 McDonald v. Starkey, 42 111. 442; Yeaton v. Yeaton, 4 App. 579- 
 588. 
 
 ss Johns v. Johns, 172 111.. 472-47,9; Johnson v. Buck, 220 111. 226- 
 236. 
 
EQUITY JURISDICTION, ETC*. 33 
 
 move an unfaithful or insolvent trustee and appoint 
 another in his stead. 56 
 
 The tendency of the Supreme Court's decisions, es- 
 pecially in permitting trustees under wills to make 
 long term leases not authorised by the testators, has 
 been to determine whether the intention of the testa- 
 tors would have been different under the changed con- 
 ditions, and, if so determined, to read practically into 
 the wills powers which the testators never thought of 
 giving their trustees; and this is a tendency which 
 may easily become elastic. 
 
 § 49. In cases of necessity courts of chancery have 
 the power to change the terms of a settlement by doing 
 so far as possible what the creator of the trust would 
 have directed to be done could he have foreseen the 
 emergency, and, while this power must be exercised 
 with great caution by the court, yet, where the urgency 
 is great, the chancellor should try to place himself in 
 the shoes of the settlor and make such provisions as 
 the settlor would reasonably have made in a like situ- 
 ation ; and where the beneficiaries have become impov- 
 erished and likely to become public charges through 
 the unproductiveness of the trust estate, and the terms 
 of the trust forbid the trustee from selling or mortgag- 
 ing, a court of chancery may so alter the provisions of 
 the settlement as to carry out what the intentions of 
 the settlor would have been if he could have antici- 
 pated such an emergency. 57 
 
 § 50. "Where the interests of infants, lunatics, etc., 
 are concerned and the trustees have no power of sale, 
 
 se Richards v. Barrett, 5 App. 519. 
 
 s^chirtiss v. Brown, 29 111. 201-228; Voris v. Doan, 68 111. 688-591; 
 Rhoads v. Rhoads, 43 111. 239-255; Longworth v. Riggs, 123 111. 258- 
 264;. Gavin v. Curtin, 171 111. 640-648; Baldridge v. Coffey, 184 111. 
 73-76; Marsh v. Reed, 184 111. 263-271. 
 3 
 
34 TRUSTS AND TRUSTEES. 
 
 the court may, in the exercise of a sound discretion, 
 where it appears that the best interests of such de- 
 pendent cestuis que trustent would be promoted 
 thereby, order the conversion of realty into personalty, 
 or personalty into realty, provided the court throw 
 proper safeguards around the property rights of other 
 persons, such as remaindermen, who may .be affected 
 thereby. In such case it is not necessary to show that 
 the minor or insane cestuis que trustent are in impov- 
 erished circumstances, but simply that their best in- 
 terests would be promoted by the conversion. 58 
 
 § 51. Marsh v. Eeed. 59 The will of the owner of 
 the land and building known as the Sherman House in 
 Chicago authorised the trustee, to whom it was de- 
 vised, to let the same for terms not exceeding ten years. 
 Upon proof that the property was practically unpro- 
 ductive unless it could be demised for a term of ninety- 
 nine years, a court of chancery held that to do so would 
 not be subversive of the testator's intention, but rather 
 carrying into effect what his judgment would undoubt- 
 edly have been could he have foreseen how conditions 
 would change so rapidly in respect of the property. 
 This decision has been followed in a more recent case. 60 
 
 § 52. Parsons v. Ely. 61 Here a trust was created 
 for A during her lifetime with remainder to her chil- 
 dren; a few days after this deed in trust was executed 
 another instrument was executed providing, inter alia, 
 in case of the death of A leaving a child or children 
 her surviving who should fail to attain twenty-five 
 
 58 Hale v. Hale, 146 111. 227-249; Gorman v. Mullins, 172 111. 349- 
 352. 
 
 59 Marsh v. Reed, 184 111. 263. 
 «oDenegre v. Walker, 214 111. 113. 
 «i Parsons v. Ely, 45 111. 232. 
 
EQUITY JURISDICTION, ETC. 35 
 
 years of age then the estate should be conveyed to B. 
 The latter instrument was also signed by the person 
 who intermarried with A on the same day. A had one 
 child who survived her but who died while an infant 
 leaving as its only heir at law the husband of 'A who 
 claimed the subject matter of the trust as against B. 
 The Supreme Court refused to consider that the sec- 
 ond instrument was void as creating a perpetuity, but 
 did hold that the husband of A had bound himself by 
 signing the second instrument and had thereby made a 
 valid assignment in equity of his contingent interest or 
 expectancy of becoming an heir of his child — and so it 
 did not become necessary for the Supreme Court to 
 decide whether the trust created by the first instru- 
 ment could be modified by the second after the first had 
 been executed. 
 
36 TRUSTS AND TRUSTEES. 
 
 CHAPTEE V. 
 
 PUBLIC TRUSTS AND PUBLIC POLICY. 
 
 § 53. Public trusts, as stated in section 12 ante, 
 comprise not only "charities," which will he consid- 
 ered in the next chapter, but the great body of public 
 offices and property which are administered by the 
 servants of the public. Only some decisions of a gen- 
 eral nature will be referred to in this connexion. 
 
 § 54. Where the public are interested in the admin- 
 istration of a trust the attorney general is a proper 
 party either as a complainant or as a defendant in any 
 proceeding affecting such trust. 1 
 
 § 55. If the grant of swamp lands by the federal 
 government to the state was upon the trust that the 
 proceeds of the sale of the lands should be used in 
 draining them, there is no judicial power within the 
 state which could compel the legislature to perform the 
 trust; the power of the legislature being plenary and 
 exclusive, it may divert the proceeds to such other pur- 
 poses as may be deemed expedient. 2 
 
 Swamp lands were conveyed by the County of Henry 
 to a private corporation, the latter to drain the lands 
 and also to pay the county $20,000 therefor in install- 
 ments. The company failed to complete the drainage 
 and divided the lands among its members, but on a bill 
 for specific performance brought by the county the 
 Supreme Court held that the lands burdened by the 
 
 i Attorney General v. Newberry Library, 150 111. 229-236; Stead v. 
 Commons, 243 111. 239. 
 
 2 Supervisors v. Burchell, 31 III. 68-79; Supervisors v. Thompson, 
 39 III. 566. 
 
PUBLIC TRUSTS AND PUBLIC POLICY. 37 
 
 trust to be drained both for the benefit of the health 
 of the inhabitants of the county, and for the county's 
 prosperity, and that the fund should be restored to the 
 county authorities and used by them in fulfillment of 
 the purposes of the trust. 3 
 
 § 56. Section 16 of Public Lands in each township 
 was granted to the state which took the title in trust 
 for the public, but not as a passive trust, and the Stat- 
 ute of Uses would not operate to place the legal title 
 in the inhabitants of the respective townships. The 
 legal title to such lands, or to those selected in lieu of 
 Section 16, would remain in the state until granted by 
 it, and the statute of limitations would not run against 
 it while holding in its sovereign capacity. 4 
 
 § 56a. A conveyance to school directors of a certain 
 district places the legal title in them, but the equitable 
 title passes to the trustees. 5 
 
 § 566. Land donated to school trustees for school 
 purposes must be used by them for the purposes speci- 
 fied, and they cannot sell such land even though they 
 use the proceeds for school purposes. 6 
 
 § 56c. School trustees may transfer the title to ne- 
 gotiable paper by their corporate action only, and not 
 by agent or attorney. 7 
 
 § 56d. The statute of limitations runs against school 
 directors in respect of property held by them only for 
 their particular district, and in which the people of the 
 state in general have no interest or concern. 8 
 
 3 Henry County v. Winnebago County, 52 111. 454-460. 
 * Black v. C. B. & Q. R. R. Co., 237 111. 500-504. 
 sO'Donnell v. Robson, 239 111. 634; Myers v. Trustees of Schools, 
 21 App. 223. 
 e Trustees v. Braner, 71 111. 546. 
 t Scott v. Goode, 128 App. 26. 
 s Brown v. Trustees of Schools, 224 111. 184-188. 
 
38 TKTJSTS AND TBUSTEES. 
 
 § 56e. A school tax collected by mistake by one dis- 
 trict on lands in another district does not render sucb 
 collecting district a trustee for the tax payer in the 
 other district, where he paid it voluntarily and not un- 
 der compulsion, although the tax was illegal and void. 9 
 
 § 57. Taxes collected for a special purpose consti- 
 tute a trust fund which the tax payer may in equity 
 compel to be expended for such purpose, and, if it be 
 impossible he is entitled to their return. 10 
 
 § 58. The act of 1893 requiring the treasurers of 
 the various municipalities of the State to account for 
 interest does not change their relation of trustees into 
 that of mere debtors, but imposes merely the duty to 
 make the various funds productive and gives a portion 
 of such interest to the treasurers as a reward. 11 
 
 § 59. The statute of limitations does not run against 
 a county on account of funds detained from it by a 
 former county treasurer, as such funds are in the na- 
 ture of trust funds to be expended by the county ac- 
 cording to law. 12 
 
 § 60. The cities, in holding public streets in trust, 
 hold them for the necessities of the public, and, while 
 temporary obstructions may be permitted for private 
 purposes which do not materially hinder the use by the 
 public, such encroachments must not be permanent. 13 
 
 § 60a. A statutory plat dedicating streets to a city 
 constitutes the latter a trustee with active duties to 
 perform in protecting trust property for the benefit of 
 
 » Walser v. Board of Education, 160 111. 272-275. 
 "Aurora v . Railway, 19 App. 360, affirmed 119 111. 246. 
 "Dreyer v. People, 176 111. 590-600. 
 12 Pike County v. Cad-well, 78 App. 201. 
 w Hibbard v. Chicago. 173 111. 91. 
 
PUBLIC TRUSTS' AND PUBLIC POLICY. 39 
 
 the public and this includes those who own no property 
 as well as those who own a great deal. 14 
 
 After a subdivider of lands has made a common law 
 dedication for a public park, although the legal title of 
 such park may remain in him, yet he holds the same 
 in trust for the public and equity will enjoin him from 
 mortgaging the same as being a perversion of the 
 trust. 15 
 
 § 61. The warden of a prison is not a mere bailee of 
 the prison's funds, but occupies the same position as 
 any other treasurer of public funds, that is a trustee 
 of the public, and if the funds are lost through the fail- 
 ure of a bank believed to be solvent the sureties on the 
 warden's bonds will be Uable. 16 
 
 § 62. The purchaser of a lot in a public cemetery 
 acquires an easement therein, the fee being held by the 
 trustees of the cemetery for him, and they cannot per- 
 mit another to use any part thereof before the lot 
 owner or his family have abandoned it. 17 
 
 § 63. Public policy is defined as "that principle of 
 law which holds that no person can lawfully do that 
 which has a tendency to be injurious to the public, or 
 against public good * * * even though the intent 
 of the parties be good, and no injury to the public 
 would result in the particular case. The test is the 
 evil tendency of the contract and not its actual injury 
 to the public in a particular instance." 18 
 
 "Union Coal Co. v. City of La Salle, 136 111. 119-127; Doane v. 
 C. C. Ry, Co., 51 App. 353; City of Chicago v. Stratton, 58 App. 539- 
 546. 
 
 i»Maywood Co. v. Village of Maywood, 118 111. 61-71. 
 
 i« Est. of Ramsey v. People, 197 111. 572-587. 
 
 " McWhirter v. Newell, 200 111. 583-590. 
 
 is9 Cyc. 481. 
 
40 TRUSTS AND TRUSTEES. 
 
 § 64. The public policy of the state upon any given 
 question is to be sought first in its constitution and 
 statutes, and, if nothing be found there, then in the de- 
 cisions of the courts and the usages of the State's ad- 
 ministrative servants. 19 
 
 § 65. A trust will not be raised by implication or 
 operation of law in contravention of public policy. 20 
 
 § 66. So long as a limitation upon the right to alien 
 property does not conflict with the Rule against Per- 
 petuities, or the statutory modification thereof, it is 
 not opposed to public policy. 21 
 
 § 67. The rule that a trustee of any kind shall not 
 buy, directly or indirectly, any property of which he 
 is a trustee, is founded upon a sound public policy to 
 secure the enforcement of fiduciary obligations, and 
 experience has taught that the rule must be enforced 
 rigidly, without regard to some cases of hardship re- 
 sulting therefrom. It is necessary to impose some de- 
 gree of punishment on the trustee for his breach. 22 
 
 § 67a. Public policy will not permit an agent to use 
 the knpwledge acquired by virtue of his relation to his 
 principal to obtain any advantage at the expense of 
 his principal, and any advantage so obtained will 
 enure to the benefit of the principal. 23 
 
 § 676. The agents of a corporation, and a corpora- 
 tion can act only by his agents, occupy such a fiduciary 
 relation to the corporation, analagous to that of trus- 
 
 i» Zeigler v. Illinois T. & S. Bank, 245 111. 180-193. 
 
 20 Thomas v. Chicago, 55 111. 408; Baehr v. Wolf, 59 111. 474. 
 
 21 Hale v. Hale, 125 111. 399-409. 
 
 ,22 0gden v. Larrabee, 57 111. 389-406; Nelson v. Hayner, 66 111. 
 487-494; G. C. & S. R. R. v. Kelly, 77 111. 426-431; Higgins v. Curtis, 
 82 111. 28-33; Borders v. Murphy, 125 111. 577. 
 
 23 Davis v. Hamlin, 108 111. 39-47; Frohlich v. Seacord, 180 111. 
 85-94. 
 
PUBLIC TRUSTS AND PUBLIC POLICY. 41 
 
 tee and cestui que trust, that it is against public policy 
 to permit them to make any contracts where their own 
 private interests would tend" to conflict with those of 
 the corporation, or where they might speculate to the 
 detriment of the corporation's interests. The fair- 
 ness of such a contract cannot be enquired into nor will 
 equity enforce a contract against public policy. 24 
 
 § 67c. The directors of a railway company being 
 quasi trustees of the public as well as of the share- 
 holders cannot make a contract not to maintain a sta- 
 tion at any certain point on the right of way, as such 
 contract would be in contravention of public policy. 23 
 
 § 68. A devise to a trustee with power to make a 
 partition among cestuis que trustent, including him- 
 self, is not void as against public policy for fear that 
 such trustee might happen to use his position to the dis- 
 advantage of the other cestuis que trustent, because the 
 latter could invoke the aid of a court of chancery in 
 case of any fraud or violation of his duties upon the 
 part of the trustee. 26 
 
 § 69. In transactions between those, of whom one 
 has reposed confidence in the other who has an influ- 
 ence over him, and stands in a fiduciary position, the 
 law casts the burden on the one occupying the fiduciary 
 position to prove the entire good faith of such transac- 
 tions as a matter of public policy which makes such 
 transactions prima facie voidable. 27 
 
 It is a matter of public policy that gifts from a child 
 to a parent, or to one occupying a position of domi- 
 nance over the donor should be presumptively void- 
 
 2* Est. of Smythe v. Evans, 209 111. 376-381. v 
 
 2s St. L. & J. C. R. R. Co. v. Mathers, 71 111. 592-596. 
 
 2« Mettler v. Warner, 243 111. 600-611. 
 
 2T Thomas v. Whitney, 186 111. 225-231. 
 
42 TRUSTS AND TRUSTEES. 
 
 able so as to east the burden on the donee of showing 
 a bona fide transaction. 28 
 
 § 70. It is in accord with public policy that spend- 
 thrift trusts should be enforced, although creditors of 
 cestuis que trustent may suffer thereby. 29 
 
 § 71. Public policy does not require that religious 
 societies which are not incorporated should be limited 
 in their holdings of land to a certain number of acres 
 as are incorporated religious societies. 30 
 
 as White v. Ross, 160 111. 56-72; Beach v. Wilton, 244 111. 413-424. 
 29 Steib v. Whitehead, 111 111. 247-250. 
 soAlden v. St. Peter's Parish, 158 111. 631-640. 
 
CHAKITABLE TRUSTS. 43 
 
 CHAPTER VI. 
 
 CHAEITABLE TEUSTS. 
 
 § 72. In Crerar v. Williams 1 the definition of a 
 charity as given by Justice Gray of Massachusetts was 
 adopted: — "A charity in a legal sense may be more 
 fully defined as a* gift to be applied consistently with 
 existing laws for the benefit of an indefinite number of 
 persons, either by bringing their hearts under the in- 
 fluence of education or religion, by relieving their bod- 
 ies from disease, suffering, or constraint, by assisting 
 them to establish themselves for life, or by erecting or # 
 maintaining public buildings or works, or otherwise 
 lessening the burdens of government. It is immate- 
 rial whether the purpose is called charitable in the 
 gift itself, if it is so described as to show that it is char- 
 itable in its nature." 
 
 In Garrison v. Little 2 the definition given in Ould v. 
 "Washington Hospital, 95 U. S. 303, was quoted as fol- 
 lows: "Whatever is given for the love of God, or the 
 love of your neighbour in the catholic and universal 
 sense — given from these motives and to these ends — 
 free from the stain or taint of every consideration that 
 is personal, private or selfish." 
 
 § 73. The liberal principles of the Roman and Civil 
 law in respect of charities were adopted early in Eng- 
 land by rendering certain, if possible, apparently in- 
 definite beneficiaries and by applying, to a certain ex- 
 tent, £he cy pres doctrine of the civil law, and carrying 
 
 i Crerar v. Williams, 145 111. 625-643. 
 2 Garrison v. Little, 75 App. 402. 
 
44 TKUSTS AND TRUSTEES. 
 
 into effect the intentions of the donor with an approxi- 
 mation to what he would have directed to be done if he 
 could have foreseen the change in conditions existing 
 at the time when the gift was to take effect. ' ' In or- 
 der that this doctrine may apply, the donor's general 
 charitable purpose for an object mentioned by him 
 must be of such a kind that the court can satisfy itself 
 that some other object can be found answering in a 
 reasonable degree the matters nearly consonant to sueh 
 purpose." 3 
 
 § 73a. The Statute of 43d Elizabeth, Cap. 4 (1601), 
 which is in force in Illinois, as a part of its common 
 law, comprised some twenty-one classes of charitable 
 uses which were specified in the preamble to the act 
 as: the relief of the aged, impotent and poor people; 
 the maintenance of sick and maimed soldiers and mar- 
 iners; schools of learning, free schools, and scholars 
 in universities; the repair of bridges, ports, havens, 
 causeways, churches, sea banks and highways ; the edu- 
 cation and preferment of orphans; relief or mainte- 
 nance for houses of correction; marriage of poor 
 maids ; aid and help of young tradesmen, handicrafts- 
 men and persons decayed; relief and redemption of 
 prisoners or captives ; aid or ease of any poor inhabi- 
 tant concerning the payment of certain forms of taxes 
 and the billeting of soldiers. 4 
 
 As will be seen further on, the courts of this State, 
 in deciding whether a trust is charitable in its scope, 
 do not confine themselves to the letter of the 43d Eliza- 
 beth, but to its spirit as indicated in the preamble. 
 
 3 6 Cyc. 964. 
 
 * (See Cooke and Harwood on the Charitable Trusts Acts'.) "An 
 Act to Redress the Mis employment of Lands, Goods and, Stocks of 
 Money heretofore given to Charitable Uses." 
 
CHARITABLE TEUSTS. 45 
 
 When the act was repealed in England in 1888 by the 
 Mortmain and Charitable Uses Act the preamble of 
 the former act was retained in the latter. 
 
 § 74. Charitable trusts being favoured in law re- 
 ceive a more liberal construction than where individ- 
 uals only are concerned, and if there be some uncer- 
 tainty in the persons or objects or whether the persons 
 to take are in being or not, or whether the recipient 
 ■be a corporation capable by law of taking or not, or 
 whether the trust* can be performed exactly or not, in 
 all such cases the court may sustain the trust, if other- 
 wise valid, and carry it into effect so nearly as may 
 be under the doctrine of cy pres. s 
 
 § 74a. Gilman v. Hamilton. 6 This was a deed of" 
 trust creating a charitable trust in which it was pro- 
 vided that the institution should be located perma- 
 nently on certain of the lands conveyed expressly for 
 that purpose, and a fund of some fourteen thousand 
 acres was established to found and build a school for 
 the training of young men for the ministry. The trus- 
 tees sought by bill to obtain a decree authorising them 
 to convey the trust property to another college for the 
 purpose of establishing a professorship therein, be- 
 cause of the fact that the trustees did not succeed in 
 managing the trust property with the success which 
 the trust contemplated. The nisi prius court decreed 
 that a conveyance be made to the trustees of the sec- 
 
 sHeuser v. Harris, 42 111. 425-434; Hunt v. Fowler, 121 111. 269- 
 276; Mills v. Newberry, 112 111. 123-133; Gullfoil v. Arthur, 158 111. 
 600-607; Ingraham v. Ingraham, 169 111. 432-450; Grand Prairie 
 Seminary v. Morgan, 171 111. 444-449; Trafton v. Black, 187 111. 36- 
 38; Kemmerer v. Kemmerer, 233 111. 327-335; Mason v. Blooming- 
 ton, 237 111. 442-449; Welch v. Caldwell, 226 111. 488-496. 
 
 « Gilman v. Hamilton, 16 111. 225-229; see also Board of Education 
 v. Bakewell, 122 111. 339-351. 
 
46 TRUSTS AND TRUSTEES. 
 
 ond college, as prayed, but the Supreme Court in re- 
 versing this decree held that there was no authority 
 under the principle of cy pres authorising the court or 
 trustees to change the object or place of the charity 
 simply because the trust might be more efficiently or 
 judiciously administered in another place or applied 
 to a different object, saying that the doctrine of cy 
 pres has only been adopted with the view of sustain- 
 ing and carrying into effect the benevolent intention 
 of the donor. "The charity must be accepted upon 
 the terms proposed. It cannot be altered by any 
 agreement between the heirs of the donors, and the 
 , trustees or donees. But it will be carried into effect 
 according to the intention of the donor, and in like 
 manner the mode of its execution will be pursued when 
 indicated, unless the one or the other become imprac- 
 ticable, then, if at all, and then only, may it be altered 
 by cy pres." The purchasers under a decree not in- 
 volving a judicial sale take with notice as of a lis pew^ 
 dens, and subject to the ultimate effects and conse- 
 quences upon the property. 
 
 § 74&. Where the terms creating a public trust are 
 vague and uncertain it does not follow that the court 
 will in all instances attempt to execute the trust cy 
 pres. If the nature of the trust should require the use 
 by the court of extraordinary agencies, such as engi- 
 neers, contractors, labourers, etc., or the organisation 
 of the necessary instrumentalities to carry out an ex- 
 tensive improvement, it would constrain the court of 
 chancery to remain in constant session during the 
 progress of the work to supervise the same, make or- 
 ders, change plans and direct its prosecution generally. 
 This would be manifestly impracticable for a court of 
 chancery to do. But the court may prevent the trust 
 
CHARITABLE TKTJSTS. 47 
 
 fund from being wasted or misapplied and may restore 
 it so far as possible to its former condition so that 
 trustees may apply it to the execution of the trust. 7 
 
 § 74c. If a corporation named as a beneficiary in a 
 charitable trust has conveyed its property to another 
 like corporation which is carrying on the charitable 
 work of the former the court may substitute the latter 
 under the principle of cy pres. s 
 
 § 75. A charitable trust will not fail for uncertainty 
 of the persons to" be benefited if some one be nomi- 
 nated by the donor to point out the ones to benefit from 
 his charity and they are thus rendered certain, but the 
 beneficiaries so selected must be within the sort of 
 charity indicated. 9 Thus, a trust for an "Orphans' 
 Home for the Friendless Poor of all Denominations" 
 to be "controlled by the Presbyterian Churches of 
 Central Illinois ' ' is not void under the foregoing prin- 
 ciples 10 "or the worthy poor" of a certain city. 11 
 
 Welsh v. Caldwell. 12 This was a case where the gift 
 was of "a part of the income of my estate over and 
 above the bequests hereinbefore named, including the 
 annual allowance set apart to my wife, I direct to be 
 used for charitable purposes, the McDonough County 
 Holiness Association to receive a portion of said be- 
 quest. The amount and purposes for which said be- 
 quests is to be used I leave to the discretion of my 
 wife, ' ' and it was held not indefinite or uncertain as to 
 the subject matter which included all of the income 
 
 i Henry County v. Winnebago Co., 52 111. 454-460; Atty. General 
 T. 111. Agl. College, 85 111. 516-520; Taylor v. Keep, 2 App. 368-376. 
 s Mason v. Bloomington, 237 111. 442-450. 
 9 Welch v. Caldwell, 226 111. 448-496. 
 io Kemmerer y. Kemmerer, 233 111. 327-335. 
 ii Hunt v. Fowler, 121 111. 269-276. 
 12 Welch y. Caldwell, 22£ 111. 488-494. 
 
48 TKTJSTS AND TRUSTEES. 
 
 over the specific bequests, nor indefinite as to the bene- 
 ficiary, and in case the wife failed to select other bene- 
 ficiaries to share with the one designated the latter 
 would take the income and could enforce the trust. 
 
 § 76. A conveyance to a trustee for the benefit of a 
 charitable society to be incorporated later will be up- 
 held, although the name of the society incorporated 
 afterwards is not identical with the cestui que trust 
 named, if the deed in trust identifies the cestui que 
 trust and it appears that no other corporation has been 
 formed for the purpose indicated by the donor. 13 
 
 § 77. Mills v. Newberry. 14 A bequest was made 
 upon condition that the legatee should, before accept- 
 ing the bequest, make her own will bequeathing what 
 might be undisposed of or unspent at her decease to 
 such charitable institution for women in a certain city 
 as she might select. The legatee refused to perform 
 the condition and sought to take the absolute title as 
 sole next of kin to an intestate decedent. While the 
 words used were held to be precatory, and, that upon 
 the refusal of the legatee to exercise the power to se- 
 lect the particular object of charity, the court might 
 do so and might carry into effect the general intention 
 in favour of the class of charity designated, fastening 
 upon the estate a trust for the benefit of such class, yet 
 the subject of the trust, viz., what might be undisposed 
 of or unspent at the death of the legatee, was so un- 
 certain that an action by a charitable institution to es- 
 tablish a trust was, at least, premature before the lega- 
 tee 's death. 
 
 § 77a. Garrison v. Little. 15 This was a case which 
 was held to be a charity although it departed, to some 
 
 w Preachers' Aid Society v. England, 106 111. 125-129. 
 i* Mills v. Newberry, 112 111. 123-132. 
 is Garrison v. Little, 75 App. 402. 
 
CHAEITABLB TBTJSTS. 49 
 
 extent, from the original rules. The bequest was "to 
 be used by them (the trustees) according to their best 
 judgment for the attainment of woman suffrage in the 
 United States of America and its Territories." While 
 not strictly within the Statute of 43d Elizabeth, 
 Cap. 4, the Appellate Court held that the validity of 
 charitable bequests did not depend wholly upon that 
 statute but that anything which tended to promote the 
 welldoing and wellbeing of social man if not forbidden 
 by either substantive law or public policy was proper. 
 It was also held that the beneficiaries were sufficiently 
 certain — probably upon the ground that the trustees 
 were to point them out. 
 
 § 776. A devise to a trustee for the erection of 
 church buildings for certain denominations in a cer- 
 tain district, giving the trustee discretion as to the 
 amounts which he might expend and in what particu- 
 lar places within the limits designated is a valid char- 
 itable trust. 16 
 
 § 77c. Although the donor may have depleted, in his 
 life time, the fund which he intended should pass to 
 charity upon his death, yet if there be a substantial 
 amount left the charity will nojt be incapable of execu- 
 tion. 17 
 
 § 78. Charitable trusts are exempt, as a general 
 rule, under the Statute of 43d Elizabeth, Cap. 4, which 
 is in force in Illinois, from the operation of the rule 
 against perpetuities. And a gift to charity in prae- 
 senti is never a perpetuity. 18 
 
 isTrafton v. Black, 187 111. 36-38; Kemmerer v. Kemmerer, 233 
 111. 327-335; Hunt v. Fowler, 121 111. 269-276. 
 
 it Kemmerer v. Kemmerer, 233 111. 327-335. 
 
 "Andrews v. Andrews, 110 111. 223-230; Taylor v. Keep, 2 App. 
 377; Crerar v. Williams, 145 111. 625-644; Alden v. St. Peter's Par- 
 ish, 168 111. 631-637; Ingraham v. Ingraham, 169 111. 432-450; Hoef- 
 fer v. Clogan, 171 111. 462-467; Welch v. Caldwell, 226 111. 488-496. 
 4 
 
50 TRUSTS AND TRUSTEES. 
 
 § 79. Courts are eager to discover an intention upon 
 the part of a donor to vest immediate estates in chari- 
 ties, to have the gift take effect at once, and, if the es- 
 tate can be construed as vested, even though the trust 
 for accumulation annexed is void as a perpetuity, the 
 latter will be considered as a mere, method for the man- 
 agement of the trust, and the vested estate will be sus- 
 tained, although the method may fall. If the gift be 
 limited upon the happening of a contingency, which is 
 made a condition precedent to the vesting of the estate, 
 and such contingency be too remote, or illegal, the rule 
 against perpetuities would then be allowed to operate. 
 But where the gift is general in words of the present 
 tense and " to be used for the erection and maintenance 
 of a hospital for the treatment of the sick and dis- 
 eased" and which is to be paid or applied when the 
 fund has accumulated to a certain amount, the gift 
 vests immediately and only the application of the fund 
 is postponed. 1 If the mere method of management of 
 the fund be void as indicated above courts will apply 
 the doctrine of cy pres and provide for its management 
 in a legal way. 19 
 
 § 80. Equity will not allow a charitable trust, any 
 less than other trusts, to fail for want of a trustee, and 
 will appoint one when necessary as well as providing 
 for minor details if it be possible to effectuate the in- 
 tention of the donor. 20 
 
 § 81. Trusts for the maintenance and advancement 
 of religious, educational and philanthropic purposes 
 
 i» Ingraham v. Ingraham, 169 111. 432-449; Grand Prairie Semi- 
 nary v. Morgan, 171 111. 444-450, afl'g 70 App. 576; Abend v.' Endow- 
 ment Fund Commission, 174 111. ,96-106, aff'g 74 App. 654. 
 
 20 Grand Prairie Seminary v. Morgan, 171 111. 444-450; Hoeffer v. 
 Clogan, 171 111. 462-472; Hunt v. Fowler, 121 111. 269-276. » 
 
CHARITABLE TRUSTS. 51 
 
 are valid as charitable trusts and will be so sustained, 
 even though in the case of schools the tuition be not 
 entirely gratuitous. 21 But if the trustees be given dis : 
 cretion to use a fund in whole or in part for non-chari- 
 table objects the trust will not be given effect as a 
 charity. 22 . 
 
 § 81a. After an offer to make a gift to charity has 
 been made and accepted, the donor cannot change his 
 original offer by inserting a condition not made origi- 
 nally, as where the donor offered a site for a public 
 school and in the deed of conveyance it was provided 
 that the title should revert in case any but white chil- 
 dren were the beneficiaries. 23 
 
 § 82. A hospital is a charity if it receives charity 
 patients without throwing unnecessary obstacles in 
 their way as such, -even though the number of such pa- 
 tients actually nursed is relatively small, and even 
 though it train nurses for profitable positions in ex- 
 change for their services. 24 The mode of management 
 of a charitable hospital cannot be attacked either at 
 law or in equity by a physician who is not a beneficiary 
 of the charity, simply because its rules operate to de- 
 prive him of pecuniary profit which he might otherwise 
 have received. 25 
 
 § 82a. Where a hospital corporation has been or- 
 ganized for profit and not exclusively for public char- 
 ity, the fact that its works are charitable will not ex- 
 empt it from taxation. 26 
 
 2i Andrews v. Andrews, 110 111. 223-231; Santa Clara Academy v. 
 Sullivan, 116 111. 375-387; Alden v. St. Peter's Parish, 158 111. 631- 
 €?7; Parks v. N. W. University, 218 111. 381-383, 
 
 22 Taylor v. Keep, 2 App. 368-377. 
 
 23 Price v. School Directors, 58 111. 452. 
 
 2* Sisters of St. Francis v. Board of Review, 231 111. 317-322. 
 2»:People v. Julia F. Burnham Hospital, 71 App. 246. 
 2» People v. Ravenswood Hospital, 238 III. 137-140. 
 
52 TBTJSTS AND TKTJSTEES. 
 
 § 83. A bequest to the poor of a certain county 
 should be taken charge of by the County Board of such 
 County and may properly be deposited with the 
 County Treasurer, and if the latter fail to account 
 therefor his bondsman cannot resist suit upon the 
 ground that the treasurer was not the proper deposi- 
 tary. 27 
 
 § 84. A gift to the Commissioners of a fund for the 
 purposes of an educational institution is a gift to such 
 institution and enforceable as such as a charity. 28 
 
 § 84a. A devise to a school in a certain village does 
 not vest title in the trustees or Board of Directors of 
 the school but equity may appoint trustees to admin- 
 ister the charity. 29 
 
 § 85. A trust to establish an art museum or gallery 
 for the benefit of the public is charitable in its nature 
 and valid as such. 30 
 
 § 86. A bequest for the purpose of establishing a 
 public water fountain for horses is a charity within 
 the definition laid down in Crerar v. Williams, 145 I1L 
 625. 31 
 
 § 87. A trust to keep burial lots in order in perpetu- 
 ity by giving funds therefor to a private trustee is not 
 a charitable trust and is void. The statute provides 
 that the trustees or directors may receive gifts in trust. 
 for such purpose and while the statute does not say ex- 
 pressly such trusts may continue indefinitely, yet the 
 nature of the act would fairly give rise to such an in- 
 ference. At all events such trusts must rest for their 
 
 " Prickett v. People, 88 111. 115-118. 
 
 28 Abend v. Endowment Fund Commission, 174 111. 96-106. 
 
 29 Trustees of School v. Petefish, 181 111. 255-258. 
 so Mason v. Bloomington, 237 111. 442-449. 
 
 si In re Estate of Graves, 242 111. 23. 
 
CHARITABLE TRUSTS. 53 
 
 validity upon statutory enactment and are not of a 
 charitable nature. 32 
 
 § 87a. An old, specially incorporated cemetery un- 
 der a charter giving it power to hold lands "in trust" 
 for cemetery purposes is not such a charitable trust 
 that 'the shareholders may not use the revenues for 
 their own purposes. 33 
 
 § 88. The doctrine of superstitious uses does not ob- 
 tain in Illinois and devises and bequests for the pur- 
 pose of having religious masses celebrated are sus- 
 tained as being open to, and for the benefit of, the pub- 
 lic and in aid of the clergy. 3 * 
 
 § 89. A trustee having a life estate with the power 
 to use the principal "if necessary" for his support or 
 for charitable donations, and having the power of con- 
 version, may use the fund only in a reasonable manner 
 considering his station in life and the size of the fund, 
 and he cannot deprive the remaindermen of their prop- 
 erty by making an unnecessary gift of the fund to a 
 church. 35 
 
 § 89a. Testamentary trustees were limited in their 
 powers of leasing the real estate of the trust fund, a 
 portion of which was devised to found a public library, 
 in the event that a certain contingency happened. 
 The contingency having happened, the trustees made 
 distribution, conveying a portion of the trust estate to 
 a public corporation formed for the purpose of main- 
 taining the free library. It was held that the duties 
 of the testamentary trustees terminated at the time of 
 
 32 Mason v. Bloomington Library Assn., 237 111. 442-446. 
 33Bourland v. Association, 1-58 111. 458. 
 
 3*Hoeffer v. Clogan, 171 111. 462-469; Gilmore v. Lee, 237 111. 402- 
 414. 
 35Lehnard v. Specht, 180 III. 208-212. 
 
54 TRUSTS AND TRUSTEES. 
 
 distribution and that the provisions of the will limit- 
 ing the power of the testamentary trustees to make 
 leases no longer applied to the library fund. 36 
 
 § 89b. A charitable corporation having power to 
 hold, purchase and convey property has power to in- 
 cur indebtedness therefor when its needs and purposes 
 so require, and if ready funds are not available the 
 corporation may raise such funds by giving its notes, 
 and the trustees may authorise one of their number as 
 their agent in the premises. 37 
 
 § 90. A testator recited in his will that he had con- 
 veyed certain property in trust for a charitable pur- 
 pose when, in fact, he had not done so, and the rule was 
 applied that, while an erroneous recital in a will of a 
 devise in another part of the will would be given effect, 
 yet a reference to some other instrument would not 
 create an estate by implication. 38 
 
 § 91. A charitable trust is not liable for damages oc- 
 casioned by the negligence of its servants and the trust 
 funds cannot be diverted from the purposes for which 
 they were donated. 39 
 
 § 92. The directors of a bank have no power to di- 
 vert the funds of the corporation to make gifts to char- 
 ity, or for any purpose not within the scope of the cor- 
 porate business, as it would otherwise be a breach of 
 the quasi trust duties due from them to the sharehold- 
 ers and depositors. 40 
 
 eeAtty. Gen. v. Newberry Library, 150 111. 229-236, aff'g 51 App. 
 166; see also Blatchford v. Newberry, 99 111. 11; Newberry v. Blatch- 
 tord, 106 111. 584. 
 
 st Alton v. Garrett Institute, 243 111. 298-302, rev'g 148 App. 122. 
 
 38 Hunt v. Evans, 134 111. 496-501. 
 
 so Parks v. N. W. University, 218 111. 381-384. 
 
 aoMcCrory v. Chambers, 48 App. 445-452. 
 
CHABITABLE TBTJSTS. 55 
 
 § 93. Whether the attorney general is a necessary, 
 although he is always a proper party, to a bill relat- 
 ing to a public charity depends upon the purpose of 
 the bill and the decree that might be rendered thereon. 
 He is a necessary party if the direction of the court be 
 sought as to the proper manner of administering the 
 trust fund, or if waste be charged, or that the trust is 
 being abused and the interests of the cestuis que trus- 
 tent jeopardised, or if the trust instrument failed to 
 name trustees; but* if the trust estate be in the hands 
 of the trustees appointed by the settlor and charged 
 specifically with its management and application, and 
 all of such trustees are before the court, either as com- 
 plainants or defendants for the purpose of merely as- 
 certaining the amount of property to be set aside to 
 the trustees as against individual donees of the settlor 
 then the attorney general is not a necessary party. 41 
 
 *i Newberry v. Blatchford, 106 111. '584^5M. 
 
56 TRUSTS AND TRUSTEES. 
 
 ; CHAPTEE VII. 
 
 CHURCH PROPERTY. 
 
 § 94. Whenever one joins a church or becomes a 
 member of a religious society he submits himself by 
 implication to the ecclesiastical jurisdiction thereof, 
 and equity will not take jurisdiction of disputes over 
 purely church or religious questions, such as the faith, 
 doctrine, practice and discipline of a society, as such 
 matters are more fully within the cognisance of ecclesi- 
 astical tribunals. Equity lends its aid only when it 
 appears clearly that some property or civil or temporal 
 right has been invaded, that there has been an abuse 
 or perversion of a trust either by the trustees or a ma- 
 jority of a religious society, and not merely some slight 
 departure from the fundamental tenets of the church 
 or society 1 and even the determination of civil and 
 property rights by the civil courts may often rest upon 
 ecclesiastical adjudications which have settled which 
 of two or more contending factions in a church is the 
 true representative thereof. 2 
 
 § 95. A trust for an organised religious society, or 
 at least a definite collective body acting as a society, 
 will be enforced irrespectively of whether such society 
 has or has not incorporated itself, 3 and a conveyance 
 to the officers as such of a religious society in trust for 
 
 . i Happy v. Morton, 33 111. 398; Chase v. Cheney, 58 111. 509-637; 
 Kuns v. Robertson, 154 111. 394-414; Papailion v. Manusos, 108 App. 
 272; Fussell v. Hail, 233 111. 73-77. 
 
 2 First Pres. Church v. First Cumberland Church, 245 111. 74-90. 
 
 s Marie Church v. Trinity Church, 205 111. GOJ-604; Miller v. Rid- 
 dle, 227 111. 53-57. 
 
CHUECH PEOPERTY. 57 
 
 the latter is not void for want of a grantee, even 
 though the society is not incorporated. 4 
 
 § 95a. But where a church establishes a mission 
 with its own funds and not those raised by the mission, 
 the latter upon its incorporation cannot compel a con- 
 veyance of the mission property as of a resulting 
 trust. 5 
 
 § 96. Courts of equity will exert their powers to pre- 
 vent a misuse or an abuse of charitable trusts, espe- 
 cially those of a "religious nature, by trustees, or by 
 a majority of a society having possession of the trust 
 property. If the alleged abuse is a departure from 
 the tenets of the founders of a charity their particular 
 tenets must be stated and the alleged departures 
 pointed out, showing a substantial wandering from 
 the purposes of the trust. But ecclesiastical courts 
 are the best judges of questions purely ecclesiastical, 
 and some alteration or change in the church policy not 
 amounting to a perversion of the trust will not give 
 equity' jurisdiction. 6 
 
 The trustees of a church may and should cause to 
 be enjoined an invasion by persons not selected in the 
 mode prescribed by the church organisation, and who 
 may attempt to officiate at, or conduct the religious ex- 
 ercises in a manner contrary to the tenets of the or- 
 ganisation. 7 
 
 § 97. The statute so limits the number of acres 
 which religious corporations may acquire that convey- 
 
 * Aldeh v. St. Peter's Parish, 158 111. 631-638; Christian Church v. 
 Church of Christ, 219 111. 503-513. 
 
 b Marie Church v. Trinity Church, 205 111. 601. 
 
 « Happy v. Morton, 33 111. 398-407; Lawson v. Kolberson, 61 111. 
 405-420; Kuns v. Robertson, 154 111. 394-414; Christian Church v. 
 Church of Christ, 219 111. 503-511; Fussell v. Hail, 233 111. 73-77. 
 
 i Trustees v. Stewart, 43 111. 81-84. 
 
58 TRUSTS AND TRUSTEES. 
 
 anees to them of land after the limit has been reached 
 are void without any preliminary steps being neces- 
 sary upon the part of the State or the Attorney Gen- 
 eral to nullify such grants or gifts. 8 
 
 § 97a. "While the statute limits the quantity of land 
 which a religious corporation may hold, yet there is no 
 limit as to the value of property which may be held 
 or the extent of the income therefrom, nor does the 
 statutory limitation apply to societies not incorpo- 
 rated. 9 
 
 § 97b. And while a religious corporation is forbid- 
 den by statute from holding more than a certain num- 
 ber of acres, yet a devise to an individual trustee to 
 convert into money for the benefit of a charity is not 
 a devise of land but rather a bequest of money and the 
 statute does not apply to benevolent or missionary cor- 
 porations like the Y. M. C. A. 10 
 
 § 98. If a portion of a religious body whose prop- 
 erty is held by trustees withdraws rightfully the ma- 
 jority, whether adhering or withdrawing, is not enti- 
 tled to all of the property but only in the proportion 
 which the seceding and adhering members bear to each 
 other without regard to the amounts of the donations 
 to the trust fund made by each member, because all 
 of the members of a congregation are the beneficiaries 
 of the church property. 11 
 
 s St. Peter's v. Germain, 104 111. 440-447. 
 
 » Andrews v. Andrews, 110 111. 223-233; Alden v. St. Peter's Par- 
 ish, 158 111. 631-640. 
 
 io Germain v. Boltes, 113 111. 29-32; Hamsher v. Hamsher, 132 III. 
 273-2(86. 
 
 "Ferraria v. Vasconcellos, 23 111. 456, 27 111. 237, 31 111. 25-53; 
 Nicolls v. Rugg, 47 111. 47-50; Christian Church v. Church of Christ, 
 219 111. 503-511; Brunnenmeyer v. Buhre, 32 111. 183-189. 
 
CHURCH PROPERTY. 59 
 
 § 98a. Where a church divides into conflicting 
 camps, unless its fundamental law authorises such 
 withdrawals, it will be presumed that the party adher- 
 ing to the original tenets is entitled to the church prop^ 
 erty. A separation might occur by mutual consent. 
 The usages of a church permitting such a separation, 
 if any such usages exist, must be proven as other facts 
 and customs are required to be proven. 12 
 
 § 98&. While ecclesiastical courts cannot settle civil 
 or property rights* yet their adjudications as to which 
 of different factions is the true representative of the 
 church are binding on civil courts in awarding the title 
 and control of the property involved, unless the prop- 
 erty has been conveyed to the organization upon a spe- 
 cific trust created by deed or will, and unless the prop- 
 erty is held by a religious society which is not a branch 
 of some religious organization whose canons would be 
 binding upon it, but is a society complete in itself, self- 
 governing and not subject to some higher religious ju- 
 risdiction. 13 
 
 § 98c. A church's land was held by trustees with the 
 proviso that in case of a schism or division in the con- 
 gregation for any cause, then a fair division of the 
 property in proportion to the members dividing should 
 be made. A bill filed by some of the members alleged 
 that an unlawful election of trustees had given rise to 
 a schism within the meaning of the terms of the trust, 
 but, on demurrer, it was decided that the bill did not 
 show a schism, or a separation of the church into two 
 religious bodies such as would justify a division of the 
 church property; that quo warranto, or a bill for an 
 injunction would be the proper remedies to pursue in 
 
 iz Vasconcellos v. Ferraria, 27 111. 237. 
 
 is First Pres. Church v. First Cumberland Church, 245 111. 74-90. 
 
60 TEUSTS AND TBUSTEES. 
 
 case of an illegal election of trustees, and that such a 
 grievance could not be termed a schism for the pur- 
 pose of dividing the property. 14 
 
 § 98d. A property right exists in the pastorship of 
 a church even though an express salary be no part of 
 the office, provided an adequate support be afforded by 
 voluntary contributions, and the agencies for obtain- 
 ing such support have been in operation, 15 or if a free- 
 hold be involved. 16 
 
 § 99. The trustees of a religious society represent 
 all of the members thereof as to the church property 
 and may enforce argeements made for the use and 
 benefit of the society before its legal incorporation. 17 
 
 § 99a. The legal title to church property held by 
 trustees is vested by the Statute in the church when it 
 becomes a corporation, and such corporation must be 
 a party to causes arising in connexion with such prop- 
 erty. 18 
 
 § 996. A deed was made to A, B, and C, as trustees 
 of the "Christian Church" when, in fact, they were the 
 trustees of the "Church of Christ," a corporation. 
 Afterwards it was attempted to form a corporation 
 entitled the "Christian Church," but it was held that 
 the latter church could not avail itself of the misnomer 
 in the deed, the intention of the donor being clear as 
 to which church should be the beneficiary. 19 
 
 i* Nelson v. Benson, 69 111. 27-30. 
 . is Schweiker v. Husser, 146 111. 399-436. 
 
 is First Pres. Church v. First Cumberland Church, 245 111. 74-90. 
 
 "Whitsitt v. Preemption Pres. Church, 110 111. 125-134. 
 
 18 Dubs v. Egli, 167 111. 514-519; Marie Church v. Trinity Church, 
 205 111. 601-605; Christian Church v. Church of Christ, 219 111. SOS- 
 SIS. 
 
 i9 Church of Christ v. Christian Church, 193 111. 144-^148. 
 
CHURCH PROPERTY. 61 
 
 § 99c. A devise to a religious corporation which di- 
 rected how a trustee should be elected after certain life 
 estates had terminated, and which provided that tie 
 title to the real estate so devised should vest in such 
 trustee, is not effective to vest the title in such trustee 
 but it will remain in the corporation subject to the 
 power given the trustee by the terms of the will. 20 
 
 § 99d. A conveyance to A, B; and C, "trustees" of 
 a church, does no^ create an express trust upon which 
 the Statute of Uses would operate to vest the legal ti- 
 tle in the church corporation so that it could maintain 
 ejectment at law. It would seem that the Statute of 
 Uses contemplates only express trusts such as feoff- 
 ment to one for the use of, or in trust for, another, 
 and not to implied and constructive trusts and those 
 arising by operation of law. The word "trustees" 
 was merely descriptio personarum and at law only le- 
 gal titles are considered; but the court intimated that 
 if the grant had been to A, B, and C, "as trustees" it 
 might have made some difference. 21 
 
 § 99e. A deed was made to the "Trustees of Christ 
 Church" without any express trust being declared. 
 A schism having arisen it was sought by a small minor- 
 ity to enjoin the trustees from continuing the rector in 
 service as a breach of trust because the rector had been 
 deposed' from office by the general authorities of the 
 denomination, but it was held that, under the facts, 
 the property belonged to the particular congregation 
 and could not be given to the church at large. 22 
 
 20 Andrews v. Andrews, 110 111. 223-233. 
 
 2i United Brethren Church v. First M. E. Church, 138 111. 608- 
 611. 
 2= Calkins v. Cheney, 92 111. 465-477. 
 
62 TEUSTS AND TRUSTEES. 
 
 § 100. A conveyance of land to the trustees of a 
 church "to be used as a church location," without em- 
 ploying such words as "upon condition," or without 
 providing for a re-entry by the grantor and his heirs 
 in case of a failure to continue to use the land as a 
 church location,.is not upon a condition subsequent and 
 the title does not revert when the land ceases so to be 
 used. 23 
 
 § 100a. A conveyance to trustees of a Baptist 
 Church upon condition that when not used by the Bap- 
 tist denomination the church upon the land should be 
 open to all evangelical orders of christians is not void 
 for uncertainty or repugnance, and the condition is to 
 be construed in its ordinary sense. 24 
 
 § 101. A specially incorporated church had a char- 
 ter which permitted it to erect upon its real estate a 
 place of worship "or such other improvements" as 
 might be desired, but the trustees were held to have no 
 ppwer, notwithstanding, to erect commercial buildings, 
 manage the same, or to make long term leases for pur- 
 poses foreign to its religious objects. 25 
 
 § 101a. The trustees of a church have control, under 
 the statute, of the Church property subject to the di- 
 rection of the congregation and are also subject to the 
 will of the congregation in removing the priest or min- 
 ister of the church. Unless such be the will of the con- 
 gregation the trustees are without power to discharge 
 the pastor. 28 Apparently the same case went to the 
 Appellate Court again and resulted in a ruling exactly 
 
 asDownen v. Rayburn, 214 111. 342-346. 
 
 2*Tomlin v. Blunt, 31 App. 234-238. 
 
 as First M. E. Church v. Dixon, 178 111. 260; rev'g 77 App. 166. 
 
 2<sPapailion v. Manusos, 108 App. 272. 
 
CHURCH PROPERTY. 63 
 
 contrary to the first one. 27 The usual rule is that the 
 power of removal may be exercised by those who have 
 the power of appointment, unless the rules of canoni- 
 cal laws provide otherwise. 28 
 
 § 102. The trustees of a church corporation may en- 
 force contracts made with the society before it was in- 
 corporated. 29 
 
 § 102a. The trustees of a religious society must act 
 together and as a board before the society or church 
 corporation will be liable for their acts. 30 
 
 .§ 1026. A congregation by striving to raise money 
 to pay a church debt ratifies the same and becomes lia- 
 ble for the remainder due. 31 
 
 § 103. The trustees of an incorporated church are 
 presumed to have power to mortgage the church prop- 
 erty within the limits allowed by statute and the mort- 
 gagee need not take notice of theological schisms where 
 the statute has been complied with. 32 
 
 § 104. A deed in trust is the best evidence of the 
 purposes of the trust, and if a deed to a church corpo- 
 ration be upon a trust for the use of such denomination 
 subject to the usages of such denomination and no pro- 
 hibition is contained therein against the sale of the 
 property, the church may dispose of such property ac- 
 cording to its rules and the laws of the state, and the 
 proceeds may be invested in other land without im- 
 pressing the latter with the original trust so as to pre- 
 vent a consolidation with another church of the same 
 
 zt Papailion v. Manusos, 113 App. 316. 
 
 28 stubbs v. St. John's Church, $6 Md. 267. 
 
 2»Whitsitt v. Trustees Preemption Church, 110 111. 125-134. 
 
 30 First Pres. Church v. McColly, 126 App. 333; St. Patrick's 
 Church v. Gavalon, 82 111. 170-172. 
 
 31 Trustees of Christian Church v. Cox, 78 App. 219-222. 
 saZion Church v. Mensch, 178 111. 225; aff'g 74 App. 115. 
 
64 TRUSTS AND TRUSTEES. 
 
 denomination using a different language and to which 
 the property is conveyed according to the rules of the 
 denomination. 33 
 
 § 105. A priest having taken title in his own name 
 and having advanced his own monies to aid a congre- 
 gation in obtaining and improving land, was held en- 
 titled to have a lien decreed thereon upon his cross- 
 bill in a proceeding brought by the church to have a re- 
 sulting trust established; but it was also held that he 
 was not entitled to have a personal decree against the 
 church corporation for any deficiency that might arise 
 after sale of the land, because it had never assumed 
 any liability to the priest and was incorporated after 
 he had taken title. 34 
 
 § 106. A subscription to help build a church upon 
 condition that a certain sum was subscribed by others 
 is revoked by the insanity of the one making the offer 
 and before the offer was acted upon in any way, as by 
 expending money or incurring liabilities on the faith 
 thereof. Such an offer may be revoked at any time 
 before it is accepted by being acted upon. 35 
 
 § 107. If a religious society has ceased its functions 
 for a period of fifteen years it must be considered as 
 having dissolved, and the trust property held by it will 
 revert to the donors, or their heirs ; after such disso- 
 lution has occurred it cannot reinvest itself with title 
 by electing trustees. 36 
 
 33 Jones v. Sacramento Church, 198 111. 626-629. 
 si St. Patrick's Church v. Daly, 116 111. 75-78. 
 35 Beach v. First M. E. Church, 96 111. 177 v 
 so Miller v. Riddle, 227 111. 53-57. 
 
VOLUNTARY TRUSTS AND GIFTS. 65 
 
 CHAPTER VIIL 
 
 VOLUNTARY TRUSTS AND GIFTS. 
 
 § 108. Voluntary trusts and gifts upon trust are 
 simply transfers of property by one person to another 
 without compulsion and without actual consideration, 
 although a consideration may often be implied from 
 the relationship of the parties. If a legal liability ex- 
 isted against the donor a gift made subsequently by 
 him will not operate as a discharge of such liability. 1 
 Gifts in trust include only those which are made inter 
 vivos and not causa mortis, because the latter are 
 based only on legal and not equitable titles. 2 
 
 § 109. This class of trusts, in order to be valid, must 
 be executed and not executory; that is the donor must 
 part with his control or dominion over the subject mat- 
 ter. As said in § 13, supra, executory trusts "include 
 all those trusts where the legal title has not passed, 
 where only an intention to create a trust is stated, as, 
 for instance, where one has made a memorandum of a 
 proposed gift, or where a deed has actually been 
 drafted but has never passed out of the dominion or 
 control of the grantor." 
 
 § 109a. In executory trusts the words employed are 
 not taken so strictly in their legal sense as in executed 
 trusts, and considerable latitude is allowed. "A trust 
 executed is where the limitations of the equitable in- 
 terest are complete and final; in the executory trust 
 the limitations of the equitable interest are intended 
 
 i Martin v. Martin, 202 111. 382-388. 
 zBispham's Equity, Sec. 70. 
 5 
 
66 TRUSTS AND TRUSTEES. 
 
 to serve merely as minutes or instructions for perfect- 
 ing the settlement at some future period." 3 
 
 § 110. A court of equity will not lend its aid to es- 
 tablish a trust at the instance of mere volunteers. If 
 the transaction on which a voluntary trust is attempted 
 to be established is still executory or incomplete, the 
 court will decline all interference in the matter. 4 
 
 § 110a. Before an express trust will be considered 
 to have passed the executory stage and become exe- 
 cuted the legal title to the property comprising the sub- 
 ject matter or fund must have been vested in the trus- 
 tee for the use of the cestui que trust, as a court of 
 equity cannot complete an imperfect gift. 5 But if it be 
 a voluntary settlement upon a close relative the same 
 strictness as to delivery in cases of deeds is not re- 
 quired, the presumption being that there was a valid 
 passing of the legal title which would cast the burden 
 upon the adverse claimant to prove there was no de- 
 livery. 6 
 
 § 1106. "Whether a trust is perfectly created or not 
 is a question of fact in each case, and the court, in de- 
 termining the fact, will give effect to the situation and 
 relation of the parties, the nature and situation of the 
 property, and the purposes or objects which the settlor 
 had in view in making the disposition. ' ' 7 
 
 § 110c. A deed in trust, conveying land for the ben- 
 efit of a daughter for life with remainder over, where 
 
 a Lewin on Trusts, Sec. 111. 
 
 * Clark v. Lott, 11 111. 105; Grove v. Jaeger, 60 111. 249; Olney v. 
 Howe, 89 111. 556-560; Barnum v. Reed, 136 111. 388-398; McCartney 
 v. Ridgeway, 160 111. 129-165; Williams v. Chamberlain, 165 111. 
 210-217; Pratt v. Griffin, 184 111. 514-519. < 
 
 5Mahan v. Schroeder, 142 App. 538-546; aff'd by 236 111. 392. 
 
 <*Chapin v. Knott, 203 111. 341-347. 
 
 t Perry on Trusts, Sec. 99; see Chapin v. Knott, 203 111. 341-347. 
 
VOLUNTARY TRUSTS AND GIFTS. 67 
 
 the trustee went into possession and began performing 
 his duties will be deemed a valid, executed trust, and, 
 although the settlor had made a prior will devising the 
 land to another, the subsequent conveyance in trust 
 would be a revocation of the will to that extent. The 
 deed in trust in this case contained an erroneous de- 
 scription of the land, but this could be reformed in 
 equity, and, the trust being an executed one, no mone- 
 tary consideration was necessary to have passed from 
 the child in order "to give the court jurisdiction to re- 
 form the deed. And in cases of voluntary settlements 
 upon the immediate members of the family of the set- 
 tlor other courts have gone so far as to hold the deliv- 
 ery of the deed to be unnecessary, if the settlor never 
 exhibited subsequently any contrary intention, and if 
 the conveyance could be deemed a completed one. 8 
 
 § HOd. While a court of chancery will not lend its 
 aid to complete a voluntary agreement establishing a 
 trust, nor hold it binding when executory, still if it can 
 be ascertained that it is executed, although voluntary 
 and without consideration, it will be enforced. In as- 
 certaining whether it be executed or executory equity 
 will look to ftie substance of the act done, without re- 
 gard to unnecessary forms, and will try to learn the 
 intention of the parties at the time the trust was cre- 
 ated. If the .trust be an executed one its terms cannot 
 be changed by a will made afterwards by the donor. 9 
 
 § llOe. It is principally a question of fact whether 
 a trust has been perfectly created, and a voluntary 
 trust perfectly created, upon a meritorious considera- 
 tion, will be irrevocable and enforceable in equity. 
 
 s Lynn v. Lynn, 135 111. 18-22, rev'g 33 App. 299; Otis v. Beck- 
 -with, 49 111. 121-130. 
 
 s Padfleld v. Padfleld, 72 111. 322-326; Lynn v. Lynn, 135 III. 18-24. 
 
68 TBTJSTS AND TRUSTEES. 
 
 But, where to prevent a will contest, the devisees made 
 a voluntary settlement with the claimants agreeing to 
 transfer property to trustees to be selected, to be held 
 for the lives of the claimants with remainders to their 
 children, it was held the gift was imperfect until the 
 property had been so transferred in trust, and a court 
 of equity could not interfere to complete it. Such a 
 gift is revocable while incomplete. 10 ' 
 
 § 111. Where the trust is complete and executed a 
 lack of consideration for the benefits conferred thereby 
 is of no materiality. 11 
 
 Where there is a moral obligation on the part of the 
 donor to support a wife or a child a good consideration 
 might be asserted, but not to benefit a grandchild in 
 completing an unfinished transaction as against other 
 grandchildren whose interests are equally worthy of 
 protection. 12 
 
 Marriage is always a sufficient consideration, if 
 there are no existing liens, both at law and in equity, 
 for a voluntary settlement on a wife. 13 
 
 § 112. If the trust instrument has been executed and 
 delivered to take immediate effect and nothing remains 
 for the donor to do in order to complete the contem- 
 plated arrangement devolving active duties upon the 
 trustee named, the instrument will be upheld as creat- 
 ing a valid, executed trust. But if the instrument is 
 not to take effect until the donor's death it is testa- 
 mentary in nature and must be executed as a will. 14 
 
 10 McCartney v. Ridgeway, 160 111. 129-157, aff'g 57 App. 453. 
 
 " Massey v. Huntington, 118 111. 80-90. 
 
 i2Badgley v. Votrain, 68 111. 25-32; Padfield v. Padfield, 68 111. 
 210-214; Lynn v. Lynn, 135 111. 18-24. 
 
 is Chilvers v. Race, 196 111. 71-80. 
 
 "Massey v. Huntington, 118 111. 80-89; Taylor v. Harmison, 179> 
 111. 137-141; Jennings v. Neville, 180 111. 270-279. 
 
VOLUNTARY TRUSTS AND GIFTS. 69 
 
 If a gift of personal property by way of trust is not 
 to take effect until the death of the donor it will be one 
 of a testamentary nature requiring the same proof as 
 a will, and cannot be given effect as a donatio causa 
 mortis, which differs from a gift inter vivos in that it 
 is revoked by the recovery of the donor. Both classes 
 of gifts which are not of a testamentary kind must be 
 completed and executed in the lifetime of the donor be- 
 yond his power of recall by a transfer of the posses- 
 sion and legal title to the trustee, or donee. A paper 
 executed, or a letter, which purports to pass the legal 
 title but does not in fact do so is unavailing as courts 
 of equity cannot aid or complete an imperfect or de- 
 fective gift. 15 
 
 § 113. A handing of personal property to an agent 
 to deliver to the donees is not completed if the donor 
 die before the agent acts, but if a trust be created by 
 the donor in words of the present tense the possession 
 of the trustee would pass the title to the donees. How- 
 ever, no trust will be presumed in the case of an im- 
 perfect gift. The trust and its terms must be clearly 
 established. The agent must also be the agent of the 
 donee and not of the donor, else the gift will be revoc- 
 able and imperfect. 16 
 
 Yokem v. Hicks 17 was a case where a decedent had 
 taken a note payable to the order of himself, "trustee 
 for" A and B. The Appellate Court held that the 
 
 "Barnum v. Reed, 136 111. 388-398; Telford v. Patton, 144 111. 
 611-619; McCartney v. Ridgeway, 160 111. 129-156; Taylor v. Har- 
 mison, 179 111. 137-141; Weaver v. Weaver, 182 111. 287-294; rev'g 
 80 App. 370; Mahon v. Schroeder, 236 111. 392; Roberts v. Draper, 
 18 App. 167-171. 
 
 leTrubey v. Pease, 240 111. 513-519, aff'g 146 App. 509; 20 Cyc. 
 1199. 
 
 "Yokem v. Hicks, 93 App. 667. 
 
70 TBTJSTS AND TKTJSTEES. 
 
 donor could constitute himself trustee of the gift and 
 that no other delivery was necessary in such case. 
 
 § 114. If a gift causa mortis be claimed by one who 
 stood in a fiduciary relation to a decedent, such as the 
 relation of priest and parishioner, the claimant must 
 overcome the presumption that undue influence was 
 exerted. 18 
 
 Where a confidential relation exists between the 
 grantor and the grantee in a voluntary conveyance of 
 land under a parol agreement to dispose of it in a cer- 
 tain manner and for certain persons, equity will im- 
 press a constructive trust upon the land and enforce 
 the agreement although it is not in writing. 19 
 
 § 114a. Wellington v. Heermans: 20 A conveyed all 
 his property to B in trust to sell, to lay out the pro- 
 ceeds as A might direct in his lifetime, and then to con- 
 vey after A's death as A might direct in a writing to 
 be executed subsequently. B administered the trust 
 but never learned of the existence of a mortgage and 
 the bond secured thereby which A owned until the lat- 
 ter 's death. A, after making the deed in trust, had 
 assigned the bond and mortgage without consideration 
 to his nephew, and upon the attempt of B to recover 
 the same as a part of the trust estate the Supreme 
 Court decided that so far as the bond and mortgage 
 were concerned there had never been a completed con- 
 veyance to B because there had never been an actual 
 or symbolic delivery thereof to B, and therefore the 
 gift to the nephew passed the title. Mr. Justice Craig 
 dissented from the majority but wrote no dissenting 
 opinion. If he had written a dissenting opinion he 
 
 isGilmore v. Lee, 137 App. 498-500; affd. 237 111. 402-411. 
 i» Ward v. Conklin, 232 111. 553-560. 
 20 Wellington v. Heermans, 110 111. 564. 
 
VOLUNTARY TRUSTS AND GIFTS. 71 
 
 would probably have laid emphasis upon the fact that 
 A had made a valid conveyance in trust which he could 
 not revoke after B had accepted the trust and reduced 
 to possession all of the trust estate of which he had any 
 knowledge, and that upon discovering assets subse- 
 quently in the hands of one who had knowledge of the 
 trust the holder should not be permitted to assert a 
 valid gift as against the trust. 
 
 § 114&. Gifts from a parent to a child are usually 
 deemed valid, but*gifts from a child to a parent, where 
 the latter is not in indigent circumstances, must stand 
 the test of a rigid scrutiny by the court, which will 
 raise a constructive trust if any fraud or undue influ- 
 ence were exerted over the donor by the donee; gifts 
 from a child to a parent are presumptively voidable, 
 but, in Illinois, are not held prima facie void ; the donee 
 must show, however, the bona fides of the transaction. 21 
 
 § 115. Gifts of land from a husband or father to a 
 wife or child are presumptively advancements, but if 
 he had no other estate at the time such a gift would be 
 unreasonable, and, with other facts and circumstances 
 concurring to rebut the presumption of an advance- 
 ment, a resulting trust may be established for the bene- 
 fit of the donor or his heirs. 22 The presumption is also 
 rebutted by proof of fraud or an intention to delay 
 creditors. 23 
 
 § 115a. There is no presumption of law that a hus- 
 band has a dominant influence over his wife, as that is 
 a question of fact, and where a wife assigned a mort- 
 gage and the notes secured thereby to her husband he 
 
 2i White v. Ross, 160 111. 56-72. 
 
 22 Pool v. Phillips, 167 111. 432-442; Skahen v. Irving, 206 111. 597- 
 607. 
 
 23 Bay v. Cook, 31 111. 336-345. 
 
72 TRUSTS AND TRUSTEES. 
 
 should not be held a constructive trustee even though 
 his wife had signed and attached to her will an order 
 upon him to turn over the property to her executor, 
 where there was no proof that he had notice of such 
 order until after her death. 24 
 
 § 1156. The claim of a sister that money left with 
 her by her brother and which she invested in land was 
 a gift must be supported by clear proof, when she ad- 
 mits that the money belonged originally to her 
 brother. 25 
 
 § 116. A promissory note intended as a gift is only 
 a promise to make a gift in the future and not enforce- 
 able against the administrator of the maker. 26 
 
 But a note payable "after my death date" followed 
 by delivery to a trustee and beyond the maker's control 
 will be enforceable and due at the date of the maker's 
 death. 27 
 
 The promise of a failing debtor to transfer a prom- 
 issory note owned by him to a trustee, who was the 
 nominal payee, for the benefit of a creditor and which 
 promise the debtor never executed does not create a 
 trust which equity will enforce. 28 
 
 § 117. Where a gift has been executed by a delivery 
 of the property to the donee, or some one in trust for 
 the donee, the fact that the gift is burdened with the 
 payment of an annuity to the donor will not invalidate 
 it, and if such gift be by way of a promissory note pay- 
 able upon the maker's death for the benefit of a charity 
 
 24Mahan v. Schroeder, 236 111. 392-404. 
 
 26 Dwyer v. O'Connor, 200 111. 52-54. 
 
 2« Williams v. Forbes, 114 111. 167-171; Richardson v. Richard- 
 son, 148 111. 563^572. 
 
 27 Shaw v. Camp, 160 111. 425-428. 
 28Wyatt v. Mayfield, 91 111. 577-582. 
 
VOLUNTARY TRUSTS AND GIFTS. 73 
 
 there will be a sufficient consideration to support a 
 claim therefor against the maker's estate. 29 
 
 § 117a. A voluntary conveyance of land upon an ex- 
 press oral trust will not ereate a resulting trust for the 
 benefit of the grantor. Where there is an express 
 trust there can be no implied trust. 30 
 
 § 118. The two following English cases may be of 
 interest upon the question of what constitutes a com- 
 pleted gift: 
 
 Cochrane v. Mo6re: 31 In this case one Benzon was 
 the owner of a valuable race horse and gave to Moore 
 by present words of gift one undivided fourth of the 
 horse, which Moore accepted. A few days later Ben^ 
 zon wrote to the keeper of the stable where the horse 
 was, and told him of the gift to Moore. Benzon, hav- 
 ing become indebted later on to Cochrane, gave the lat- 
 ter a bill of sale of his horses, including the one in ques- 
 tion, and discussed with Cochrane before the execution 
 of the bill of sale the question of Moore's interest and 
 Cochrane undertook that it should be "all right." It 
 was argued that there was no delivery or receipt of 
 one-fourth of the horse. 
 
 Lord Justice Fry, in reviewing such early writers as 
 Bracton, Fleta, Britton, and tracing the development 
 of the law of delivery and consideration from the days 
 of the Normans, continued "but assuming delivery to 
 be necessary in the case of the gift of an ordinary chat- 
 tel, two questions would remain for consideration in 
 the present case,— the first whether the undivided one- 
 fourth part of the horse admits of delivery, or whether, 
 on the other hand, it is to be regarded as incorporeal 
 
 2» Beatty v. Western College, 177 111. 280-290. 
 
 so Moore v. Horsly, 1&6 111. 36-42. 
 
 3i Cochrane v. Moore, XII Bng. Rul. Cas. 410. 
 
74 TBTJSTS AND TRUSTEES. 
 
 and incapable of tradition; the other whether the let- 
 ter written by Benzon to Yates was either a construc- 
 tive delivery of this undivided one-fourth part of the 
 horse, or an act perfecting the gift of this incorporeal 
 part so far as the nature of the gift admits. * * * 
 In our judgment what took place between Benzon and 
 Cochrane before Benzon executed the bill of sale to 
 Cochrane constituted the latter a trustee for Moore 
 of one-fourth of the horse Kilworth." 
 Lord Esher, Master of the Rolls, said in part : 
 "In some of the cases the courts undoubtedly do not 
 now require proof of an actual delivery. * * * 
 Upon long consideration, I have come to the conclusion 
 that actual delivery in the case of a 'gift' is more 
 than evidence of the existence of the proposition of 
 law which constitutes a gift, and I have come to the 
 conclusion that it is a part of the gift itself. * * * 
 The proposition before the court on a question of gift 
 or not is, that the one gave and the other accepted. 
 * * * These contemporaneous acts being done, 
 neither party has anything more to do. After these 
 two things done, the donor could not get possession of 
 the chattel without bringing an action to force the 
 donee to give it back." 
 
 Jones v. Lock: 32 Here a father placed a cheque for 
 a large sum in the hands of his nine months old child 
 and said to the nurse in the presence of the mother, 
 ' ' Look you here ! I give this to baby ; it is for himself, 
 and I am going to put it away for him; and I will give 
 him a great deal more along with it," after which he 
 placed the cheque in a safe and died a few days later, 
 disposing of his property by will in favour of others. 
 
 32 Jones v. Lock, 1 Law Jour. Ch. 117. 
 
V0LUNTABY TEUSTS AND GIFTS. 75 
 
 .The Lord Chancellor said, inter alia: "Of course if 
 a man chooses to give anything away which passes by 
 delivery, he may do so, and there is no doubt also that 
 in the absence of fraud a parol declaration of trust 
 may be perfectly good, even though it be voluntary. 
 If I give any chattel, that of course passes by delivery ; 
 and if I expressly or impliedly say I constitute myself 
 trustee of such and such personal property for a per- 
 son, that is a trust executed and this court will enforce 
 it in the absence of fraud even in favour of a volun- 
 teer. * * * The question is whether what took 
 place was a declaration of trust or merely an imperfect 
 attempt to make a legal transfer of the property. In 
 the latter case the court will afford no assistance to 
 volunteers; but when the court considers that there 
 has been a declaration of trust it is a trust executed, 
 and the court will enforce it whether with or without 
 consideration. * * * The true interpretation of it 
 seems to me to be, that he intended to satisfy his wife 
 of his intention to provide for the child and that the 
 putting the cheque into his hands was in some sense 
 symbolical of what he intended to do, but he never 
 meant to put it irrevocably in his power, so that he 
 might, by his next friend, have brought an action of 
 trover for it the next day, or filed a bill to have the 
 money brought into court, * * * I am of opinion 
 that there was neither a complete gift nor a declara- 
 tion of trust. ' ' 33 
 
 ss See also Weaver v. Weaver, 182 111. 2S7-290, where a son wrote 
 to his mother that he had assigned his life insurance policy to her 
 and would hold the policy and assignment for her. 
 
76 TRUSTS AND TRUSTEES. 
 
 CHAPTER IX. 
 
 DOWER AND TRUSTS FOR WIVES. 
 
 § 119. This chapter, in so far as the matter of vol- 
 untary settlements upon wives is concerned, as well as 
 the succeeding chapter on Trusts for Children, might 
 well be included in the preceding chapter on Voluntary 
 Trusts and Gifts, but, on account of certain distinc- 
 tions cropping out in the decisions, it was deemed ad- 
 visable to treat the subjects indicated above in sepa- 
 rate chapters. 
 
 § 120. The statute provides that there may be 
 dower in equitable estates as well as legal, the practise 
 for assignment of dower being still in chancery by way 
 of petition. In England prior to the reign of Wil- 
 liam IV, dower in equitable estates was not recovera- 
 ble where the legal right thereto could not be estab- 
 lished, as the common law required seizin of a legal 
 estate. The Dower Act of 3 and 4 William IV, C. 105, 
 changed the common law in this respect, and subse- 
 quently thereto the court of chancery had exclusive ju- 
 risdiction over such matters. It is a prerequisite, 
 however, under the Illinois Statute that the husband 
 should have had in his lifetime an equitable estate of 
 inheritance ; J of which a court of chancery might have 
 compelled a conveyance of the legal title for his bene- 
 fit, and an estate which had not been conveyed or as- 
 signed by the husband before it had so ripened as 
 aforesaid. 2 Where equity treats land as personalty 
 
 lAtkln v. Merrill, 39 111. 62-75. 
 = Morse v. Thorsell, 78 111. 600-604. 
 
DOWER AND TRUSTS FOR WIVES. 77 
 
 dower does not attach, as in eases of co-partnership 
 the wife of the partner who happened to hold the legal 
 title for the firm would not be entitled to dower, nor 
 would the wife of any other deceased partner before 
 the settlement of the firm's obligations. 3 
 
 § 121. Porter v. Ewing: 4 If two persons engage in 
 a land speculation by which one was to take title and 
 pay the money for the land, while the other was to give 
 his services in disposing of the land for one-half of the 
 profits, until a sale^was made the one who paid the 
 money would hold title in his own right, and, after a 
 sale, he would hold as trustee for the purchaser, but 
 in neither event could the widow of the sales-agent 
 claim dower in the land as of an equitable estate 
 therein, because her deceased husband would not have 
 had a right to demand a deed to the land. 
 
 § 121a. Nicoll v. Ogden 5 was a land speculation 
 where trustees held the legal title for the purpose of 
 partition, or dividing the proceeds of such sales as 
 they should make, among the cestuis que trustent and 
 it was held that the spouses of the cestuis que trustent 
 would be entitled to dower in the equitable estates cre- 
 ated. 
 
 § 1216. Where the trust is dry or passive the equit- 
 able estate is subject to inchoate dower which right 
 cannot be divested by a subsequent declaration of the 
 cestuis que trustent making an active trust and chang- 
 ing the real property into personalty, without the ex- 
 press consent of the spouse. 6 
 
 3 Speyer v. Desjardins, 144 111. 641-648. 
 * Porter v. Ewing, 24 111. 617-619. 
 
 5 Nicoll v. Ogden, 29 111. 323-386> Nicoll v. Miller, 37 111. 387; 
 Nicoll v. Mason, 49 111. 358; Stow v. Steele, 45 111. 328. 
 « Nicoll v. Miller, 37 111. 387-404. 
 
78 TBUSTS AND TBUSTEES. 
 
 § 122. Where a widow has accepted the provisions 
 of a will her dower will be barred thereby under the 
 Illinois Statute, although the gift made for her benefit 
 was not to her directly but to a trustee for her. T 
 
 § 123. The estate of a deceased father who had been 
 entitled to dower in his children's land and from which 
 the father had collected and used the rents, issues and 
 profits, is not entitled to a credit for such dower, where 
 it had never been demanded or assigned, upon an ac- 
 counting for the trust funds so collected by the de- 
 ceased father. 8 
 
 § 124. The wife of a trustee has no dower in the 
 trust estate, but where the trust is not disclosed she is 
 a necessary party to a bill seeking to establish the 
 trust. 9 
 
 § 125. Especially before the enactment of the Mar- 
 ried Woman's Act of 1861, were trusts employed as a 
 vehicle for securing to wives the enjoyment of prop- 
 erty which was morally their own. Trusts for wives 
 have always been favoured in law, so long as the rights 
 of creditors have not been prejudiced thereby, 10 and 
 marriage is always a sufficient consideration, both at 
 law and in equity, for a voluntary settlement upon a 
 wife, except as against existing liens. 11 
 
 § 126. Under the common law, and prior to 1861, the 
 husband was entitled to his wife's money, and a con- 
 
 ' Warren v. Warren, 148 111. 641-650. 
 
 s Bedford v. Bedford, 136 111. 354-360. 
 
 » Bailey v. West, 41 111. 290; King v. Bushnell, 121 111. 656-660; 
 Barker v. Smiley, 218 111. 68-71; Gritten v. Dickerson, 202 111. 372- 
 379. 
 
 "Phillips v. Meyers, 82 111. 67. 
 
 ii-Chilvers v. Race, 196 111. 71-80. 
 
DOWEK AND TKUSTS FOB WIVES. 79 
 
 tract that he would give her certain land bought with 
 her money was void. 12 The husband's marital rights 
 could not be shut out, unless the intention so to do was 
 clear, and a conveyance merely for the use of, or bene- 
 fit of, the wife would not imply such intention; and 
 when made prior to 1861 the husband had an estate by 
 the curtesy. But if the intention was t;lear to bar the 
 husband's rights a conveyance for the separate or sole 
 use of a married woman, although no active trust was 
 created, was not permitted by the courts to be operated 
 upon by the Statute of Uses. 13 Eeal estate in this 
 country occupies practically no higher position than 
 personalty, and the power of the courts over the realty 
 of married women has been unquestioned. 14 
 
 § 127. A purchase for a wife or child is presumed 
 to be an advancement, but the presumption may be 
 either rebutted or supported by evidence of prior and 
 contemporaneous acts and facts, as well as those oc- 
 curring so soon after the purchase as to be fairly a 
 part of the transactions. 15 
 
 § 127a. While a conveyance from a husband to a 
 wife is presumed to be an advancement, yet if he had 
 no other land at the time and little personalty, but had 
 infant children by a former wife to provide for, and 
 no children by the second wife who was advanced in 
 age, and it appears that he had always kept possession 
 of the land, treating it as his own, the second wife join- 
 ing in all deeds made by him conveying portions of the 
 
 12 Erringdale v. Riggs. 148 111. 403-411. 
 
 13 Meacham v. Bunting, 156 111. 586-691. 
 "Curtiss v. Brown, 29 111. 201-228. 
 
 m Maxwell v. Maxwell, 109 111. 588-591; Goelz v. Goelz, 157 111. 
 33-45; Pool v. Phillips, 167 111. 432-439; Skahen v. Irving, 206 111. 
 597-607; Deuter v. Deuter, 214 111. 208-212. 
 
80 TKUSTS AND TRUSTEES. 
 
 land, a resulting trust in his favour may be raised 
 against her heirs. 16 ' 
 
 § 1276. Where the wife furnishes the money to pur- 
 chase land and the husband takes title there is no pre- 
 sumption of an advancement by the wife for her hus- 
 band's benefit. 17 
 
 § 127c. A trust results to a wife in case her money 
 pays for land to which her husband takes title. 18 But 
 the proof must be clear that the money was not lent 
 to him and that she did not consent to having the title 
 taken in his name. 19 
 
 § 127 d. Since the Married Woman's Act of 1861 the 
 lending of money by a wife to her husband constitutes 
 her merely a creditor, and if he purchase land with the 
 money she cannot then establish a resulting trust for 
 her own benefit. 20 
 
 § 127e. "If a husband receives the capital fund of 
 his wife's separate property there is no presumption 
 that she intended to give or transfer it to him * * * 
 but if the husband uses the property in his business, 
 or for the support of his family, with her knowledge 
 and assent, a gift may be inferred in the absence of a 
 contrary agreement. ' ' 21 
 
 § 128. A husband purchased a possessory title to 
 Canal land, the deed reciting that it was in trust for 
 the wife; at a public sale of Canal lands the husband 
 purchased a part of the same land, paying a much 
 
 is Pool v. Phillips, 167 111. 432-440; Adlard v. Adlard, 65 111. 212- 
 218; Skahen v. Irving, 206 111. 597-607. 
 "Wright v. Wright, 242 111. 71-78. 
 lsKrebaum v. Cordell, 62 111. 23. 
 io Jackson v. Kraft, 186 111. 623-630. 
 
 20 Stewart v. Fellows, 128 111. 480-489; Reed v. Reed, 135 111. 482- 
 489; Jackson v. Kraft, 186 111. 623-630. 
 
 21 Reed v. Reed, 135 111. 482-490, citing 2 Perry on Trusts, Sec. 
 666; Jackson v. Kraft, 186 111. 623-630. 
 
DOWBE AND TKXJSTS FOB WIVES. 81 
 
 larger sum proportionately out of his own funds and 
 without any declaration of trust; after the husband's 
 death the widow sought to establish a resulting trust, 
 but it was held that her claim, not being derived in 
 any way from the fee, was extinguished when her hus- 
 band took title from the State ; that it was not a case 
 of a trustee dealing with the trust fund for his own ad- 
 vantage, because there was no purchase of the subject 
 of the trust, or any estate that ever had any legal rela- 
 tion to it. 22 
 
 § 129. A wife held the legal title under a written 
 declaration of trust that her husband should have the 
 land if he survived her. Just before her death she 
 conveyed the title to another for the benefit of her son 
 by a former marriage, but it was held that equity 
 would give her surviving husband relief from the A>io- 
 lation of the trust, although the declaration of trust 
 was lost and its contents had to be supplied by evi- 
 dence aliunde. 23 
 
 § 130. A man, living with a woman as his wife, en- 
 trusted his earnings to her and after the fund had 
 grown to some size the man took the money and pur- 
 chased land in his own name. After his marriage to 
 another woman the first woman sought to have a re- 
 sulting trust established in her favour, but the evidence 
 failed to show that the money had been given to her 
 by way of a settlement, but only for the purpose of 
 paying expenses and for safe keeping, and the bill was 
 dismissed. 24 
 
 § 130a. Where land was purchased with joint earn- 
 ings and title taken in the wife's name because, as al- 
 
 22 Thomas v. Chicago, B5 111. , 403-408. 
 23Hazeltine v. Fourney, 120 111. 493. 
 24 Herbert v. Herbert, 144 111. 115-120. 
 
 6 
 
82 TRUSTS AND TRUSTEES. 
 
 leged by the husband, she so insisted and was of such 
 a fiery temperament that he permitted it in order to 
 keep peace in the family, no fraud, was perpetrated 
 upon him which would raise a constructive trust for 
 his benefit. 25 
 
 § 130&. Upon a voluntary separation of a husband 
 and wife the former gave his notes to a trustee for the 
 support of the wife. Later the husband got possession 
 of the notes upon his promise to live with the wife 
 again and which promise he failed to keep. A court 
 of equity, therefore, had jurisdiction to enforce the 
 trust. 26 
 
 § 131. Where a husband has ill-treated and deserted 
 his wife, and during such abandonment she purchases 
 and partly pays for land, and afterwards the husband 
 returns to her, pays the rest of the purchase money 
 and consents that the title shall be conveyed ta a trus- 
 tee for the wife, it would be contrary to equity and 
 good conscience to require the trustee to convey to the 
 husband on account of the payments and improvements 
 made by the husband. 27 
 
 § 131as. A grantor conveyed by a deed absolute in 
 form, agreeing orally with the grantee that the latter 
 should hold the title, collect the rents and convey the- 
 land as the grantor might direct ; soon afterwards the 
 grantor had the trustee convey to the grantor's wife. 
 After his wife had obtained a divorce from him the or- 
 iginal grantor sought to have it decreed that the Stat- 
 ute of Uses had operated upon the first conveyance by 
 reason of the passivity of the trust, also that there was 
 no consideration for the second conveyance to the wife. 
 
 25 Cline v. Cline, 204 111. 130-138. 
 2« Marlow v. Marlow, 77 111. 633. 
 27 Grove v. Carlisle, 18 111. 338. 
 
DOWEB AND TRUSTS TOE WIVES. 83 
 
 The Statute of Frauds was evidently not raised, the 
 grantor in such case not being in a position so to do 
 (Allen v. Woodruff, 96 111. 11) and the Supreme Court 
 held the oral trust to be an active one, and the convey- 
 ance to the wife in the nature of a valid provision for 
 her. 28 
 
 § 132. A trust estate for the joint lives of a husband 
 and wife was to be conveyed if she survived the hus- 
 band "to her and her heirs.". Upon her husband's 
 death this, of course, gave her the legal as well as the 
 equitable fee, even without a conveyance to her by the 
 trustee, and her grantees would take free of any claim 
 by her children that she had only a life estate. 29 But 
 a conveyance from the trustee of an active trust is 
 now deemed necessary. 30 
 
 § 133. A deed in trust for the benefit of a wife and 
 free from her husband's control provided that the 
 trust estate could not be sold, mortgaged or otherwise 
 anticipated by the wife during her lifetime. The real 
 estate having become of large value, but unproductive, 
 the husband and wife filed their bill in chancery to com- 
 pel the trustee to mortgage or sell at the direction of 
 the wife. The Supreme Court, after laying down the 
 rule that courts should be extremely cautious when in- 
 terfering with, or changing in any way the settlements 
 of trust estates, considered, however, that exigencies 
 might arise which the settlor could not have antici- 
 pated, and held that in such cases the court should at- 
 tempt to occupy so far as possible the place of the set- 
 tlor, and decree to be done what the creator of the trust 
 
 as Kellogg v. Hale, 108 111. 164-167; Moore v. Horsly, 156 111. 
 36-40. 
 
 2» Lynch v. Swayne, 83 111. 336. 
 soMcFall v. Kirkpatrick, 236 111. 281-294. 
 
84 TEUSTS AND TBTJSTBES. 
 
 would have directed if lie could have foreseen the 
 emergency. A beneficiary, for instance, should not be 
 permitted to become a public charge, or suffer want, 
 because of the provisions of the deed in trust. Where 
 the subject matter is personalty courts may dispose of 
 it, whether infants or others are the beneficiaries, hav- 
 ing regard to, but not being controlled by, the terms 
 of the trust. 31 
 
 § 134. An instrument in the nature of a promissory 
 note given by a husband to a third person, promising 
 to pay him a certain sum for the wife 's benefit within 
 one day after any time when the maker might become 
 intoxicated or abuse his wife, may be recovered on at 
 law. 32 
 
 § 135. A husband used his wife 's money to purchase 
 real estate and conveyed it to a trustee by a deed ab- 
 solute in form. Afterwards, a creditor of the husband 
 obtained judgment and in due course a sheriff's deed 
 to the land; the holder of the execution title then filed 
 a bill to have the deed to the third person set aside as 
 a cloud, and, upon the latter 's answer setting up the 
 trust it was held that the deed to the third person, al-« 
 though absolute in form, was notice to the judgment 
 creditor when he levied, and that the trust was suffi- 
 ciently declared by the trustee's answer. 33 
 
 § 136. A deed of marriage settlement to a trustee 
 gave the wife a life estate, remainder to the issue, etc., 
 with power in the trustee to sell or mortgage the land 
 and invest the proceeds in other property upon the like 
 trusts, in case the life tenant should enable the trustee 
 
 si Curtiss T. Brown, 29 111. 201-228; Longworth v. Riggs, 123 111. 
 2&8-264. 
 32 Phillips v. Meyers, 82 111. 67. 
 as McLaurie v. Partlow, 53 111. 340-344. 
 
DOWER AND TRUSTS FOR WIVES. 85 
 
 to do so by her separate writing. This power was held 
 to be so far discretionary in the trustee that he could 
 not be compelled to exercise it upon the mere direction 
 of the life tenant, and that he need not act unless his 
 judgment concurred with that of the life tenant; that 
 the intention of the donor was that a re-investment 
 should not be made in the absence of necessity, or un- 
 less some advantage to the fund might accrue there- 
 from. 3 * 
 
 § 137. So far as the fiduciary relations existing be- 
 tween a husband and wife are concerned in a convey- 
 ance of personalty by the wife to the husband, there is 
 no presumption that he is the dominant influence in the 
 family, and that must remain a question of fact in 
 charging bim with being a constructive trustee. 35 
 
 § 138. A trust for a wife and children will include 
 all children born subsequently. The uniform rule of 
 the courts when matters of settlement come before 
 them is to direct a settlement not only upon the wife 
 but upon the children as well. 36 
 
 34 Wallace v. Wallace, 82 111. 530-533. 
 ssMahan v. Schroeder, 236 111. 392-404. 
 s« Dean v. Long, 122 111. 447-459. 
 
86 TRUSTS AND TRUSTEES . 
 
 CHAPTER X 
 
 TRUSTS FOR CHILDREN. 
 
 § 139. In this chapter will be considered only those 
 technical trusts which have been passed upon by the 
 Supreme Court, and which trusts affected the rights 
 of children in some manner, irrespectively of any ques- 
 tion of minority or majority. The consideration of 
 those quasi trusts which arise out of the relationship 
 of Guardian and Ward will be deferred to the subse- 
 quent chapter on Quasi Trusts. (See Chapter XI.) 
 
 § 140. "The jurisdiction of the High Court of Chan- 
 cery in England over the estates of infants results 
 from a prerogative of the Crown as parens patriae. 
 In the United States the jurisdiction is not of so much 
 importance as in England, the persons and estates of 
 minors being generally under the supervision of Or- 
 phans' Courts, Surrogates' Courts, or Courts of Pro- 
 bate, whose powers are regulated by Statute. ' ' 1 The 
 concurrent jurisdiction of Chancery is, of course, 
 never dislodged by such statutes, and where the rights 
 of adult children, or dependent and defective persons, 
 are involved the question of whether a breach of a fidu- 
 ciary relation has occurred is almost invariably raised 
 in the case, and courts of equity scrutinise all such 
 transactions with zealous care. 2 (See also Construc- 
 tive Trusts, post.) 
 
 § 141. "Where a father purchases in the name of 
 his child, the presumption of law is, that a provision 
 was intended. The grounds of this doctrine are well 
 
 iBisphams' Eq. 2nd Ed. Sec. 34. 
 "Beach on Trusts, Sec. 140. 
 
TETJSTS FOB CHILDREN. 87 
 
 stated by Lord Chief Baron Eyre. 3 'The circum- 
 stances of one or more of the nominees being a child 
 or children of the purchaser is held to operate by re- 
 butting the resulting trust; and it has been determined 
 in so many cases that the nominee being a child shall 
 have such operation as a circumstance of evidence, 
 that it would be disturbing landmarks if we suffered 
 either of these propositions to be called into ques- 
 tion; — namely, that such circumstance shall rebut the 
 resulting trust; and, that it shall do so as a circum- 
 .stance of evidence. I think it would have been a more 
 simple doctrine if the children had been considered as 
 purchasers for valuable consideration. This way of 
 considering it would have shut out all the circum- 
 stances of evidence which have found their way into 
 many of the cases, and would have prevented some 
 very nice distinctions, and not very easy to be under- 
 stood. 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.' " 4 
 
 § 142. "Where the purchase is held to be an ad- 
 vancement and the purchase-money had not been paid, 
 it will be a charge on the father 's assets as an ordinary 
 debt. 5 Of course, the doctrine of advancement ap- 
 plies to personal as well as real estate; as where a 
 father purchases stock in the name of his son or daugh- 
 ter, or transfers stock into the joint names of a mar- 
 ried daughter and her husband. ' ' 6 
 
 s Dyer v. Dyer, 2 Cox. 94. 
 *Lewin on Trusts, Sec. 171. 
 »Lewln on Trusts, Sec. 178. 
 « Lewin on Trusts, Sec. 179. 
 
88 TRUSTS AND TRUSTEES. 
 
 § 143. Where a grandparent takes property in a 
 grandchild's name, but retains possession of the same, 
 it depends upon whether the father is dead if ,it shall 
 be held a provision for the grandchild or a resulting 
 trust. If the father had died previously and the proof 
 was that the grandparent stood in loco parentis, there 
 would be a presumption of an advancement. 7 "But, 
 while the presumption is (may be) that of an advance- 
 ment, it is admissible to introduce evidence of a trust. 
 And where it appears that the object of the convey- 
 ance was to defraud creditors, or to delay the payment 
 of debts, a resulting trust will be so decreed. This is 
 a general principle to which a conveyance to a wife or 
 child is not an exception. ' ' 8 
 
 § 144. Gifts of personalty or realty by a parent to a 
 child will, in general, be presumed advancements, es- 
 pecially if the child be under age ; in some cases they 
 may be deemed trusts for the parent, as for instance 
 if the parent had no other means. But fraud or an in- 
 tention to hinder creditors will rebut the presumption 
 of an advancement. 9 
 
 § 144a. While an advancement is usually presumed 
 if a father permit the title to property to be taken in 
 his child's name, yet if that be substantially all of his 
 property and the effect of such presumption would be 
 to leave him in indigence and with other children de- 
 pendent upon him,- such presumption will be rebutted. 10 
 
 § 145. Conveyances from parents to children are not 
 presumed to have been obtained through the use of 
 
 t Beach on Trusts, Sec. 170, citing Ebrand v. Dancer, 2 Cas. 
 Ch. 26. 
 
 8 Beach on Trusts, citing Baldwin v. Campfield, 4 Halst. Ch. 891. 
 
 9 Bay v. Cook, 31 111. 336-345. 
 logkahen v. Irving, 206 111. 597-607. 
 
TETTSTS FOE CHILDBEN. 89 
 
 improper methods; if fraud or undue influence be 
 charged against the grantees proof thereof must be 
 made, or proof that a confidential relation existed in 
 which the child exerted a dominant influence. 11 
 
 § 146. A grandparent made an attempt to assign to 
 a grandchild certain promissory notes and mortgages, 
 reserving a life estate by an instrument in the nature 
 of a testament, but which was not executed in conform- 
 ity with the Statute of Wills, and the grandparent hav- 
 ing died intestate without ever having delivered the 
 possession of the notes to the grandchild and without 
 any valuable consideration therefor having passed 
 from the grandchild to the grandfather, the grandchild 
 sought to have it established that his grandfather held 
 only as a trustee during his lifetime, but it was decided 
 by the court that a mere voluntary agreement or at- 
 tempt to assign, for which there was no consideration, 
 and which was never completed could not be enforced 
 and made complete by the court. A trust is executed 
 and complete if there be a declaration of trust beyond 
 which the court need not look in order to enforce it. 12 
 
 § 147. A father conveyed his land in parcels to his 
 sons and sons-in-law, taking their notes for the pur- 
 chase price but with the understanding that only the 
 interest, or such part as he might need, and not the 
 principal, need be paid. One of the sons-in-law de- 
 sired his portion to be vested in his wife, and, with the 
 consent of the father this portion was conveyed to a 
 third person. The father surrendered the notes in re- 
 spect of this portion and the daughter was to make 
 
 ii Hudson v. Hudson, 237 111. 9-14; Fitzgerald v. Allen, 240 111. 
 80-92; McLaughlin v. McLaughlin, 241 111. 366-371. 
 
 isBadgley v. Votrain, 68 111. 25-30; Padfield v. Padfleld, 68 111. 
 210-214; Weaver v. Weaver, 182 111. 287-294. 
 
90 TRUSTS AND TRUSTEES. 
 
 new notes to replace them, but this she never did ; after 
 the father's death his other heirs sought to recover this 
 portion, but it was held that the failure of the daughter 
 to replace the notes surrendered was of no consequence 
 under the facts and that the third person held her por- 
 tion in trust for her. 13 
 
 § 148. A parent assigned a life insurance policy to a 
 trustee for the benefit of children by a former wife; 
 the trustee accepted and the insurance company was 
 also notified. The policy never came into the hands 
 of the trustee and after the death of the assured the 
 administrator claimed it on the ground that it had 
 never been delivered and the assignment was therefore 
 Void; but it was held that the assignment was not ex- 
 ecutory, that it had been executed as completely as 
 though the policy had been handed over to the trustee 
 and that no valuable consideration was necessary in 
 the case of parents and children. 14 
 
 § 148a. A son wrote an assignment of his life in- 
 surance policy, naming his mother as the beneficiary, 
 gave a duplicate of the assignment to an agent of the 
 Company as the policy required, and sent word to his 
 mother that he would hold the policy and assignment 
 for her. Before his death he. made and delivered an 
 assignment of the policy to his wife, a copy of which 
 she furnished the Company soon after his death. -The 
 first assignment was held incomplete and imperfect 
 and the second prevailed. 15 
 
 is Coffin v. Argo, 134 111. 276. 
 
 "Otis v. Beckwith, 49 111. 121-130; Padfield v. Padfield, 68 111. 
 210-214; Weaver v. Weaver, 182 111. 287-294. 
 
 is Weaver v. Weaver, 182 111. 287-290 (and see also cases cited in 
 respect of trusts in insurance policies in Beach on Trusts, Sees. 43 
 and 52). 
 
TRUSTS FOB CHILDREN. 91 
 
 § 149. A parent, having been mistreated by most of 
 her children, permitted a child, with whom she lived, 
 and in whom she had confidence, to purchase property 
 and take title in his own name, and after her death, 
 on a bill by the other heirs to have a trust established 
 for their benefit in this property, it was held that the 
 mother could bestow her property so that none of it 
 should come to the unfilial children, and that they had 
 the burden under the circumstances of showing that 
 there was any trust. 16 
 
 § 150. A deed in trust in the nature of a post-nuptial 
 settlement for the donor's wife and children provided 
 that upon the wife's death the trust property should 
 be conveyed to all of the children of the wife per 
 stirpes; it was held that the intent, gathered from the 
 whole instrument, was to provide for the children of 
 the donor by his wife, and not her children by a later 
 husband, and that a rigid adherence to the letter of 
 the instrument would be erroneous. 17 "A reasonable 
 provision for the children of a former marriage, if 
 made in good faith, will be sustained." 18 
 
 § 151. A trust created for the expressed purpose of 
 creating a competency for a child, without limiting the 
 amount to be paid to the child, entitles the latter to the 
 entire income from the trust estate and not merely to 
 support therefrom. 19 
 
 § 151a. While a trustee cannot of his own motion 
 break into the capital of a fund for the maintenance of 
 a child, yet, in a proper case, the court of chancery will 
 so decree, as the father would undoubtedly have done 
 
 i« Clarke v. Quackenbos, 27 III. 260-288. 
 « McCoy v. Fahrney, 182 111. 60-64. 
 is Beach on Trusts, Sec. 236. 
 iDOrr v. Yates, 209 111. 222-239. 
 
92 TRUSTS AND TRUSTEES. 
 
 could he have foreseen the emergency, and upon a 
 proper showing the court may so order even though 
 there be a limitation over of the trust fund. 20 
 
 § 152. ^\Vhile a father is the natural guardian of his 
 children, still he has no control over their estates until 
 appointed guardian thereof under the Statute, and if 
 he collect the rents, issues and profits of his children's 
 estate he must account therefor as a trustee; and, if 
 he be dead a claim may be allowed against his estate, 
 the county and probate courts having jurisdiction over 
 such equitable cases, with power to apply equitable 
 principles. The father's estate in such case, is not en- 
 titled to credits for the support and education of the 
 children if he had adequate means therefor, nor for his 
 dower unless it had been assigned or demanded in his 
 lifetime. 21 
 
 § 153. Gifts from children to parents are scrutinised 
 carefully by the court, and are presumptively voidable 
 upon grounds of public policy. The donee has the bur- 
 den of showing the transaction to have been free of 
 undue influence or fraud, else equity will raise a con- 
 structive trust 22 and a stepmother occupies such a fidu- 
 ciary relation to her stepchildren that she has the bur- 
 den of establishing that any transaction with them was 
 fair and for full value. 23 
 
 § 154. A widow, after her husband's death, contin- 
 ued the latter 's business, using the shares of their 
 children and during this time she was, of course, liable 
 to account to the children as a trustee; but, having 
 made a settlement with them, and having given her 
 
 20 Longworth v. Riggs, 123 111. 258-264. 
 2i Bedford v. Bedford, 136 HI. 354-360. 
 
 22 White v. Ross, 1€0 111. 56-72; Hays v. Feather, 244 111. 172; 
 Sayles v. Christie, 187 111. 420-440. 
 
 23 Woods v. Roberts, 185 111. 489-499. 
 
TBTJSTS FOE CHILDEEN. 93 
 
 note for the amount due them, the children thereupon 
 became merely her creditors and the trust deter- 
 mined. 24 
 
 § 155. Minor cestuis que trustent, after a decree has 
 been rendered against their interests, have the estab- 
 lished right in Illinois to maintain a bill to impeach 
 such decree for error appearing upon the face of the 
 record in the former cause. 25 
 
 -" Hanford v. ProutF, 133 111. 339-352. 
 2B Coffin v. Argo, 134 111. 276. 
 
94 TKTJSTS AND TRUSTEES. 
 
 CHAPTER XI. 
 
 QUASI TRUSTS. 
 ESTATES OF DECEDENTS AND GUARDIANSHIPS. 
 
 § 156. Administrators, executors, guardians, co- 
 partners, officers of corporations, railways and banks, 
 and receivers appointed by courts of chancery, while 
 not considered usually as technical trustees, have many 
 of the same duties and liabilities imposed upon them 
 as are required of strict trustees, and the decisions af- 
 fecting them are based in large part upon adjudica- 
 tions rendered by courts of chancery in technical trust 
 matters. Their agency is of a more responsible na- 
 ture than that involved in the more common agencies 
 of the business world, and a higher degree of care and 
 diligence is exacted of them. This could not well be 
 otherwise where the owners, or co-owners, of the prop- 
 erty administered upon are not in a position to oversee 
 and direct each step taken in the stewardship. 
 
 § 157. The Statute has confided the supervision of 
 executors and administrators to the county and pro- 
 bate courts, and by the recent act of 1909 the control 
 over testamentary trusts and trustees was also con- 
 fided to them. Their jurisdiction is not, however, ex- 
 clusive, but only concurrent with that of courts of chan- 
 cery whose constitutional and inherent jurisdiction 
 over trusts cannot be abolished by the legislature. 1 
 
 § 158. Administrators and executors not only stand 
 as the personal representatives of decedents, but also 
 to a large extent as the representatives of the credit- 
 
 i Howell v. Moores, 127 111. 67-79. 
 
ESTATES OF DECEDENTS AND GUARDIANSHIPS. 95 
 
 ors, heirs, legatees and devisees. They are bound to 
 keep true and correct accounts of their stewardship, 
 as are all trustees, and anyone interested in the estate 
 as a creditor or ultimate beneficiary has the undoubted 
 right to require that the condition of the estate be dis- 
 closed at reasonable intervals. Such accounts are 
 usually taken in the county and probate courts, but in 
 exceptional cases courts of chancery may require that 
 decedents' estates be administered under their sole di- 
 rection. 2 "Under the earlier English law a person ap- 
 pointed executor in a will held the title to all the per- 
 sonal property, and after paying all debts and legacies 
 he was entitled to take the surplus beneficially, and 
 parol evidence was not sufficient to convert him into a 
 trustee for the heirs or next of kin. But under the 
 Statute of 11 George IV and 1 William IV, C. 40, and 
 by the Statutes of all the States of the American 
 Union, an executor is made prima facie a trustee for 
 the next of kin," 3 and as such he has always been 
 treated under our law. 
 
 § 159. In some cases an executor has been held to a 
 higher degree of responsibility than an ordinary trus- 
 tee. As where there are more executors than one they 
 are now regarded in law as but one person; and the 
 rule was stated by the Master of the Rolls in Candler 
 v. Tillett, 4 as follows: "If an executor does any act 
 which enables his co-executor to obtain sole possession 
 of money belonging to the testator's estate, which, but 
 for that act, he could not have obtained possession of, 
 and this money is afterwards misapplied, the executor, 
 
 2 White v. Russell, 79 111. 155. 
 
 a Beach on Trusts, Sec. 75. 
 
 * Candler v. Tillett, 22 Beav. 263. 
 
96 TRUSTS AND TRUSTEES. 
 
 who thus enables his co-executor to obtain possession 
 of the money, is liable to make good the loss." 5 
 
 § 160. Letters when granted relate back to the date 
 of death and validate acts done by an executor within 
 the scope of his duties before he qualified, and so an 
 executor-trustee to whom an estate has been devised 
 will be held vested with the legal title as of the date 
 when his testator died. 6 
 
 § 160a. A testator having created a trust but hav- 
 ing failed to name a trustee or executor it was held 
 proper for the administrator with the will annexed to 
 obtain the appointment of a trustee by a court of gen- 
 eral chancery jurisdiction. 7 
 
 § 1606. The executor, under a will devising to him 
 the entire estate to divide among the testator's rela- 
 tives, having died himself without executing the pro- 
 visions of the will, the administrator de bonis non with 
 the will annexed may go into equity to obtain a con- 
 struction of the will, and the appointment of a trustee 
 to carry out its provisions by exercising the implied 
 powers of sale, converting the real estate into person- 
 alty and making a distribution thereof. 8 
 
 § 160c. A testator may provide that in case of the 
 death or inability to act of the person nominated by 
 him as his executor another shall succeed him, and the 
 latter will have the trust duties and powers conferred 
 upon his predecessor as a trustee and should be com- 
 missioned as an executor and not as a mere adminis- 
 trator de bonis non with the will annexed. 9 
 
 & Beach on Trusts, Sec. 495. 
 
 «Mettler v. Warner, 243 111. 600-609. 
 
 i Wenner v. Thornton, 98 111. 156-168. 
 
 s Stoff v. McGinn, 178 111. 46-54; Mulligan v. Lambe, 17S 111. 130. 
 
 9 Kinney v. Keplinger, 172 111. 449-456. 
 
ESTATES OP DECEDENTS AND GUARDIANSHIPS. 97 
 
 § 161. "When an administrator or executor makes 
 oath that any person has in his possession or has con- 
 cealed or embezzled any property of the decedent, the 
 county or probate court may cite such person in and 
 make such order as the case may require in respect 
 of such property, whether it came into such person's 
 hands before or after the decedent's death; and where 
 an agent of the decedent collected monies belonging 
 to the estate he was held as a trustee and not merely 
 as a debtor. 10 „ 
 
 § 162. The mere fact that a widow inventoried land 
 as a part of her deceased husband's estate will not pre- 
 vent her from asserting a resulting trust for her own 
 benefit therein, where third persons' rights were not 
 abridged by such inventorying. 11 
 
 § 163. The Administration Act permits claims to be 
 allowed in the sixth class for monies received by the 
 decedent in trust for any purpose, instead of being 
 compelled to share in the estate as seventh class claims. 
 But where one has merely reposed confidence in an 
 agent and entrusted money to his keeping such trans- 
 actions do not give rise to a trust within the meaning 
 of the act. The word "trust" in the statute is re- 
 stricted to technical trusts and does not apply to trusts 
 which the law implies from contracts. 12 
 
 This provision gives merely a concurrent remedy, 
 and the legislature cannot deprive a court of chancery 
 of its inherent jurisdiction over trusts. "Where the 
 
 io Blair v. Sennott, 134 111. 78-86; Mulvihill v. White, 89 App. 
 88-91. 
 
 ii Madison v. Madison, 206 111. 534-539. 
 
 "Weer v. Gand, 8S 111. 490-492; Svanoe v. Jurgens, 144 111. 507; 
 Blair v. Follansbee, 67 App. 144; Shipherd v. Furness, 153 111. 590- 
 596; Felsenthal v. Kline, 214 111. 121. 
 
98 TRUSTS AND TRUSTEES. 
 
 jurisdiction is concurrent the court obtaining it first 
 will have precedence. 13 
 
 § 164. If a cestui que trust elect to hold the estate 
 of a deceased trustee for a loss occasioned the trust 
 fund by the negligence or conversion of the trustee, 
 the estate will be liable for the actual value of the trust 
 property so lost to the fund, and the claim should be 
 allowed as of either the sixth or seventh class, depend- 
 ing upon whether or no the trustee received money in 
 trust or merely held the legal title to property which 
 never came into his hands. 14 
 
 Where a deceased trustee would have been liable to 
 account in equity for profits realised by him as trustee 
 under an express trust a claim therefor is properly al- 
 lowable as of the sixth class. 15 
 
 The remaindermen in a legacy which was held by a 
 lif e tenant are entitled to have their claim allowed as 
 of the sixth class against the estate of the life tenant, 
 it being an express trust under Section 70 of the Ad- 
 ministration Act. 16 
 
 An administrator cannot pay over the proceeds of a 
 settlement on account of the causing of his intestate's 
 death to the heirs 7 father, as it is a trust fund for 
 which he is liable, and where the father had died it 
 was heldTthat the administrator might be subrogated 
 to have the claim allowed against the father's estate 
 as of the sixth class. 37 
 
 Where a decree of a court of chancery requires an 
 administrator of a deceased trustee to pay out trust 
 
 13 Howell v. Moores, 127 111. 67-79. 
 " Lennartz v. Est. of Popp, 118 App. 31-35. 
 
 i&Jarrett v. Johnson, 216 111. 212-220; Cassell v. Fitzslmmons, 
 6 App. 525. 
 
 ie Deiterman v. Ruppel, 200 111. 199, aft" g 103 App. 106. 
 " Perry v. Carmichael, 95 111. 519-530. 
 
ESTATES OF DECEDENTS AND GUARDIANSHIPS. 99 
 
 funds as of the sixth class, if there be sufficient funds 
 to pay the claims of prior classes the administrator 
 must comply with the decree and the statute, even 
 though the identification of the trust fund or its pro- 
 ceeds has not been so complete as the law requires in 
 most cases. 18 
 
 A factor having sold some of the property entrusted 
 to him before his death a claim was allowed as of the 
 sixth class for such funds in his hands at the time of 
 his death as could be identified as proceeds of sales, 
 but not for sales where there was no such identifica- 
 tion. 19 
 
 § 165. Since 1887 the probate courts have had equity 
 powers to determine whether or no a decedent's real 
 estate sought to be sold to pay his debts was in fact 
 held by him only as a trustee. 20 
 
 § 166. An executor and trustee being one and the 
 same person has nevertheless distinct duties to per- 
 form, and where the testator directed that all collec- 
 tions be made in five years, it did not follow that the 
 estate should not be closed in the probate or county 
 court before the end of that period, nor that the- bene- 
 ficiaries should be deprived of all income until the 
 end of the five years. 21 
 
 § 166a. It is the duty of an executor or administra- 
 tor to foreclose past due mortgages belonging to the 
 estate as a measure for protecting the trust fund, and 
 he is properly entitled to an allowance for lands so 
 acquired as assets in his hands, or he may sell such 
 
 is Bennett v. Hay, 153 111. 271-282. 
 
 i» Wilson v. Kirby, 88 111. 566-572. 
 
 20 Newell v. Montgomery, 30 App. 48-53; Affd. 129 111. 58. 
 
 2i Fenton v. Hall, 235 111. 552. 
 
100 TRUSTS AND TRUSTEES. 
 
 lands under the Statute with the court's approval and 
 account for the proceeds of sale. 22 
 
 § 166&. An executor having been directed to sell the 
 real estate to provide a trust fund for the testator's 
 widow, sold the land to the testator's son and took the 
 son's notes therefor; the son sold part of the land to 
 the widow and she gave her notes to the executor who 
 credited that amount on the son's, notes. The notes of 
 the widow were held to be a part of the trust fund 
 as much as the son's notes were, and the executor was 
 without authority to surrender the widow's notes to 
 her on account of a debt due to her from the executor. 23 
 
 § 166c. A will bequeathed to the executrix an annu- 
 ity of $1,500. The will also appointed trustees to man- 
 age other bequests, and the question was whether the 
 trustees or the executrix should set apart a fund from 
 which to provide the annuity; it was held that the ex- 
 ecutrix should perform that duty for herself although 
 a court of equity might compel her to throw safeguards, 
 about her investment of such fund. 24 
 
 § 167. An executrix having power of sale over land 
 to pay legacies must be held to be a trustee to sell for 
 cash, and a sale by her to a purchaser for his claim 
 against the testator's estate and who pays no cash is 
 a violation of the power of which the purchaser will be 
 held to have had such notice as will constitute him a 
 trustee himself to pay the legacies out of the land. 25 
 
 § 167a. An administrator may mingle the funds of 
 the estate with his own in a bank so long as he is al- 
 
 z^Kinny v. Keplinger, 89 App. 570. 
 
 23 Woodburn v. Woodburn, 123 111. 608-617; rev'g 23 App. 289. 
 
 24 Leslie v. Moser, 163 111. 502. 
 
 25 Humphrey v. Hudvall, 233 111. 185-188. 
 
\ 
 
 ESTATES OF DECEDENTS AND GUARDIANSHIPS. 101 
 
 ways able to produce the funds upou the order of the 
 court. 26 
 
 § 168. A decree of a circuit court giving an admin- 
 istrator with the will annexed all the powers that an 
 executor might have if one had been named in the will 
 does not authorise such administrator with the will an- 
 nexed to carry into effect any trusts contemplated by 
 the will, but only the powers relating to his office as 
 administrator with the will annexed. Any attempt 
 upon his part to administer the trusts would constitute 
 him a constructive trustee, or trustee de son tort, lia- 
 ble to make good any loss arising therefrom, and being 
 debarred from having the profits, if any, or from set- 
 ting up the Statute of Limitations. 27 
 
 § 169. An administrator who deposits the estate's 
 funds in a bank in his own name is personally liable 
 if a loss occur, even though he notified the bank's of- 
 ficers at the time that the funds were held by him in 
 his trust capacity. 28 
 
 § 169a. Where a will gave the proceeds of life insur- 
 ance to the executor as~trustee, the sureties of the ex- 
 ecutor were held not liable for his conversion of the 
 trust fund, although he inventoried it as a part of the 
 estate. A bond as trustee should have been required 
 of him. 29 
 
 § 1696. An administrator is not required to invest 
 the monies of his intestate, but is bound to have them 
 constantly subject to the court's order and he is not, 
 therefore, liable for interest. But as to trust funds 
 which he has failed to pay over to a trustee in accord- 
 
 26 Est. of Schofield, 99 111. 513-517. 
 
 2TPenn v. Fogler, 182 111. 76-96; rev'g 77 App. 366. 
 
 2s Harward v. Robinson, 14 App. 560-563. 
 
 29 People use of Brooks v. Petrie, 191 111. 497-504, aff'g 94 App. 652. 
 
102 TEUSTS AND TRUSTEES. 
 
 anee with a decree he will be liable for interest thereon 
 from the date of such decree. 30 
 
 § 169c. Stow v. Kimball: 31 A contracted to buy B's 
 land but died before making but a part of the payments 
 agreed upon; A's administratrix went to B, got him 
 to treat the contract with her intestate as forfeited for 
 failure to pay installments of the purchase money, and 
 to give her a new contract for the use of herself indi- 
 vidually and the heirs of A. Then the administratrix, 
 as such, sold the land to pay debts, placed the proceeds 
 of sale among the assets of her intestate's estate, used 
 such assets to pay B for a deed to the heirs of A, and 
 then had the effrontery to tell the purchasers at the 
 judicial sale that they had acquired no title because A 
 had had none. Under the foregoing facts it was de- 
 cided that the purchasers under the administratrix' 
 sale were the equitable owners by reason of the fraud 
 of the administratrix and that the heirs of A held as 
 trustees for them. 
 
 § 170. "If an executor or administrator purchase 
 property in his own name with money belonging to the 
 estate a trust in the property will result to the heirs, 
 legatees or other persons entitled to the beneficial in- 
 terest in the estate" 32 and the administrator will, of 
 course, be liable for all profits made by him out of the 
 trust fund as well as for savings to the fund effected 
 by him, as his duty is to do so. 33 
 
 It does not matter that the sale was at public auction 
 for a fair price and without fraud. 34 
 
 so Haines v. Hay, 169 111. 93, rev'g 67 App. 445. 
 si Stow v. Kimball, 28 111. 93-109. 
 
 3z Graham v. Graham, 85 App. 460-464, citing Perry on Trusts 
 § 127. 
 33 Wingate v. Pool, 25 111. 118-121. 
 3* Miles v. Wheeler, 43 111. 123-126; Kruse v. Steffens, 47 111. 112- 
 
ESTATES OF DECEDENTS AND GUARDIANSHIPS. 103 
 
 An administrator's sales made directly, or indi- 
 rectly, to himself or his wife, are voidable in equity, 
 and, where recitals in deeds in the chain of title to the 
 land so indicate, a subsequent purchaser will be held 
 to have had notice. 35 
 
 The fact that an executor uses his decedent's funds 
 to pay his own debts is sufficient to charge a purchaser 
 with constructive notice and to constitute the latter a 
 constructive trustee. The purchaser buys at his peril 
 in such case. 36 - 
 
 § 170a. While administrators' or executors' sales 
 made indirectly to themselves are voidable, yet, where 
 an administrator merely lent his brother money with 
 which to pay a part of the purchase money which the 
 claimant had knowledge of, and the former adminis- 
 trator never claimed any interest in the land prior to 
 his death, the sale should not be set aside. 37 
 
 § 171. Personal property held by an executor and 
 trustee is taxable in the county where he resides in the 
 absence of proof showing the situs of the property to 
 be elsewhere and such property is taxable until it is 
 actually distributed to non-resident beneficiaries. 38 
 
 § 172. An administrator of a deceased trustee, who 
 collected and invested his mother's money for her un- 
 der a power of attorney from her, may be required to 
 account in equity to the mother for the fund when she 
 has established the trust and the identity of the trust 
 fund. 39 
 
 114; Ebelmesser v. Ebelmesser, 99 111. 541-548; Miller v. Rich, 204 
 111. 444-451. 
 
 ss Lagger v. Mut. Union Assn., 146 111. 283-295. 
 
 3« Lang v. Metzger, 86 App. 117-124; affd. 206 111. 475. 
 
 37 Brinkerhoff v. Brinkerhoff, 226 111. 560-556. 
 
 ss McCIellan v. Board of Review, 200 111. 116-121. 
 
 3» Clapp v. Emery, 98 111. 523-531. 
 
104 TRUSTS AND TRUSTEES. 
 
 § 173. An executor may also act as a testamentary 
 trustee and have vastly different duties to perform 
 in his dual capacity, so that his discharge as executor 
 or settlement as such would not operate to discharge 
 him as trustee. 40 A court of equity could not remove 
 him as executor but only as trustee. 41 
 
 § 174. The Statutes, in respect of committing the 
 care of the persons and estates of minors, or other per- 
 sons under a disability, are based upon that of 12 
 Charles II, C. 24. But, notwithstanding these statu- 
 tory measures, it has been found necessary at times in 
 England, and in Illinois as well, to extend the aid of 
 chancery in such matters. (See § 157, ante.) As we 
 have seen heretofore a constitutional grant of chan- 
 cery powers cannot be abridged to any extent by legis- 
 lative grants, and courts of chancery still have a gen- 
 eral jurisdiction over both statutory and testamentary 
 guardians. 42 The best interests of the child are what 
 the courts always strive to protect and provide for in 
 their decrees — all other considerations must be subor- 
 dinated thereto ; and courts of chancery will go so far 
 as to change the provisions of an express trust where 
 such change would appear to be for the benefit of the 
 infant, instead of being limited to the usual rule that 
 no change can be made unless the cestui que trust was 
 treatened by urgent poverty. 43 If the county or pro- 
 bate court acquire jurisdiction before a court of chan- 
 cery does, the latter will not interfere if the remedy in 
 
 40 Glover v. Condell, 163 111. 567-596, rev'g 56 App. 107; Penn v. 
 Fogler, 182 111. 76-92, rev'g 77 App. 265; Beach on Trusts, Sees. 365 
 and 366. 
 
 4i Mannhardt v. 111. S. Z. Co., 90 App. 315. 
 
 ^Cowls v. Cowls, 3 Gilm. 435; Miner v. Miner, 11 111. 43-49; 
 Wackerle v. People, 168 111. 249-252. 
 
 « Hale v. Hale, 146 111. 227-249. 
 
ESTATES OF DECEDENTS AND GUARDIANSHIPS. 105 
 
 the former be adequate and if no special reason be 
 shown why the guardianship should be withdrawn 
 from the court which acquired jurisdiction in. the first 
 instance. 4 * If, for instance, any fraud occurred in a 
 guardian's settlements in the county or probate court 
 equity would take jurisdiction. 45 - 
 
 § 175. When a ward becomes of age the guardian- 
 ship ceases ipso facto, the court taking jurisdiction 
 merely for purposes of accounting, or for the purpose 
 of protecting the former ward from his improvident 
 contracts, made soon after becoming of age, with the 
 former guardian, while the latter still* retains some 
 dominion or advantage gained during the previous 
 trust relations, and where it would be a breach of the 
 fiduciary relations to give effect to contracts detri- 
 mental to the interests of the former ward. The pre- 
 sumption of fraud would have to be overcome by the 
 former guardian. 46 
 
 § 175a. The minor alone is the guardian's cestui 
 que trust, and an order of the probate court for the 
 guardian to pay for legal services rendered the estate 
 does not raise a trust over which equity will take juris- 
 diction in place of the probate court. 47 
 
 § 176. The statutory guardian of minors, who have . 
 trustees administering a trust fund for the support 
 and maintenance of such minors, until they become of 
 age, cannot compel the -trustees to pay over any of the 
 funds of the trust to him, as it is the duty of the trus- 
 tees themselves to apply the funds. 48 
 
 ** Ames v. Ames, 148 111. 321-3*5. 
 
 « Anderson v. Anderson, 178 111. 160-168. 
 
 *8 People v. Seelye, 146 111. 189-213. 
 
 « Dougherty v. Hughes, 165 111. 384-393, rev'g 62 App. 464. 
 
 4»Capps v. Hickman, 97 III. 429-437. 
 
106 TRUSTS AND TRUSTEES. 
 
 § 177. If one sign a deed or lease with mere words 
 of description after his name, like "guardian," "trus- 
 tee," and the like, he will be personally liable on the 
 covenants contained therein, unless there be an express 
 provision, or other circumstances, indicating clearly 
 that some trust fund should alone be looked to in case 
 of damage. 49 
 
 § 178. A loan of the ward 's money without the sanc- 
 tion of the county or probate court as provided by 
 statute renders the guardian liable not only for any 
 loss but for compound interest as well. 50 
 
 A guardianns a quasi trustee for his ward, and is ac- 
 countable to such ward as to a cestui que trust for any 
 conversion of the estate with compound interest. 51 
 
 § 179. A trust arises by implication if a guardian 
 take title in his own name to property purchased with 
 his ward's money, and such property will be impressed 
 with the trust without regard to the motives of the 
 guardian in so taking title in himself. 52 
 
 § 179a. But if a guardian of minor children uses his 
 own money to purchase land, declaring to the vendor 
 at the time that he was buying for the benefit of his 
 wards in order that he might get the land for a smaller 
 sum than he would have to pay otherwise, no construc- 
 tive trust is raised thereby which would be taken out 
 of the Statute of Frauds and which the wards could 
 enforce; the fraud, if any, would affect only the ven- 
 dor. The person seeking to establish a trust must 
 
 *9 Nichols v. Sargent, 125 111. 309-311. 
 
 so Hughes v. People, 111 111. 457-461. x 
 
 oi In re Fanny Toman, 110 App. 135; Rowan v. Kilpatrick, 14 I1L 
 1-11; Bond v. Loekweod, 33 111. 212-232. 
 
 52 First Nat Bank v. Leech, 207 111. 215-219; Verble v. Dillow, 21* 
 111. 537-539. 
 
ESTATES OF DECEDENTS AND GUARDIANSHIPS. 107 
 
 have some interest, or, at least, some claim or reason- 
 able expectation of interest in the property in ques- 
 tion. 53 
 
 § 180. Where the money of wards has been con- 
 verted by their guardian to his own use, either they 
 or their succeeding guardian may pursue the trust 
 fund so long as such fund can be identified in any form 
 of property, and so long as innocent purchasers with- 
 out notice have not acquired rights therein ; and such 
 property may be seized wherever found, so long as no 
 breach of the peace be committed. The cestui que 
 trustent may, of course, hold the culpable guardian re- 
 sponsible for the converted monies instead of pursuing 
 the trust fund. 54 
 
 § 181. While a father is the natural guardian of his 
 minor children, he cannot collect the rentals of their 
 estates without being liable to account therefor as a 
 trustee, and, on such accounting, he is not entitled to 
 credits for their support and education if he had suffi- 
 cient means of his own. 55 
 
 § 182. Guardians have the burden of showing that 
 their settlements with their wards were fair, as all 
 transactions between them are constructively fraudu- 
 lent upon the guardian's part; the trust relationship 
 continues so long as the guardian controls any of the 
 ward's estate, regardless of the fact that the ward may 
 have become of age, provided, of course, that time is 
 not of long standing. 56 
 
 § 183. The Statute of Limitations will not run 
 against a ward who lives with a guardian and is under 
 
 53 Rogers v. Simmons, 55 111. 76-82. l 
 
 b* Brush v. Blanchard, 19 111. 31-37; Wilkinson v. Stewart, 30 111. 
 48; Rice v. Rice, 108 111. 199-204. 
 55 Bedford v. Bedford, 136 111. 354-360. 
 5« Baum v. Hartmann, 226 111. 160-166. 
 
108 TEUSTS AND TRUSTEES. 
 
 the latter 's dominion and control, even after the ward 
 becomes of age'. 57 
 
 § 183a. If a guardian be a life-tenant and his ward 
 the remainderman, the possession of neither will be 
 adverse to the other, but only permissive. 58 
 
 § 184. The right of a guardian to resign his trust is 
 not absolute, and he should present his petition there- 
 for showing the condition of the estate, offering to set- 
 tle his accounts and deliver the estate as the court may 
 order, and thus submit to the court the question 
 whether the court deems it best to accept his resigna- 
 tion. 59 
 
 § 185. A court of chancery may remove a guardian 
 who has been guilty of a breach of trust irrespectively 
 of how or by whom he was appointed. 60 
 
 s? Carter v. Tice, 120 111. 277-287. 
 ss Wright v. Stice, 173 111. 571-581. 
 so Wackerle v. People, 168 111. 242-254. 
 «o Cowls v. Cowls, 3 Gilm. 435-441. 
 
CORPORATIONS, RAILWAYS AND RECEIVERS. 109 
 
 CHAPTEE XII. 
 
 QUASI TRUSTS (CONTINUED). 
 
 CO-PARTNERSHIPS, CORPORATIONS, RAILWAYS AND RE- 
 CEIVERS. 
 
 § 186. Partners are not strictly trustees but only 
 quasi trustees. 1 And the partnership assets of an in- 
 solvent firm are treated in equity as a trust fund for 
 the benefit of creditors, the statute making preferences 
 void after insolvency. 2 The co-partners have no indi- 
 vidual property in the firm assets until the creditors 
 are fully satisfied. 3 
 
 § 187. An investment of money in trust in a busi- 
 ness without taking an interest therein, but upon agree- 
 ment that the trustee should use the same and pay 
 for its use a portion of the profits does not create a co- 
 partnership. 4 
 
 § 188. If a partner hold the legal title to lands be- 
 longing to the firm he is in equity a trustee for the 
 other partners, and in ease of his death while so hold- 
 ing the legal title the same will descend to his heirs 
 who will succeed him as trustees. 5 
 
 § 189. If real estate be purchased with partnership 
 funds for the purposes of the firm, and is carried on 
 the firm's accounts as firm property, it will be so 
 
 i Gottlieb v. Miller, 154 111. 44-51. 
 
 2 Crouch v. First Natl. Bank, 156 111. 342-353. 
 
 a In re Landfield, 80 App. 417-420. - 
 
 * Williams v. Fletcher, 129 111." 356, aft" g 30 App. 219-229. 
 
 5 Smith v. Ramsey, 1 Gilm. 373; King v. Hamilton, 16 111. 190- 
 196; Crone v. Crone, 180 111. 599-604; People v. Sholem, 244 111. 502- 
 508. 
 
110 TBUSTS AND TEUSTBES. 
 
 deemed in equity, no matter in whom the legal title 
 may rest, there being a resulting trust (not within the 
 Statute of Frauds) for the benefit of the firm which 
 paid the money and for its creditors. But the mere 
 fact that land is used by a firm does not necessarily 
 constitute it firm property, unless an intention so to 
 regard it be expressed in the partnership articles, or 
 in the deed by which one or more of the partners ac- 
 quired the legal title, and, if not so expressed, the cus- 
 tomary test is to ascertain if the firm's funds paid for 
 the land and if it be carried as firm property in the 
 accounts. But where the land was purchased with in- 
 dividual funds before the firm was formed, and the 
 individual partners took the title in individual inter- 
 ests, without any element of fraud entering into the 
 transaction in respect of the firm's funds, and no clear 
 intention appeared to convert the land into personal 
 property by the members ,of the subsequently formed 
 partnership, the land in such case will be deemed the 
 property of the individuals. 6 
 
 § 190. A deed of land to A "in trust for" a firm, 
 and without specifying either the members thereof or 
 any active trust, will, nevertheless, not be within the 
 purview of the Statute of Uses which operates only to 
 vest legal titles in natural persons or artificial persons 
 like corporations, and the legal title would, in such 
 case, remain in the grantee. 7 
 
 § 191. Land associations and joint stock companies 
 are mere co-partnerships whose names as associations 
 may be taken to be the firm names, and whose members 
 
 b Robinson Bank v. Miller, 153 111. 244-253; McKnight v. Drake, 
 143 App. 10-14; Railsbaek v. Lovejo'y, 116 111. 442-447. 
 ^ Silverman v. Kristufek, 162 111. 222-227. 
 
CO-PABTNEKSHIPS — CORPORATIONS — RECEIVERS. Ill 
 
 are capable of ascertainment as the cestuis que trus- 
 tent. s 
 
 § 192. A parol agreement to purchase lands made 
 by two men, each to furnish one-half the purchase 
 money, and the profits or losses arising from the sale 
 to be shared equally constitutes a partnership which 
 raises a trust by implication when one of the parties 
 takes the legal title, and the Statute of Frauds does 
 not apply to such implied trusts. Partnership lands 
 are treated in equity as personal property and it mat- 
 ters not whether the legal title be in one or more of 
 the partners. "When the partnership monies go into 
 the land a resulting trust arises immediately by opera- 
 tion of law in favour of the partnership, and the part- 
 nership agreements may have been either oral or writ- 
 ten. 9 
 
 § 192a. An agreement to purchase land and improve 
 the same will not of itself create a presumption of a 
 partnership in the land so as to raise a trust by im- 
 plication from that relation, but rather a presumption 
 that the interests were to be those of tenants-in-com- 
 mon. Whether a partnership was intended is a ques- 
 tion of law which places the burden on the one assert- 
 ing it. 10 
 
 § 192&. Where a declaration of trust shows that the 
 cestuis que trustent in a land speculation are to share 
 in the net profits arising from sales they take no inter- 
 est in the land itself but only in the proceeds, and their 
 relations, rights and duties are substantially those of 
 
 s Hart v. Seymour, 147 III. 598-610; McDowell v. Jolce, 149 111. 
 124-136. 
 
 » Speyer v. Desjardins, 144 111. 641-648; Frankenstein v. North, 
 79 App. 669-676; People v. Sholem, 244 111. 502-508. 
 
 loFurber v. Page, 143 111. 622-626; Rogers v. Tyley, 144 111. 652- 
 661. 
 
112 TRUSTS AND TRUSTEES. 
 
 co-partners. 11 But if the cestuis que trustent were to 
 have undivided interests in the land to be conveyed 
 to them on their request the declaration of trust would 
 not create a partnership. 12 
 
 § 192c. An oral agreement to purchase a single tract 
 of land, erect a building and share the profits, where 
 only one of the parties furnished the money necessary 
 to get a deed and gave back a mortgage for the rest 
 of the purchase-price, and there was no agreement to 
 pay losses, does not aonstitute a partnership. 13 
 
 § 193. A partner may, with the consent of his co- 
 partners, appropriate a part of the trust funds to his 
 own private use, but such consent must be unanimous, 
 else those partners, or the cestuis que trustent not con- 
 senting, have the paramount right to elect to follow 
 and claim specifically the thing in which the money is 
 invested — regardless of whether there was any fraudu- 
 lent intent on the part of the trustee; and this right 
 exists, of course, against all purchasers with notice of 
 the trust. 14 
 
 Property assigned to one of the firm to pay its debts 
 and misappropriated by him to his own use may be 
 followed by the firm's creditors and subjected to the 
 trust in whosesoever hands the fund may pass with 
 knowledge of its trust character. 15 
 
 § 193a. Eetiring partners having assigned a fund 
 to another partner to pay a firm debt with, the latter 
 thereby became a trustee, and, having converted the 
 
 uRoby v. Colehour, 135 111. 300-336; Morse v. Richmond, 97 I1L 
 303-310. 
 
 "Rogers v. Tyley, 144 111. 652-661. 
 
 is Morton v. Nelson, 145 111. 586--591. 
 
 "King v. Hamilton, 16 111. 190-197; Renfrow v. Pearce, 68 I1L 
 125; Robinson v. Roos, 138 111. 550-557. 
 
 is Robinson v. Roos, 138 -111. 550, aff'g 37 App.- 646. 
 
CO-PARTNERSHIPS CORPORATIONS RECEIVERS. 113 
 
 trust fund to his own use by investing it in his wife's 
 name, the cestui que trust creditor had two remedies, 
 either to pursue the trust fund in its converted form, 
 or to hold the retiring partners liable and let them be 
 subrogated to such security as he held against the con- 
 verting partner. 16 
 
 § 194. A partner, like any other agent, is forbidden 
 from dealing in the partnership property for his own 
 benefit, and his purchases in such case will create a 
 resulting trust for*the firm's benefit. 17 
 
 The extent of each partner's interest in a resulting 
 trust must be shown by parol evidence. 18 
 
 § 195. A surviving partner is in equity a quasi trus- 
 tee for the representatives of the deceased partner so 
 far as the partnership estate is concerned, and must 
 deal with it accordingly; if he die his administrator 
 will be chargeable as a trustee to settle the partnership 
 affairs. The surviving partners cannot purchase the 
 interest of the deceased partner below its real value. 1 ' 
 
 While a surviving partner cannot. purchase the prop- 
 erty of a deceased co-partner from another surviving 
 co-partner, as that would be in effect a purchase by a 
 trustee from a co-trustee, yet he may so purchase from 
 the personal representatives of the deceased partner, 
 as no breach of trust could be imputed to the latter 
 transaction. 20 
 
 § 196. A bill for a partnership accounting relates to 
 a constructive trust which may be barred by the Stat- 
 
 i6 Robinson v. Roos, 138 111. 550-557. 
 « Winstanley v. Gleyre, 146 111. 27-38. 
 is Frankenstein v. North, 79 App. 669-676. 
 
 i» Nelson v. Hayner, 66 111. 487-493; Galbraith v. Tracy, 153 111. 
 54-60. 
 20 Kimball v. Lincoln, 99 111. 578-585. 
 
114 TKTJSTS AND TRUSTEES. 
 
 ute of Limitations. 21 But the Statute does not begin 
 to run during the continuance of the partnership and 
 before its dissolution. 22 
 
 § 197. If a member of a firm be also acting in an- 
 other matter as trustee and use the trust fund to fur- 
 ther the firm's business, the partners with knowledge 
 thereof will be personally liable, unless they return 
 such converted funds to the trustee while the latter has 
 a lawful right to receive the same. 23 
 
 § 197a. A partner who has knowledge that his co- 
 partner has wrongfully invested trust funds in the 
 firm's business cannot hold the cestuis que trustent 
 liable for a contribution to pay firm debts or advance- 
 ments made by him, nor prevent them from pursuing 
 the trust fund into whatever form it may have been 
 converted. 24 The cestui que trust may elect, if the 
 other partners had knowledge, to hold them liable for 
 the breach of trust committed by their co-partner. 25 
 
 § 198. A receiver of a co-partnership must exercise 
 ordinary and reasonable diligence in executing his 
 trust, but is held to no higher degree of care than that. 26 
 
 § 199. A corporation is deemed in equity to be a 
 quasi trustee of the corporate assets for the benefit 
 first of its creditors, and then of its shareholders, and 
 •upon its dissolution a court of chancery will distribute 
 the assets accordingly. No true express or construc- 
 tive trust arises in the absence of fraud or a breach of 
 a fiduciary duty on the 'part of the corporate officers. 27 
 
 2i Quayle v. Guild, 91 111. 378-384. 
 22 Home v. Ingraham, 125 111. 199-221. 
 as Sitter v. Karraker, 100 App. 669-673. 
 2* Butler v. Butler, 164 111. 171-179. 
 
 25 Penn v. Fogler, 182 111. 76-105, rev'g 77 App. 365. 
 
 26 Johnston v. Keener, 23 App. 220-223. 
 
 27 The St. Louis Co. v. The Sandoval Co., 116 111. 170-174; Gottlieb 
 
CO-PARTNERSHIPS CORPORATIONS RECEIVERS. 115 
 
 § 200. The directors of a private corporation are 
 quasi trustees who undertake impliedly to give the 
 stockholders as a body the benefit of their best care 
 and judgment, and where a director becomes a creditor 
 of the corporation he cannot use his position as a di- 
 rector to get possession of the corporation's property 
 for his own private interest, but, unless resigning as 
 an officer, he must act as any other creditor by obtain- 
 ing judgment and levying an execution. 28 
 
 § 200a. So long as a corporation is solvent the di- 
 rectors are the quasi trustees -of the stockholders as a 
 body but the moment the corporation becomes insol- 
 vent their relations and duties become materially 
 changed. The assets of the corporation then become 
 a trust fund with which to pay the corporate creditors, 
 and the directors cannot take any advantage of their 
 position to make a profit or advantage for themselves 
 out of the assets or gain any priority over their cestuis 
 que trustewt the creditors. 29 
 
 § 200&. The agents of a corporation, and a corpora- 
 tion can act only by its agents, occupy such a fiduciary 
 relation to the corporation, analogous to that of a trus- 
 tee to a. cestui que trust, that it is against public policy 
 to permit them to make any contracts where their own 
 private interests would tend to conflict with those of 
 
 v. Miller, 154 111. 44-50; Hill v. Gruell, 42 App. 411; Fellrath v. 
 Peoria Assn., 66 App. 77-81: Peterson v. 111. Land & Loan Co., 6 App. 
 357-260; Clarkson v. Erie Dispatch, 6 App. 284; Perry on Trusts, 
 6th Ed. Sec. 242. 
 
 as Hoffman v. Reichart, 147 111. 274-278; Beach v. Miller/ 130 111. 
 -162-169. 
 
 29Roseboom v. Whittaker, 132 111. 81-87; Warren v. First Nat. 
 Bank, 149 111. 9-28; Gottlieb v. Miller, 154 111. 44-53; Beach v. Miller, 
 130 111. 162-173; Rockford Grocery Co. v. Standard Co., 175 111. 89- 
 93; Atwater v. Am. Ex. Nat. Bk., 152 111. 605-617; Maye v. Hodge & 
 S. Co., 78 App. 556-565. 
 
116 TRUSTS AND TRUSTEES. 
 
 the corporation, or where they might speculate to the 
 detriment of the corporation's interests. The fair- 
 ness of such a contract cannot he enquired into, nor 
 will equity enforce a contract against public policy. 30 
 
 § 201. The directors as quasi trustees of the corpo- 
 rate assets cannot release a subscription for stock or 
 surrender a note given therefor, taking in its place a 
 worthless one, as against creditors of the corporation, 
 although such action might be valid as against the cor- 
 poration. 31 
 
 § 202. It is a breach of trust for the directors or of- 
 ficers of corporations to assent to the contracting* of 
 debts by a corporation in excess of the amount of its 
 capital stock, and the statute renders them personally 
 liable to creditors for such excess. 32 But this applies 
 only to de jure corporations and not to associations 
 assuming to be corporations. 33 
 
 § 203. The duties of directors in respect of corpo- 
 rate property are in the nature of a direct trust, a 
 breach of which will not permit them to take refuge 
 under a plea of 1;he Statute of Limitations on a bill 
 brought by the receiver of the corporation to hold the 
 directors liable for a misappropriation of the corpo- 
 rate property. 34 
 
 § 204. A stockholder who purchases the corporate 
 property, takes it subject to all equities, and cannot be 
 considered an innocent purchaser inasmuch as he is 
 affected with notice of the quasi trust character of the 
 
 so Est of Smythe v. Evans, 209 III. 376-381. 
 si Bouton v. Dement, 123 111. 142-148. 
 
 32 Woolverton v. Taylor, 132 111. 197-206. 
 
 33 Gay v. Kohlsaat, 223 111. 260-269. 
 
 34 Ellis v. Ward, 137 111. 509-520. 
 
CO-PARTNERSHIPS — CORPORATIONS — RECEIVERS. 117 
 
 capital stock, and what it represents, for the protection 
 of the corporate creditors. 3 " 
 
 While corporations may buy in their own stock, yet 
 a shareholder is so far affected with notice of the quasi 
 trust character with which the capital stock is charged 
 in equity for the benefit of the corporate creditors that 
 any property of the corporation which he may take in 
 exchange for his shares may be followed by the cred- 
 itors, and the former stockholder cannot claim the 
 rights of an innocent purchaser. 86 
 
 § 204a. Shareholders who are also directors in the 
 same corporation do not bear such a trust relation to 
 each other that they cannot make valid purchases of 
 each other's shares. 87 While a director is a quasi 
 trustee of the shareholders collectively, yet he may deal 
 with an individual shareholder and his shares on al- 
 most the same basis as with a stranger. 88 
 
 § 2046. Where the directors constitute all of the 
 stockholders and they agree to lend some of the cor- 
 poration's funds to a director with which to purchase 
 land for himself, there is no fraud upon the stockhold- 
 ers and no resulting trust in the land will arise for the 
 benefit of the corporation or of its assignee. 89 
 
 § 205. A corporate business having become unprofit- 
 able a committee consisting of the President and Sec- 
 retary was authorised to mortgage or sell all or part 
 of the assets. The Secretary made a contract with a 
 third person for the sale'of the assets after the third 
 
 sb Peterson v. 111. Land Co., 6 App. 257-261; Perry on Trusts, 6th 
 Ed. § 207. 
 
 stiClapp v. Peterson, 104 111. 26-31; Commercial Nat. Bank v. 
 Burch, 141 111. 519-528. 
 
 st Perry v. Pearson, 135 Til. 21S-236. 
 
 as Hooker v. Midland Steel Co., 215 111. 444-451. 
 
 ao Pain v. Faraon, 179 111. 185-193. 
 
118 TBVSTS AXD TRT7STEES. 
 
 person had bought up a majority of the stock for the 
 benefit of himself and the Secretary, and the sale was 
 held voidable at the instance of any objecting stock- 
 holder, upon the principle that a trustee cannot pur- 
 chase the trust fund on his own account, and that a 
 majority of the stockholders cannot purchase the prop- 
 erty of the corporation for themselves against the ob- 
 jection of the minority. 40 
 
 § 206. An insolvent corporation, like an individual, 
 may make a preference among creditors in the absence 
 of fraud, but judgments by confession against the cor- 
 poration for the benefit of either stockholders or di- 
 rectors, who were aware of the insolvent condition, 
 will be deemed fraudulent in respect of the other cred- 
 itors, and a constructive trust will be raised by reason 
 of such fraud. 41 
 
 § 206a. If mala fide creditors of a corporation or 
 purchasers therefrom possess themselves of the cor- 
 porate property, and the corporation become insol- 
 vent, equity will impress the corporate property so 
 held with a trust for the benefit of the corporation's 
 creditors. 42 
 
 § 2066. But there is a line of demarcation separat- 
 ing valid from invalid preferences of directors or other 
 officers* of insolvent corporations, and that lies between 
 cases where directors have in good faith advanced 
 their own money to relieve a going corporation of its 
 financial embarrassment, taking security therefor 
 from the corporation, and those cases where there is 
 a pre-existing indebtedness to the directors for which 
 
 «o Chicago Hansom Cab Co. v. Yerbes, 141 111. S20-S33. 
 « Gottlieb v. Miller, 154 111. 44-53; C. T. & T. Co. v. Smith, 158 
 111. 417-424; State Bank v. Union Bank, 168 111. 5*9. 
 ** Atlas Nat. Bank v. Morse, 152 111. 528-541. 
 
CO-PABTXEBSHIPS — COBPOBATIONS — BECEIVEBS. 119 
 
 they take security after the insolvency. Of course 
 equity will require that the preferred officers prove ab- 
 solute good faith. 43 
 
 § 206c. Although the assets of an insolvent corpora- 
 tion constitute a quasi trust fund which prevents the 
 directors and other officers of the corporation from se- 
 curing an advantage therein over the general creditors, 
 yet they may, after the insolvency of the corporation, 
 dispose of the assets in good faith to pay off or secure 
 creditors of the corporation, even though some he pre- 
 ferred. 44 
 
 § 207. Subscriptions to the capital stock of a corpo- 
 ration form in equity a trust fund both for creditors 
 and for the other subscribers, the latter having a 
 vested interest each in the subscription contract of the 
 other, and such subscription cannot be cancelled with- 
 out consent of all interested parties. "When the entire 
 capital stock has been subscribed the liability arises. 45 
 
 § 207a. Nor can a suit to enforce a subscription be 
 avoided by a collateral attack on acts of the directors 
 not within the scope of their quasi trust powers as an 
 original bill in equity might be resorted to to prevent 
 such misuse of their powers. 46 
 
 § 207&. Subscriptions for stock must be paid for in 
 money or property taken at a fair valuation. Over 
 
 « 111. Steel Co. v. O'Donnell, 156 111. 624-634; Mnllanphy Savings 
 Bank v. Schott, 135 111. 655-666; Harts v. Brown, 77 III. 226-231; 
 Blair v. 111. Steel Co., 159 IU. 350-366. 
 
 ** Warren v. First Nat Bank, 149 HI. 9-28; Blair v. 111. Steel Co., 
 159 111. 350-364. 
 
 «Melvin v. Lamar Ins. Co., 80 I1L 446-467; Patterson v. Lynde, 
 112 111. 196-203; Temple v. Lemon, 112 111. 51-54; McMulta v. Corn 
 Belt Bank, 164 111. 427-450. 
 
 *» Chetlaln v. Republic Life Ins. Co., 86 111. 220-222. 
 
120 TEtTSTS AND TRUSTEES. 
 
 valuation of property is, a fraud on creditors and no 
 device by which it is called "fully paid" stock when, 
 in fact, it is not, will bind creditors. 47 
 
 § 207c. Any device to obtain stock as paid up and 
 non-assessable when in fact it is not will be void as 
 to creditors. 48 Nor could a stockholder in a bank dis- 
 charge his double liability by buying up at a discount 
 debts owing by the bank. He could have credit only 
 for the amount he actually paid, and not for the face 
 amount of the debts so bought, upon the principle that 
 a stockholder may discharge his liability by satisfying 
 pro tanto the amount due from the corporation to any 
 creditor who is not also a stockholder in the same cor- 
 -poration. 49 
 
 § 207d. A subscription to capital stock with the 
 word "trustee" after the subscriber's name will not 
 relieve him of personal liability to the corporation and 
 its creditors, although he may not be liable to contrib- 
 ute for other subscribers who agreed that such sub- 
 scription should not be assessed for debts. 50 
 
 § 208. The Corporation Act (Sees. 23 and 24) pro- 
 vides that trustees holding shares in corporations may 
 vote the same at all stockholders' meetings, and shall 
 be subject to no personal liability on the shares, but 
 that the trust estate and funds shall bear the liability 
 in like manner as individual legal owners ; and the Rail- 
 road Incorporation Act of 1891 (See. 15y 2 ) provides 
 that trustees holding stock therein shall suffer no per- 
 sonal liability. 
 
 « Coleman v. Howe, 154 111. 458-468. 
 
 48 Ailing v. Wenzel, 133 111. 264-274; Olmsted v. Vance & Jones 
 Co., 196 111. 236-242. 
 
 « Thompson v. Meisser, 108 111. 359-366. 
 so Winston v. Dorsett Co., 129 111. 64-70. 
 
CO-PARTNERSHIPS CORPORATIONS RECEIVERS. 121 
 
 § 208a. One holding stock as trustee or pledgee 
 should have it so noted on the stock-book and not have 
 the stock issued to him in his individual capacity if he 
 would escape a personal liability as a stockholder. 51 
 
 § 209. A bequest of the net income of stock for the 
 lifetime of a cestui que trust carries with it extraordi- 
 nary dividends declared in cash, but not stock divi- 
 dends, or subscription rights to an increase of capital 
 stock, which belong to the remaindermen as capital, or 
 the corpus of the*trust fund, subject to the payment of 
 the net income thereof to the life tenant. 52 
 
 § 210. A foreign trust company, trustee under a 
 deed in trust in the nature of a mortgage which re- 
 quires active duties upon the part of the trustee in siu 
 perintending the negotiation of the bonds issued there- 
 under, must take out a license in Illinois to do a trust 
 business. 53 But the mere identification of bonds in a 
 foreign state, or joining the holders thereof in a fore- 
 closure would not invalidate the foreclosure for want 
 of having deposited security with the Auditor of Illi- 
 nois. 34 
 
 § 211. Directors of a corporation as quasi trustees 
 are not entitled to compensation for their usual duties, 
 in the absence of an enabling by-law or resolution, but 
 they may recover for services performed outside of 
 the scope of their duties as directors at the request of 
 the corporation. 55 
 
 si Sherwood v. 111. T. & S. Bank, 195 111. 112-117. 
 
 saDeKoven v. Alsop, 205 111. 309, aff'g 107 App. 190; Blinn v. Gil- 
 lett, 208 111. 473-490; Billings v. Warren, 216 111. 281-287. 
 
 53 Fanners L. & T. Co. v. Lake St. Co., 173 111. 439. 
 
 5* Morse v. Holland Trust Co., 184 111. 155-260. 
 
 55IH. Linen Co. v. Hough, 91 111. 63-66; Ellis v. Ward, 137 111. 
 518. 
 
122 TRUSTS AND TRUSTEES. 
 
 § 212. "While it may be conceded that the general 
 rule is that corporations, being creatures of the law,, 
 cannot exercise powers not given to them by their char- 
 ters, and for that reason cannot act as trustees in mat- 
 ters in which they are interested or in matters that are 
 inconsistent with and repugnant to the purposes for 
 which they are created, and therefore, if forbidden to- 
 own or hold land, cannot act as trustees of land, yet it 
 has been held that if the trusts are within the general 
 scope of the purposes of the organization of the cor- 
 poration or relate to matters which will promote and 
 aid the general purpose of such corporation, it may 
 take and hold land in trust and be compelled to execute 
 such trusts if it accepts them." 5e 
 
 § 213. The directors of a railway company are quasi 
 trustees for the stockholders, and they commit a breach 
 of that trust if they become members of a construc- 
 tion company engaged in work on such railway whose 
 bonds and obligations have passed to the construction 
 company in payment for its work. The law forbids 
 any trustee or agent from placing himself in a posi- 
 tion where his own interests may conflict with those 
 of his cestui que trust. In such case the cestui que 
 trust need not wait until he has suffered actual injury, 
 but may elect either to disaffirm entirely, or to ratify 
 the act of the trustee and take the profit, if any, grow- 
 ing out of it. Nor can the cestui que trust be held to 
 have estopped himself by an alleged ratification before 
 he has had full knowledge of all the facts. 57 
 
 § 214. A railway company is chargeable with its 
 president's knowledge that property purchased by it 
 
 se Hossack v. Ottawa Assn., 244 111. 274-296. 
 of G. C. & S. Ry. v. Kelly, 77 111. 426-434. 
 
CO-PARTNERSHIPS CORPORATIONS RECEIVERS. 123 
 
 is subject to a trust for the benefit of the bondholders 
 of the former owner, and such bondholders may follow 
 the trust property accordingly. 58 
 
 § 215. If a person takes possession of and manages 
 a railway for the benefit of its mortgagee, he becomes 
 not only a trustee for the mortgagee, but for the mort- 
 gagor as well, and, upon a foreclosure sale such trus- 
 tee 's purchase of the trust fund will not bar the mort- 
 gagor from redeeming after the time limited by the de- 
 cree has expired. 59 
 
 § 216. The directors of a railway being the quasi 
 trustees of the public as well as of the stockholders 
 cannot contract that stations shall not be appointed or 
 built at certain points on the right of way as such a . 
 contract would be violative of public policy. 60 
 
 § 217. A voting trust will be enforced in equity so 
 long as the original interests are retained and if there 
 be no unlawful combination contrary to public policy 
 to exclude some stockholders for the benefit of others. 61 
 
 § 218. The purchaser of a railway at a foreclosure 
 sale had agreed with the bondholders that they should 
 advance the amount of his bid, which only covered the 
 costs and expenses of the foreclosure, and that he 
 would convey to a new corporation which was to issue 
 bonds to take the place of the old bonds. The pur- 
 chaser, therefore, held title merely as a trustee for the 
 old bondholders, and the fact that a majority of the 
 bondholders withdrew their bonds and failed to pay 
 the assessments due from them could not affect the 
 equitable rights of the bondholders who lived up to 
 
 58 I. I. & I. R. R. Co. v. Swannell, 157 111. 616, aff'g 54 App. 260. 
 so Racine & Miss. R. R. Co. v. Farmers L. & T. Co., 49 111. 331-350. 
 eo St. L. J. & C. R. R. Co. v. Mathers, 71 111. 592-596. 
 ei'Gray v. Bloomington & Normal Ry., 120 App. 159-182. 
 
124 TRUSTS AND TRUSTEES. 
 
 the terms of their agreement, to enforce their rights 
 against the converting trustee or a purchaser with no- 
 tice. 62 
 
 § 219. Where a railway is being operated by trus- 
 tees for the bondholders such trustees are to be taken 
 merely as the agents of the corporation in respect of 
 transactions with third persons, and suits brought by 
 third persons may be against the corporation and not 
 against such trustees or agents. 63 
 
 , § 219a. Trustees to whom a railway has been sur- 
 rendered and who are operating it under the corporate 
 name are liable when sued by the corporate name, 
 although not sued as trustees. 64 
 
 § 220. It is a breach of trust for a railway company 
 to use its bonds for the payment of the debts of other 
 corporations, and such bonds will be void in the hands 
 of all persons having notice of such misappropria- 
 tion. 65 
 
 § 221. The directors, as such, are not entitled to 
 compensation in the absence of a by-law or resolution 
 providing therefor. 66 
 
 § 222. That class of receivers not provided for by 
 statute when appointed by a court of chancery takes 
 possession of the property only, and no title vests in 
 such receivers, at least as to the real estate, before it 
 has been conveyed to. them ; the practise is also to have 
 the personal property assigned to them where it is de- 
 sirable that they should hold the title as well as the 
 
 62 Cushman v. Bonfield, 139 111. 219-237. 
 «3 Grand Tower M. & T. Co. v. Ullman, 89 111. 244. 
 6* Wilkinson v. Fleming, 30 111. 353-362. 
 as City of Chicago v. Cameron, 120 111. 447-456. 
 »o Holder y, L. B. & M. Ry. Co., 71 111. 106-108; Bridley v. L. B. 
 & M. Ry. Co., 71 111. 200-203. 
 
CO-PARTNERSHIPS CORPORATIONS RECEIVERS. 125 
 
 possession. They may, however, sell the property un- 
 der order of court without having title, just as a mas- 
 ter in chancery may do ; 6T but in Young v. Clapp, 68 al- 
 though an assignment of the personal property had 
 been made to the receiver, the court thought that title 
 would have vested in him without it. 
 
 § 223. A receiver of an insolvent firm or corpora- 
 tion when vested with the legal title to the property 
 of the insolvent takes no better title to the fund than 
 the insolvent had, and holds subject to the equities, if 
 any, pre-existing in favour of any cestui que trust of 
 the insolvent who can identify his particular trust 
 fund. 69 
 
 § 224. A receiver, like any other trustee, is forbid- 
 den to deal with the property in his custody to his own 
 advantage, and in a recent case in Minnesota 70 (cited 
 in Beach on Trusts, Sec. 101) the court said: "The du- 
 ties, obligations and disabilities of a trustee were im- 
 posed upon him by his appointment as receiver, and 
 the taking possession of all of the plaintiff's property 
 as such. As such quasi trustee he was bound to pro- 
 tect the trust property in every reasonable manner. 
 He was not bound to advance his own money to dis- 
 charge the lien of the judgment,' but, having voluntar- 
 ily purchased the property at the execution sale, he 
 could not profit by it, ' ' etc. 
 
 § 225. In some of the States of the Union it would 
 seem that receivers of trust estates may be appointed 
 where the trust fund is in danger of being wasted, but 
 
 « Union Trust Co. v. Weber, 96 111. 346-356; Heffron v. Gage, 149 
 111. 182-193. 
 
 es Young v. Clapp, 147 111. 176-187. 
 
 «»Nat. Life Ins. Co. v. Mather, 118 App. 491-494. 
 
 to Donahue v. Quackenbush, 64 N. W. Rep. 141. 
 
126 TETJSTS AND TRUSTEES. 
 
 in Illinois it may be safely assumed that the courts of 
 chancery will not appoint receivers of strict trusts for 
 such cause, so long as the simple expedient exists of 
 removing a trustee and appointing another in his stead. 
 A case cited in our Appellate Court 71 was not one of a 
 strict trust. 
 
 «• Flood v. Forst, 93 App. 309. 
 
BANKS AND COMMEKCIAL PAPEE. 127 
 
 CHAPTER XIII. 
 
 BANKS AND COMMEKCIAL PAPEE. 
 
 § 226. The ordinary relation between a bank and a 
 depositor is tbat of debtor and creditor ; the bank sells 
 its credit and tbe depositor buys it to the extent of his 
 deposit which the J bank may then dispose of as it sees 
 fit without occupying a fiduciary position in respect of 
 the depositor. 1 
 
 § 227. A deposit in a bank to the general account of 
 the depositor creates simply the relation of creditor 
 and debtor, and not that of principal and agent or trus- 
 tee and cestui que trust, because the depositor buys by 
 the transaction only credit from the bank, which the 
 latter sells him to the extent of the deposit. But 
 where there is a special deposit of money to be held for 
 a certain purpose the bank becomes a trustee and must 
 not mingle the money so deposited with its general 
 funds. If such special deposit of money be mixed with 
 other, funds of the bank so that it cannot be identified 
 and the bank then becomes insolvent, the cestui que 
 trust will be remitted to the position of a mere creditor 
 without preference over others. If the cestui que trust 
 can identify his special deposit, in no matter what form 
 it may have been changed, a court of equity will set it 
 apart to him and prefer him over the general credit- 
 ors. A lessee, in order to secure his lessor, made a 
 special deposit in a bank, took a receipt showing the 
 purpose of the trust, and the bank attached to a du- 
 
 i Johnson v. Ward, 2 App. 261-275. 
 
128 TRUSTS AND TRUSTEES. 
 
 ' plicate of the receipt a memorandum to identify the 
 fund before it was mingled, without the knowledge of 
 either the lessor or lessee, with the general funds of 
 the bank. The bank having become insolvent it was 
 held there was a presumption in such case that the 
 trustee would not violate his trust, but would use his 
 own money first, so that what remained would belong 
 to the trust even though it were a smaller sum than 
 the .trust fund. 2 
 
 § 228. It would seem that the wrongful conversion 
 of a special deposit by an employe of a banker would 
 not render the latter liable, unless he took part in the 
 conversion or was guilty of gross negligence. 3 
 
 § 228a. Gray v. Merriam: 4 A customer of a bank 
 had purchased government bonds through the agency 
 of the bank and had given them to the bank to hold as 
 collateral security for loans made to him. Later, the 
 customer's indebtedness to the bank was discharged 
 and the bank wrote him that it held the bonds by way 
 of a special deposit. The following year an employe 
 of the bank stole the bonds, and it was held in an ac- 
 tion for their value that banks taking special deposits 
 as bailees without reward are, nevertheless, bound to 
 bestow upon such property the care which men of com- 
 mon prudence would upon their own property of a like 
 nature in such community or district. One making a 
 special deposit has a right to assume that the usual 
 preventive measures in the way of vaults, safes, etc., 
 will be afforded and that the banker will not handle or 
 
 2 Woodhouse v. Crandall, 197 111. 104-109, rev'g 99 App. 552; Troike 
 v. Cook County Sav. Bank, 127 App. 413-419; Marine Bank v. Rush- 
 more, 28 111. 463-471. 
 
 s Sturges v. Keith, 57 111. 451-454. 
 
 * Gray v. Merriam, 148 111. 179-186. 
 
BANKS AND COMMEBCIAL PAPER. 129 
 
 examine the property except so far as its safety may 
 require. 
 
 § 229. A cheque having been given to a banker to 
 secure him as a surety on an appeal bond, he passed it 
 through the clearing house and used the money in his 
 business; the banker having become insolvent the 
 drawer of the cheque sought to have the amount of the 
 cheque held to be a special deposit, but, inasmuch as 
 the identical money was not to be returned, it passed 
 into the bank as a 'general deposit, and the depositor 
 was, therefore, only a general creditor. 5 
 
 § 229a. Where the drawer has deposited with the 
 drawee certain funds, part of which are uncurrent, in 
 order to meet a draft, and the transaction was for the 
 especial purpose of paying the draft in question, the 
 drawer and drawee having no general account, then 
 the drawee had no right to pass this fund to the gen- 
 eral credit of the drawer but was bound to hold it as a 
 trustee for the holder of the draft, and to pay it in 
 the identical funds received. 6 
 
 § 230. A private banker having become insolvent 
 and dying soon afterwards, the holder of a certificate 
 of deposit sought to show that the banker had prom- 
 ised to set aside the sum represented by the certificate 
 in a separate parcel, and to hold the same until called 
 for. He did not do so, and mingled the money with 
 the rest of his funds; but, assuming that he had so 
 promised, it was held that his failure so to do could 
 give no preference to such depositor. 7 
 
 § 230a. A cheque given to a bank to cover a sup- 
 posed shortage in the account of another of the bank's 
 
 5 Mut. Ace. Assn. v. Jacobs, 141 111. 261-266. 
 
 eHarwood v. Tucker, 18 111. 544. 
 
 7 Bayor v. Am. Tr. & S. Bank, 157 111. 62-68, aff'g 51 App. 180. 
 
130 TRUSTS AND TRUSTEES. 
 
 depositors, and to which the bank attached a memoran- 
 dum to such effect, was held, upon the bank's failure, 
 to be a* special deposit for its maker, the supposed 
 shortage in the other depositor's account not having 
 occurred, and such intended beneficiary not having 
 knowledge of the transaction, the donor might revoke 
 the trust and claim the fund. 8 
 
 § 231. Drover's National Bank v. O'Hare: 9 A, a 
 resident of Wisconsin, directed his brokers in Chicago 
 to deposit in the B bank of Chicago a sum of money 
 due him to be transmitted to a certain bank in Wiscon- 
 sin for A's use. The B bank issued a receipt to the 
 credit of the Wisconsin bank for the use of A, but in- 
 stead of transmitting the money itself the B bank de- 
 posited the fund in the C bank of Chicago to the credit 
 of the Wisconsin bank, without notifying the C bank 
 that A owned the fund. On the same day that the B 
 bank received the trust fund the Wisconsin bank failed, 
 owing the C bank of Chicago, and which latter bank 
 applied the deposit in question to the payment of the 
 debt due it from the Wisconsin bank. A sued the B 
 bank for money had and received and the latter was 
 not allowed to escape its liability for the breach of 
 trust in failing to transmit the fund, even though it 
 was the custom so to transfer for remittance to the 
 bank of which a country bank was the eustomer. The 
 C bank could not be liable to A because it had no knowl- 
 edge that he was the equitable owner of the fund, nor 
 would A be confined to proving his claim against the- 
 insolvent Wisconsin bank because the latter had never 
 accepted the trust. 
 
 s Star Cutter Co. v. Smith, 37 App. 212-215. 
 
 » Drover's National Bank v. O'Hare, 119 111. 646; Am. Ex. Bank v. 
 Loretta Mining Co., 165 111. 103-110. 
 
BANKS AND COMMERCIAL PAPEK. 131 
 
 § 232. Where there has been no regular course of 
 dealing between a bank and one who sends it a collec- 
 tion to make, only the relation of debtor and creditor 
 will result, but where the collection is accepted not only 
 to collect but to remit as well the bank becomes a trus- 
 tee and the fund will be preserved as such in case of 
 the bank becoming insolvent, if the trust property can 
 be identified in either its original form or a converted 
 form, and if no right of a bona fide purchaser without 
 notice has intervened. 10 
 
 § 233. If a bank have notice that a depositor is not 
 the real owner of the deposit made by him the bank 
 may refuse to pay his cheques, and it may be compelled 
 to pay the fund to the true owner. 11 
 
 § 233a. A bank is put upon notice when it receives 
 paper endorsed by one as trustee and is bound to make 
 reasonable enquiry as to the real ownership. In such 
 case the bank cannot say that the word ' ' trustee ' ' was 
 a mere descriptio personae. 12 
 
 § 234. A bank may assume that cheques, which are 
 drawn in proper form by one having a deposit as trus- 
 tee and certificates of deposit which are endorsed prop- 
 erly, are issued and negotiated in pursuance of the 
 trustee 's powers and duties, and it may pay them until 
 it has notice of some adverse claim. Such trust ac- 
 counts differ from other trust funds which are invested 
 in property with some degree of permanency, because 
 the former are kept for the purpose of being chequed 
 out from time to time ; and memoranda on cheques may 
 
 io Nat. Life Ins. Co. v. Mather, 118 App. 491-494. 
 ii Hanna v. Drover's Nat. Bank, 194 111. 252-257. 
 i2Henshaw v. State Bank, 239 111. 515-520; Henshaw v. Christian, 
 J.43 App. 558-561. 
 
132 TKTJSTS AND TRUSTEES. 
 
 be disregarded by banks on the ground that they were 
 placed there for the drawer's benefit. 13 
 
 § 234a. The knowledge of a director of a bank that 
 the record owner of land holds the title in trust for 
 another is not imputed to the bank in absence of proof 
 of the actual knowledge of the officers of the bank who 
 levy on the land under a judgment obtained against 
 the record owner. 14 
 
 § 2346. A bank cannot withhold funds known by it 
 to be trust funds to satisfy its claim against the trustee 
 personally, and if it do so the cestui que trust may sue 
 it at law without going into equity. 15 
 
 § 235. Fifth National Bank v. Hyde Park: 16 A vil- 
 lage treasurer deposited the village funds in a bank in 
 his own name at first, and later changed the account 
 from a personal one to one as treasurer ; the treasurer, 
 having given his personal notes to the bank for large 
 sums and having informed the bank, as the evidence 
 showed, that the proceeds were to be used to pay off vil- 
 lage warrants issued in anticipation of the collection of 
 taxes, defaulted to the village after having use the vil- 
 lage funds to take up his notes at the bank, a portion 
 of which notes represented monies used by the treas- 
 urer for his private purposes. The village attempted 
 to have the bank held as a trustee, but the evidence 
 failed to impute knowledge to the bank's officers that 
 the notes were given in part to secure the private debt 
 of the treasurer, the bank's officers having assumed 
 in good faith that all of the proceeds had been used 
 
 is State Nat. Bank v. Reilly, 124 111. 464-470; McLaflin v. Jones, 
 155 111. 539-542, aff'g 55 App. 518. 
 » « Home Bank v. Peoria Soc, 206 111. 9-14. 
 
 isClemmer v. Drover's Nat. Bank, 157 111. 206; State Nat Bank 
 v. Payne, 56 App. 147. 
 
 i« Fifth National Bank v. Hyde Park, 101 111. 595-604. 
 
BANKS AND COMMERCIAL PAPEB. 133 
 
 for village purposes and that the treasurer could 
 equitably use its, funds to pay the notes, and the bank 
 could not be held as a trustee. 
 
 § 236. Bank directors are more than mere agents,' 
 they are quasi trustees for both the shareholders and 
 the depositors, liable to the former for their ordinary 
 negligence and to, the latter for their gross negli- 
 gence. 17 
 
 § 236a. The directors of a bank have no power to 
 divert the funds to make gifts to charity, or to encour- 
 age the location of industries, or for any purpose not 
 within the scope of the business, as it would otherwise' 
 be a breach of the quasi trust duties owing by them to 
 the bank's shareholders and depositors. 18 
 
 § 237. If one permits his name to be used as the 
 trustee of a voluntary savings society he is bound to 
 see to the proper investment of the funds and must be 
 held to a greater degree of responsibility than a bank 
 director in an incorporated bank. 19 
 
 § 238. A shareholder in a bank cannot discharge his 
 double liability by buying up at a discount debts owing 
 by the bank. In such case he may have credit only for 
 the sum he actually paid, upon the principle that a 
 stockholder may discharge his liability by satisfying 
 pro tanto the amount due from the bank to any cred- 
 itor who is not also a stockholder therein. 20 
 
 § 238a. Shares of stock in a national bank were held 
 by a trustee ; after the bank became insolvent the comp- 
 troller of the currency levied an assessment thereon, 
 and it was held that the trust estate was liable there- 
 
 « Delano v. Case, 121 111. 247, aff'g 17 App. 531-537. 
 is McCrory v. Chambers, 48 App. 445-452. 
 w Holmes v. McDonald, 226 111. 169-175. 
 20 Thompson v. Meisser, 108 111. 359-366. 
 
134 TKUSTS AND TRUSTEES. 
 
 for, without regard to the fact that it was afterwards 
 distributed, each cestui que trust getting more of the 
 trust estate than was sufficient to pay the assessment 
 levied on the stock, and each being liable under the 
 federal statutes. 21 
 
 § 239. A having trust funds in his possession let B 
 have the use of them without interest, . taking B 's 
 cheque for the amount drawn upon a bank of which B 
 was the president, the cheque being considered between 
 them as a receipt rather than an ordinary cheque. A 
 overdrew his chequeing account in paying his cestui 
 que trust and B arranged with him to get the deficiency 
 at another bank which B applied to the overdrafts. A 
 died without having presented B's cheque for payment 
 and it was held that B could set off the amount of the 
 overdraft which he had applied in keeping the trust 
 fund intact. 22 
 
 § 240. The burden is on the one alleging that the 
 holder of a note is a trustee. 23 
 
 A mother sold her land to her son who made his pur- 
 chase-money note to his stepfather; after the latter 's 
 death the note passed to the administrator and the son 
 attempted to have a trust established, based on the 
 statement of the decedent made in his lifetime that his 
 children were to have his property and his wife's chil- 
 dren were to have hers, but this was held wholly insuf- 
 ficient to have created a trust. 24 
 
 § 240a. A chattel mortgage and note were made in 
 the name of a third person for convenience of collec- 
 
 21 Mortimer v. Potter, 213 111. 178. 
 
 22 Snell v. Ball, 55 App. 501-^506. 
 
 23 Sturman v. Streamer, 70 111. 188. 
 
 24 Lauterman v. Abernathy, 47 111. 437; see also Sturman v. 
 Streamer, 70 111. 188. 
 
BANKS AND COMMEECIAL PAPER. 135 
 
 tion, and, on a bill by the makers to enjoin tbeir en- 
 forcement for failure of consideration and fraud, parol 
 evidence was beld admissible to show the facts. 25 
 
 § 241. A note given for a debt due to a trust estate 
 was made payable to the cestui que trust wbo endorsed 
 it over to the trustee, and the latter sued the maker at 
 law. The maker's defence was that he had paid the 
 note to the cestui que trust, but, inasmuch as he was 
 cognisant of the trust requiring the trustee to manage 
 the fund during the lifetime of the cestui que trust the 
 defence could not avail. 26 
 
 § 242. "While part of a debt or chose in action is not 
 assignable at law it may be done in equity, which will 
 hold that a trust was created for the benefit of the as- 
 signee thereby entitling him to an equitable lien on the 
 fund for' his particular part thereof, even though the 
 debtor or drawee has not given his assent to such as- 
 signment, or even though the debt be not due, and the 
 lien will continue to attach to the fund in the hands of 
 all persons having knowledge of the assignment. 27 
 
 § 243. A promissory note intended as a gift is only 
 a promise to make a gift in the future and is not en- 
 forceable against the administrator of the maker. 28 
 But a note payable "after my death date" followed 
 by a transference of possession to a third person or 
 trustee, so that the maker has no longer any control 
 over it, constitutes the third person or trustee an agent 
 of the payee who may enforce the note upon the mak- 
 er's death against the latter 's estate. 29 
 
 25 Belohradsky v. Kuhn, 69 III. 547-550. 
 
 26 Elinor v. Hodson, 134 111. 32-34, rev'g 28 App. 445. 
 
 27 Warren v. First Nat. Bank, 149 111. 9-23. 
 
 28 Williams v. Forbes, 114 111. 167-171; Richardson v. Richardson, 
 148 111. 563-572. 
 
 29 Shaw v. Camp, 160 III. 425-428. " 
 
136 TRUSTS AND TBTJSTEES. 
 
 § 244. A surety or endorser who receives from his / 
 principal pledges or collateral security for the better j 
 security of the debt is in equity the trustee not only 
 for any other surety, but also for the creditor until 
 the debt is discharged. 30 \ 
 
 A payee of a note signed by sureties, as well as the 
 maker, took additional security from the maker by way 
 of a chattel mortgage which he foreclosed and sold the 
 chattels indirectly to himself and for a grossly made- " 
 quate price; some years later the payee of the note 
 sued the sureties, and it was held that by taking pos- 
 session of the, chattels the payee had constituted him- 
 self a trustee for the benefit of the sureties, that he 
 could not sell the trust fund to himself and that he was 
 accountable to the sureties for the real value of the 
 chattels. 31 
 
 so Halle v. Nat. Park Bank, 140 111. 413-419. 
 si Phares v. Barbour, 49 111. 370-373. 
 
THE STATUTE OF FEAUDS AND PAROL TBXJSTS. 137 
 
 CHAPTER XIV. 
 
 THE STATUTE OF FEAUDS AND PAROL, TEUSTS. 
 
 § 245. At common law it was permissible to create 
 express trusts in real property as well as personal 
 property by parol where feoffment could be employed 
 instead of a writing. In the year 1676 the act of 29 
 Charles II, Cap. 3, was passed, the 7th section thereof 
 being identical with Section 9 of the Illinois act on 
 Frauds and Perjuries up to the proviso which excepts 
 implied trusts and which proviso is substantially the 
 same as Section 8 of the English Act. ' ' Chattels real ' ' 
 come within the purview of the act and must be mani- 
 fested and proved by some writing, 1 although the act 
 does not apply to trusts created in personal property ; 
 and where a parol trust was originally created in per- 
 sonalty, but the trustee sold it and used the proceeds 
 to purchase land in her individual name, the Statute 
 of Frauds was held not to be applicable in such case, 
 as the land would be deemed personalty in a changed 
 form. 2 Trusts for charitable uses must also be treated 
 as coming within the terms of the Statute so far as 
 real property is concerned, although an attempt was 
 made formerly to have them exempted. 3 
 
 § 246. The 9th section of the Illinois act excepts ex- 
 pressly trusts arising by construction, implication or 
 operation of law as well as resulting trusts. And it 
 does not apply to trusts ex maleficio,* or to an express 
 
 i Sec. 15, ante. 
 
 2 Maher v. Aldrich, 205 111. 242-255. 
 
 aLewin, star Sec. 55; Perry on Trusts, 6th Ed. Sec. 88. 
 
 * Kane Co. v. Herrington, .50 111. 232-237; Wallace r. Carpenter, 
 
138 TRUSTS AND TRUSTEES. 
 
 trust created by will and accepted by parol where the 
 trustee perforins in part. 5 A trust for the benefit of 
 creditors is not within the statute, even though the 
 trustee may be said, in a way, to promise to take the 
 trust estate to pay the debt of another. 6 
 
 § 246a. "Where the consent of a cestui que trust is 
 necessary to validate a sale and conveyance of land by 
 a trustee under a declaration of trust, such consent 
 may be shown to have been either oral or written, as 
 the statute has no application to such consent. 7 
 
 § 247. An oral agreement to make a written declara- 
 tion of trust is within the operation of the statute. 8 
 But a trust resting in parol (as where a conveyance 
 does not recite the trusts) may be saved from the oper- 
 ation of the statute by a separate instrument signed 
 by the grantee and declaring the trusts upon which he 
 holds; and a letter, or an answer in chancery admit- 
 ting the trust, even though filed in another cause, will 
 be deemed such an instrument. 9 
 
 § 247a. If an answer in chancery be depended upon 
 as an admission or declaration of an express trust, 
 such answer must do more than tend to show a trust 
 by vague expressions or statements of motives, and 
 
 85 111. 590-593; McNamara v. Garrity, 106 111. 384-387; Harris v. 
 Mclntyre, 118 111. 275-288; Towle v. Wadsworth, 147 111. 80-96; Hen- 
 schel v. Mamero, 120 111. 660-665; Champlin v. Champlin, 136 111. 
 309-314. 
 
 s Albrecht v. Wolf, 58 111. 186-189. 
 
 a Walden v. Karr, 80 111. 49-52. 
 
 7 Rogers v. Tyley, 144 111. 652-656. 
 
 s Morton v. Nelson, 145 111. 586-593. 
 
 » McLaurie v. Partlow, 53 111. 340-345; Jones v. Lloyd, 117 111. 597- 
 601; Phillips v. South Park Commissioners, 119 111. 626-640; White 
 v. Ross, 160 111. 56-69; Kellogg v. Peddicord, 181 111. 23-30; Mosher 
 v. Funk, 194 111. 351; Perry on Trusts, 6th Ed. Sec. 82. 
 
THE STATUTE OP FRAUDS AND PAROL TRUSTS. 139 
 
 must show clearly when taken as a whole, that there 
 was in fact a valid, express trust. 10 
 
 § 2476. Even a sworn answer in chancery, or a depo- 
 sition, admitting a parol trust in respect of land will 
 not avail to establish such trust if the Statute of 
 Frauds is pleaded and its effect insisted upon. 11 
 
 § 248. Adams v. Adams : 12 A testator, having made 
 his will giving certain bequests to his wife and others, 
 on the same day conveyed his land, his wife joining, to 
 a third person by a deed absolute in form, but with an 
 oral agreement with the grantee that the latter should 
 pay the bequests upon the decease of the testator. 
 After the testator's death the grantee of the land ex- 
 hibited his bill to have the trust declared and the land 
 decreed to be sold, etc. The Supreme Court appears 
 to have raised the Statute of Frauds on its own motion 
 in this case, brushing aside the writing in the complain- 
 ant 's bill by which he acknowledged that he held upon 
 a trust and held that the grantee had the equitable 
 as well as the legal title to the land and might carry 
 out the wishes of the testator, if he saw fit, without the 
 aid of a court of equity. If there had been any ques- 
 tion about enforcing a trust in this case the Supreme 
 Court would undoubtedly have taken a different stand. 
 
 § 249. Kingsbury v. Burnside: 13 Major Kingsbury 
 of the United States Army died intestate in 1856 leav- 
 ing surviving him his widow, Jane Kingsbury, and two 
 children, Henry, a lieutenant in the regular army, and 
 
 10 White v. Ross, 160 111. 56-69; Perry on Trusts, 6th Ed. Sec. 85. 
 
 "Davis v. Stambaugh, 163 111. 557-564; Dick v. Dick, 172 111. 578- 
 580; Perry on Trusts, 6th Ed. Sec. 85. 
 
 12 Adams v. Adams, 79 111. 517-520. 
 
 is Kingsbury v. Burnside, 58 111. 310-328-334; see also Moore v. 
 Pickett, 62 111. 158; Fast t. McPherson, 98 111. 496-503; Whetsler v. 
 Sprague, 224 111. 461-466. 
 
140 TRUSTS AND TRUSTEES. 
 
 Mary Buckner, wife of Simon Buckner, also an officer 
 of the army during the Mexican War. Major Kings- 
 bury had induced his son-in-law, Buckner, to retire 
 from the service in order to manage the former's real 
 estate holdings in Chicago, and had conveyed to Buck- 
 ner by deed absolute on its face, but in fact on a secret 
 parol trust, certain land of large value. In 1861 Buck- 
 ner and his wife, Mary Kingsbury, joined in a deed 
 conveying an undivided one-half of the Chicago lands 
 to Lieutenant Henry Kingsbury of the United States 
 Army, subject to the dower of Jane Kingsbury and re- 
 citing that the grantee owned the other undivided one- 
 half as an heir of the deceased Major Kingsbury. 
 Buckner had his agent in Chicago record the deed but 
 did not inform the grantee, Henry Kingsbury, of the 
 conveyance until some two months later when they met 
 in Washington, D. C, and Buckner apprised him of the 
 deed, saying that he wished him to look after his sis- 
 ter's interest and see that she had her property, to 
 which Lieutenant Kingsbury assented. Not long 
 afterwards Lieutenant Kingsbury wrote to his mother 
 in relation to the property turned over to him by Mr. 
 and Mrs. Buckner. The War of the Bebellion having 
 burst forth, Buckner, taking his wife, Mary, with him, 
 joined the Confederate Army and became in time the 
 famous General Buckner of history. In the Spring of 
 1862 Lieutenant Kingsbury, being then in the United 
 States Army of the Potomac under General Burnside, 
 drafted an instrument without witnesses, designed to 
 be a will which purported to devise, inter alia, one- 
 third of the Chicago lands "held in my name" to his 
 sister, Mrs. Buckner, and also made provision for his 
 mother and his wife. Lieutenant Kingsbury met his 
 
THE STATUTE OF FRAUDS AND PAROL TEUSTS. 141 
 
 death, at the battle of Antietam in the autumn of 1862, 
 leaving him surviving a young wife to whom a posthu- 
 mous son was born. 
 
 The purported will of Lieutenant Kingsbury having 
 been admitted to probate in the State of Virginia, an 
 authenticated copy thereof was ordered spread of rec- 
 ord in Illinois in the County Court of Cook County, 
 and thereupon the infant son of the late Lieutenant 
 exhibited his bill, by next friend, alleging the will to 
 be void and a cloud upon his title. Buckner arid wife 
 answered, and filed their cross-bill claiming a trust by 
 reason of the writings signed by Lieutenant Kingsbury 
 in his lifetime. The chancellor dismissed without 
 prejudice both the bill and cross-bill, and upon appeal 
 to the Supreme Court it was decided that the deed 
 from Buckner and wife to Lieutenant Kingsbury had 
 been delivered and accepted, and that the writings of 
 Lieutenant Kingsbury made subsequently to the deed 
 to him were sufficient to establish a trust for the bene- 
 fit of his sister. In discussing the section of the Stat- 
 ute of Frauds which requires all declarations or cre- 
 ations of trusts to be manifested and proved by some 
 writing signed by the party, the Supreme Court quoted 
 with approval the English decisions on the same stat- 
 ute to the effect that trusts need not necessarily be de- 
 clared in writing, but only manifested and proved in 
 writing, and that parol evidence is admissible to show 
 a trust where there is any written evidence thereof, 
 such as letters or other written documents, though long 
 posterior in date to the transaction itself. "If there 
 is some written evidence inconsistent with the fact 
 that the supposed purchaser was the actual purchaser, 
 further evidence by parol is admissible to prove the 
 
142 TRUSTS AND TRUSTEES. 
 
 truth of the transaction." (Citing Sugden on Ven- 
 dors, 7 Am. ed. § 911; Hill on Trustees, § 62.) 
 
 ' ' The principal point to be noticed is, that trusts, as 
 already observed, are not necessarily to be declared in 
 ■writing, but only to be manifested and proved by writ- 
 ing; for if there be written evidence of the existence 
 of such a trust the danger of parol declarations, 
 against which the statute was directed, is effectually 
 removed." 14 
 
 § 250. While any writing may be used to establish 
 an express trust otherwise resting in parol, yet, after 
 the grantor has by an absolute deed divested himself 
 of all interest in the land, no later declaration that he 
 may make in writing can affect the title ; such declara- 
 tion to be of any effect must be made while the title 
 rests in the declarant, or contemporaneously with the 
 divesture of the title by himself. 15 
 
 § 251. A son asserted that he had conveyed to his 
 mother the legal title of land owned by him on a parol 
 trust that she would, upon her death, dispose of the 
 land in a certain way: It was shown that her first will 
 had so devised the property, but the later will disposed 
 of it in a different manner, and, the first will contain- 
 ing no declaration of trust, it was held that the trust 
 could not be saved from the operation of the statute. 16 
 But where the evidence is reasonably clear and certain 
 that the first will contained a declaration of trust and 
 its terms are proved substantially, the trust may be 
 established for the benefit of a grantor of land to the 
 maker of the will. 17 
 
 i*Lewin, star Sec. 55. 
 
 i3 Phillips v. So. Park Commissioners, 119 111. 626-640. 
 
 laChamplin v. Champlin, 136 111. 309-313. 
 
 " Hiss v. Hiss, 228 111. 414-423. 
 
THE STATUTE OF FRAUDS AND PAROL TRUSTS. 143 
 
 A recital in a will that the testator had conveyed 
 lands in trust, when, in fact, he had not done so, will not 
 operate as a declaration of trust so as to take the case 
 out of the Statute of Frauds. It is only when the erro- 
 neous recital is that the testator has made a devise in 
 another portion of the same will that it can be given 
 effect as a devise by implication, otherwise the differ- 
 ent instrument referred to must be looked to, if any 
 such there be. 18 
 
 A revoked will eannot be relied upon which was not 
 referred to in a subsequent conveyance of the land 
 made by the owner to another, especially where the 
 trusts made by the revoked will were different from 
 those set up by the claimant of the land. 19 
 
 § 252. Memoranda in writing made by the attorneys 
 conducting a transaction may be used to ascertain the 
 trust. 20 
 
 Memoranda in an account book kept by a decedent 
 showing items of money invested by certain of his rela- 
 tives in building his house do not establish a trust for 
 their benefit where such memoranda show no agree- 
 ment in reference thereto or in reference to the land. 21 
 
 § 252a. The County Commissioners of Peoria had 
 caused to be surveyed and platted the town of Peoria, 
 and had designated certain lots on the plat as sold to 
 the surveyor in payment of his services. These lots 
 were never conveyed to the surveyor but were con- 
 veyed to another person; it was held there were suffi- 
 cient memoranda to take the case out of the Statute 
 of Frauds, and that the County Commissioners were 
 
 is Hunt v. Evans, 134 111. 496-501. 
 
 19 Davis v. Stambaugh, 163 111. 557-561. 
 
 20 Morgan v. Clayton, 61 111. 35-38. 
 
 2i Humphrey v. Hudnall, 233 111. 185-188. 
 
, 144 TRUSTS AND TRUSTEES. 
 
 liable to account to the surveyor as trustees for the 
 proceeds of the lots with interest. 22 
 
 § 253. Where a writing which is relied upon to take 
 a case out of the Statute of Frauds is lost or destroyed 
 or the opponents refuse to produce it, parol evidence 
 is admissible to establish its contents, but such parol, 
 evidence should be reasonably clear and certain before 
 the chancellor should rely upon it. 23 
 
 § 254. A trust cannot be fastened on the real estate 
 of a decedent under an oral promise to make a devise 
 of the same to the claimant, unless the latter went into" 
 possession under the contract to convey or promise to 
 devise and made a part performance sufficient to avoid 
 the effect of the statute. 24 
 
 An oral contract for the sale of an equitable interest 
 in land is within the statute, and where A contracted 
 in writing with B for the sale of land and B afterwards 
 agreed orally with A to surrender possession for 
 $3,500 which surrender was made, and A sold and con- 
 veyed to C, B's suit at law (not in equity) against A 
 for the $3,500 could not prevail against a plea of the 
 statute. 25 
 
 In Godschalk v. Fulmer 26 it was sought to establish 
 an express parol trust, the bill alleging possession and 
 the making of valuable and lasting improvements, but, 
 the Statute of Frauds having been interposed the court 
 held that, inasmuch as the bill was not framed to com- 
 pel a specific performance but to compel the execution 
 
 zzBourland v. Peoria, 16 111. 538-546; Wilkinson v. Stewart, 30 
 111. 4«. 
 23 Hiss v. Hiss, 228 111. 414-423. 
 2*Dicken v. McKinley, 163 111. 338-322. 
 25 Dougherty v. Catlett, 129 111. 431-438. 
 2« Godschalk v. Fulmer, 176 111. 64. 
 
THE STATUTE OE EBAXJDS AND PAROL TRUSTS. 145 
 
 of an express trust, the possession would not take the 
 case out of the statute. Dickens v. McKinley, supra, 
 does not appear to harmonise with Godschalk v. Ful- 
 mer. 
 
 § 255 J "While trusts, which arise by implication, 
 construction or operation of law (as, e. g., obtaining 
 title to'? land by fraud or undue influence) are not 
 within the Statute of Frauds, yet the mere refusal of 
 a trustee to perform a parol express trust, or the de- 
 nial that any such "trust exists, will not be deemed to 
 constitute such fraud as to take the case out of the 
 operation of the Statute. The court may, in its dis- 
 cretion permit the Statute to be pleaded at any time 
 before a final decree.. 27 Moral fraud is not covered by 
 the Statute ; there must have been some active or pas- 
 sive fraud in procuring a deed or devise. The mere 
 breach of a promise to convey to the alleged cestui que 
 trust will not avail as against the Statute. Belief in 
 cases of fraud is limited to those in which the one 
 against whom the parol trust has been established has 
 prevented the creator of the trust, by means of fraudu- 
 lent promises, from accomplishing his purpose in some 
 other way, and has induced the grantor or testator to 
 put it within the power of such trustee to convert the 
 estate to his own use. 28 Nor will naked possession aid 
 such a parol trust. 29 
 
 27 Koenig v. Dohm, 209 111. 468-480; Biggins v. Biggins, 133 111. 
 211-218; Scott v. Harris, 113 111. 447-457; Moore v. Horsly, 156 111. 
 36-41; Williams v. Williams, 180 111. 361-364; Ryder v. Ryder, 244 
 111. 297-309. 
 
 asLantry v. Lantry, 51 111. 458-464; Smith v. Hollenback, 51 111. 
 223; Markham v. Katzenstein, 209 111. 607-618; Stahl v. Stahl, 214 
 111. 131-137; Fishbeck v. Gross, 112 111. 208-212; White v. Cannon, 
 125 111. 412-416; Biggins v. Biggins, 133 111. 211-218; Champlin v. 
 Champlin, 136 111. 309-312; Larmon v. Knight, 140 111. 232-236; Will- 
 
146 TRUSTS AND TRUSTEES. 
 
 § 256. If the purchaser pays his own money and 
 takes title to himself no breach by him of a parol agree- 
 ment or declaration made by him for the benefit of 
 some other person at the time of the purchase will 
 raise a trust as against the Statute in the absence of 
 any other fraud on the purchaser's part. 30 
 
 § 256a. It has been held with doubtful propriety 
 that a resulting trust is not repelled by a parol agree- 
 ment or understanding that the holder of the legal title 
 would convey to the claimant upon demand and that 
 such an agreement is nothing more than an acknowl- 
 edgment of an obligation which the law would imply 
 and impose itself; that such an oral agreement does 
 not create an express trust against which the Statute 
 of Frauds might prevail. 31 
 
 § 257. In order to save land for certain heirs from 
 being lost by foreclosure proceedings an uncle ad- 
 vanced the money to purchase at the foreclosure sale, 
 and took the title in his own name by way of security. 
 The Supreme Court, in holding that such a trust was 
 not within the Statute of Frauds, quoted the follow- 
 ing from 2 Washburne on Eeal Property (3rd ed., 
 p. 451) : "If a grantee obtain a deed by means of prom- 
 ises to hold the land for another this is sufficient to 
 raise a trust in favour of the latter, on the ground of 
 frcmd, and this may be proved by parol. ' ' 32 
 
 iams v. Williams, 180 111. 361-364; Crossman v. Keister, 223 111. 
 69-86. 
 
 2» Smith v. Hollenback, 51 111. 223; Preston v. Casner, 104 111. 262- 
 266; Godschalk v. Fulmer, 176 111. 64-67. 
 
 so Rogers v. Simmons, 55 111. 76-82; Walter v. Klock, 55 111. 362; 
 Benson v. Dempster, 183 111. 297-304; Contra, Wright v. Gay, 101 
 111. 233-241. 
 
 3i Brennaman v. Schell, 212 111. 35^-364. 
 
 82 Wright v. Gay, 101 111. 233-241; Scanlan v. Scanlan, 134 111. 630- 
 640. 
 
THE STATUTE OF FRAUDS AND PAROL TRUSTS. 147 
 
 A title was conveyed to the uncle of the grantor's 
 wife, on his request and promise to clear off certain 
 liens as a gift to his niece and then to convey the title 
 to his niece ; the uncle was killed after clearing off the 
 liens but before he had made such conveyance and it 
 was held that under such a constructive trust the gift 
 having been executed the Statute of Frauds was not 
 available as a defence to the heirs of the deceased trus- 
 tee. 33 
 
 § 257a. Where a deed in form absolute is really a 
 mortgage the Statute of Frauds will not apply to a 
 parol contract to reconvey as the Statute was not de- 
 signed to further fraud. 34 But one who has knowledge 
 of a prior contract of sale which is void under the Stat- 
 ute of Frauds is not prevented thereby from acquiring 
 the title ; and title so acquired will not be subject to any 
 constructive trust. 35 
 
 § 258. A secret trust is void as to both prior and 
 subsequent creditors. 36 
 
 The 4th section of the Statute of Frauds makes void 
 (not voidable) any transfer of real or personal estate 
 with intent to hinder creditors or other persons. A 
 husband in anticipation of separate maintenance pro- 
 ceedings about to be brought against him by his wife 
 transferred a large amount of personal and real prop- 
 erty to his son by a former wife. The father and son 
 stipulated in writing that the latter should pay the 
 former an annuity, and also stipulated by a separate 
 writing to surrender back the personal property upon 
 
 as White v. Cannon, 125 111. 412-415; Pope v. Dapray, 176 111. 478- 
 485. 
 
 a* Linkeman v. Knepper, 226 111. 473-479. 
 
 ss Koenig v. Dohm, 209 111. 468-482. 
 
 se Jones v. King, 86 111. 225-229 (quoting Bump on Fraudulent 
 Conveyances) ; Moore v. Wood, 100 111. 451-454. 
 
148 TRUSTS AND TRUSTEES. 
 
 demand by the father. Upon a bill brought by the 
 father to recover his property, the agreement was held 
 to be void as intended to delay creditors or other per- 
 sons ; that it was proper for the purpose of so proving 
 to go behind the language of a writing and show its 
 real purpose and therefore it was competent for the de- 
 fendant to show that the trust was secret in order that 
 the creator of it might have the property handed back 
 to him after the accomplishment of his purposes, even 
 though the defendant was ostensibly bound by the in- 
 strument. The secrecy of a trust does not depend 
 upon whether it exist orally or in writing, it may be 
 either public or secret in either case. Where a secret 
 trust has been made a later valid trust may be created 
 out of the same property for a valuable consideration" 
 but it must be open, notorious and made in good faith. 37 
 
 § 259. Where one having an equitable title has held 
 out another to be the owner of the land he will not only 
 be estopped afterwards to assert his own title as 
 against one who relied thereon, but" his creditors will 
 not be able to avail themselves of the Statute of Frauds 
 to defeat the estoppel. 38 
 
 § 260. A trust to raise funds for the purpose of de- 
 fending a criminal prosecution is valid, but not a fur- 
 ther trust for the benefit of the donor and his family as 
 against his subsequent creditors. 39 
 
 § 261. Parents conveyed land to their son without 
 consideration upon an oral trust that he would recon- 
 vey to his mother. The son did not do so, and the 
 
 37 Tyler v. Tyler, 126 111. 525-536, rev'g 25 App. 333; Bostwick v. 
 Blake, 145 111. 85-89; Kassing v. Durand, 41 App. 93-106; Perisho v. 
 Qulnn, 52 App. 102; Best v. Puller, 185 111. 43-48; McNeil v. Hovland, 
 91 App. 315. 
 
 as Cross v. Weare Commission Co., 153 Iff. 499-516. 
 
 3» Truitt v. Griffin, ©1 111. 26-30. 
 
THE STATUTE OF FRAUDS AND PAROL TRUSTS. 149 
 
 mother retained possession of the property; her pos- 
 session was held notice to the world of the trust which 
 equity would enforce under the circumstances, without 
 regard to the Statute of Frauds, and would protect 
 against creditors of the son. The possession was the 
 controlling factor here. 40 
 
 § 262. The Statute of Frauds, when pleaded, is a 
 bar to any parol trust, except resulting trusts and im- 
 plied and constructive trusts. 41 
 
 If the defendant fails to plead the Statute of Frauds 
 as against an express parol trust the court has no dis- 
 cretion to refuse to carry it into effect as it is proved. 42 
 
 § 262a. The Statute may be raised by demurrer in 
 chancery if the bill does not state affirmatively that 
 there is written proof of the trust in the lands. 43 
 
 § 262&. If the wrong section of the Statute of 
 Frauds be pleaded to an express oral trust in lands, 
 but it appears that the defendant relies on the Statute 
 the trust will not be enforced. 44 
 
 § 262c. Upon a bill to compel the conveyance of the 
 legal title to land claimed as a gift the answer alleged 
 that complainant's "show only such parol gift as is 
 governed by the Statute of Frauds and Perjuries and 
 
 « Gallagher v. Northrup, 215 111. 563. 
 
 « Hovey v. Holcomb, 11 111. 660-665; Lawson v. Lawson, 117 111. 
 98-100; Johnston v. Johnston, 138 111. 385-388; Moore v. Horsly, 156 
 111. 36-41; White v. Ross, 160 111. 56-69; Mayfield v. Forsyth, 164 111. 
 32-35; Kyle v. Wills, 166 111. 501-<511; Gruhn v. Richardson, 128 111. 
 178-187; Monson v. Hutchin, 194 111. 431-433; Potter v. Clapp, 203 
 111. 592-604; Ryder v. Ryder, 244 111. 297-309. 
 
 42 Carpenter v. Davis, 72 111. 14-17; Gordon v. Reynolds, 114 111. 
 118-126. 
 
 43 Monson v. Hutchin, 194 111. 431-433; Prouty v. Moss, 111 App. 
 536^541. 
 
 44 Markham v. Katzenstein, 209 111. 607-619. 
 
150 TRUSTS AND TBTJSTEES. 
 
 of no avail against these defendants," and this was 
 held a sufficient pleading of the Statute, although in- 
 formal. 45 
 
 § 263. The Statute cannot be raised as against a 
 bill to enforce a trust in a master's certificate of sale, 
 as it is personal property. 46 
 
 § 264. Constructive trusts are not affected by the 
 Statute. It exempts them expressly, 47 and a parol 
 partnership agreement to speculate in land as partners 
 creates a trust by operation of law, by reason of the 
 partnership relation which is not within the Statute 
 of Frauds. Equity also considers partnership lands 
 as personalty. 48 
 
 § 264a. A parol agreement that a wife might furnish 
 a part of the unpaid purchase money and share in the 
 profits does not create a resulting trust and is within 
 the Statute when pleaded. 49 
 
 § 265. The defence of the Statute of Frauds is 
 purely personal and cannot be raised by third persons 
 not parties to the parol contract, 50 or against credit- 
 ors of the cestui que trust. 51 
 
 The Statute of Frauds cannot be raised by one who 
 did not make the oral promises, as where a wife hold- 
 ing title in trust for her children by a former husband 
 conveyed to them in her lifetime without her second 
 husband joining, the latter could neither have dower 
 
 « Schoonmaker v. Plummer, 139 111. 612-617. 
 
 « Reese v. Wallace, 113 111. 589-594. 
 
 « Roby v. Colehour, 135 111. 300-340; Grossman v. Keister, 223 111. 
 69-87. 
 
 ±*Speyer v. Desjardins, 144 111. 641-648; Frankenstein v. North, 
 79 App. 689. 
 
 « Jacksonville Nat. Bank v. Beesley, 159 111. 12©-12€. 
 
 so Wilson v. Mason, 158 111. 304-313. 
 
 si Andrews v. Scott, 113 App. 581-593, aff'd 211 111. 612. 
 
THE STATUTE OF FBATJDS AND PAROL TBTTSTS. 151 
 
 nor raise the Statute of Frauds against the trust. It 
 is a defence wholly personal. 52 
 
 § 265a. Only the grantee in a deed in form absolute 
 can make a declaration of an express trust, and, hav- 
 ing admitted by an answer in chancery that there was 
 a parol trust, rival claimants, claiming under deeds 
 made afterwards by the creator of the trust, will be 
 so bound by such trustee's admissions that they cannot 
 avail themselves of the Statute of Frauds which was 
 not made for the benefit of those seeking to defeat the 
 operation of deeds absolute upon their face. 53 
 
 § 2656. A contract for the purchase of land was as- 
 signed as collateral security and the vendee sought to 
 have the assignment held to be an express trust which 
 would be repugnant to the Statute of Frauds without 
 all of the terms and purposes of the assignment being 
 expressed in writing. But the Supreme Court, with- 
 out passing upon the question whether such an assign- 
 ment of a contract was an express trust within the 
 Statute of Frauds, held that the Statute was not in- 
 tended for the benefit of those seeking to defeat the 
 operation of such deeds by showing that they were 
 made upon trusts not appearing upon their face, and 
 that only the grantee in deeds absolute on their face 
 can plead the Statute of Frauds as against an alleged 
 express trust. 54 
 
 32 King v. Bushnell, 121 111. 656-660; Andrews v. Scott, 113 App. 
 581-593, aff'd by 211 111. 612. 
 
 53 Myers v. Myers, 167 111. 52-64. 
 
 s* Allen v. Woodruff, 96 111. 11-24; Kellogg v. Hale, 109 111. 164- 
 167; Myers v. Myers, 167 111. 62-64. 
 
152 TRUSTS AND TRUSTEES. 
 
 CHAPTER XV. 
 
 SECSET TETJSTS, CREDITORS, AND SPENDTHRIFT TRUSTS. 
 
 § 266. "As a general rule a transfer of property by 
 a debtor in failing circumstances, purporting on its 
 face to be absolute and without reservation, and yet 
 accompanied by a concealed agreement between the 
 parties reserving an interest, benefit or advantage to 
 the debtor inconsistent with its terms is either prima 
 facie or conclusively fraudulent against creditors in- 
 jured thereby, * * * it is immaterial that the in- 
 terest reserved is not of great value ; it is sufficient if 
 it is a substantial interest, nor is the rule altered, al- 
 though the transfer was upon a valuable considera- 
 tion. The burden is upon the contesting creditor to 
 establish by competent evidence the fact of a secret 
 trust or reservation for the benefit of the seller or 
 grantor. A secret trust or confidence created for the 
 benefit of the grantor may be express or implied from 
 extrinsic circumstances and may be proved by parol. " l 
 "If a testator make a devise, or a grantor a convey- 
 ance, upon a secret trust in fraud of the law, or for a 
 purpose forbidden by law, or .contrary to public policy, 
 those interested may bring a bill alleging the secret 
 trust, and the fraud upon the law, and the persons to 
 whom the devise or conveyance was made .must answer, 
 notwithstanding the Statute of Frauds. If such fraud- 
 ulent trust appear by the answer, or by any clear and 
 explicit proof in opposition to the answer, a trust will 
 be declared and enforced in favour of those interested 
 
 i 20 Cyc. 562. 
 
SECRET AND SPENDTHRIFT TRUSTS. 153 
 
 in the estate, or in the event of the failure of the il- 
 legal trust. In all cases of actual fraud parol evidence 
 is admissible, otherwise a fraud put in writing would 
 always escape." 2 
 
 The 4th section of the Illinois Act on "Frauds and 
 Perjuries" makes void every conveyance or judgment 
 made or suffered with the intent to hinder creditors 
 or other persons, and this act is the pole-star to which 
 the following decisions look. 
 
 § 267. A debtof cannot convey property, or cause 
 the same to be conveyed, to be held wholly or in part 
 in secret trust for himself, or for the support of any 
 of his family, so as to hinder creditors, and such con- 
 veyance will be not voidable but absolutely void both 
 as to precedent and subsequent creditors. 3 
 
 § 267a. Any secret trust by which land is to be held 
 for the benefit of the grantor is, of course, as respects 
 the grantor's creditors, fraudulent and void. 4 And an 
 oral, secret trust to hold an undivided interest in land 
 for the benefit of certain cestui's que trustent will not 
 be enforced as against bona fide purchasers or cred- 
 itors of the one holding the legal title, they having no 
 notice of any trust. 5 
 
 § 267&. The Insurance Act of 1869, still in force, 
 makes all life insurance taken out in a wife's name 
 
 2 Perry on Trusts, 6th Ed. Sec. 216. 
 
 a Bostwlck v. Blake, 145 111. 85-89; Best v. Fuller & Fuller Co., 185 
 I'll. 43-48, aff'g 85 App. 500; Jones v. King, 86 111. 225-229; Annls v. 
 Bonar, 86 111. 128-130; Gordon v. Reynolds, 114 111. 118-127; Smith 
 v. Patton, 194 111. 638-640. 
 
 * Mitchell v. Sawyer, 115 111. 650-656; Beidler v. Crane, 135 111. 92- 
 98; Gary v. Newton, 201 111. 170-18C. 
 
 » Gary v. Newton, 201 111. 170-186; Moore v. Wood, 100 111. 451; 
 Lawson v. Funk, 108 111. 502-613, aff'g 12 App. 229; Gallagher v. 
 Northrup, 114 App. 368. 
 
154 TBUSTS AND TRUSTEES. 
 
 with the intent to hinder creditors enure to their bene- 
 fit. 6 
 
 § 268. A conveyance by a failing debtor to a trustee 
 of certain property, book accounts, etc., in trust to sell, 
 and, after paying the expenses of the trust, then to pay 
 certain named creditors in full, and if there should be 
 a surplus to pay certain other creditors pro rata, and 
 providing further that all creditors not becoming par- 
 ties to the deed within twelve months should be de- 
 barred from claiming dividends, is fraudulent and void 
 in that it imposes onerous and unconscionable burthens 
 upon creditors and reserves undue advantage to the 
 debtor. 7 
 
 § 268a. The reservation of any undue advantage to 
 the debtor or unusual restrictions placed upon the as- 
 signee make the deed void. 8 But such deeds are void 
 only as to creditors and not as to the grantor and those 
 claiming under him, 9 and where the trustee reconveyed 
 and the deed was lost and never recorded equity might 
 then enforce a conveyance of the record title, no cred- 
 itors' rights having intervened before the attempt was 
 made to re-vest the title of record, upon the ground 
 that, while equity will leave a fraudulent transaction 
 as it finds it, yet a reconveyance is but the fulfillment 
 of a moral obligation, and, having been executed, 
 equity may then give it effect; and the possession of 
 the land by the grantee in the lost deed would be notice 
 to any mortgagee of the record owner. 10 
 
 § 268&. While gifts of personal property or real es- 
 tate by a parent to a child are presumed to be advance- 
 
 6 Houston v. Maddox, 179 111. 377-384. 
 
 ' Howell v. Edgar, 3 Scam. 417. 
 
 » Hardin v. Osborne, 60 111. 93-100. 
 
 » Finley v. McConnell, 60 111. 259-261. 
 
 io Springfield Homestead Assn. v. Roll, 137 111. 205-212. 
 
SECBET AND SPENDTHRIFT TKTJSTS. 155 
 
 ments, especially if the child be a minor, yet the proof 
 of fraud or an intention to hinder creditors will ef- 
 fectually rebut such a presumption. 11 
 
 § 269. The indebtedness to creditors is a sufficient 
 consideration to support a deed in trust for their bene- 
 fit. 12 A mere agreement to execute a trust in futuro, 
 without compensation, is not obligatory; but it is re- 
 garded, however, as a good and sufficient consideration 
 for compelling the proper execution of a trust that 
 there was confidence reposed in the trustee, that he 
 actually entered into the duties of his trust,, and that 
 injury might result to the beneficiary if the trust were 
 not executed with the same diligence and good faith as 
 if the trustee were to receive a liberal reward for his 
 services. 13 
 
 § 270. A creditor's bill will not reach trust property 
 conveyed in trust in good faith by some one other than 
 the beneficiary who is the debtor whose property is 
 sought to be reached, 14 and an annuity given by a tes- 
 tatrix for the support of her husband and their chil- 
 dren cannot be taken by creditors of the husband as 
 there are other beneficiaries involved, i. e. the chil- 
 dren. 15 But the beneficiary may assign the income to 
 secure a creditor unless the trust instrument prohib- 
 its it. 16 
 
 § 270a. A conveyance of land to a trustee for the 
 benefit of a part of the creditors of a third person does 
 
 u Bay v. Cook, 31 111. 336-345. 
 
 12 Hudson v. Maze, 3 Scam. 578. 
 
 13 Switzer v. Skiles, 3 Glim. 529-535; Cooper v. McClun, 16 111. 
 436-443; Doolittle v. Jenkins, 55 111. 400. 
 
 "Binns v. LaForge, 191 111. 598-607; Henderson v. Harness, 176 
 111. 302-307. 
 is Linn v. Downing, 216 111. 64-73. 
 i« Binns v. LaForge, 191 111. 598-608. 
 
156 TRUSTS AND TRUSTEES. 
 
 not give the debtor an interest which is subject to levy 
 and sale on execution. 11 
 
 § 270b. If a purchaser of land assumes his vendor's 
 debts he does not thereby become a trustee for the 
 creditors of his vendor but merely their debtor. 18 
 
 A client conveyed land to her attorney in payment 
 of fees in a pending suit in which other counsel were 
 retained afterwards, but the grantee could not be held 
 a trustee for his brother attorneys even if he had em- 
 ployed them. 19 
 
 § 271. A failing debtor was permitted to continue 
 business in his own name under the supervision of a 
 committee of some of his creditors for such a length 
 of time as they might need to arrive at an understand- 
 ing of the condition of affairs. No property came into 
 the possession of the committee, nor was any assign- 
 ment thereof made to them, and, under these facts, the 
 committee could not be held as trustees to be liable to 
 the creditors generally. 20 
 
 § 272. Purchase money notes given to acquire a 
 business, and placed in the hands of a third person to 
 apply the proceeds to the pro rata payment of the 
 debts of the business constitute a trust fund which the 
 maker of the notes, by purchasing claims against the 
 business, cannot prevent the creditors from sharing 
 in pro rata, but the subsequent notes of the same 
 maker made without any agreement as to how their 
 proceeds should be applied would not constitute a like 
 
 " Thomas v. Eckard, 88 111. 593-595; Binns v. LaPorge, 19"1 111. 
 698-607. 
 
 is Steele v. Clarke, 77 111., 471-474. 
 i» Gibson v. Decius, 82 111. 304-306. 
 20 Hall v. Crane Co., 87 111. 283-288. 
 
SECEET AND SPENDTHRIFT TRUSTS. 157 
 
 trust fund so as to prevent the maker from setting off 
 the obligations of his payee in a suit bought on such 
 subsequent notes. 21 
 
 § 273. A surety or indorser who receives from his 
 principal collaterals, or pledges of property, for the 
 better security of the debt is in equity the trustee not 
 only for any other surety, but also for the creditor, 
 until the debt is discharged. 22 
 
 A debtor gave a mortgage to secure sureties on his 
 certain described -notes "together with any other 
 sums" for which the sureties might be liable, and it 
 was held a trust attached to the mortgage not only for 
 the benefit of the holders of the notes described but 
 also for the other creditors within its terms who might 
 be identified by parol evidence. 23 
 
 § 274. Unless the right to a preference is estab- 
 lished by a creditor a trustee for the benefit of cred- 
 itors should apply the proceeds of the estate pro rata 
 towards extinguishing all of the claims. 24 
 
 After an assignment for the benefit of creditors and 
 without preference has been made, all of the creditors 
 are entitled to share pro rata in the trust estate and 
 cannot be deprived of such right by the fraudulent act 
 of the trustees, but only by their own act, or a decree 
 or judgment of a court of competent jurisdiction, or by 
 the lawful acts of the trustees themselves. 25 
 
 A conveyance in trust to pay existing encumbrances 
 
 21 Daugherty v. Monroe, 79 111. 395-398. 
 
 22 Halle v. Nat. Park Bank, 140 111. 413-419, afl'g 41 App. 19. 
 as Chambers v. Prewitt, 172 111. 615. 
 
 2* Becker v. Williams, 49 111. 208. 
 
 25 Field v. Flanders, 40 111. 470-474; Gibson v. Rees, 50 111. 383; 
 Walker v. Matthews, 58 111. 196. 
 
158 TRUSTS AND TBUSTEES. 
 
 of a certain amount and then other claims will be up- 
 held as a preference in favour of creditors of the 
 amounts designated, although such amounts were not 
 encumbrances or judgment liens on the land, and this 
 because equity would correct the mistake upon a bill 
 for that purpose. 26 
 
 § 275. If a husband attempts to prefer his wife to 
 other creditors she must show by clear and convincing 
 evidence that her claim was a valid, subsisting indebt- 
 edness due her from her husband, which she had a right 
 to enforce, and that she had not delayed an unreason- 
 able length of time in protecting her claim. 27 
 
 § 276. A failing debtor arranged with all of his 
 creditors except one to convey his land in trust for 
 the satisfaction of their claims pro rata; the objecting 
 creditor, upon being given a bond to secure him from 
 losing any part of his claim then consented ; afterwards 
 the other creditors agreed that the trust be changed to 
 the form of a land association, to which the creditor 
 holding the bond would not agree and filed his bill to 
 have the original trust enforced and for an accounting 
 from the trustee, nnd it was held that he was entitled 
 to the relief prayed, as it was no fraud upon his part 
 to insist upon payment of his claim in full even though 
 the other creditors did not know that he was protected 
 by the bond. 28 
 
 § 277. A debtor conveyed his land to a trustee to 
 sell it and apply the proceeds to the payment of the 
 debts; a creditor, claiming that there was an agree- 
 so Rankin v. Barcroft, 114 111. 441-454. 
 
 " Sifferman v. Hill, 131 App. 174-182; Harrison v. Longbrake, 134 
 App. 338-340. 
 
 28 Lobdell v. Bank, 180 111. 56-59, affg 78 App. 600. 
 
SECRET AND SPENDTHRIFT TRUSTS. 159 
 
 ment to prefer him, sued the trustee for the amount 
 due him, but failed to prove any undertaking on the 
 part of the trustee to pay his claim in full, and the 
 trustee was held to be guiltless of any breach of trust. 29 
 
 § 278. The firm assets of an insolvent co-partner- 
 ship are treated in equity as a quasi trust fund for the 
 benefit of the creditors, and the Statute forbids the 
 making of preferences by an insolvent. 30 
 
 § 278a. A corporation may, in good faith, assign a 
 fund to a trustee *f or the benefit of certain creditors, 
 their assent being presumed, even though a receiver is 
 appointed immediately afterwards, where there was 
 no intention by the corporation's officers to make a gen- 
 eral assignment for all the creditors. 31 
 
 § 279. Where a receiver is appointed on a bill filed 
 for the complainants only, and not for other creditors 
 generally, the receiver will hold for the benefit of the 
 complainants alone until their claims are satisfied, if 
 they are entitled to a preference, and the other credit- 
 ors by intervening may share in any surplus according 
 to their rights of priority. 32 
 
 § 280. A creditor's bill, not' filed for the benefit of 
 other creditors generally, will not prevent other judg- 
 ment creditors from pursuing equitable assets also, 
 they being given priority among themselves in the or- 
 der of filing their bills, and priority over all creditors 
 who have not reduced their claims to judgment. ~It 
 is only where the court has taken exclusive jurisdiction 
 of the trust fund that creditors cannot reap the reward 
 of their diligence, if they have not been guilty of fraud 
 
 29 Becker v. Williams, 49 111. 208. 
 
 30 Crouch V. First Nat. Bank, 156 111. 342-353. 
 3i C. T. & T. Co. v. Smith, 158 111. 417-424. 
 
 32 Young v. Clapp, 14)7 111. 176-186. 
 
160 TRUSTS AND TRUSTEES. 
 
 or collusion with the debtor in obtaining their judg- 
 ments. 33 
 
 § 281. A creditor of a cestui que trust cannot at- 
 x tach or garnish trust funds in the hands of the trustee 
 where the trust instrument directed that the net in- 
 come should be paid to the cestui que trust in person 
 and not on any assignment or transfer of the same 
 made by the cestui que trust, 34, and restraint against 
 alienation can be effectuated only by means of a con- 
 veyance to a trustee else creditors may levy. 35 
 
 § 282. A gift in trust to raise an annuity for the 
 benefit of the trustee and his two children so long as 
 they should live with him or until the children should 
 attain thirty years of age when a partial distribution 
 was to occur, and afterwards to provide a smaller an- 
 nuity for the trustee during his lifetime, prevents a 
 judgment creditor of such trustee from subjecting the 
 latter 's annuity to the judgment before the children 
 attain thirty years of age when the trust would be 
 passive and the legal and equitable estates of the trus- 
 tee as to his share of the annuity would be merged. 36 
 
 § 283. Judgment creditors of a deceased mortgagor 
 who have merely taken out execution without levying 
 on and selling the land subject to the encumbrance 
 cannot claim the surplus arising from the foreclosure 
 sale as against the executor, but must share with the 
 general creditors of the estate. 37 
 
 § 284. If a creditor, together with other creditors,, 
 accept the debtor's proposition to convey to a trustee 
 
 as Russell v. Chicago T. & S. Bank, 139 111. 538-549; Gottlieb v. 
 Miller, 154 111. 44-53. 
 a* Steib v. Whitehead, 111 111. 247-250. 
 36 Henderson v. Harness, 176 111. 302-307. 
 
 36 Linn v. Downing, 216 111. 64, aff'g 116 App. 454. 
 
 37 Pahlman v. Shumway, 24 111. 127-131. 
 
SECBET AND SPENDTHRIFT TBTJSTS. 161 
 
 and sueh creditor also agreed with the other creditors 
 to advance his proportionate share of the amount nec- 
 essary to protect the property from pre-existing liens, 
 and the other creditors agree upon a trustee without 
 any objection from the first creditor, the latter will be 
 bound by his tacit acquiescence in the acts of the trus- 
 tee, although he avers he had no knowledge that there 
 was a trustee. 38 
 
 § 285. Under a will, by which land was devised to a 
 trustee to hold during the lifetime of a son and then 
 to convey to the son's heirs, the son was given power 
 to direct the trustee to convey the land. A creditor 
 of the son sought to have equity compel the son to ex- 
 ercise this power of appointment, but it was held that 
 the donee of the power might use his discretion, as he 
 might in accepting or refusing any other gift, and until 
 he attempted to exercise the power no trust for the 
 benefit of a creditor would arise. 39 
 
 § 286. The promise of a failing debtor to transfer a 
 promissory note owned by him to a trustee, who was 
 also the nominal payee, for the benefit of a creditor, 
 and which promise the debtor never executed, but as- 
 signed his equitable interest in the note to another, 
 does not create a trust which equity will enforce, in 
 the absence of any act done by the creditor to his preju- 
 dice on the faith of the promise, which would give him 
 the benefit of an estoppel in pais as against the debtor 
 and the latter 's assignee of the note. 40 
 
 § 287. Where a married woman conveys her prop- 
 erty to a trustee for the benefit of her husband's cred- 
 itors, and the deed sets out the purposes of the frust 
 
 ss Condict v. Flower, 106 111. 105-115. 
 39 Gllman v. Bell, 99 111. 144-149. 
 *o Wyatt v. Mayfleld, 91 111. 577-581. 
 11 
 
162 . TKUSTS AND TRUSTEES. 
 
 fully, she will be bound thereby if she fails to show 
 that she was induced to sign the deed through fraud 
 or undue influence. 41 
 
 § 287a. A husband having the possession and record 
 title to land permitted his wife to engage in business 
 separately, and to collect the income from the land and 
 to use it in her business; her creditors sought to sub- 
 ject the land to the payment of her debts on the ground 
 that the husband was estopped to deny that the wife 
 was the actual owner, but, inasmuch as he had never 
 induced anyone to give her credit on the faith that she 
 was the owner, it was decided that he could not be 
 estopped from asserting his own ownership. 42 
 
 § 288. In order to impeach a conveyance as in hin- 
 drance of creditors it is competent to show not only the 
 manner in which the property was disposed of, but the 
 circumstances under which the debtor obtained the 
 property in the first instance. 43 
 
 § 289. As against the creditors of a decedent who 
 made in his lifetime oral or written declarations of 
 trust or entries in books that he 'held 'title to property 
 in trust for another, such declaration's may be received 
 in evidence as secondary evidence, ! provided it be 
 proved that the declarant is dead, : that the declarations 
 were against his interest, that he was fully informed 
 in respect of the matter declared about, and to satisfy 
 the court that there was no probable motive for de- 
 claring-falsely. 44 
 
 § 290. Where the trustee of a debtor fails to apply 
 the trust fund for the benefit of the creditors, the lat- 
 
 4i Martin v. Clark, 116 111. 654-663. 
 
 *2 That v. Oleson, 125 111. 365-367. 
 
 « Lockwood y. Doane, 107 111. 235-240. 
 
 « German Ins. Co. v. Bartlett, 188 111. 165-173. 
 
SECRET AND SPENDTHRIFT TBTJSTS. 163 
 
 ter may proceed in equity to have the fund subjected 
 to the payment of debts, and, where the debtor has 
 died the administrator should be ordered to apply the 
 proceeds in due course of administration. 45 
 
 § 291. A voluntary assignment in the County Court 
 to be effective must be by deed containing a declara- 
 tion of trust for the benefit of creditors. 46 
 
 § 291a. After the discontinuance of voluntary as- 
 signment proceedings the estate of the debtor which 
 has not been administered reverts to him as though no 
 assignment had been made, and each creditor may pro- 
 ceed against it as before. 47 
 
 § 291&. A creditor not consenting to a fraudulent 
 discontinuance of voluntary assignment proceedings 
 may pursue the trust funds. 48 
 
 § 292. A conveyance in trust for the benefit of cred- 
 itors is not terminated by the discharge in bankruptcy 
 of the debtor, nor must a creditor in such case reduce 
 his claim to judgment before he can come 'into a ctfurt 
 of equity. A creditor's bill or a bill in aid of an exe- 
 cution are unnecessary where there has been a breach 
 of an express trust. 49 
 
 § 293. The Statute of Frauds does not apply to a 
 parol trust in which the trustee for the benefit of cred- 
 itors, in taking the trust estate, promises to pay the 
 debt of another. 50 
 
 45 Jenkins v. Doollttle, 69 HI. 415; Walker v. Matthews, 58 111. 
 196; Roberts v. Richards, 36 111. 339. 
 
 46 Price v. Laing, 152 111. 380-384. 
 
 *7 Stoddard v. Gilbert, 163 111. 131-135, aff'g 62 App. 70; Am. Exch. 
 Bank v. Walker, 164 111. 135. 
 
 4s Am. Exch. Bank v. Walker, 164 111. 135, aff'g 60 App. 510. 
 48 Miller v. Davidson, 3 Gilm. 518-523. 
 soWalden v. Karr, 88 111. 49-52. 
 
164 TRUSTS AND TRUSTEES. 
 
 § 294. The Appellate Court have defined a spend- 
 thrift trust as one "created with a view of providing 
 a fund for the maintenance of another, and at the same 
 time securing it against his own improvidence or in- 
 capacity for self -protection. " 51 
 
 Spendthrift trusts may now be regarded beyond 
 question, in Illinois, as valid restraints upon aliena- 
 tion, and since the decision was handed down in the 
 leading case of Steib v. "Whitehead 52 the Supreme 
 Court have upheld a number of trusts of the same class, 
 notwithstanding the different view taken in England of 
 the subject as Well as in some of the American States. 
 "The increasing weight of authority in America fa- 
 vours the rule that provisions against alienation or 
 anticipation of income to which a beneficiary is abso- 
 lutely entitled are not inconsistent with any estate 
 granted to him and not against the policy of the 
 law. * * * None of these States (upholding spend- 
 thrift trusts) goes to the extent of holding that a cestui 
 que trust's interest in the corpus of trust property, 
 if he has an interest, can be made inalienable, except 
 in the case of married women. 
 
 ' ' The American doctrine rests upon the ground that 
 a right to receive income of a trust fund is not neces- 
 sarily an interest in the fund itself. The limitations 
 on the American doctrine are stated as follows in Ress- 
 ner v. Phillips: 53 'In order to. have a spendthrift trust 
 certain prerequisites must be observed; first, the gift 
 to the donee must be only of the income. He must take 
 no estate whatever, have nothing to alienate, have no 
 
 si Wagner v. Wagner, 149 App. 73-81. 
 
 52 Steib v. Whitehead, 111 III. 247-250. 
 
 53 Kessner v. Phillips, 189 Mo. 515-524. 
 
SECKET AND SPENDTHRIFT TRUSTS. 165 
 
 right to possession, have no beneficial interest in the 
 land, but only a qualified right to support and an 
 equitable interest only in the income ; second, the legal 
 title must be vested in a trustee; third, the trust must 
 be an active one, not a mere dry trust which may be 
 executed under the Statute of Uses. ' " 54 
 
 § 295. Steib v. Whitehead: 55 This case brought the 
 question squarely before the court under a devise to 
 trustees to manage and pay the net income of the es- 
 tate to a daughter for her life and in person, and not 
 upon any assignment by the daughter. A creditor of 
 the daughter sought J;o reach trust monies by attach-' 
 ing them in the hands of the trustees as garnishees, 
 but it was settled that the intention of the testator to 
 protect his child from her improvidence was a proper 
 subject of a trust and in accord with public policy. 
 
 § 296. No express words are necessary in order to 
 place a trust estate beyond the reach of creditors of 
 the cestui que trust, if the trust instrument taken as a 
 whole and construed in view of the surrounding cir- 
 cumstances indicates the intention of the donor so to 
 do. If- the income only of the fund be given to the 
 cestui que trust that fact may be taken into considera- 
 tion, as well as the fact that other cestuis que trustent 
 are to enjoy possession of the principal of their funds 
 at an earlier period. And so where a trust fund was 
 not to be paid to the cestui que trust until he attained 
 forty years of age, and, in case his mother was not then 
 alive, the trust should continue ten years longer, and 
 it appeared that the cestui que trust had been improvi- 
 
 54 perry on Trusts, 6th Ed. Sec. 398a, foot-notes, 
 ss Steib v. Whitehead, 111 III. 247-250; see also , Chapman v. 
 Cheney, 191 111. 574-583. 
 
166 . ' • TRUSTS AUD trustees: : 
 
 dent, it was held clear that the intention was to create 
 a spendthrift trust, although the case is not wholly in 
 consonance with the principles enunciated in Kesner 
 v. Phillips, supra. 5 * 
 
 § 297. Where a spendthrift trust is created no en- 
 quiry can be made as to -whether the cestui que trust 
 is in reality a spendthrift or the reverse, but the trust ' 
 must be executed as directed. A failure upon the part 
 of the donor of a spendthrift trust to make a gift over 
 upon the termination of the trust will not avoid it ; the 
 property will pass to the spendthrift's heirs at his 
 death unless a prior termination be provided for aud 
 occur. 57 
 
 § 298. A testator created two spendthrift trusts to 
 last during the lives of his two sons, and provided that 
 upon the death of either spendthrift such trust portion 
 should be distributed among the surviving children of 
 the testator "in the same way, subject to the same 
 trusts and provisos under which they respectively re- 
 ceive their portions of my estate." One of the spend- 
 thrifts having died it was held that the other spend- 
 thrift's interest in the deceased spendthrift's trust por- 
 tion was not an equitable fee but merely an equitable 
 life estate to be held for him upon the same trusts 
 which governed his original trust portion. 58 
 
 § 299. A spendthrift trust for a grandson providing 
 that the trustees should, in their discretion, pay him, 
 or his wife or children, sufficient out of the trust fund 
 to provide for their comfort was held to terminate at 
 the death of the wife of the spendthrift, she having 
 
 Be Bennett v. Bennett, 217 111. 434-440," aff'g 66 App. 28; Wagner v. 
 Wagner, 244 III. 101-111. ~ 
 
 57 Wagner v. Wagner, 244 111. 101-111. .5:"-!" 9 
 58Rackemann v. Tilton, 236 111. 49-61. 
 
' SECEET AND SPENDTHRIFT TBTJSTS. 167 
 
 survived him, and not to continue until the death of 
 the children. 59 
 
 § 300. Spendthrift trusts are exempt merely from 
 the grasp of creditors, but are otherwise subject to the 
 rules of devise and alienation. (This is obiter.) 60 
 
 as King v. King, 168 111. 273-277. 
 
 so Pearson v. Hanson, 230 111. 610-618. 
 
 .<**.(; H't »■•> ■ ->* « 
 
 t 'ViK k>.'-v^'; 
 
168 TRUSTS AND TRUSTEES. 
 
 CHAPTER XVI. 
 
 ACTIVE AND PASSIVE TRUSTS, AND THE STATUTE OF USES. 
 
 § 301. So early as the days of Richard III (1483- 
 1485) the abuses arising from feoffments to uses 
 caused the enactment of a Statute designed to give the 
 cestui que use not only the power to convey the use in 
 the land, but the possession thereof like any legal 
 owner. And while this Statute accomplished much 
 that was expected of it, yet its principal deficiency was 
 found to lie in its failure to prevent the feoffees to 
 uses from also conveying the lands so seized to uses. 
 This condition brought about the passage of the better 
 known Statute of Uses-, 27 Henry VIII, Cap. 10, of 
 which Sec. 1 thereof was almost identical with Sec. 3. 
 of the Illinois Act on Conveyances. The principal 
 uses to which the Statute has been held not to apply 
 are uses limited upon uses, uses limited upon personal 
 property, and active trusts ; * there are also other uses 
 which have been held exempt, but which are of little 
 practical moment to the Illinois practitioner, except, 
 in view of recent decisions, what are called contingent 
 uses which are not acted upon by the Statute during 
 the period of contingency. Trusts for the preserva- 
 tion of contingent remainders will, doubtless, be of 
 more frequent occurrence in Illinois, now that the 
 clear-cut case of Bond v. Moore (236 111. 576) has up- 
 held Madison v. Larmon (170 111. 65). 
 
 iKirkland v. Cox, 94 111. 400; Glover v. Condell, 163 111. 566-588; 
 Ure v. Ure, 185 111. 216; Bennett v. Bennett, 217 111. 434-435; Reich- 
 ert v. Mo. & 111. Coal Co., 231 111. 238; or to chattel interests In land, 
 Perry 6th Ed. Sees. 303 and 311. 
 
ACTIVE AND PASSIVE TRUSTS. 169 
 
 § 302. The Statute for Transferring Uses into Pos- 
 session (27th Henry VIII) was first enacted in Illinois 
 in 1845, and, concerning a conveyance to A in trust for 
 B and C forever, our Supreme Court held that in the 
 absence of an active trust the Statute worked auto- 
 matically to vest the legal estate in the cestuis que trus- 
 tent where there was a person seized to a use, a cestui 
 que use and a use in esse; that the legal estate never 
 vests in the feoffee even for a moment, but is instan- 
 taneously transferred to the cestui que .use as soon as 
 the use is declared. "And the seizin and possession 
 thus transferred is not a seizin and possession in law 
 only, but are actual seizin and possession in fact — not 
 a mere title to enter upon the land, but an actual es- 
 tate." 2 
 
 § 303. The doctrine as announced in Witham v. 
 Brooner, 63 111. 344, above, and Lynch v. Swayne 3 re- 
 fers only to passive, or dry trusts, where the grantee 
 never took the legal title even for a second, but the 
 same was passed non-mediately under the Statute of 
 Uses to the cestui que use. "It is said in Perry on 
 Trusts, Sec. 300, 'Although it is probable that it was 
 the intent of the Statute of Uses to convert all uses or 
 trusts into legal estates yet the convenience to the sub- 
 ject of being able to keep the legal title to an estate 
 in one person, while the beneficial interest was in an- 
 other, was too great to be given up altogether, and 
 courts of equity were astute in finding reasons to with- 
 
 2 Witham v. Brooner, 63 III. 344-346; United Brethren Church v. 
 First M. E. Church, 138 111. 606-611; Silverman v. Kristufek, 162 
 111. 222-228; Drake v. Steele, 242 111. 301-308. 
 
 3 Lynch v. Swayne, 83 111. 336; Kirkland v. Cox, 94 111. 400-412; 
 Hart v. Seymour, 147 111. 598-611; Silverman v. Kristufek, 162 III. 
 222-228; Chicago Term. R. R. Co. v. Winslow, 216 111. 166-175; Ure 
 v. Ure, 185 111. 216. 
 
170 TBTJSTS AiJD TETJSTEES. 
 
 draw a conveyance from the operation of the Statute. 
 Three principal rules or reasons were laid down 
 whereby conveyances were excepted from such opera- 
 tion: First, where a use was limited upon a use; sec- 
 ond, where a copy-hold, or leasehold estate, or personal 
 property was limited to uses ; third, where such powers 
 or duties were imposed with the estate upon a donee 
 to uses that it was necessary that he should continue 
 to hold the legal title in order to perform his duty or 
 execute the power. In all of these three instances 
 courts, both of law and equity, held that the Statute 
 did not execute the use, but that such use remained 
 as it was before the Statute, a mere equitable interest 
 to be administered in a court of equity. The third rule 
 of construction is less technical and relates to special 
 or active trusts which were never within the purview 
 of the Statute.'" 
 
 § 304. The test to determine whether an express 
 trust is active or passive is by an inspection of the 
 terms contained in the instrument creating it, to ascer- 
 tain whether duties were devolved upon the trustee 
 to perform, and then to ascertain whether such duties 
 have been fully performed and completed; if so, the 
 trust becomes a use and the Statute of Uses operates ; 
 but if the trustee has not fully performed the duties 
 required of him the Statute of Uses will not be effect- 
 ive, unless the objects of the trust have become de- 
 feated and performance impossible.* 
 
 § 304a. A trust to keep the fund invested, pay taxes, 
 make repairs, etc., is active and a court of chancery 
 has jurisdiction, therefore, to control its administra- 
 
 * Meacham v. Steele, 93 111. 135-145; Kellogg v. Hale, 108 111. 1€4- 
 168; Hart V. Seymour, 147 111. 59S-611; Kohtz v. Eldred, 208 111. 60- 
 72; Moll v. Gardner, 214 111. 248-253. 
 
ACTIVE AND PASSIVE TRUSTS. 171 
 
 tion. 5 A trust "to control" land is synonymous with 
 one to manage or administer, and is, therefore, an ac- 
 tive trust. 
 
 A 'will, devising land to a son for the use of a daugh- 
 ter free from the control of her husband, "the rents, 
 issues and profits to be paid" to the daughter imposes 
 an active duty upon the trustee, although it does not 
 in terms direct the trustee to pay. 7 
 
 "Perry on Trusts, Sec. 305: If any agency, duty, or 
 power be imposed upon the trustee as by a limitation 
 to a trustee and his heirs to pay the rents, or to convey 
 the estate, or if any control is to be exercised or duty 
 to be performed by the trustee * * * the opera- 
 ation of the Statute (of Uses) is excluded and the 
 trusts or uses remain mere equitable estates." 8 A 
 duty to convey the title to the cestuis que trustent upon 
 the happening of a certain occurrence constitutes an 
 active trust. 9 
 
 § 305. The creator of a trust by a deed absolute in 
 form, but with an oral agreement with his grantee that 
 the latter should collect the rents, and sell and convey 
 as the creator might direct, will not be heard to claim 
 that the Statute of Uses operated after he has had the 
 trustee convey to the creator's wife, and she has di- 
 
 sEldred v. Meek, 183 111. 26-35; Harris v. Ferguy, 207 111. 534- 
 538; Chicago Term. R. R. Co. v. Winslow, 216 111. 166-175; Bennett v. 
 Bennett, 217 111. 434-440; Burbach v. Burbach, 217 111. 547-550; 
 Mason v. Mason, 219 111. 609-615; Matthern v. Rankin, 228 111. 318; 
 Bennett v. Bennett, 66 App. 28-37. 
 
 « Ure v. Ure, 185 111. 216; Harris v. Ferguy, 207 111. 534-538. 
 
 i Carpenter v. Browning, 98 111. 282. 
 
 » Kellogg v. Hale, 108 111. 164-169; Ure v. Ure, 185 111. 216; John- 
 son v. Lee, 228 111. 167-171. 
 
 9 Lawrence v. Lawrence, 181 111. 248-252; McFall v. Kirpatrick, 
 236 111. 2S1-294. 
 
172 TRUSTS AND TRUSTEES. 
 
 vorced him ; and the trust in such case, will be deemed 
 to have been an active one. 10 
 
 § 306. A trust to manage real estate for a certain 
 period and then to convey in equal parts among the 
 cestuis gue trustent becomes a passive trust at the end 
 of the term, and, if the land be insusceptible of equal 
 physical division, a court of equity may compel a con- 
 veyance of the legal title to equal undivided interests. 11 
 
 § 307. If the donor fix no time for the termination 
 of the trust his intention must be gathered from the 
 entire instrument, and, where it shows that a particu- 
 lar purpose was to be effectuated it will be held that 
 the trust will terminate upon its accomplishment, if 
 the rule against perpetuities be not violated thereby. 12 
 
 § 307a. But a trust to convey land upon the happen- 
 ing of a certain event, as, e. g., the death of a life ten- 
 ant, is not completed until such conveyance is made. 
 This case settles that a trustee must convey the legal 
 title at the completion of the trust unless it can be 
 implied to have been made 13 although there would 
 seem to be contrary dictum in Eeichert v. Mo. & HI. 
 Coal Co. 1 * 
 
 § 308. A dry, passive trust for the benefit of a life 
 tenant and remaindermen vests the legal title in them 
 at once as well as the equitable. 15 
 
 § 308a. Upon a devise to executors for the benefit of 
 certain perso'ns without imposing active duties upon 
 such trustees the Statute operates at once, a devise of 
 
 io Kellogg v. Hale, 108 111. 164-167; Moore v. Horsly, 156 111. 36-41. 
 ii Moll v. Gardner, 214 111. 248-253. 
 w Kohtz v. Eldred, 208 111. 60-72. 
 is McFall v. Kirkpatrick, 236 111. 281-294. 
 i* Reichert v. Mo. & 111. Coal Co., 231 111. 238-244. 
 isCMelia v. Mullarkey, 124 111. 506; Drake v. Steele, 242 111. 301- 
 308. 
 
ACTIVE AND PASSIVE TRUSTS. 173 
 
 a beneficial interest being the same as a devise of the 
 land itself. 16 
 
 § 3086. A trustee in bankruptcy, and no doubt an 
 assignee for creditors, after the Statute of Limita- 
 tions has run against claims will hold title under a 
 naked trust for the insolvent and his heirs. 17 
 
 § 308c. A trust created to last so long as a daughter 
 remained a married woman, the corpus of the estate to 
 be conveyed to her if she survived her husband, etc., 
 indicates that the intention of the donor was to protect 
 the property from the daughter's husband, and upon 
 her divorce from her husband the trust would become 
 passive and she would then become entitled to a con- 
 veyance regardless of whether or no she might survive 
 her divorced husband, or whether she might so defeat 
 the trust by re-marrying her divorced husband. 18 
 
 § 309. If trustees hold real estate under a mere 
 naked. trust the cestuis que trustent may demand a con- 
 veyance to themselves at any time of the legal title. 
 Dower will attach to the equitable estates, and cannot 
 be divested by the subsequent creation of an active 
 trust without the consent of the wives. 19 
 
 A trust estate for the joint lives of a husband and 
 wife was to be conveyed to "her and her heirs," if she 
 survived the husband. Upon her husband's death -this 
 was held to give her the legal estate, the trust having 
 determined, even without a conveyance to her by the 
 trustee. 20 A conveyance, however, is now deemed nec- 
 essary. (See Sec. 307a, ante.) 
 
 i« Barclay v. Piatt, 170 111. 3S4-388; Drake v. Steele, 242 111. 301- 
 308. ~ 
 " Harris v. Cornell, 80 111. 54-67. 
 is Cary v. Slead, 220 111. 508-511. 
 
 "Nicoll v. Miller, 37 111. 387-107; Moore v. Munn, 69 111. 591-594. 
 20 Lynch v. Swayne, 83 111. 336. 
 
174 TKUSTS AND TRUSTEES. 
 
 § 309a. A president of a bank took title to real es- 
 tate in trust for the bank and afterwards a receiver 
 of the bank having sold the land, it was held that the 
 purchaser was entitled to a conveyance of the legal ti- 
 tle from the heirs of the deceased president. 21 
 
 § 310. If an active trust in personal property be- 
 come passive a conveyance of the legal title from the 
 trustee is necessary because the Statute of Uses does 
 not apply to personalty 22 but as to realty the decision 
 in the case last cited has been overruled, and the law 
 requires now that where a trust was once active the 
 trustee should convey the legal title to the cestuis que 
 trustent, unless there be a presumption that he has 
 done so. 23 
 
 Where a trust in personalty has terminated a mere 
 delivery has been held sufficient, unless the cestui que 
 trust be an infant. 24 
 
 § 311. The Statute of Uses operates only upon ex- 
 press trusts and not upon implied or constructive 
 trusts or those arising by operation of law. And a 
 deed to A, B, and C, "trustees of the United Brethren 
 Church," was held not to have created an express trust, 
 and not to have put the legal title in the church. ' ' The 
 deed made by Morphy does not convey the lot to the 
 grantees in trust for, or to the use of the Church; it 
 does not even convey it to them as trustees." 25 
 
 § 312. Before the Married Woman's Act of 1861 a 
 trust, although passive, for the sole or separate use 
 and benefit of a wife was not within the purview of the 
 Statute of Uses, because at that time a married woman 
 
 si Moore v. Munn, 69 111. 591-594. 
 
 22 Reichert v. Mo. & 111. Coal Co., 231 111. 238-244. 
 
 23 McFall v. Kirfcpatrick, 236 111. 2S1-294. 
 
 24 Perry, 6th Ed. Sec. 311. 
 
 25 United Brethren Church v. First M. B. Church, 138 HI. 606-611. 
 
ACTIVE AND PASSIVE TRUSTS. 175 
 
 was not sui juris in all respects concerning her sep- 
 arate property, and because the courts would not per- 
 mit the husband's marital rights to attach if the in- 
 tention was clear to deprive him of them. 26 But where 
 the conveyance was merely for the use of the wife 
 such intention would not be implied and the husband 
 would take curtesy. 27 
 
 § . 313. Myers v. Myers : 2S A wife having brought a 
 separate maintenance suit, the husband, in arranging 
 the disposition of his property, made an absolute con- 
 veyance of certain land to her attorney upon a parol 
 trust for her benefit during her lifetime, then for his 
 own benefit for his own lifetime, if he should survive 
 her, with remainder to their children. The husband 
 survived the wife, took possession of the land, and 
 made deeds purporting to convey it to certain of the 
 children. After his death the other children exhibited 
 their bill to establish the parol trust. Upon the con- 
 tention that the husband's deed to the wife's attorney 
 was voluntary, did not declare a usee, or any trust, 
 and therefore that no title passed from the grantor, 
 the Supreme Court held that prima facie the fee vested 
 in the grantee, and, although there was an express 
 ■ parol trust, the deed did not purport to be for the bene- 
 fit of a third person or for the grantor, and the Statute 
 of Uses, could not operate in such case because there 
 was no usee to whom the legal title could be trans- 
 ferred by the Statute. 
 
 § 314. Ejectment cannot be maintained by the ces- 
 tui que trust of a trust which was once active but 
 
 ze Dean v. Long, 122 111. 447-458. 
 
 27 Meacham v. Bunting, 156 111. 586-590. 
 
 28 Myers v. Myers, 167 111. 52. 
 
176 TBTJSTS AND TBUSTEES. 
 
 which has become passive, in the absence of a convey- 
 ance to him of the legal title, unless there be a pre- 
 sumption that such a conveyance had been made. 2 * 
 The inferences to the contrary contained in McNab v. 
 Young 30 and Eeichert v. Mo. & 111. Coal Co. 31 are mis- 
 leading. 
 
 § 315. Silverman v. Kristufek 32 was an ejectment 
 suit involving the effect of a deed from A to B "in 
 trust" for a co-partnership by its firm name, and also 
 for certain individuals. The record of the deed had 
 been destroyed by fire and the deed itself was lost or 
 destroyed. The abstracts obtainable showed neither 
 an active trust, nor the names of the members of the 
 firm. The question was whether those claiming under 
 B had acquired the legal title, or whether it had been 
 vested by the Statute of Uses in the firm. The Su- 
 preme Court quoted from Washburne on Beal Prop- 
 erty "in order to bring an estate within the operation 
 of the Statute of Uses, so as to execute the use in re- 
 spect of the same, there must be a concurrence of three 
 things, first, a person seised to a use ; second, a cestui 
 que use in esse; and, third, a use in esse either in pos- 
 session, reversion or remainder," and held that the 
 cestui que use must be a person or a corporation under 
 the wording of the Statute, and that a co-partnership 
 was neither a natural nor an artificial person; that 
 public policy, in respect of the security of titles, de- 
 manded certainty in conveyancing and in the designa- 
 
 2»Kirkland v. Cox, 94 111. 400-414; McFall v. Kirkpatrick, 236 HI. 
 281-294. 
 
 so McNab v. Young, 81 111. 11-14. 
 
 si Reichert v. Mo. & 111. Coal Co., 231 111. 238-244. 
 
 32 Silverman v. Kristufek, 162 111. 222-227. 
 
ACTIVE AND PASSIVE TRUSTS. 177 
 
 tion of the parties to deeds. As to the individuals 
 named in the deed it was held that there was also such 
 uncertainty as to the shares they were to take that the 
 Statute of Uses did not operate to vest any of the 
 legal title in them. 
 12 
 
178 TETJSTS AND TRUSTEES. 
 
 CHAPTEE XVn. 
 
 EXPEESS AND IMPLIED TETJSTS PRECATOBY WOEDS. 
 
 § 316. Attention is directed to the remarks made in 
 Sec. 15, ante, on the subject of express and implied 
 trusts, and, as often reiterated, no particular form of 
 words is required to create a trust so long as the in- 
 tention so to do can be fairly implied from the language 
 employed. 1 "A person may declare a trust either di- 
 rectly or indirectly; the former by creating a trust 
 eo nomine, in the form and terms of a trust ; the latter, 
 without affecting to create a trust in words, by evinc- 
 ing an intention, which the Court will effectuate 
 through the medium of an implied trust. ' ' a But 
 •where technical terms are used they must be deemed 
 to have been employed in their technical sense. 3 Ex- 
 press trusts in real property,, as we have seen in the 
 chapter on the Statute of Frauds, cannot be proved by 
 parol, although trusts in personal property and in land 
 bought with the proceeds of personal property may be 
 so established. 4 
 
 § 317. "Implied trusts may arise out of agreements 
 and settlements inte¥ vivos where there is a sufficient 
 consideration ; but they more frequently arise from the 
 construction of wills where a consideration is im- 
 plied."" 5 A common instance where a trust is implied 
 from a contract occurs in sales of real estate, the ven- 
 dor being treated in equity as the trustee of the legal 
 
 iHagan v. Varney, 147 111. 281-289; Perry, Sees. 25-112. 
 
 2 Lewin, Star Sees. 108-130. 
 
 3 Lewin, Star Sec. 109. 
 
 < Maher v. Aldrich, 205 111. 242; Perry, 6th Ed. Sees. 79^86. 
 s Perry, Sec. 112. 
 
EXPKESS AND IMPLIED TRUSTS. 179 
 
 title for the benefit of the vendee, while the latter is 
 treated as the trustee of the purchase money until the 
 contract is performed. 6 As to trusts being implied 
 from the construction of wills a common instance is 
 where a devise is charged with the payment of lega- 
 cies ; such a devise, upon its acceptance, is treated by 
 courts of chancery as an implied declaration of trust, 
 the execution of which will be enforced upon the de- 
 visee as a trustee, and upon his grantee as well. 7 
 
 § 318. Hale v. 'Hale: 8 "The rule is familiar, that 
 where a will contains no words expressly creating a 
 trust, or devising the legal title to the executors or 
 trustees, such devise may be implied, where the powers 
 conferred and the duties imposed on the executors are 
 of such a character, that a legal title is necessary to 
 their proper exercise or performance. The general 
 doctrine on this subject is very fully and satisfactorily 
 stated by Mr. Pomeroy as follows : 
 
 " 'Although no trust is declared in express terms, 
 or even mentioned, still the intention of the donor to 
 create the trusf;, and the existence of the trust itself, 
 may be necessarily inferred from the powers and au- 
 thority given to the grantee, and in case, of wills, even 
 where no estate is directly devised to the executors, 
 but the whole estate is apparently given to the bene- 
 ficiaries, the trust may be necessarily inferred from 
 the powers and authority conferred upon the execu- 
 tors, and thus from a construction of the entire will, 
 the intention may be shown that the executors are to 
 ^ake the legal title as trustees of an express active 
 trust. The peculiarity of this case is, that the trust 
 
 « Sutherland v. Goodnow, 108 111. 528-536. 
 
 i Malier v. O'Hara, 4 Glim. 424-428; Perry, Sec. 121. , 
 
 * Hale v. Hale, 146 111. 246. 
 
180 TRUSTS AND TRUSTEES. 
 
 arises, and the legal estate is vested in the trustees, 
 although the will contains no disposition by which the 
 legal estate is in terms devised to them. The doctrine 
 is settled that, in dispositions of such a nature, al- 
 though there is no devise in terms to them, the author- 
 ity conferred by the will upon the executors to lease, 
 rent, repair, insure, pay taxes, assessments, and in- 
 terest, and otherwise manage the trust properly, and 
 to pay over the. net income to the devisees or legatees, 
 necessarily carries the legal title to the executors, and 
 creates an express active trust in them. It is a famil- 
 iar doctrine that where land is conveyed or devised to 
 trustees, and they have active duties to perform, they 
 take the legal estate; the converse is also generally 
 true, that where active duties are prescribed for execu- 
 tors, which could not be performed unless the legal 
 estate is vested in them, they are in fact made trustees, 
 and necessarily take the legal estate for the purposes 
 of the trust.' " 
 
 § 319. Implied trusts are excepted expressly from 
 the operation of the Statute of Frauds, and it would 
 seem that they are not contemplated by the Statute of 
 Uses. 9 But the Statute of Limitations may be pleaded 
 in general against implied trusts, 10 although not 
 against express trusts before the trustee has disavowed 
 the trust and made the cestui que trust fully aware of 
 the adverse claim, 11 unless there be an adequate con- 
 current remedy at law on the express trust. 12 
 
 » United B. Church v. First M. E. Church, 138 111. 608-611; 57 Am. 
 Dec. 606. 
 
 loMcLaflin v. Jones, 155 111. 539-544; Herr v. Payson, 167 111.. 
 244-254; Contra, 66 Am. Dec. 165. 
 
 ii Home v. Ingraham, 125 111. 198-222; Maher v. Aldrich, 205 I1L 
 242-255. 
 
 " 25 Cyc. Il53. 
 
EXPEESS AND IMPLIED TRUSTS. 181^ 
 
 § 320. The use of the words "I authorise my trus- 
 tees to provide, ' ' etc., raises an implied trust and not a 
 mere discretionary power. 13 
 
 § 321. A deed in trust directed the trustee to permit 
 the cestui que trust to occupy the land and enjoy it in 
 any manner he might deem best for the support of 
 himself and his children during his lifetime; the cestui 
 made a "mortgage of the land and one of his children 
 sought to have its foreclosure enjoined by reason of 
 its alleged invalidity. The court, in upholding the va- 
 lidity of the mortgage on the cestui que trust's equita- 
 ble life estate, held that no trust for the benefit of the 
 children could be implied where the deed in trust 
 merely expressed the motive for making the grant, as, 
 for instance, to support and maintain himself and his 
 children, and, although the legal title was in a trustee, 
 the latter would be bound to recognise the conveyance 
 of a vested equitable estate, there being no restraint on 
 alienation thereof. 14 
 
 § 322. If a guardian take title in his own name to 
 property purchased with his ward's funds a trust is 
 raised by implication therein, no matter what the mo- 
 tives of the guardian may have been. 15 
 
 § 323. Trusts will not be raised by implication in 
 contravention of public policy. 16 
 
 § 324. Trusts are frequently implied from the use 
 by donors and testators of that class of words which 
 is denominated as precatory, i. e., where there is ex- 
 pressed a command, recommendation, entreaty, wish, 
 
 " Ingraham v. Ingraham, 169 111. 432-470. 
 i* Bryan v. Howland, 98 111. 625-630. 
 
 "First Nat. Bank v. Leech, 207 111. 215-219; Verble v. Dillow, 218 
 111. 537-539. 
 
 '« Thomas v. Chicago, 55 111. 408. 
 
182 TBTJSTS AND TRUSTEES. 
 
 hope, or reliance that the donee will dispose of the 
 property in favour of another; in such case if the 
 words used are sufficiently imperative, and if the sub- 
 ject and object are sufficiently certain, a trust will be 
 raised by implication. 17 
 
 § 324a. Uncertainty of the subject matter has oc- 
 curred in such cases as gifts of "the savings," "the 
 bulk of the property," "what might be remaining" at 
 the donee's death, etc. 18 Uncertainty of the object has 
 occurred in the use of such words as "family," "rela- 
 tions," "heirs," "the poor," and the like. 19 The ob- 
 ject must be as certain as the subject. 20 
 
 § 324b. The doctrine of precatory trusts has not 
 been limited to those contained in wills, but was early 
 applied to gifts inter vivos. 21 
 
 § 325. If the intention of a donor be doubtful, or if 
 he use mere expressions of desire, such as that the 
 donee will be "kind to," "remember," "consider," 
 "deal justly by," "educate and provide for," or "do 
 justice to" certain persons, no trust will be raised for 
 their benefit. The entire instrument must be consid- 
 ered to ascertain the donor's intention, and if the donee 
 be given the right of absolute enjoyment of the gift, 
 the freedom to act with it as he may deem best, or if 
 he be given personal property together with land, such, 
 and other like indicia of the donor's intention may be 
 
 " Mills v. Newberry, 112 111. 123-132; Jones v. Jones, 124 111. 254- 
 264; Zimmer v. Sennott, 134 111. 505^509; Blanchard v. Chapman, 22 
 App. 341-346. 
 
 isLewin, Star Sec. 135; Perry, Sec. 113; Coulson v. Alpaugh, 163 
 111. 298-300. 
 
 "Lewin, Star Sec. 133; Perry, Sec. 113. 
 
 20 Wright v. Atkyns, 1 T. & R. 157 (Lord Eldon); Knight v. 
 Knight, 3 Beav. 148 (Lord Langdale). 
 
 2i Liddard v. Liddard, 28 Beav. 266. 
 
EXPEESS AND IMPLIED TRUSTS. 183 
 
 taken to rebut the claim that a trust was created. So, 
 too, if the donor fail to express what his wishes are, 
 when he uses words to the effect that he has confidence 
 the donee will carry out his wishes, no trust will arise. 22 
 
 § 326. ' ' No trust can be implied from the words in- 
 dicating the motives which induced the gift" (citing 
 Perry on Trusts, Sec. 119). "And the rule is wher- 
 ever the prior disposition of the property imports ab- 
 solute and uncontrolled ownership, and, also, wherever 
 a clear discretion or choice to act or not to act is given, 
 equity will not construe a trust from the language em- 
 ployed." 23 
 
 § 327. A power given by a will to a life tenant to 
 sell, dispose of and use the estate "requesting her to 
 make at her death such equitable distribution of what 
 remains among my children" rebuts any presumption 
 of a precatory trust, the subject matter thereof being 
 uncertain because nothing might remain. And if there 
 be no precatory trust at the death of the testator there 
 can be none which will attach to "what remains" after 
 the termination of the precedent estate. "What re- 
 mains" will in such case revert to the heirs of the 
 donor as intestate estate. 24 
 
 § 328. A testator had given his sister his promis- 
 sory note, and, upon dying, devised all of his property 
 to his wife. The wife "hoped" in letters written to 
 her sister-in-law that certain real estate might be sold 
 and the note paid as well as other claims. The sister 
 
 2z Giles v. Anslow, 128 111. 187-195; Randall v. Randall, 135 111. 
 398. 
 
 23 Randall v. Randall, 135 111. 398-400, citing Hill on Trustees and 
 Story's Eq.; Hamilton v. Downer, 152 111. 651-855; Coulson v. Al- 
 paugh, 163 111. 298-302; Dalrymple v. Leach, 192 111. 51-54. 
 
 24 Coulson v. Alpaugh, 163 111. 298-300; Dalrymple v. Leach, 1*2 
 111. 51-54. 
 
184 TBUSTS AND TBUSTEES. 
 
 never filed or had allowed her claim against her broth- 
 er's estate, but sought to charge the devisee with an 
 express trust. There having been no promise made to 
 pay the note out of the particular property, in consid- 
 eration that no claims should be filed against the estate 
 upon the note, no trust could be predicated upon the 
 mere words of desire contained in the letters of the de- 
 visee. 25 
 
 § 329. A devise to a wife upon condition that she 
 should rear, support and educate the children is not 
 based upon precatory words which create a trust for 
 the children, where there is no provision or wish ex- 
 pressed that the land should be used for that purpose, 
 or direction that the devisee should so use it. 28 
 
 § 330. "However strong the language of recommen- 
 dation or request may be, a trust will not be implied 
 if the testator declare that such is not his intention" 
 * * * or "if such a construction of the precatory 
 words would render them repugnant to, or inconsistent 
 with, other parts of the same instrument." 27 
 
 As Mr. Lewin said in Star Sec. 102, of his standard 
 work: — "It would be endless to pursue implied trusts 
 through all their ramifications; a subject so extensive 
 that years might be passed in the study of equitable 
 jurisprudence, without exhausting so ample a field; 
 but the leading general principles by which the courts 
 are guided may be gathered sufficiently for our pur- 
 pose from the few examples given." 
 
 as Hamilton v. Downer, 152 111. 651-1654, aff'g 46 App. '542, 
 so Zimmer v. Sennott, 134 111. 505-509. 
 2T Perry, Sec. 115. 
 
RESULTING OB PRESUMPTIVE TBUSTS. 185 
 
 CHAPTER XVHL 
 
 RESULTING OR PRESUMPTIVE TBUSTS. 
 
 § 331. In Sec. 15, ante, it was said that resulting or 
 presumptive trusts arise by operation of law where 
 equity presumes a proper intention to have existed 
 regardless of what may have been the actual inten- 
 tion. 1 
 
 Perry v. MeHenry^ The Supreme Court in discuss- 
 ing trusts, or those arising by operation of law, which 
 need not be in writing, and which may be proved by 
 parol, quoted from Lord Hardwicke in the case of 
 Lloyd v. Spillet, 2 Atkyns, 150, where he defined such 
 trusts as "first, where an estate is purchased in the 
 name of one person, butthe money or consideration is 
 given by another ; or secondly, where a trust is declared 
 only as to a part, and nothing said as to the rest, what 
 remains undisposed of results to the heirs at law, and 
 they cannot be said to be trustees for the residue. I 
 do not know in any other instance besides these two 
 where this court have declared resulting trusts by oper- 
 ation of law, unless in cases of fraud, and where trans- 
 actions have been carried on mala fide." And the Su- 
 preme Court, at the end of their opinion, in Perry v. 
 MeHenry, say, "The result of our examination of the 
 doctrine of resulting trusts is this, — that such a trust 
 can only arise in favour of a person who claims to have 
 furnished the consideration money, when such consid- 
 eration or some aliquot part thereof was furnished as 
 
 i Perry v. MeHenry, 13 111. 227-232. 
 2 Perry v. MeHenry, 13 111. 227-232. 
 
186 TBTJSTS AND TRUSTEES. 
 
 part of the original transaction at the time the pur- 
 chase was made. The party claiming the benefit of a 
 resulting trust must have occupied a position originally 
 which would have entitled him to be substituted in the 
 place of him to whom the conveyance has been made. 
 No subsequent arrangement, made after the purchase, 
 nor any parol agreement existing before, nor parol 
 declaration at the time that the purchase is made for 
 the benefit of some other person, will raise a trust in 
 such other person's favour, in the absence of any other 
 fraud than that which arises from the violation of the 
 purchaser's parol promise or agreement where the 
 purchaser takes the title in his own name and pays the 
 consideration out of his own funds." 3 
 
 § 332. Perry 4 divides resulting trusts into five 
 kinds, viz. : 1, when the purchaser of an estate pays the 
 purchase money and takes the title in the name of a 
 third person ; 2, where a person standing in a fiduciary 
 relation uses fiduciary funds to purchase property, 
 and takes the title in his own name ; 3, where an estate 
 is conveyed upon trusts, which fail, or are not de- 
 clared, or are illegal ; 4, when the legal title to property 
 is conveyed and there is no reason to infer that it was 
 the intention to convey the beneficial interest; and 5, 
 where voluntary conveyances are made, or conveyances 
 without consideration. But this fifth division is not 
 sustained in Illinois where it has been declared that a 
 
 a See also Smith v. Sackett, 5 Gilm. 534-^543; Bruce v. Roney, 18 
 111. 67; Holmes v. Holmes, 44 111. 168-171; Fleming v. McHale, 47 
 111. 282-287; Lantry v. Lantry, 51 111. 458-464; Rogers v. Simmons, 
 55 HI. 76-82; Walter v. Klock, 55 111. 362; Remington v. Campbell, 
 60 111. 516; Smith v. Smith, 86 111. 189; Harris v. Mclntyre, 118 111. 
 275-287; Pickler v. Pickler, 180 111. 168-172; Kemper v. Mette 239 
 111. 586-593. 
 
 * Perry, 6th Ed. Sec. 135. 
 
RESULTING OK PRESUMPTIVE TRUSTS. 187 
 
 resulting trust cannot be raised for the benefit of a 
 grantor in a voluntary conveyance made by him. 5 It 
 will be seen from the following cases that the great ma- 
 jority of the cases have arisen under Perry's first and 
 second divisions of resulting trusts. 
 
 § 333. A resulting trust is never created by agree- 
 ment of the parties. 6 
 
 § 333a. "Where there is an express oral trust in land 
 that the grantee shall re-convey to the grantor upon 
 demand, no resulting trust can be claimed; an implied 
 trust is repelled by an express trust. 7 
 
 § 333fe. No resulting trust can arise out of a contract, 
 either the whole or a portion of the purchase price 
 must have been paid by the one claiming the benefit of 
 a resulting trust, and a parol agreement that one 
 should buy lands and upon reimbursement by another, 
 or out of the rentals, should convey to the latter is not 
 only repugnant to the Statute of Frauds, but no result- 
 ing trust arises from such agreement. 8 
 
 § 333c. It has been held in Brennaman v. Schell 9 
 that an undertaking or agreement to convey upon re- 
 
 s Stevenson v. Crapnell, 114 111. 19-21; Moore v. Horsly, 156 111. 
 36-42; Lancaster v. Springer, 239 111. 472-479; Perry, 6th Ed. Sec. 
 162. 
 
 « Sheldon v. Harding, 44 111. 68; Kingsbury v. Burnside, 58 111. 
 328; Remington v. Campbell, 60 111. 516; McDonald v. Stow, 109 111. 
 40-44; Van Buskirk v. Van Buskirk, 148 111. 9-18; Jacksonville Nat. 
 Bank v. Beasley, 159 111. 120-125; Mayfleld v. Forsyth, 164 111. 32- 
 36; but see Reynolds v. Sumner, 126 111. 58. 
 
 7 Moore v. Horsly, 156 111. 36-42; Ellis v. Hill, 162 111. 557-562; 
 Potter v. Clapp, 203 111. 592-604; Contra, Brennaman v. Schell, 212 
 111. 356-364. 
 
 s Stephenson v. Thompson, 13 111. 186-190; Alexander v. Tarns, 13 
 111. 221-225; Greene v. Cook, 29 111. 186; Stevenson v. Crapnell, 114 
 111. 19; Home v. Ingraham, 125 111. 198; Morton v. Nelson, 145 111. 
 586-598. 
 
 » Brennaman v. Schell, 212 111. 356. 
 
188 TKTJSTS AND TRUSTEES. 
 
 quests did not constitute such an express trust that it 
 would repel a resulting trust as such agreement was 
 nothing more than an acknowledgment of an obligation 
 which the law itself implied and imposed. This deci- 
 sion is clearly against the weight of authority. 
 
 § 334. Eeynolds v. Sumner : 10 A and B made a writ- 
 ten contract that A should purchase and deliver to B 
 land warrants, and that B should enter the lands 
 thereon, take title in their joint names, and that B in 
 consideration of his services in locating the lands 
 should have a year in which to pay A one-half of the 
 cost of the land, without interest, and evidenced by B's 
 note. A bought and furnished the land warrants to_B, 
 and B, in disregard of the contract, took title in his 
 own name and used the lands for some thirty years 
 until A's heirs filed their bill for partition. The Su- 
 preme Court, notwithstanding the contract, held that 
 a resulting trust arose for the benefit of A and his 
 heirs in one-half of the lands! That the trust arose, 
 not out of the contract, but because of the money con- 
 tributed by A for the land warrants, and the contract 
 might, however, be considered for the purpose of 
 throwing light upon the transaction. This ruling of 
 the Supreme Court is out of line with its earlier deci- 
 sions that no resulting trust can arise out of a contract 
 (see Stephenson v. Thompson, supra), and, although 
 the court took pains to say that the trust did not arise 
 out of the contract, yet it held that it was proper to 
 look to the contract in order to get at the real transac- 
 tion. Altogether it would seem that the same relief 
 might have been based either upon the ground that an 
 express trust had been violated by B in not having 
 
 10 Reynolds v. Sumner, 126 111. 58-69. 
 
BESULTING OK PRESUMPTIVE TRUSTS. 189 
 
 taken title jointly in A's name as well as his own, or 
 that by reason of the fraud of B, in so doing a con- 
 structive trust had arisen. 
 
 § 335. A resulting trust must arise, if at all, at the 
 time of the execution of the conveyance, 11 unless in- 
 stallments of the purchase money falling due subse- 
 quently are paid by such other person. 12 
 
 § 336. No resulting trust arises in the case of a lend- 
 ing of funds to aid one in purchasing land where the 
 lender has the option to take an interest in the land 
 with the borrower, but never gives the borrower no- 
 tice of his desire to exercise his option before the 
 buyer has completed his purchase by paying in full for 
 the land and taking title to it, and until it has enhanced 
 in value. 13 
 
 § 337. A resulting trust must arise, if at all, when 
 the land is conveyed to the alleged. trustee and not 
 upon furnishing money, or its equivalent, at a later 
 period. 14 
 
 Goelz v. Goelz: 15 At a foreclosure sale under a 
 power-of-sale trust deed the presumption is that the 
 trustee's deed to the purchaser was not delivered until 
 the latter had paid his bid in full, and in this case it 
 was possible to raise a resulting trust by proof that a 
 third person had furnished the purchaser with notes 
 and mortgages which had been negotiated and the pro- 
 ceeds used to pay installments of the purchase-money 
 
 "Alexander v. Tarns, 13 111. 221-225; Perry v. McHenry, 13 III. 
 227; Reed v. Reed, 135 111. 482-487; Van Buskirk v. Van Buskirk, 
 148 111. 9-18. 
 
 12 Goelz v. Goelz, 157 111. 33-45. 
 
 is Loomis v. Loomis, 28 111. 454-456; Pain v. Parson, 179 111. 185- 
 194. 
 
 i* Dick v. Dick, 172 111. 578-580; Keith v. Miller, 174 111. 64-72. 
 
 is Goelz v. Goelz, 157 111. 33-45. 
 
190 TRUSTS AND TBUSTEES. 
 
 which were made at short periods after the sale. The 
 doctrine announced in Alexander v. Tarns, 13 111. 221, 
 and Eeed v. Eeed, 135 111. 482, and other cases, to the 
 effect that a resulting trust could not arise for the ben- 
 efit of a third person who had paid subsequently to the 
 execution and delivery of the deed unpaid portions of 
 the purchase-money, was held not to apply. There 
 was no real conflict, however, between the cases, as in 
 general a deed is presumed to be delivered on its date, 
 while the trustee's deed above was presumed to have 
 been delivered only upon payment in full of the bid. 
 In this case, moreover, the trustee's deed ran to the 
 wife of the one who alleged a trust existed and this 
 was held to be an advancement which precluded the 
 trust. 
 
 § 338. The owner of the equity of land which had 
 been sold at judicial sale arranged for its redemption 
 by confessing judgment in favour of a third person to 
 whom the sheriff made a deed. A trust thereby* re- 
 sulted in favour of the one who furnished the redemp- 
 tion money entitling him to protection against the sher- 
 iff 's grantee who sought to use the title to secure ad- 
 vancements made by him to the former owner. 16 
 
 § 339. A resulting trust arose where one paid for 
 ten acres of a forty acre tract purchased by another, 
 and the latter taking title to the entire forty acres, and 
 the former going into possession of the ten acre tract, 
 making valuable improvements and acquiring a twenty 
 year possessory title. 17 
 
 § 340. If the trustee of a resulting trust has put 
 some of his own money into the investment he will have 
 
 "Barnes v. Hardin, 111 111. 634-645. 
 
 i' McNamara v. Garrity, 106 111. 384-388; Van Buskirk v. Van 
 Buskirk, 148 111. 9-23. 
 
RESULTING OE PRESUMPTIVE TRUSTS. 191 
 
 the burden of establishing the amount thereof else his 
 cestui que trust will be given the entire estate. 18 
 
 § 341. One must actually have paid money or its 
 equivalent at the time of the purchase to give rise to 
 a resulting trust, and an agreement to contribute serv- 
 ices as an architect, or other skill or labour for an in- 
 terest in the land is within the Statute of Frauds. 19 
 
 § 342. The cestui que trust of a resulting trust is en- 
 titled in equity to the profits arising from the sale of 
 the land as well as to the monies advanced originally 
 by him. 20 
 
 § 343. Some aliquot part of the purchase-money, as 
 one-half, one-third, etc., must have been paid at the 
 time the purchase was made, and a claim that various 
 sums were advanced from time to time subsequently 
 to the purchase of the land will not create a resulting 
 trust. It must appear that a specific sum was paid for 
 a specific interest. 21 
 
 § 344. Parol evidence is admissible to show who was 
 the owner of the fund which was paid for the land. 22 
 But the evidence to sustain it must be very clear and is 
 always received with great caution. 23 
 
 is Ward v. Armstrong, 84 111. 151-156; Springer v. Springer, 114 
 111. 550-552; Harris v. Mclntyre, 118 111. 275-287. 
 
 is Purber v. Page, 143 111. 622-632. 
 
 20 Wallace v. Carpenter, 85 111. '590-593; Dodge v. Cole, 97 111. 339. 
 
 2i Reed v. Reed, 135 111. 482-487; Stephenson v. McClintock, 141 
 111. 604-611; Furber v. Page, 143 111. 622-630; Van Buskirk v. Van 
 Buskirk, 148 111. 9-18; Jackson v. Kraft, 186 111. 623-630; Onasch v. 
 Zintzel, 213 111. 119; Sifferman v. Hill, 131 App. 174-181; Rice v. 
 Dougherty, 148 App. 368-375; but see Goelz v. Goelz, 157 111. 33-45. 
 
 22Enos v. Hunter, 4 Gilm. 211-218; Nicols v. Thornton, 16 111. 
 113; Franklin v. McEntyre, 23 III. 91-93; Scheerer v. Scheerer, 109 
 111. 11-14; Van Buskirk v. Van Buskirk, 148 111. 9-18; Springer v. 
 Kroeschell, 161 111. 358-362. ' 
 
 asMahoney v. Mahoney, 64 111. 406; Goelz v. Goelz, 157 111. 33-45; 
 
192 TRUSTS AND TRUSTEES. 
 
 § 344a. If the evidence shows clearly that the one 
 who took the title and paid the money agreed to ad- 
 vance one-half for another and to take the title as se- 
 curity a resulting trust will arise ; however, two things 
 must be kept in mind in receiving such evidence ; 1, its 
 truthfulness, and 2, its effect. 24 
 
 "The material circumstances to be shown by such 
 parol evidence is the source of the consideration paid 
 for the land. The burden of proof is upon the party 
 seeking to establish the trust and he must prove that 
 the alleged cestui que trust paid the purchase price. 
 Such evidence must be clear, strong, unequivocal, un- 
 mistakeable and must establish the fact of payment by 
 the alleged beneficiary beyond a doubt." As to the 
 admissions of the one who acquired the legal title those 
 to the effect that he holds the title for another, or has 
 agreed to convey to that other one, are not of so much 
 weight as those admissions to the effect that another's 
 money was paid for the land, especially when sup- 
 ported by proof showing some prior arrangement in 
 respect of which the alleged cestui que trust paid his 
 money. The death of the nominal purchaser does not 
 affect the admissibility of such parol evidence. 25 
 
 § 345. Unless the one who advanced all or a por- 
 tion of the puchase-money intended that there should 
 vest in himself the title to all or a portion of the land 
 no resulting trust will arise. Parol evidence is ad- 
 missible to show whether or not the intention of the 
 
 Jacksonville Nat Bank v. Beesley, 159 111. 120-125; Keith v. Miller, 
 174 111. 64-71; Pickler v. Pickler, 180 111. 168-172,; Stanbaugh v. 
 Lunz, 232 111. 373; Kemper v. Mette, 239 111. 586. 
 
 24 Towle v. Wadsworth, 147 111. 80-36; Scott v. Beach, 172 m. 273- 
 276. 
 
 25 Van Buskirk v. Van Buskirk, 148 111. 9-20. . 
 
RESULTING OB PRESUMPTIVE TRUSTS. 193 
 
 one furnishing the money was that the nominal pur- 
 chaser should have the benefit either in fee, for life, 
 or a lesser period, and the presumption of a resulting 
 trust may be rebutted as to all of the land or some 
 part thereof. 26 
 
 § 345a. A claim that a resulting trust exists is re- 
 butted by evidence that the complainant took promis- 
 sory notes from the alleged trustee for the amount in- 
 volved and had them allowed as claims against his 
 estate after his death. 27 
 
 § 3456. If it be impossible to say from the evidence 
 whether the money used in making the purchase was 
 the proceeds of a loan to the purchaser or whether it 
 was held by him as agent no resulting trust will be de- 
 creed. 28 
 
 § 345c. The mere fact that a husband had in his 
 hands sufficient of his wife's money to have paid for 
 a purchase of land made, in his own name will not raise 
 a resulting trust in her favour. It must appear 
 clearly that her money was actually used. 29 
 
 § 345a 7 . Where a family worked together to pur- 
 chase land, and the title was taken in the name of one 
 of them only, the latter "s declarations in his lifetime 
 are not competent to prove a contract to convey an in- 
 terest to another member of the family, but they are 
 competent, when re-enforced with other evidence, to 
 show that the other member contributed in making the 
 purchase money, and to show how much was so con- 
 tributed. 30 
 
 as Cook v. Patrick, 135 III. 499-507. 
 " Kelsey v. Snyder, 118 111. 544-550. 
 as Stambaugh v. Lunz, 232 111. 373. 
 29 Keith v. Miller, 174 111. 64-71. 
 
 so Stephenson v. McClintock, 141 111. 604-612; Van Buskirk v. Van 
 Buskirk, 148 111. 9-20; Madison v. Madison, 206 111. 534-539. 
 
 13 
 
194 TBUSTS AND TKUSTEES. 
 
 § 346. While a resulting trust may be proved by 
 parol' "yet the cases uniformly show that the courts 
 have been deeply impressed with the danger of this 
 kind of proof as tending to perjury and the insecurity 
 of paper title, and they have required the payment by 
 the cestui que trust to be clearly proved.' "' (Quoting 
 from Chancellor Kent who reviewed the cases fully in 
 Boyd v. McLane, 1 Johns. Ch. R. 582) " 'And where 
 parol evidence is admitted the courts are ever careful 
 to examine into every circumstance which may affect 
 the probability of the alleged claim — as the lapse of 
 time, the means of knowledge and circumstances of the 
 witnesses — and will not grant the relief sought where 
 the claim has been allowed to lie dormant for an un- 
 reasonable length of time, or where the evidence is not 
 very clear in support of the alleged right; especially 
 where no claim has been set up during the lifetime of 
 the trustee, but is raked up and charged against the 
 heirs, who may not be supposed to know anything 
 about it, or be able to defend it as their ancestor might 
 have done.' " 31 
 
 § 347. The grantor, who has expressly limited the 
 use of the land to his grantee, and the latter 's heirs 
 and assigns, bars himself from claiming a resulting 
 trust. 32 
 
 § 347a. A man, having a pre-emption right to gov- 
 ernment land, sold a part of his interest, the vendee 
 agreeing to pay the government for all of the tract. 
 The vendee's interest passed to Kane County, and, 
 after the pre-emptor's death the county paid the gov- 
 
 3iEnos v. Hunter, 4 Gilm. 211-218-219; Thomas v. Chicago, 56 
 111. 403-409; Mahoney v. Mahoney, 65 111. 406. 
 
 saDonlin v. Bradley, 119 111. 4127423; Moore v. Horsly, 156 111. 
 36-42. 
 
RESULTING OE PRESUMPTIVE TRUSTS. 195 
 
 ernment price, took title and erected a court house 
 and other buildings on the land, with notice of the in- 
 terest which had been retained by the pre-emptor, and 
 it was decided that the heirs of the pre-emptor had an 
 equitable interest in the money to be paid to the gov- 
 ernment, which created a resulting trust in their fa- 
 vour upon the land so acquired by the county, and that 
 the minor heirs could not be estopped by reason of 
 their failure to assert their equitable claims while the 
 county was placing buildings on the land. 83 
 
 § 348. A resulting trust arises in favour of a prin- 
 cipal whose agent has lent his principal's money on a 
 mortgage which the agent forecloses and takes title to 
 the land in his own name. 34 
 
 § 348a. A widow took possession of her deceased 
 husband 's estate and paid the debts without taking out 
 letters of administration. The rest of the estate, 
 amounting to about $500.00, she invested in real estate, 
 taking title in her own name, and thereby a resulting 
 trust arose which the heirs might enforce for their own 
 benefit without regard to whether the widow would 
 have been entitled to the whole residue as a widow's 
 award, or whether she had a claim for support of the 
 heirs during their minority. 35 
 
 § 348&. A widow, who had lent her husband money 
 of her own for which he gave her a mortgage to a 
 third person and under a foreclosure of which she ob- 
 tained the title after her husband's death, will not hold 
 under a resulting trust in such case for the benefit of 
 the heirs. 36 
 
 33 Kane Co. v. Herrlngton, 50 111. 232-237. 
 
 s^Cookson v. Richardson, 69 111. 137-139. 
 
 35 Tyler v. Daniel, 64 111. 316; Hunter v. Dennis, 112 111. 568. 
 
 s« Kyle v. Wills, 166 111. 501-508. 
 
196 TRUSTS AND TRUSTEES. 
 
 § 349. Where a guardian forecloses a mortgage be- 
 longing to his ward's estate, and takes title in his own 
 name, having the amount of his bid credited on the 
 mortgage debt without paying anything himself, a re- 
 sulting trust arises in favour of the ward, and a pur- 
 chaser from the guardian or his heirs is put upon no- 
 tice. 37 
 
 § 349a. A guardian having used his ward's money 
 to purchase real estate in his own name died, devising 
 the land to his wife for life, etc., and charging the same 
 with certain legacies which she paid after a bill to es- 
 tablish the resulting trust had been filed. The widow's 
 claim- for the payment of such legacies could not, of 
 course, be allowed. 38 
 
 § 350. A husband sought to establish a resulting 
 trust for his own benefit in one-half of the proceeds 
 of a sale of land to which his wife had held the title 
 and which he claimed had been their joint acquisition. 
 The proof showed that their adult daughter had fur- 
 nished most of the money for the acquisition of the 
 land out of her own means, while the rest had been 
 furnished by a minor daughter, and the only interest 
 which the father was given was proportioned to the 
 amount furnished by the minor daughter. It is doubt- 
 ful whether the court should not have held this latter 
 interest to have been an advancement by the husband 
 in accordance with the rule that where a husband or 
 'father furnishes money to pay for land and the title 
 is taken in the wife's or child's name an irrevocable 
 advancement is made. 39 
 
 37 Scott v. Moore, 3 Scam. 306. 
 ss Ryder v. Emrich, 104 111. 470-475. 
 
 as Kelly v. Kelly, 126 111. 550-556; Onasch v. Zinkel, 213 111. 119- 
 122. 
 
RESULTING OR PRESUMPTIVE TRUSTS. 197 
 
 § 350a. A father, in order to obtain a loan on his 
 land by having the title established in a partition suit, 
 conveyed to his children, and, upon a sale in the parti- 
 tion proceeding, one of the children took title without 
 paying anything therefor, merely furnishing the mas- 
 ter with the receipts of his brothers and sisters for 
 their respective shares. It was held that these re- 
 ceipts were in effect money and that a trust resulted 
 in favour of the brothers and sisters who had signed 
 them. 40 
 
 § 350&. A father completed a son's purchase of real 
 estate by making the deferred payments upon the con- 
 sideration that the son would not move to another 
 State. This consideration was sufficient to constitute 
 the father, who took the legal title, a trustee for the 
 son, the legal effect of such payments being the same 
 as if made directly by the son. 41 
 
 § 351. As respects resulting trusts arising between 
 brothers and sisters they are regarded in law as 
 strangers so far as their respective rights are con- 
 cerned, and they do not stand on the same basis as 
 wives and children. 42 
 
 § 352. A voluntary conveyance will not give rise to 
 a resulting trust for the benefit of the grantor, and 
 where certain heirs conveyed their interests to an- 
 other they could not claim a resulting trust because 
 they alleged that they had been induced to convey so 
 that their ancestor's estate might be settled and that 
 their grantee had promised when he had done that he 
 would pay them. Probably a trust ex maleficio should 
 have been alleged if the facts claimed above were true, 
 
 40 Donlin v. Bradley, 119 111. 412-420. 
 
 "Cramer v. Hoose, 93 111. 503; Powell v. Powell, 114 111. 329-332. 
 
 42 Harris v. Mclntyre, 118 111. 275-287. 
 
198 TRUSTS AND TRUSTEES. 
 
 but the grantors had let some thirty years slip by be- 
 fore acting. 43 
 
 § 353. An oral agreement to purchase land, erect a 
 building, and share the profits, when only one of the 
 parties paid any money, gave back his own mortgage 
 for the rest of the purchase money and finally paid 
 off the mortgage debt himself, after the others had 
 failed to raise any money by way of mortgage and had 
 left the first to get out of the purchase the best way 
 he could, does not give rise to a resulting trust.* 4 
 
 § 354. A exchanged his Illinois land with B for the 
 latter 's Missouri land, two-thirds of which stood in the 
 name of B's wife, B acting as her agent. A obtained 
 judgment in Missouri against B for fraud and misrep- 
 resentation as to the value of the Missouri land. B 
 conveyed the Illinois land to his wife and A sued in 
 Illinois on his foreign judgment and then filed a bill 
 in aid of his execution to subject the Illinois land 
 thereto. The wife of B sought by her answer to estab- 
 lish a resulting trust to all of the Illinois land, on the 
 theory that B had invested her funds in the Illinois 
 land without her knowledge or consent, and the Appel- 
 late Court permitted this theory to prevail as to two- 
 thirds of the Illinois land principally because, as they 
 said, the remaining third of the land was more than 
 sufficient to satisfy the judgment against B. - The 
 proper result was thus reached even though it neces- 
 sitated dodging the proper holding. 45 
 
 § 355. "When partnership monies go into land a re- 
 sulting trust arises at once by operation of law for the 
 
 43 Mayfield v. Forsyth, 164 111. 32-34. 
 
 ** Morton v. Nelson, 145 111. 586-594; Ellis v. Hill, 162 111. 567- 
 563; see also Wagner v. Maynard, 64 App. 238. 
 « Holmes v. Clifford, 95 App. 245. 
 
RESULTING OR PRESUMPTIVE TRUSTS. 199 
 
 benefit of all the members of the firm, irrespectively of 
 which partner took the legal title, and the extent of 
 each partner's interest may be shown by parol evi- 
 dence. 46 
 
 § 356. Where the directors of a corporation consti- 
 tute all of the stockholders and agree that some of the 
 corporation's monies may be lent to one of the direct- 
 ors to enable him to purchase land for himself there 
 is no fraud on the stockholders and no resulting trust 
 will arise. 47 
 
 § 357. The purchases of land by a father or husband 
 for his children or for his wife will be deemed, in gen- 
 eral, advancements for their benefit, and, if he seek 
 to have a resulting trust established in his favour, he 
 has the burden of showing that there was no intention 
 of making an advancement, but that some other law- 
 ful purpose was intended to be, carried into execution. 
 The presumption is the same whether the parent be 
 the father or the mother. 48 
 
 § 357a. Where a father bought land with his own 
 money but took title in the name of an idiot son it was 
 held an irrevocable advancement, and neither the 
 father nor his grantee could sustain a bill to establish 
 a resulting trust. The father, being interested, would 
 be an incompetent witness. 49 
 
 § 3576. Where the evidence shows that a husband, 
 conveyed to his wife when he had no other land and 
 only a little personal property, and that he had minor 
 
 *« Speyer v. Desjardins, 144 111. 641-650; Crone v. Crone, 180 111. 
 599--604; Frankenstein v. North, 79 App. 669-676. 
 
 *t Pain v. Farson, 179 111. 185-194. 
 
 « Johnston v. Johnston, 138 111. 385-389 ; Evans v. Curtis, 190 111. 
 197-199; Brennaman v. Schell, 212 111. 356-365. 
 
 « Cartwright v. Wise, 14 111. 417-419. 
 
200 TRUSTS AND TRUSTEES. 
 
 children by a former wife dependent for provision 
 upon him, that the second wife was childless and ad- 
 vanced in age, that she had always joined in convey- 
 ances of portions of the land made by him, and that 
 he had treated the land as his own, a resulting trust 
 may be established as against the heirs of the second 
 wife. A gift of a father 's or husband 's entire property 
 to a child or wife is unreasonable. 50 
 
 § 358. Before the Married Woman's Act of 1861 a 
 conveyance of real estate to a man and his wife cre- 
 ated an estate by the entirety, and even if the wife had 
 contributed towards the purchase-price money ac- 
 quired from a former deceased husband no resulting 
 trust could arise in favour of her heirs as against the 
 surviving husband, in whom the whole estate vested 
 upon his wife's death, as she had a clear right so to 
 invest her money as to confer the right of survivorship 
 upon her husband. 51 , 
 
 Since the Married Woman's Act of 1861 a loan of 
 money by a wife to her husband constitutes her simply 
 his creditor, and, if he invest the money in land no 
 resulting trust will, in such case, arise for her benefit. 52 
 Before 1861 all her money reduced to the husband's 
 possession became his own. 53 
 
 § 359. A resulting trust arises in favour of a wife 
 whose money has been invested in real estate to which 
 her husband took the title. 54 But when the wife, in 
 
 so Pool v. Phillips, 167 111. 432-440; Dorman v. Dorman, 187 111. 
 154-160. 
 
 5i Lux v. Hoff, 47 111. 425; McCullough v. Ford, 96 111. 439. 
 
 62 Stewart v. Fellows, 128 111. 480-489; Koster v. Miller, 149 111. 
 195-200; Keith v. Miller, 174 111. 64-71. 
 
 ss Jackson v. Kraft, 186 111. 623-630. 
 
 5*Krebaum v. Cordell, 63 111. 23; Loften v. Witboard, 92 111. 461; 
 
RESULTING OR PRESUMPTIVE TRUSTS. 201 
 
 such case, on her separation from her husband, gave 
 him a release in full from all claims it barred a bill 
 brought by her to establish a resulting trust. 53 
 
 § 359a. A widow was held to have established a re- 
 sulting trust for her own benefit by proving that her 
 money was invested, that title was taken in her hus- 
 band's name without her knowledge or consent, and 
 that when she ascertained that fact her husband ad- 
 mitted the land was hers and agreed to build her a 
 house thereon and then convey to her, but before com- 
 pleting the house he became insane and died ; and even 
 though she inventoried the land as a part of his estate, 
 yet no third person's rights were thereby prejudiced. 56 
 
 § 359&. A man and woman living together as hus- 
 band and wife, although he had a wife living, pur- 
 chased land for which the woman paid, but the man 
 took the title. It was held that they were strangers 
 in law and that he held the title for her by way of a 
 resulting trust. 57 
 
 § 359c. No trust will result to the heirs of a deceased 
 grantor where the grantee testifies that he did take 
 title in trust, but that it was for the benefit not only 
 of the grantor and his wife but of the survivor of them, 
 and she having survived her husband it was held that 
 she alone was entitled to a conveyance. 58 
 
 § 360. Where a conveyance, although absolute in 
 form, is in fact a mortgage a resulting trust arises that 
 the title shall be held as security for the loan and a 
 
 McDonald v. Carr, 149 111. 204-207; Smith v. Willard, 174 111. 538- 
 542i; Shackelford v. Elliott, 209 111. 333. 
 
 55 Moss v. Moss, 95 111. 449. 
 
 o« Madison v. Madison, 206 111. 534-539. 
 
 5T McDonald v. Carr, 150 111. 204-207. 
 
 58 Donahoe v. Chicago Cricket Club, 177 111. 351. 
 
202 TRUSTS AND TRUSTEES. 
 
 court of chancery has jurisdiction to compel a convey- 
 ance to the cestui que trust when the debt has been dis- 
 charged, or an accounting for the proceeds of the prop- 
 erty. 59 
 
 § 360a. After the death of one who had conveyed 
 land by deed absolute but which was in reality a mort- 
 gage, the widow of the, deceased owner of the equity 
 paid the debt, took a reconveyance in her own name 
 and inventoried the property as a part of the dece- 
 dent's estate. This was held to have constituted the 
 widow a trustee for her husband's heirs so that they 
 would be entitled to the land as against the heirs of the 
 widow upon the latter 's death. 60 
 
 § 361. The fact that there was an encumbrance on 
 land when purchased and that the nominal purchaser 
 assumed it in the deed taken will not defeat a result- 
 ing trust to the extent of such encumbrance, even 
 though the money furnished was not an aliquot part 
 of the purchase-price, provided it was all that was 
 necessary to effectuate the purchase. 61 
 
 § 362. Where the proof shows that there was no 
 agreement for the loan of money, but that defendant 
 purchased with his own funds and agreed by parol to 
 sell to the complainant at the same price with inter- 
 est, no resulting trust arises and complainant cannot 
 redeem as from a mortgage. 62 
 
 § 363. When a purchaser of land has failed to com- 
 
 ssCoates v. Woodworth, 13 111. 654; Williams v. Brown, 14 111. 
 200; Low v. Graff, 80 111. 360-368; Hunter v. Dennis, 112 111. 568; 
 Powell v. Powell, 114 111. 329-332. 
 
 eo Hunter v. Dennis, 112 111. 568. 
 • oiSkahen v. Irving, 206 111. 597-610; Shackelford v. Elliott, 209 
 111. 333. 
 
 62 Reeve v. Strawn, 14 111. 94-100; Lear v. Chouteau, 23 111. 39; 
 Towle v. Wadsworth, 147 111. 80-96. 
 
RESULTING OR PRESUMPTIVE TRUSTS. 203 
 
 plete, and has abandoned his contract of purchase and 
 the same has been rescinded, his creditors cannot claim 
 a resulting trust in his favour and subject the land to 
 the payment of his debts by means of a creditor's bill. 63 
 
 § 363a. A father purchased land for a crippled son 
 taking title in the name of another son, thus constitut- 
 ing the latter a trustee. An execution creditor of the 
 trustee with notice, or through his own fraud, would, 
 therefore, acquire no interest by buying the land un- 
 der secret attachment proceedings. 64 
 
 § 363&. Where a widow managed the estate of her 
 deceased intestate husband and invested and re-in- 
 vested the proceeds of the heirs' portions in her own 
 name a resulting trust arose for the benefit of each 
 heir, and an attaching creditor of one of the heirs 
 might subject that heir's portion to sale. 85 
 
 § 363c. Certain lands sold upon executions were bid 
 in by trustees for the judgment creditors, and the sher- 
 iff's deed, after the expiration of the redemption 
 period, ran to the purchasers in their individual names. 
 This state of facts gave rise to a resulting trust in 
 favour of the judgment creditors in proportion to the 
 amounts of their various judgments, and they would 
 have been entitled to a partition upon that basis if they 
 had not acted upon a different basis among them- 
 selves. 66 
 
 § 363d. Where two men in a joint venture contract 
 for the purchase of land, and one dies and the other 
 
 «3 Alexander v. Tarns, 13 111. 221-225. 
 
 e* Emmons v. Moore, 85 111. 304-309. 
 
 es Seaman v. Cook, 14 111. 501-503; Latham v. Henderson, 47 111. 
 185; Roberts v. Opp, 56 111. 34; Tyler v. Daniel, 64 111. 316. 
 
 6« Gregory v. Gover, 19 111. 608-612; Mathis v. Stufflebeam, 94 111. 
 4S1-4S6. 
 
204 TEUSTS AND TRUSTEES. 
 
 pays all of the purchase money and takes a deed to the 
 heirs of the decedent as well as to himself, the surviv- 
 ing partner cannot claim a resulting trust but is only 
 a creditor and must depend upon filing his claim 
 against the estate of the decedent. 67 
 
 § 364. A bona fide purchaser of land without notice 
 of a secret resulting trust is protected both at law and 
 in equity. 68 
 
 § 364a. Either the cestui que trust or his grantee 
 may enforce a resulting trust against the holder of the 
 legal title or any purchaser from him with notice. 69 
 
 One who has notice of a prior entry of government 
 land which was never abandoned, though canceled by 
 mistake, and who makes a subsequent entry for himself 
 will be deemed a trustee for the one who made the 
 original entry. 70 
 
 The purchaser of land with notice of a prior pur- 
 chase-money mortgage, though it is not recorded until 
 afterward, will hold the proceeds of the sale of the 
 land as a trustee for the benefit of the mortgagee pro 
 tantoP 
 
 "Where the cestui que trust of a resulting fund is in 
 possession of the land, even though he entered origi- 
 nally as a tenant, his possession is constructive notice 
 of his rights, and a purchaser is bound to make en- 
 quiry. 72 
 
 «7 Crane v. Caldwell, 14 111. 468; Webster v. Blowney, 104 111. 610. 
 
 esprevo v. Walters, 4 Seam. 35; Springer v. Kroeschell, 161 111. 
 358-363; Smith v. Willard, 174 111. 538-543. 
 
 so Smith v. Wright, 49 111. 403-409; Adsit v. Smith, 52 111. 412; 
 Roberts v. Opp, 56 111. 34. 
 
 ■>o Forbes v. Hall, 34 111. 159-167; Bush v. Stanley, 122 111. 406. 
 
 7i Moshier v. Knox College, 32 111. 155-165. 
 
 72 Williams v. Brown, 14 111. 200-205. 
 
RESULTING OE PRESUMPTIVE TRUSTS. 205 
 
 § 365. A Board of Trade certificate of membership 
 may be the subject of a resulting trust and thus be- 
 come a subject of protection in equity, although it may 
 not be an absolute property right. 73 
 
 § 366. When the purposes and objects of a trust 
 have been accomplished whatever remains of the trust 
 fund must be distributed as the creator of the fund di- 
 rected, and, in the absence of such directions then a 
 resulting trust arises for the heirs of the donor if the 
 fund be real estate, or to his personal representatives 
 if it be personalty. 74 
 
 § 367. One claiming a resulting trust will be barred 
 from relief by long delay, or laches on his part, espe- 
 cially where the apparent owner has occupied and en- 
 joyed the land. 75 
 
 § 368. A certificate of sale which has issued on an 
 execution sale, and which has been assigned for an 
 expressed valuable consideration passes all interest 
 of the assignor in the land as well as the certificate, 
 and the assignor will not be heard long afterwards to 
 claim that there was no consideration and that a trust 
 resulted in his favour. 76 
 
 A father, being in possession of land purchased by 
 him from the Canal Trustees, and to which the certifi- 
 cate of sale had been made out in the name of a third 
 person, had the latter endorse the certificate to a son; 
 the father, having sold the land with the consent of 
 this son, erased his son's name from the certificate and 
 
 73 Weaver v. Fisher, 110 111. 146-153; Ellsworth v. Ames Co., 125 
 111. 223-224. 
 
 7*Lill v. Brant, 6 App. 366-376. 
 
 75 McDonald v. Stow, 109 111. 40-45; Green v. Dietrich, 114 111. 
 606. 
 
 78 McDonald v. Stow, 109 III. 40-45. 
 
206 TRUSTS AND TRUSTEES. 
 
 assigned it to his vendee. Years afterward the son 
 was not permitted to claim a trust for his own benefit" 
 in the land itself as against such purchaser, and was 
 deemed guilty of laches. 77 
 
 § 369. A grantee, claiming under one who holds the 
 legal title in trust for another, will not be deemed an 
 innocent purchaser if he does not pay for the property 
 until long after a bill has been filed to set aside the 
 trustee 's conveyances. 78 
 
 Where one man pays the purchase money for land 
 and another man takes the title a resulting trust arises. 
 If the equitable estate descend to an infant heir laches 
 cannot be imputed to one who is incapable of protect- 
 ing his own interests. 79 
 
 § 370. Since 1887 the Probate Court has had juris- 
 diction under its equity powers to determine whether 
 or no a decedent 's title to real estate sought to be sold 
 to pay his debts was merely a legal title held in trust 
 for others. 80 
 
 § 371. It seems that the cestui que trust of a result- 
 ing trust, after the land has been sold, may recover in 
 assumpsit the sum advanced by him. 81 
 
 § 372. The complainant took a decree finding title in 
 himself and abandoned his prayer for an accounting. 
 The defendant having filed no cross-bill was held not 
 to be entitled to an accounting, and the defendant's 
 wife, not having been made a party could not be bound 
 by the erroneous recital in the decree purporting to 
 
 tt Whipple v. Whipple, 109 111. 418-422. 
 78 DeClerci v. Jackson, 103 111. 658. 
 
 7» Smith v. Sackett, 5 Gilm. 534-544; Kane Co. v. Herrington, 50 
 111. 232-239; Van Buskirk v. Van Buskirk, 148 111. 9-18. 
 so Newell v. Montgomery, 129 111. 58, aff'g 30 App. 48-53. 
 si Mason v. Showalter, 85 111. 133. , 
 
RESULTING OE PRESUMPTIVE TRUSTS. 207 
 
 bar her dower and homestead, but such error was, 
 however, not considered reversible error. 82 
 
 § 373. A freehold is involved where it is sought to 
 establish a resulting trust in a freehold estate, and 
 there is evidence tending to establish it. 83 
 
 82 Schulz v. Schulz, 138 111. 665-667. 
 
 as Lehmann v. Rothbarth, 111 111. 185-194. 
 
208 TRUSTS AND TRUSTEES. 
 
 CHAPTEE XIX. 
 
 CONSTRUCTIVE TRUSTS AND FDJUCIARY RELATIONS. 
 
 § 374. In a prior section herein 1 it was said that 
 constructive trusts arise from breaches of fiduciary 
 relations irrespectively of any actual or presumed in- 
 tention to commit a breach, and irrespectively of any 
 actual fraud, although fraud may be implied or public 
 policy contravened, and that constructive trusts may 
 also arise out of contracts. 
 
 "A constructive trust is raised by a court of equity 
 wherever a person, clothed with a fiduciary character, 
 gains some personal advantage by availing himself of 
 his situation." 2 
 
 It is reserved to a subsequent Chapter (XXXII) — 
 that on Breaches of Trust — in which to take account 
 of purchases, of trust property by the trustee, its con- 
 version and mixing by him, and the rights of the cestui 
 que trust to follow and claim the converted or mixed 
 fund. 3 
 
 Constructive trusts are expressly excepted from the 
 operation of the Statute of Frauds, and they are not 
 affected by the Statute of Uses. 4 i 
 
 § 375. "Whenever the circumstances of a transac- 
 tion are such that the person who takes the legal estate 
 in property cannot also enjoy the beneficial interest 
 without necessarily violating some established princi- 
 ple of equity, the court will immediately raise a con- 
 structive trust and fasten it upon the conscience of the 
 
 i Sec. 15. 
 
 2 Lewin, star Sec. 180. 
 
 s Chap. XXXI, post. 
 
 * U. B. Church v. First M. B. Church, 138 111. 608-611. 
 
CONSTRUCTIVE TRUSTS. 209 
 
 legal owner, so as to convert him into a trustee for 
 the parties, who, in equity are entitled to the beneficial 
 enjoyment." 5 
 
 "Constructive trusts may be divided into three 
 classes, to be determined according to the circum- 
 stances under which they arise : First, trusts that arise 
 from actual fraud practiced by one man upon another. 
 Second, trusts that arise from constructive fraud. In 
 this second class the conduct may not be actually 
 tainted with moral fraud or evil intention, but it may 
 be contrary to some rule established by public policy, 
 for the protection of society. * -* * Third, trusts 
 that arise from some equitable principle independent 
 of the existence of any fraud, as where an estate has 
 been purchased and the consideration money paid but 
 the deed is not taken, equity will raise a trust, by con- 
 struction, for the purchaser. ' ' 6 
 
 § 376. "A fiduciary or confidential relation between 
 the parties to a transaction exists in every case 'in 
 which there is confidence reposed on one side and the 
 resulting superiority and influence on the other. The 
 relation and the duties involved in it may not be legal ; 
 it may be moral, social, domestic, or merely per- 
 sonal.' " 7 
 
 "Fiduciary relation" as used is a broad term not 
 limited to that of attorney and client, guardian and 
 
 sAlwood v. Mansfield, 59 111. 496-S07, quoting from Hill on 
 Trustees, Sec. 144; Allen v. Jackson, 122 111. 667-571; Larmon v. 
 Knight, 140 111. 232-236; Pope v. Dapray, 176 111. 478-4184; Ackley v. 
 Croucher, 203 111. 530-535; Stahl v. Stahl, 214 111. 131-137; Yeaton v. 
 Yeaton, 4 App. 579-5*89. 
 
 «Pope v. Dapray, 176 111. 478-485; Chapman v. Fern, 118 App. 
 116-118, the text being quoted from Perry, Sec. 168. 
 
 fRoby v. Colehour, 135 111. 300; Walker v. Shepard, 210 111. 100- 
 110; Irwin v. Sample, 213 111. 160-167. 
 14 
 
210 TRUSTS AND TRUSTEES. 
 
 ward, principal and agent, or administrator and heir, 
 but exists in all eases, where confidence has been re- 
 .posed and betrayed, and where the fiduciary relation 
 is proven equity raises, as a matter of public policy, 4 
 presumption against the validity of the transaction 
 which puts the burden of proof jupon the dominant 
 party to establish its fairness. 8 
 
 Where the parties to a contract occupy a fiduciary 
 position towards one another, that is, where one stands 
 in a superior position of dominancy over the other, 
 transactions between them are prima facie voidable 
 upon grounds of public policy. The person in the dom- 
 inant position who claims the benefit of a contract has 
 the burden of proving the bona fides of the contract 
 upon his own part, and the weaker person does not 
 have the burden of proving the fraud of the dominant 
 person. No advantage gained by the abuse of confi- 
 dence can stand in such case, even though such trans- 
 actions would not be impeachable as between stran- 
 gers. 9 But in cases of gifts to, or provisions for, chil- 
 dren by their parents, a majority of the Supreme Court 
 held recently that the burden was not cast upon the 
 child in the absence of proof of actual fraud or undue 
 influence. 10 
 
 § 376a. "While the establishing of a "fiduciary rela- 
 tion places the burden on the dominant party to a 
 transaction to prove its equity, he may do so either by 
 
 s Beach v. Wilton, 244 111. 413-422. 
 
 » Thomas v. Whitney, 1-86 111. 226-231, aff'g 83 App. 247; Freeman 
 V. Hartman, 45 111. 57; Stewart v. Duffy, 116 111. 47-53 ; Willin v. 
 Burdette, 172 111. 117-121; Marshall v. Coleman, 187 111. 556-682; 
 Rickman v. Meier, 213 111. 507-517; Fish v.' Fish, 235 111. 396-403; 
 Morgan v. Owens, 228 111. 598-603. 
 
 io Sears v. Vaughan, 230 111. 572-590. 
 
CONSTRUCTIVE TBTJSTS. 211 
 
 proof that the weaker party had competent and disin- 
 terested advice, or by proof that he entered into the 
 transaction voluntarily with a full understanding of its 
 nature and effect, which were explained to him at or 
 before the time and that his consent was not obtained 
 by the influence which might be implied from the ex- 
 istence of the fiduciary relation. The dominant party 
 must prove one of these propositions, but is not re- 
 quired to prove both. 11 
 
 § 3766. Where there is a relation of trust which re- 
 quires one committing a fraud to disclose the truth to 
 the one who has trusted him, the latter will not be 
 guilty of laches nor will the Statute of Limitations 
 bar him until he has actual knowledge of the fraud 
 even though he might have discovered the fraud by 
 exercising reasonable diligence. 12 
 
 § 376c. A deed from one of feeble mind, subject to 
 an undue influence, for an inadequate consideration 
 will, of course, be set aside in equity. Inadequacy of 
 consideration, while not sufficient alone to justify set- 
 ting aside a deed, is, when proven to be gross inade- 
 quacy, controlling evidence of fraud. 13 
 
 § 376d. A tenant. in common who undertakes to sell 
 the entire property occupies, in such circumstances, a 
 fiduciary relation toward his co-tenant whose interests 
 he must conserve as well as his own. The wronged co- 
 tenant need not prove a co-partnership in the land in 
 order to recover, but need only show the fiduciary re- 
 lation and its breach in order to establish the fraud. 14 
 
 " Zeigler v. 111. T. & S. Bank, 245 111. 180-197. 
 12 Farwell v. Great Western Tel. Co., 161 III. 522-596. 
 is Walker v. Shepard, 210 111. 100-114; Hensan v. Cooksey, 237 111. 
 £20-636. 
 
 1* Calkins v. Worth, 215 111. 78-86. 
 
212 TRUSTS AND TRUSTEES. 
 
 § 376e. A bailor who permits a bailee to issue a 
 warehouse receipt by mistake for goods which the 
 bailor knows are not bailed, the bailee being compelled 
 to pay an innocent purchaser of the receipt, becomes a 
 constructive trustee for the benefit of the bailee. 15 
 
 § 376/. "Persons engaged in the business of making 
 abstracts of title occupy a relation of confidence 
 towards those employing them, which is second only, 
 in the sacredness of its nature, to the relation which a 
 lawyer sustains to his client. * * * They should 
 be held to a strict responsibility in the exercise of the 
 trust and confidence which are necessarily reposed in 
 them. Any abuse of such trust and confidence should 
 be met with emphatic rebuke." 16 
 
 § 377. While the agent of a trustee cannot usually 
 be held liable to account as a constructive trustee to 
 the cestui que trust, yet, where such agent has been 
 guilty of fraud or collusion in order to reap some ad- 
 vantage for himself out of the trust fund, he will then 
 be deemed responsible to the cestui que trust as a trus- 
 tee de son tort for-the trust fund, together with inter- 
 est thereon. 17 
 
 § 378. Whenever a person obtains title to property 
 by deed or devise, giving no consideration therefor, ex- 
 cept false promises that he will convey it in accordance 
 with the donor's intentions, but afterwards refuses so 
 to convey, equity will not consider a plea of the Statute 
 of Frauds but will impress the property with a con- 
 structive trust for the benefit of those whom the donor 
 
 is McDonald v. Western Refrig. Co., 35 App. 283-294. 
 i« Vallette v. Tedens, 122 111. 607-618. 
 
 « Lehmann v. Rothbarth, 111 111. 185-19&; Lewin on Trusts, star 
 Sec. 192. 
 
' CONSTRUCTIVE TRUSTS. 213 
 
 intended should be the beneficiaries 18 and the decree 
 of the court should require the trustee to convey the 
 legal title to those entitled thereto by a short day, or 
 in default thereof that a master in chancery so con- 
 vey. 19 
 
 § 378a. A -mortgagee having been induced to release 
 his mortgage by reason of the fraudulent promises of 
 the mortgagor that he would support the mortgagee 
 during the rest of his lifetime in. consideration for the 
 release, equity will in such case fasten a trust ex male- 
 ficio on the land in the hands of the tortious owner. 20 
 
 § 3786. A husband, being desirous of having his title 
 to certain land vested in his wife, was induced by a 
 friend to convey to him instead of conveying directly 
 to the wife, and after thus receiving the title the friend 
 refused to convey to the wife. It was held that he had 
 by his fraud constituted himself a trustee, and could 
 not therefore set up the Statute of Frauds, or evade 
 the trust by vague evidence that the conveyance to him 
 had been made with intent to defraud creditors. 21 
 
 § 379. Where there is no positive fraud or deceit en- 
 tering into a transfer of the title to real estate no trust 
 ex maleficio can be fastened thereon, and a refusal to 
 reconvey or a denial of any express trust will not be 
 such fraud as to overcome a plea of the Statute of 
 Frauds. 22 
 
 § 380. Where the heirs of a deceased wife seek to 
 charge her surviving husband with having so dealt 
 
 is Stahl v. Stahl, 214 III. 131-140; Crossman v. Keister, 223 111. 
 69-82; Hilt v. Simpson, 230 111. 170; Ward v. Conklin, 232 111. 553- 
 560. 
 
 is Stahl v. Stahl, 220 111. 188-191. 
 
 20 Henschel v. Mamero, 120 111. 660-666, aff'g A.pp. Ct. 
 
 aiFishbeck v. Gross, 112 111. 208-212; Gruhn v. Richardson, 128 
 111. 178-186; Harmon v. Knight, 140 111. 232-236. 
 
 22 Ryder v. Ryder, 244 111. 297-310. 
 
214 TEUSTS AND TRUSTEES. 
 
 with her separate property as to give rise to a pre- 
 sumptive trust the court must consider the relations 
 of the husband and wife with each other in her life- 
 time, and how they dealt with her separate property, 
 so that the proper inference may be drawn whether 
 he occupied the position of her agent and trustee in 
 respect of her separate property, or whether she made 
 gifts of it to him. The evidence required to sustain a 
 presumptive trust must be convincing, and it is always 
 received with caution. 23 
 
 Land having been bought with the joint earnings of 
 a husband and wife, and title taken in her name be- 
 cause, as the husband alleged, she insisted upon it and 
 she being of a fiery temperament he conceded to it in 
 order to keep peace in the family, there is no such state 
 of facts as would indicate sufficient fraud upon her part 
 to raise a constructive trust, especially where he had 
 acquiesced for a long time in letting her hold the title. 24 
 
 No constructive trust arises out of a purchase by a 
 widow of her deceased husband's land upon a fore- 
 closure of a mortgage securing money of her own 
 which she had lent to him. His heirs cannot in such 
 case be heard to allege a breach of a fiduciary rela- 
 tion. 25 
 
 An assignment by a wife to her husband of a mort- 
 gage and the notes secured by it does not raise a con- 
 structive trust upon the presumption that the husband 
 is of a dominant influence in the family, as such is a 
 question of fact, although she signed a paper directing 
 him to turn the property over to her executor, but 
 
 23 Reed v. Reed, 135 111. 482-490. 
 2* Cline v. Cline, 204 111. 130-137. 
 25 Kyle v. Wills, 166 111. 501-512; Dick v. Albers, 243 111. 281. 
 
CONSTRUCTIVE TRUSTS. 215 
 
 there was no proof that he had notice thereof before 
 her death. 26 
 
 § 381. When one stands in loco parentis, or occupies 
 a position of dominance over another, gifts of property 
 from the latter are presumptively voidable, it being a 
 matter of public policy that the donee should be com- 
 pelled to show that no undue influence was exerted 
 upon the donor. While sales from a child to a parent 
 are not prima facie void, yet they must stand the test 
 of a close scrutiny by the court. Of course gifts from 
 a child to a parent for the support and maintenance 
 of the latter where the parent is in poor circumstances 
 stand upon a different ground, as do, ordinarily, gifts 
 from a parent to a child. 27 
 
 § 381a. No constructive trust arises when an adult 
 son living apart from his father buys obligations of 
 the latter, and there is no evidence to show any undue 
 influence growing out of such relationship. 28 
 
 § 381&. An assignment of a legacy by a son just of 
 age to a father, made voluntarily and without any co- 
 ercion upon the father's part, for the purpose of pre- 
 serving the property from the son's improvidence is 
 valid, and the son cannot afterwards establish a con- 
 structive trust against his deceased father's estate for 
 the amount of the legacy. 29 
 
 § 382. The mere relationship of father-in-law and 
 son-in-law does not in itself alone charge the latter 
 as trustee for the former where the son-in-law pur- 
 chases property from the father-in-law with superior 
 
 2a Mahan v. Schroeder, 236 111. 392. 
 
 27 White v. Ross, 160 111. 56-72; Pope v. Dapray, 176 III. 478-485; 
 Crossman v. Keister, 223 111. 69-82. 
 
 28 Dick v. Albers, 243 111. 231. 
 
 29 Chapman v. Ferns, 118 App. 116-188; see also Ferns v. Chap- 
 man, 211 111. 597-607. 
 
216 TBUSTS AND TRUSTEES. 
 
 knowledge as to its value, but without any fraud or 
 breach of confidence. 30 
 
 Nor will the mere relationship of brother and sister 
 permit the latter to have her conveyance set aside some 
 fourteen years later, during which period she was not 
 under the dominion of her brother. 31 
 
 A sister obtained a deed from N an insane brother by 
 fraudulent methods, and mortgaged the land, and upon 
 these facts there arose a constructive trust which en- 
 titled the cestui que trust to a personal decree for the 
 value of the land so converted. 32 
 
 § 383. One who purchases land from a trustee with 
 actual or constructive notice that the latter has vio- 
 lated his power of sale, in not selling for cash with 
 which to pay legacies, will himself be relegated to the 
 position of a trustee to see that such legacies are paid 
 out of the land. 33 
 
 § 384. Even where a purchaser at a trustee's sale 
 is not obliged to see to the application of the purchase 
 money he does not occupy the position of a purchaser 
 at a judicial sale r and if he be acquainted with the 
 lands before the sale, and pay a 'grossly inadequate 
 price for them he will be treated as guilty of construct- 
 ive fraud, irrespectively of whether he knew of any 
 fraudulent purpose moving the trustee in making the 
 sale. 34 
 
 § 385. A conveyance by a widow of land (devised to 
 her by her husband) to her sister who happened to be 
 the wife of the administrator with the will annexed of 
 
 so Cleland v. Pish, 43 111. 282-285. 
 
 si Albrecht v. Huneke, 196 111. 127-131. 
 
 32 Long v. Fox, 100 111. 43-50. 
 
 33 Humphrey v. HudnaJl, 233 111. 185-188. 
 s±Beall v. Dingman, 227 111. 294-299. 
 
CONSTRUCTIVE TRUSTS. 217 
 
 the decedent is not presumptively a breach of a trust, 
 as such matter was not connected with the adminis- 
 tration of the estate, and proof was necessary to show 
 a confidential relation- between the grantor and the ad- 
 ministrator and the dominance of the latter. 35 
 
 § 386. One must come into equity with clean hands 
 and where he has made a conveyance with the inten- 
 tion of hindering creditors or defeating rights of a 
 wife in the land he cannot have the title restored to 
 him although it was obtained by fraud. 36 
 
 § 387. When a creditor seeks to fasten a trust upon 
 his debtor by construction he must show that there was 
 actual or equitable fraud upon the part of the debtor 
 in obtaining the legal title, or that there is some equita- 
 ble rule which will convert the debtor into a trustee for 
 his creditors' benefit, but such an implied trust is 
 raised only when absolutely necessary to prevent gross 
 injustice. 37 
 
 A let B have a stock of goods on credit not knowing 
 that B was an agent for others against whom judg- 
 ments had been rendered. A afterwards took posses- 
 sion of the goods taking a bill of sale therefor, and the 
 judgment creditors filed a creditors' bill and had a 
 receiver take possession away from A. The Appel- 
 late Court, in saying that a court of equity would never 
 "rob Peter to pay Paul," held that, while false repre- 
 sentations by the vendee in respect of his financial rat- 
 ing and intentions made a sale merely voidable so as 
 
 ssEhrich v. Brunshwiler, 241 111. 592-597. 
 
 seMcElroy v. Hiner, 133 111. 156-165; Brady v. Huber, 197 111. 291- 
 297; Jolly v. Graham, 222 111. 550-554; Dunaway v. Robertson, 95 
 111. 419-426. 
 
 37 Union Natl. Bank v. Goetz, 138 111. 127-133; Mahler v. Sanche, 
 223 111. 136. 
 
218 TBUSTS AND TBTJSTEES. 
 
 to give a bona fide purchaser from the vendee a good 
 title, yet, where the fraud practised upon the vendor 
 is so great that the minds of the vendor and vendee 
 never met, a sale in such case would be absolutely void 
 so that a bona fide purchaser from such fraudulent 
 vendee would take no title, a constructive trust arising 
 therefrom which equity would impress upon the prop- 
 erty so acquired, or upon property acquired from the 
 proceeds thereof, irrespectively of whether or no an 
 actual trust or fiduciary relation existed between the 
 vendor and the fraudulent purchaser. 38 
 
 § 388. Constructive or implied trusts, and trusts- 
 arising by operation of law, are not within the Statute 
 of Uses, which applies only to express trusts; and a 
 deed to A, B and C, "trustees" of a church, was held 
 at law not to be a feoffment to them or an express, 
 trust, and the Statute of Uses would not operate to 
 vest the legal title in the church. The opinion indi- 
 cates that if the deed had been made to them as trus- 
 tees the decision might have been otherwise. This is 
 a most unsatisfactory opinion but it must be remem- 
 bered it occurred in an ejectment suit at law where le- 
 gal titles only can be considered. 39 
 
 § 389. "While constructive trusts are not, in general,, 
 predicated upon technical trusts, and are, therefore, 
 not pure trusts, yet courts have found it convenient in 
 cases of fraud to raise trusts by way of construction 
 for the purpose of decreeing a more complete remedy,. 
 as by compelling one who has been deemed a construct- 
 ive trustee to perform certain duties and to be under 
 certain liabilities, as if there were an express trust — 
 
 asjteid, Murdoch & Co. v. Sheffy, 99 App. 189-196. 
 
 so United Brethren Church v. First M. E. Church, 1S8 111. 608-611. 
 
CONSTRUCTIVE TEUSTS. 219 
 
 and courts of equity will often presume fraud to have 
 been exerted upon less evidence than courts of law. 40 
 
 § 390. One may by a fraudulent act constitute him- 
 self a trustee and a court of equity will compel him 
 then to act with fidelity and circumspection by holding 
 him responsible for any loss in not doing so, and he 
 will be liable to the cestui que trust not for what he 
 has made, unless the cestui que trust so elect, but for 
 what the latter has lost. 41 But no trust will arise ex 
 maleficio, where* by an oral agreement one man was 
 to pay all of the money necessary to get a deed to land, 
 and the rest were to raise money by way of mortgage 
 to erect a building which they failed to do, but left the 
 first man, who had taken title, to get out of the pur- 
 chase the best way he could, and he succeeded in get- 
 ting money on his own mortgage to put up the build- 
 ing. And his refusal to carry out the oral agreement 
 to convey to the others could not be deemed fraudu- 
 lent as against his plea of the Statute of Frauds. 42 
 
 § 390a. Where two men had an option jointly for 
 the purchase of a leasehold estate but the option ex- 
 pired, and later one of them purchased the estate on 
 his own account in good faith no trust ex maleficio 
 could arise for the benefit of the other. 43 
 
 § 391. The vendee of land having failed to complete 
 his contract of purchase the vendor conveyed to a third 
 person; the heir of the original vendee sought to re- 
 cover the land by reason of the alleged fraud of the 
 second vendee in representing to his grantor that he 
 
 *o Perry, Sees. 166-167. 
 
 4i Powell V. Jeffries, 4 Scam. 387; Beach v. Dyer, 93 111. 295-298. 
 4z Morton v. Nelson, 145 111. 5<86-594; Davis v. Stambaugh, 163 
 111. 557-564. 
 is Campbell v. Powers, 139 111. 128-134. 
 
220 TRUSTS AND TRUSTEES. 
 
 had acquired the interest of the first vendee thereby 
 constituting himself a constructive trustee holding the 
 legal title for the heir of the first vendee. The vendor 
 testified that he had conveyed to the second vendee on 
 the representations made to him by a stranger to the 
 transaction, but this testimony could not bind the sec- 
 ond vendee without his sanction and he was held to 
 have acquired the equitable as well as the legal title.* 4 
 
 § 392. The purchasers of a tract from the Govern- 
 ment obtained a patent which failed to describe cor- 
 rectly the land bought, but their possession and that 
 of those claiming under them was held to be such no- 
 tice of their equitable ownership as would constitute 
 anyone who obtained the legal title from the govern- 
 ment a trustee for them by reason of the fraud exerted 
 in taking the legal title. 45 
 
 § 393. Where a bidder at a judicial sale represented 
 fraudulently that he was buying for the heirs of the 
 deceased judgment debtor, in order to stifle competi- 
 tion, he will be held a trustee and his deed set aside 
 upon the heirs doing equity. 46 
 
 § 394. Under a written contract the owner of an 
 equity in land, which had been sold under foreclosure, 
 agreed to convey any equity he might have left if his 
 grantee would advance the money necessary to re-ac- 
 quire title, and, after having sold the property the 
 grantee should share the net proceeds of the land with 
 his grantor. In pursuance of the contract the grantee 
 acquired the title which had been foreclosed and sold 
 the same for about one-half its value to purchasers 
 who were not bona fide. In such case the grantee was 
 
 ** Beach v. Dyer, 93 111. 255-298. 
 *s Wilson v. Byers, 77 111. 76-84. 
 *« Bethel v. Sharp, 25 111. 173. 
 
CONSTRUCTIVE TRUSTS. 221 
 
 held to be a trustee for his grantor and that by the 
 trustee's fraud the contract should be rescinded, as 
 well as the sales to purchasers with notice, leaving the 
 trustee without compensation by reason of his bad 
 faith and abuse of the trust. 47 
 
 § 395. The payee of a note signed by sureties took 
 further security from the maker by way of a chattel 
 mortgage which was foreclosed by a sale to the payee 
 of the note for a sum much less than the. value of the 
 chattels; some years later the payee of the note 
 brought suit against the sureties, and it was decided 
 that when the payee took possession of the chattels he 
 became a trustee for the sureties as well as for his own 
 benefit, that he could not purchase at his own sale, 
 either directly or indirectly, without being held ac- 
 countable to the sureties for not having obtained a fair 
 price for the chattels. 48 
 
 § 396. Agents stand on much the same footing in 
 respect of their principals as do trustees in express 
 trusts, there being in both eases an important fiduciary 
 relation requiring the exercise of a strict good faith. 
 
 While agents are not forbidden from acquiring on 
 their own account the property of their principals, yet 
 they must first make their principals cognisant of all 
 matters affecting the transaction, and are not -permit- 
 ted to take advantage of any superior knowledge of the 
 property and its value which their employment may 
 have afforded them. 49 
 
 J'Towle v. Ambs, 123 111. 410-425; see also Mason v. Hartgrove, 
 103 App. 163, where the trustee to redeem took title under a certifi- 
 cate of sale and claimed the benefit of the foreclosure. 
 
 « Phares v. Barbour, 49 111. 370-373. 
 
 « Perry, Sec. 206; Roby v. Colehour, 135 111. 300-337. 
 
222 TKTJSTS AND TRUSTEES. 
 
 § 397. Administrators, executors, agents, partners, 
 etc., cannot take advantage of their fiduciary relations 
 to benefit themselves put of the trust estate. In 
 such case a special trust is reposed greater than mere 
 credit. 50 
 
 § 398. An attorney, who, by direct or indirect 
 means, takes an advantage of a client in dealing with 
 the latter 's property, and fails to exercise that degree 
 of good faith. required of the confidential relation, will 
 be held as a trustee to account to the client for the pro- 
 ceeds of the property. 51 
 
 § 399. A financial agent who invests his principal's 
 money is more than a mere collecting agent and more 
 than a mere debtor; he holds such funds under an ex- 
 press trust against which the Statute of Limitations 
 will not run or laches be implied until he adopts a hos- 
 tile attitude towards the ownership of the cestui que 
 trust. And upon establishing a claim against such a 
 deceased agent's estate it is enough to prove that the 
 amount claimed came to the agent's hands without 
 proving that the agent never paid the fund back to his 
 cestui que trust. 62 
 
 A son, acting under a power of attorney from his 
 mother, collected and invested his mother's money for 
 her and spoke of it and treated the fund as belonging 
 
 soMatteson v. Kellogg, 15 111. 547-549; Miles v. Wheeler, 43 111. 
 123-126; Nelson v. Hayner, 66 111. 487-494; Renfrow v. Pearce, 68 
 111. 125; Dempster v. West, 69 111. 613-618; Weaver v. Fisher, 110 
 111. 146-152; Galbralth v. Tracy, 153 111. 54; Frolich v. Seacord, 180 
 111. 85-94. 
 
 si Zeigler v. Hughes, 55 111. 288-295; Sutherland v. Reeve, 151 111. 
 384-392; Dinsmoor v. Bressler, 164 III. 211; Robinson v. Sharp, 201 
 111. 86-90. 
 
 32 Grant v. Odiorne, 43 App. 402-407; see Mulvihill v. White, 89 
 App. 88. 
 
CONSTRUCTIVE TRUSTS. 223 - 
 
 to his mother. After the son's death the mother was 
 permitted by her bill in equity to establish the trust, 
 identify the fund and have an accounting from the 
 son's administrators. 53 
 
 § 400. It may be said generally that the knowledge 
 of the agent of a secret lien, or trust, or fraud in re- 
 spect of property for which he is bargaining for his 
 principal is notice to such principal thereof, except 
 perhaps in cases where the knowledge had come to 
 the agent in an earlier transaction with a different 
 principal, and it might be presumed that the knowl- 
 edge had passed out of the agent's memory, or per- 
 haps where the agent had been an attorney or counsel 
 and his knowledge could be considered as a privileged 
 communication which the ethics of his profession 
 would forbid him to disclose; but where the evidence 
 shows that the knowledge obtained by the agent in the 
 prior transaction was so unequivocal and exact that he 
 could not but have remembered it in the second trans- 
 action, and that there was nothing to prevent him from 
 communicating his knowledge to his principal, then 
 the principal will be deemed to have had constructive 
 notice of the prior and secret lien, fraud or trust. 54 
 
 § 401. Agents to purchase land must turn it over 
 to their principals at the price paid, although such 
 price was below what they were authorised to pay. 55 
 
 § 401a. "Where an agent to purchase land tQok title 
 in his own name and agreed to convey to his principals 
 upon payment to the agent of the sums for which he 
 had become liable on the purchase price, the principals 
 
 53 Clapp v. Emery, 98 111. 523-531. 
 
 5* Snyder v. Partridge, 138 III. 173-184; Burton v. Perry, 146 III. 
 71-119. 
 
 55 Lyon v. Worcester, 49 App. 639. 
 
224 TBUSTS AND TRUSTEES. 
 
 or cestuis que trustent had several courses which they 
 might pursue at their option; they might repudiate 
 the act of the agent in taking title in his own name 
 and compel him to assume all the responsibilities of a 
 purchaser, or they might waive the fraud and assert 
 their rights as cestuis que trustent; or, before discov- 
 ering the fraud, they might sell their equitable title; 
 or, after discovering the fraud they might abandon the 
 purchase on account of it, and in the latter case by such 
 renunciation they would become divested of the equita- 
 ble title without any alienation. In this case it was 
 held that the principals after learning of the fraud 
 could not remain inactive for three years, fail to pay 
 installments of the purchase money, and speculate on 
 an increase in the value of the land. If the cestuis que 
 trustent kept silent when equity required them to 
 speak, they could not be allowed to speak when equity 
 required them to keep silence. 56 
 
 § 4016. An agent who lends his principal's money 
 on a mortgage taken in the agent's name, and which 
 the agent forecloses, taking title to the land in his own 
 name, is a trustee to the extent that his principal may 
 assert a resulting trust in the land itself. 57 
 
 § 401c. An administrator used the funds of an es- 
 tate to acquire the title to land and it was held that the 
 conservator of an insane heir could make an election 
 for such heir to adopt the act of the administrator and 
 take its share in the real estate, so that the insane heir's 
 portion of the title would pass on a proper proceeding 
 for its sale. 58 
 
 so Follansbee v. Kilbreth, 17 111. 522-524. 
 57 Cookson v. Richardson, 69 111. 137t-139. 
 ss Dodge v. Cole, 97 111. 339-350. 
 
CONSTBUCTIVE TBUSTS. 225 
 
 § 402. An employe, who by fair means obtains a 
 lease of the business premises of his employer after 
 the latter had refused to take a lease from the land- 
 lord, cannot be held to be a trustee for his principal, 
 where he did not benefit himself at the expense, or to 
 the disadvantage, of his principal. 59 But not if he 
 takes advantage of his knowledge to obtain the lease. 60 
 
 § 403. An agent cannot acquire an execution title 
 as against his principal. 61 
 
 An agent cannot acquire a tax-title as against his 
 principal; the question is whether the agent has been 
 guilty of fraud in the performance of his trust and not 
 whether the tax title may be a valid one. 62 
 
 An agent holding a Board of Trade certificate of 
 membership in his own name, but paid for by his prin- 
 cipal, may be compelled in equity to transfer it to his 
 principal as representing a resulting trust even though 
 the certificate is not strictly a property right. 63 
 
 § 404. An agent cannot speculate with a trust fund 
 and if he make a profit he must account to his cestui 
 que trust for it. 64 
 
 § 405. "If an agent is employed by a trustee, and 
 thus comes into possession of the property, he will be 
 accountable to his employer and will not be responsi- 
 ble as a constructive trustee. But if an agent should 
 act fraudulently or collusively he might be made a 
 
 so Fairman v. Bavin, 29 111. 75. 
 
 «o Davis v. Hamlin, 108 111. 39. 
 
 ei Moore v. Pickett, 62 111. 158. 
 
 «2 Barton v. Moss, 32 III. 50; O'Halloran v. Fitzgerald, 71 111. 53- 
 56; Ward v. Armstrong, 84 111. 151-1'54. 
 
 os Weaver v. Fisher, 110 111., 146; Ellsworth v. Ames Co., 125 111. 
 223. 
 
 e* Phelps v. Reeder, 39 111. 172. 
 15 
 
226 TRUSTS AND TRUSTEES. 
 
 trustee by construction, and as such accountable to 
 the cestui que trust." 65 
 
 § 405a. Although a trustee has a lien on the trust 
 fund for his proper expenses and charges, yet an agent 
 of the trustee must look personally to the trustee who 
 employed him for his compensation, and if the trustee 
 should be unable to procure the services of agents on 
 his own responsibility he could have a court of equity 
 charge the trust estate with such expenses. The court 
 refused, therefore, to depart from the rule. 66 
 
 § 406. It is only during the lifetime of the trust that 
 courts of equity are solicitous that trustees shall not 
 deal with the trust fund to their own advantage. Once 
 the trust determines and ceases, the trustee, acting in 
 good faith, may deal with the estate by purchase or 
 otherwise exactly as strangers to the trust could have 
 done. 67 
 
 § 406a. Where a trustee denies the trust and ac- 
 quires the trust property from his cestui que trust for 
 an adequate price it would seem that, irrespectively of 
 the fraud involved in denying the trust, the purchase 
 may stand. 68 
 
 ssLehmann v. Rothbarth, 111 111. 185-195, quoting from Perry. 
 
 «6 Johnson v. Leman, 131 111. 609-611; Dinsmoor v. Bressler, 66 
 App. 207-213. 
 
 67 Munn v. Burges, 70 111. 604-611; Walker v. Carrington, 74 111. 
 446-472; Bush v. Sherman, 80 111. 160-172; Watson v. Sherman, 84 
 111. 263-266. 
 
 «s Scanlan v. Scanlan, 134 111. 630-642. 
 
LACHES AND THE STATUTE OF LIMITATIONS. 227 
 
 CHAPTER XX. 
 
 LACHES AND THE STATUTE OF LIMITATIONS. 
 
 § 407. The defence of laches is available only to one 
 in possession as against one out of possession. 1 
 
 Courts are nbt inclined to apply the doctrine of 
 laches where trust funds are involved. 2 But laches in 
 failing to assert a secret trust in land within nineteen 
 years, especially without alleging notice thereof in sub- 
 sequent purchasers, will bar all relief in equity. 3 
 
 § 407a. While an insane person cannot be guilty of 
 laches, yet mere illness, not amounting to mental in- 
 firmity, will not excuse the delay. 4 
 
 § 4076. "The Statute of Limitations is not neces- 
 sarily controlling as to the time within which relief 
 is -to be sought in the case of a constructive trust by 
 reason of fraud. A demand may be stale and not en- 
 titled to relief under the circumstances of the case, al- 
 though much less than the time allowed by the Statute 
 of Limitations has elapsed ; and so a party may be en- 
 titled to relief although much more than the statute 
 limit has gone by. * * * If a party has knowledge 
 of the fraud a want of evidence will not excuse his de- 
 lay, nor will poverty and an inability to prosecute the 
 action. If there has been great delay the courts will 
 require very clear evidence to impeach a transaction 
 
 i Bush v. Stanley, 122 111. 406-418. 
 2 Fellrath v. Peoria Assn., 66 App. 77-82. 
 s Pratt v. Stone, 80 111. 440-444. 
 4 Herr v. Payson, 157 111. 244-257. 
 
228 TRUSTS AND TRUSTEES. 
 
 as fraudulent, and to convert the fraudulent party into 
 a trustee. ' ' 5 But, no matter how great the lapse of 
 time may be, if there be a sufficient excuse, such as the 
 practising of fraud upon the complainant, so that it 
 would be inequitable for the defendant to assert the 
 bar of\ laches the chancellor's conscience may be ap- 
 pealed to and the delay excused. 6 
 
 § 407c. Laches will not be imputed to cestuis que 
 trustent who have attacked the acts of a trustee under 
 a will, so long as their delay was due to their contest 
 of the will itself as heirs. 7 
 
 § 408. Laches will not be imputed before knowl- 
 edge has come to the complainant 8 as where the trus- 
 tee concealed the existence of the trust for many 
 years. 9 
 
 It is taken for granted that a trustee will not com- 
 mit a breach of his trust, and a cestui que trust is not 
 bound to make any enquiry as to the administration 
 of the trust; he will be chargeable with laches only 
 after he has actual knowledge of a breach committed 
 by the trustee. 10 
 
 If it is the duty of one, who has practised fraud on 
 another towards whom he stands in a trust relation^ 
 to disclose the truth to such other, the latter will not 
 be barred from relief by laches or the Statute of Lim- 
 itations where knowledge of a transaction was not 
 brought home to him, even though he might have dis- 
 
 s Kellogg v. Western Electric Co., 168 111. 240, aff'g 67 App. 53,. 
 which quoted Perry, Sec. 230. 
 
 e Harris v. Mclntyre, 118 111. 275-288. 
 
 ' Beall v. Dingman, 227 111. 294. 
 
 « Jones v. Lloyd, 117 111. 597. 
 
 9 Middaugh v. Fox, 135 111. 344-370. 
 
 io Jackson v. Lynch, 129 111. 72-84. 
 
LACHES AND THE STATUTE OF LIMITATIONS. 229 
 
 covered the fraud by the exercise of reasonable dili- 
 gence. 11 " 
 
 § 408a. Purchasers for value acquired land under a 
 deed from a trustee and the donee of a power of ap- 
 pointment, and the power of appointment not having 
 been exercised in the mode prescribed by the trust in- 
 strument, a remainderman sought to recover the land 
 by bill in equity brought more than seven years after 
 learning the facts. The remainderman had been ad- 
 vised by counsel when he became apprised of the facts 
 that he could not recover and had waited some years 
 until different counsel had advised otherwise ; this was 
 held to amount to no more than ignorance of the law 
 and not a sufficient excuse for the delay. 12 
 
 § 409. If the trustee has repudiated the trust the de- 
 fence of laches and the Statute of Limitations is then 
 open to him. 13 
 
 § 409a. While the time fixed by the Statute of Limi- 
 tations for barring claims at law is usually applied by 
 analogy to questions of laches raised in a court of 
 equity, yet equity does not enforce the rule rigidly and 
 under some circumstances the mere lapse of time, 
 however great, will not operate to defeat a claim which 
 the chancellor's conscience may not refuse to entertain. 
 As against express trusts there is no bar to their en- 
 forcement before the trustee has openly disavowed 
 the trust and brought a full knowledge of such dis- 
 avowal home to the cestui que trust; and if the trustee 
 have possession of the trust property such possession 
 is that of the cestui que trust until the trustee shall 
 deny it by claiming the property for himself, openly, 
 
 ii Farwell v. Great Western Tel. Co., 161 111. 522-596. 
 
 12 Breit v. Yeaton, 101 111. 242-271. 
 
 is Babcock v. Farwell, 146 App. 307-342. 
 
230 TBXJSTS AND TBTJSTEES. 
 
 hostilely, adversely and continuously afterwards. As 
 against implied and resulting trusts the question 
 whether laches may be said to be a bar will depend 
 upon the facts of the particular case and especially 
 whether any element of fraud be discovered in the par- 
 ticular transaction which would make it unconscionable 
 to deny the relief asked. 14 
 
 § 409&. Laches cannot be imputed to a vendee seek- 
 ing specific performance who has gone into possession 
 and performed his part of the contract. The vendor 
 is a trustee of the legal title for him, and time will not 
 begin to run against a direct trust before the trustee 
 has openly and adversely denied the trust to the full 
 knowledge of the cestui que trust. 15 
 
 § 410. Laches will usually bar relief in cases of im- 
 plied trusts — or constructive trusts. 16 
 
 § 410a. A claim to establish a resulting trust, not 
 made until several years after the death of the alleged 
 trustee and some thirty years after the transaction, is 
 tainted with laches. 17 
 
 Delay for thirteen years in claiming a resulting trust 
 as against the apparent owner who was enjoying the 
 estate with the knowledge of the claimant was held in- 
 excusable. The right should be asserted within seven 
 years regardless of the land being vacant. 18 
 
 i* Reynolds v. Sumner, 126 III. 58-70; Roby v. Colehour, 135 111. 
 300-343; Van Buskirk v. Van Buskirk, 148 111. 9-25; Benson v. Demp- 
 ster, 183 111. 297-308; Hubbard v. V. S. Mtg. Co., 14 Appi 40-50. 
 
 15 C. & E. I. R. R. Co. v. Hay, 119 111. 498-602. 
 
 i« McLaflin v. Jones, 155 111. 539-544, aff'g 55 App. 518; Herr v. 
 Payson, 157 111. 244-254. 
 
 "Railsback t. Williamson, 88 III. 484-498; Green v. Dietrich, 114 
 111. 636-646; Heneke v. Florlng, 114 111. 554-558; Mayfield v. Forsyth, 
 164 111. 32-3i5; Benson v. Dempster, 183 111. 297-306; Lancaster v. 
 Springer, 239 111. 472-479. 
 
 "McDonald v. Stow, 109 111. 40-45; Kyle v. Wills, 166 111. 501- 
 
LACHES AND THE STATUTE OP LIMITATIONS. 231 
 
 Where the adverse claims of the holder of the legal 
 title as against a resulting trust have not been made 
 for a period longer than seven years the complainant 
 will not necessarily be barred by laches in analogy to 
 the Statute of Limitations. 19 
 
 § 411. Laches will not be imputed where there has 
 been no adverse possession or disavowal of the trust, 
 or where the relations of the parties and the surround- 
 ing circumstances explain the delay satisfactorily. 
 Nor can laches be* imputed to an insane person. Delay 
 upon the part of members of the same family is not 
 considered so strictly as with strangers. 20 
 
 § 411a. Where a cestui que trust in a resulting trust 
 held possession of the land both before and after the 
 trustee's death laches could not be imputed to him, as 
 his possession would be notice to all the world of his 
 rights. 21 
 
 § 4116. A widow, holding the legal title to land as a 
 trustee for the heirs of her deceased husband, and hav- 
 ing dower and homestead therein, retained possession 
 of the land until her death which occurred some twenty- 
 nine years after she acquired the legal title, and this 
 length of time, under the circumstances, was held not 
 to impute laches to the heirs of the deceased husband 
 and father in asserting that the widow had held the 
 land as a trustee and could not devise the equitable 
 title. 22 
 
 512; Smith v. Willard, 174 111. 538-545; Lequatte v. Drury, 101 111. 
 77-81; Lloyd v. Kirfcwood, 112 111. 329-340. 
 
 w Springer v. Springer, 114 111. 550-553. 
 
 2" Van Buskirk v. Van Buskirk, 148 111. 9-26; Madison v. Madison, 
 206 111. 534-540; Russell v. Peyton, 4 App. 473-482. 
 
 2i Dorman v. Dorman, 187 111. 154-160. 
 
 22Musham v. Mnsham, 87 111. 80-84; Hunter v. Dennis, 112 111. 
 568-571. 
 
232 TBTJSTS AND TRUSTEES. 
 
 § 412. While laches must generally be presented 
 as a defence by way of plea or answer, yet, if the bill 
 state the causes of delay and the excuses therefor, it 
 is permissible to raise the question of the sufficiency 
 thereof by demurrer, admitting them to be true. 23 
 
 § 412a. A bill to redeem on account of irregularities 
 in a foreclosure sale made seventeen years prior by a 
 trustee under a power-of-sale mortgage, without any 
 excuse shown for the delay, discloses laches on its face 
 which may be set up as a defence by a general or spe- 
 cial demurrer. 24 
 
 § 413. "The Statute of Limitations does not apply 
 to direct or express trusts created by deed or will, and 
 perhaps not to those created by appointment of law, 
 such as executorships and administrations, but con- 
 structive trusts, resulting from partnerships, agencies 
 and the like, are subject to the statute" (citing Framan 
 v. Brooks, 9 Pick. 212). The general rule is that so 
 long as the trustee has duties which remain unper- 
 formed by him he cannot set up the Statute as a de- 
 fence unless he has openly denied the trust and acted 
 adversely to it during the time fixed by the Statute. 25 
 
 § 413a. ' ' To exempt a trust from the bar of the Stat- 
 ute, it must be, first, a direct trust ; second, it must be 
 of the kind belonging exclusively to the jurisdiction of 
 a court of equity, and third, the question must arise 
 between the trustee and the cestui que trust." (Citing 
 Angell on Limitations, Chap. 16, Sec. 166, and The Gov. 
 
 23 Coryell v. Klehm, 157 111. '462-470. 
 
 24 Kerfoot v. Billings, 160 111. 563-573. 
 
 25 Albretch v. Wolf, 58 111. 186-190; Miles v. Wheeler, 43 111., 123- 
 126; Walden v. Karr, 88 111. 49-51; Quayle v. Guild, 91 111. 378-384; 
 Lancaster v. Springer, 239 III. 472-481; Russell v. Peyton, 4 App. 
 473-478; Beers v. Myers, 2r App. 648; Trustees v. Arnold, 58 App. 
 103-109. 
 
LACHES AND THE STATUTE OF LIMITATIONS. 233 
 
 v. Woodworth, 63 111. 254.) The Statute was held a 
 bar to the alleged breach of duty of attorneys in not 
 returning the surplus monies left with them to settle a 
 claim and pay their own fees. 26 And the court, where 
 it would be inequitable, will not allow the Statute of 
 Limitations to be interposed, as where the trustee had 
 made improvements on the land at his own expense 
 and at the request of the cestui que trust. 27 
 
 § 414. In general the Statute may be pleaded as 
 against all implied and not express trusts. 28 
 
 § 414a. The Statute does not run against an insane 
 cestui que trust's rights. But mere illness, not 
 amounting to incapacity to transact business, will not 
 prevent the Statute from running. 29 
 
 § 4146. It would seem that resulting trusts may be 
 barred by the Statute of Limitations unless the one 
 seeking the benefit has been in possession the statutory 
 period, and has acquired a possessory title to which he 
 can compel the conveyance of the record title. 30 
 
 § 414c. While one claiming to be the victim of fraud 
 must have used ordinary diligence to discover it, yet if 
 there existed such a relation of trust and confidence 
 that the victim was entitled to a full disclosure of all 
 of the facts involved in a given transaction, the failure 
 to use such diligence may be excused and the reliance 
 upon the representations made by the trustee will keep 
 
 2«Hayward v. Gunn, 82 111. 385-389; Waterman Hall v. Waterman, 
 220 111. 569-575; Beers v. Myers, 2i8 App. 648-650. 
 
 27 De Walsh v. Braman, 160 111. 415-419. 
 
 zsMcLaflin v. Jones, 15i5 111. 539-544, aff'g 55 App. 518; Herr v. 
 Payson, 157 111. 244-254; School Directors v. School Directors, 16 
 App. 651. 
 
 29 Van Buskirk v. Van Buskirk, 148 111. 9-26; Herr v. Payson, 157 
 111. 244-257. 
 
 30 McNamara v. Garrity, 106 111. 384-388. 
 
234 TRUSTS AND TBTTSTEES. 
 
 the Statute from running until knowledge of the fraud 
 can be charged to the cestui que trust. 31 
 
 § 415. When a trust matter is cognisable in a court 
 of law the Statute of Limitations may be pleaded. A 
 trust in its technical sense is recognised only in equity 
 and is only exempt from the effect of the Statute in 
 equity, if at all. 32 
 
 "While direct trusts which belong exclusively to a 
 court of equity are protected from the operation of the 
 Statute of Limitations, yet in that class of trusts where 
 the remedy at law is ample such as suits on official 
 bonds brought by successors in trust against their pre- 
 decessors the defence may be raised. 33 
 
 § 415a. An officer of the court such as a commis- 
 sioner or a master in chancery in failing to turn over 
 the proceeds of a judicial sale cannot plead the Statute 
 of Limitations on a bill to compel a proper distribution 
 of such trust funds. (Obiter.) 3 * 
 
 § 416. The Statute of Limitations does not run 
 against the State or minor municipalities in all matters 
 concerning public rights, but where minor municipali- 
 ties are trying to enforce rights in which the public at 
 large, outside of a comparatively small district, have 
 no interest, then the Statute will run. And the Stat- 
 ute may prevail against School Trustees seeking to 
 eject one holding land adversely. 35 
 
 Money in the hands of a township treasurer consti- 
 tutes a trust fund but when, by mistake, he pays it out 
 to the wrong school district, the Statute of Limitations 
 
 aiVigus v. O'Bannon, 11>8 111. 334-346. 
 
 32 People v. Oehiltree, 48 App. 230-224. 
 
 33 The Governor v. Woodworth, 63 111. 254-258. 
 
 3* Steele v. Clark, 77 111. 471-475; Ames' Cases on Trusts, 2nd Ed. 
 p. 44. 
 
 35 Brown v. Trs. of Schools, 224 III. 184-188. 
 
LACHES AND THE STATUTE OF LIMITATIONS. 235 
 
 begins to rim against the right of the proper school 
 district to recover from the district which received 
 the money. 36 
 
 The Statute does not run against a county in seeking 
 to recover monies from a former County Treasurer 
 as such funds are in the nature of trust funds to be 
 expended by the county according to law. 37 
 
 § 417. In cases of express trusts the Statute of Lim- 
 itations cannot begin to run before the trustee has de- 
 hied and disavowed the trust and has made the cestui 
 que trust fully cognisant of the adverse claim or inter- 
 est. And the withdrawal of such a disavowal after 
 made will stop the Statute from running until a new 
 one be made openly. 38 
 
 § 417a. The payment of taxes by a trustee in his 
 -own name, or by any one else not occupying an adverse 
 position, cannot be availed of by him until he has as- 
 sumed a hostile position and brought knowledge of 
 that fact home to the cestui que trust, or to whomso- 
 ever he may have had possession for or under. 39 
 
 § 4176. The Statute does not bar the heirs of a de- 
 ceased person whose widow holds title for them under 
 a resulting trust, she having taken title by redeeming 
 from a mortgage which was in form absolute and hav- 
 ing dower and homestead in the land. Her possession 
 
 s« School Directors, Dist. No. 5 v. School Directors, Dist. No. 1, 
 305 111. 653-656; School Directors, Dist. No. 2 v. School Directors, 
 Dist No. 4, 16 App. 651. 
 
 37 County of Pike v. Cadwell, 78 App. 201-203. 
 
 38 Home v. Ingraham, 125 111. 198-222; Maher v. Aldrlch, 205 111. 
 242-255; Russell v. Peyton, 4 App. 473; Hubbard v. U. S. Mtg. Co., 14 
 App. 40-48; Babcock v. Far-well, 146 App. 307-342. 
 
 3» Chickering v. Failes, 26 111. 507^519; Lyon v. Kain, 47 111. 200- 
 205. 
 
236 TRUSTS AND TKTJSTEES. 
 
 in such case is not adverse, and the Statute will not 
 begin to run until her death. 40 
 
 The possession of a husband having curtesy in an 
 estate held for the use of his wife is not adverse after 
 he obtains a divorce from her as his estate will con- 
 tinue during his lifetime. And, in any event having 
 taken possession as trustee he would have to surrender 
 the possession, disavow the trust openly and retake 
 the land before he could claim to hold adversely. 41 
 
 § 418. A bill for an accounting between partners, 
 or against a mortgagee in possession, relates to a con-, 
 structive trust to which the Statute of Limitations 
 may be interposed as a bar. 42 
 
 § 418a. Where there was a partnership transaction 
 in lands, and one of the partners advanced his individ- 
 ual funds for the purchase of the cattle for the part- 
 nership purposes without any agreement as to when 
 the cattle should be accounted for, the Statute of Limi- 
 tations would not bar that partner from pursuing the 
 proceeds of the cattle invested in the partnership en- 
 terprise upon the same footing as the partnership 
 trusts themselves, and as a continuing trust. "The 
 Statute of Limitations will not bar these as between 
 trustee and cestui que trust whether it be of personalty 
 or realty." 43 
 
 § 4186. A breach of duty by the directors of a cor- 
 poration in respect of the corporate assets and prop- 
 erty is so far forth a breach of a direct trust as to deny 
 
 *o Hunter v. Dennis, 112 111. 568-571; Meachain v. Bunting, 156 
 111. 586-594. 
 
 « Meacham v. Bunting, 136 111. 586^5'94. 
 
 tzQuayle v. Guild, 91 111. 378-384; Hancock v. Harper, 86 111. 445- 
 449. 
 
 *3King v. Hamilton, 16 111. 190-194; Home v. Ingraham, 126 111 
 1TO-222. 
 
LACHES AND THE STATUTE OP LIMITATIONS. 237 
 
 them shelter under the Statute of Limitations when the 
 receiver of the corporation seeks by bill in chancery 
 to hold misappropriating directors liable. 44 
 
 § 419. Where a conveyance was in form absolute 
 but was in reality a mortgage, after its payment the 
 mortgagee and his heirs would hold the legal title in 
 trust to re-convey the same and such a trust would not 
 be barred by the Statute of Limitations. 45 
 
 § 419a. A grantee of land who retains a part of the 
 purchase price with which to pay off an encumbrance 
 becomes the trustee of his grantor and cannot plead 
 the Statute of Limitations. 46 
 
 § 4196. A complainant, having conveyed land by a 
 deed in form absolute made some thirteen years prior 
 to ! the filing of his bill, and under which deed the 
 grantee had disposed of the land some eleven years 
 previously to the time when the bill was exhibited, 
 sought to have the deed construed to have been a mort- 
 gage, and to have his grantee account as a trustee for 
 the proceeds of the land. Under the facts that the 
 bill was not one seeking the right to redeem from a 
 mortgage, and that the bill was analogous to an action 
 at law in assumpsit or account, the five year Statute 
 of Limitations was successfully interposed as a de- 
 fence; the land itself not being sought, the twenty 
 year act could not be applied by analogy to the action 
 of ejectment. Although the Statute of Limitations 
 does not apply in terms to chancery causes, yet they 
 are affected thereby to the extent that no relief will 
 be granted in equity unless steps have been taken 
 
 4* Ellis v. Ward, 137 111. 509-520. 
 
 «Hallesy v. Jackson, 66 111. 139-143; Whetsler v. Sprague, 224 
 111. 461-467. 
 48 Moran v. Pellifant, 28 App. 278-284. 
 
238 TRUSTS AND TETJSTEES. 
 
 therein within the time within which a title at law 
 of the same sort should have been asserted in court in 
 order to prevent the bar of the Statute from being 
 set up. 47 
 
 § 419c. "While the Statute of Limitations does not 
 run as between the trustee and cestui que trust before 
 the trustee has disavowed the trust, yet it will run in 
 favour of strangers, and against both the trustee and 
 his cestui que trust; and if the trustee is barred the 
 cestui que trust is also barred, even though he be a re- 
 mainderman, or under a disability, the remedy of the 
 cestui que trust being against his trustee for negligence 
 in not taking possession and preventing the running of 
 the Statute. 48 
 
 « Hancock v. Harper, 86 111. 446-451; School Directors, Dist. No. 
 5 v. School Directors, Dist. No. 1, 105 111. 653-666. 
 *s Waterman Hall v. Waterman, 220 111. 569-676. 
 
MORTGAGES AND PLEDGES. 239 
 
 CHAPTER XXI. 
 
 MOBTGAGES AND PLEDGES. 
 
 § 420. It is not intended to do more in this chapter 
 than give a general survey of the trusts which are cre- 
 ated by mortgages, and the text writers on mortgages 
 and foreclosure* must be looked to for a more de- 
 tailed statement of the great body of decisions which 
 has accumulated in Illinois, as well as in other jurisdic- 
 tions, in respect of foreclosures and redemptions there- 
 from. 
 
 § 421. Mortgages and deeds of trust given as se- 
 curity for a debt are practically the same thing, both 
 at law and in equity. 1 
 
 § 422. A condition of defeasance in a deed otherwise 
 in form absolute, or even contained in a separate in- 
 strument which was executed at the same time as the 
 deed, will convert the latter into a mortgage. 2 
 
 § 423. The holder of the notes secured by a trust 
 deed may be the trustee in the deed and it will then be 
 treated as a simple mortgage. 3 
 
 § 424. Delivery to the trustee is not essential so long 
 as the deed and notes are delivered to the cestui que 
 trust. 4 
 
 § 425. The trustee in a deed of trust in the nature 
 of a mortgage is the agent of both -the -mortgagor and 
 mortgagee and must protect the interests of both by 
 
 i Beach on Trusts, Sec. ©29. 
 
 2 Johnson v. Prosperity L. & B. Assn., 94 App. 260-264. 
 s Foster v. Latham, 21 App. 165. 
 
 * Crocker v. Lowenthal, 83 111.. 579-582; Gunnell v. Cockerill, 84 
 111. 319; Schultz v. Houfes, 96 111. 335-345. 
 
240 TRUSTS AND TRUSTEES. 
 
 performing impartially the duties imposed upon him 
 by the deed. 5 
 
 § 425a. A trustee under a deed of trust in the nature 
 of a mortgage and containing a power of sale (which 
 was usual prior to 1879) refused to execute the power 
 at the demand of a holder of some of the notes secured 
 by the trust deed and it was held that a court of equity 
 could either compel the recalcitrant trustee to exer- 
 cise the power of sale, or, if he were not a suitable per- 
 son to execute the trust, the court could remove him 
 and appoint a fit person as trustee in his stead. 6 
 
 § 4256. The owner of a mortgage got the owner of 
 the equity to convey it to him upon an agreement that 
 if the creditor could sell the property within three 
 years for more than the amount due with interest, etc., 
 the other should have the excess of the proceeds. This 
 was done and soon afterwards the property was sold 
 for just about the amount of the indebtedness which 
 it had secured. Within the three years, however, the 
 property had appreciated greatly in value and upon a 
 bill brought to recover the increase in value it was held 
 that there was an active trust which required special 
 duties of the trustee, and that he was liable for having 
 forced the property upon the market before the end 
 of three years. 7 
 
 §' 425c. A provision in a trust deed requiring the 
 trustee to keep the buildings insured will not impose 
 any greater duty upon him than that of using due care 
 to insure in good and solvent companies, and he cannot 
 
 o Webber v. Curtiss, 104 111. 309-315; Williamson v. Stone, 128 111. 
 129-132; Niagara Fire Ins. Co. v. Scammon, 144 111. 490-501; Gray 
 v. Robertson, 174 111. 242-250. 
 
 e Sargent v. Howe, 21 111. 148-150; Lill v. Neafle, 31 111. 100-106. 
 
 i Freer v. Lake, 115 111. 662-668, aff'g 11 App. 576; see also Gillett 
 v. Hickling, 16 App. 392; Walsh v. Brennan, 52 111. 193. 
 
MORTGAGES AND PLEDGES. 241 
 
 be held liable if such companies do not continue to be 
 solvent. 8 
 
 § 425d. When there has been a loss by fire and the 
 insurance money has been paid to the trustee under 
 the provisions of the deed in trust, unless the instru- 
 ment provides otherwise the trustee should hold such 
 fund until the debt matures and then apply it upon 
 the payment thereof unless it be paid otherwise. 9 
 
 § 426. One, having the record title but in fact in 
 trust for another, may, when necessary to protect his 
 cestui' s interests in the property, advance his own 
 money therefor, and equity will give him a hen in the 
 nature of a mortgage which he may foreclose. 10 
 
 § 426a. Land having been foreclosed, and an agree- 
 ment having been made which would allow the mort- 
 gagor to redeem, anyone advancing money to acquire 
 the legal title with knowledge of the right of redemp- 
 tion will hold the land as trustee with a lien thereon 
 in the nature of a mortgage, and the Statute of Frauds 
 will not apply to the agreement for a redemption, 
 though resting in parol. Parol evidence is admissible 
 to show a debt on account of which the conveyance was 
 made and to establish such an equity as would give a 
 right to redeem. 11 
 
 § 426&. If the grantee in a deed conveying the equity 
 of redemption, and by which the payment of a mort- 
 gage is assumed, is only a trustee for another, the lat- 
 ter and not his trustee will be liable on the assumption 
 clause for any deficiency upon a foreclosure sale. 12 
 
 s Gettins v. Scudder, 71 111. 86-89. 
 9 Fergus v. Wilmarth, 17 App. 98, affg 117 111. 542. 
 io Stewart v. Fellows, 128 111. 480-484. 
 
 ii Scanlan v. Scanlan, 134 111. 630-640; Conant v. Rlseborougb, 
 139 111. 383-390. , 
 12 Gage v. Cameron, 212 111. 146-169. 
 16 
 
242 TBUSTS AND TRUSTEES. 
 
 § 427. If the trust deed so provide the trustee may 
 have compensation allowed him out of the proceeds of 
 a foreclosure sale for his services in executing the trust 
 and for his counsel fees in foreclosing the trust deed. 13 
 
 § 427a. If a mortgage or trust deed provide that in 
 case of a foreclosure thereof the reasonable solicitor's 
 fees of the complainant may be charged against the 
 land, and the trustee himself act as such solicitor the 
 reasonable value of the services performed by him 
 should not be imposed upon the land. He may with- 
 draw, however, as the solicitor at any time during the 
 pendency of the foreclosure suit, and the subsequent 
 services of the succeeding solicitor may then be de- 
 creed to be a lien on the land. The trustee must oc- 
 cupy a neutral position. 14 
 
 § 428. A surety or endorser who receives from his 
 principal collaterals or pledges of property for the bet- 
 ter security of the debt is in equity the trustee not only 
 for any other surety, but also for the creditor, until the 
 debt is dipcharged. 15 
 
 A debtor gave a mortgage to secure sureties on cer- 
 tain of his promissory notes "together with any other 
 sums" for which the sureties might be liable, and it 
 was held a trust attached to the mortgage, not only 
 for the benefit of the holders of the notes described, 
 but also for the benefit of the other creditors within 
 its terms who might be identified by parol evidence. 16 
 
 § 428a. Where a mortgagee holds as collateral se- 
 curity a mortgage owned by the mortgagor on the real 
 estate of a third person, and the holder of the collat- 
 eral security agrees with his debtor to protect the col- 
 
 i3 Guignon v. Union Trust Co., 156 111. 155-146. 
 
 i* Goutzer v. Schmelz, 206 111. 560. 
 
 is Halle v. Nat. Park Bk., 140 111. 413-419, aff'g 41 A.pp. 19. 
 
 i« Chambers v. Prewitt, 172 111. 615. 
 
MORTGAGES AND PLEDGES. 243 
 
 lateral by advancing money to acquire in his own name 
 an execution title to the third person's real estate, the 
 holder of the collateral is to be deemed a trustee, and 
 does not acquire title to the collateral by so doing, but 
 merely a lien on it for the sum so advanced, and the 
 collateral mortgage is not merged in the execution ti- 
 tle so acquired by the holder of the collateral. In this 
 case the execution sale did not conform to the notice 
 and no title to the third person's real estate passed 
 thereby. 17 
 
 § 43,8b. An assignment by way of security for his 
 debt by a cestui que trust of his share of the proceeds 
 of a sale of land, under a decree requiring the trustees 
 to convert the land into money, does not constitute a 
 mortgage which would give the assignee a right to re- 
 deem the land from such sale under the Statute. 18 
 
 § 429. "While a mortgagee in possession for condi- 
 tion broken becomes a trustee, in a limited sense, for 
 the mortgagor, yet such is not true in a strict sense 
 and for all purposes. In a general way, the mort- 
 gagee must not take undue advantage of the mortgagor 
 by reason of the possession or be guilty of fraud, else 
 he will be called to account as a trustee; each case 
 must stand on its own equities. 19 
 
 § 429a. A mortgagee in possession should be 
 charged with all the rents and profits received by him, 
 or which he might have received by reasonable ef- 
 forts. 20 But he may avail himself of the Statute of 
 Limitations. 21 
 
 "King v. Cushman, 41 111. 31-38; see also Ogden v. Larrabee, 57 
 111. 389-402. 
 
 is Hyman v. Bourg, 135 111. 9-15. 
 i» Griffin v. Marine Co., 52 111. 130-142. 
 =o Mansfield v. Alwood, 84 111. 497-500. 
 *i Hancock v. Harper, 86 111. 445-449. 
 
244 TBTJSTS AND TRUSTEES. 
 
 § 430. One who purchases property with notice of 
 an unrecorded mortgage from one who had no notice 
 thereof and was himself an innocent purchaser for 
 value, will thereby be purged of constructive fraud, 
 and will take free of the lien with which he would 
 otherwise be charged. 22 
 
 § 430a. The lender of money is not affected by a 
 loan agent's knowledge that the money is to be used 
 to pay off a prior encumbrance and will not be held a 
 trustee to see to the application of the purchase money, 
 nor will his purchase at a later day of the prior mort- 
 gage operate to satisfy it. 23 
 
 § 4306. A trustee having power to sell or otherwise 
 dispose of land as the cestui que trust might direct 
 made a mortgage thereof joined by the cestui que 
 trust and her husband to secure the latter 's debt, and 
 the mortgage was held valid, irrespectively of the fact 
 that it secured a debt not incurred by the cestui que 
 trust. 24 
 
 § 430c. A mortgagee, who has notice that a trustee 
 intends to mortgage the trust estate and to use the 
 proceeds of the loan in his private affairs, cannot en- 
 force such mortgage, no matter how broad the powers 
 conferred upon the trustee may be, and the mortgage 
 may be set aside as a cloud upon the cestui que trust's 
 equitable title to the trust estate. 25 
 
 § 430d The fact that the trust deed secures notes 
 payable to the legal holder thereof does not exempt 
 the equitable assignee by delivery of the trust deed 
 
 22 English v. Lindley, 194 111. 181-189. 
 
 23 Seaverns v. Presbyterian Hospital, 173 111. 414, aft"g 64 App. 
 463-474. 
 
 2* Field v. Broka-w, 148 111. 654-6>66. 
 
 25 Union Mutual Life Ins. Co. v. Spaids, 99 111. 249-262. 
 
MORTGAGES AND PLEDGES. 245 
 
 from the rule that the assignee of a mortgage takes the 
 same subject to all equities existing between the as- 
 signor, that is the prior legal holder of the notes, and 
 the mortgagor. 26 
 
 § 430e. It was claimed in a cross bill in a foreclos- 
 ure suit that trust funds had been lent on a prior trust 
 deed which had been fraudulently released, but the evi- 
 dence showed that the maker of the trust deed had 
 never received any funds on account thereof, that the 
 same was a mere 'sham, and therefore it was held that 
 the cross bill did not disclose grounds for equitable 
 relief. 27 
 
 § 431. A trustee in executing a power of sale in a 
 mortgage must give the notice required by the trust 
 instrument else the sale will be set aside. 28 
 
 § 431a. A power of sale trust deed in the nature of 
 a mortgage provided for a sale for cash in case of a 
 default, and a sale for credit instead of cash was held 
 not within the power of the trustee, and that the pur- 
 chaser was bound to take notice of the terms of the 
 trust deed. 29 
 
 § 4316. A trustee, in exercising the power of sale in 
 a trust deed in the nature of a mortgage covering two 
 tracts of land, sold only one tract, but made a deed to 
 the purchaser for both tracts, and this was held to be 
 such misconduct on the part of the trustee that the en- 
 tire deed should be set aside. 30 
 
 § 431c. The mortgagee could not purchase directly 
 or indirectly at his own sale under the power without 
 
 26 Buehler v. MeCormick, 169 111. 269-272. 
 
 27 Lang v. Metzger, 206 111. 475-487, aff'g 86 App. 117, 101 App. 380. 
 
 28 Taylor v. Hopkins, 40 111. 442-446; Hopkins v. Granger, <S2 III. 
 504; Beach v. Shaw, 57 111. 17. 
 
 29 Cassell v. Ross, 33 111. 2*5-258. 
 so Wallwork v. Derby, 40 111. 527. 
 
246 TRUSTS AND TRUSTEES. 
 
 becoming a trustee liable to the mortgagor, unless the 
 mortgagee should give his consent thereto. 31 
 
 § 431d. A trustee "s deed under a power of sale was 
 presumed not to have been delivered until the bid had 
 been paid in full. 32 
 
 § 431e. Since 1879 any agreement giving a trustee 
 power to sell land to pay a debt secured by the land 
 without a foreclosure in chancery is void under the 
 statute. 33 
 
 If the grantee in a deed in form absolute but in truth 
 a mortgage sell the land without a decree of court he 
 will be liable as a trustee not only for the proceeds of 
 such sale but for the full value of the land. 34 
 
 § 431/. Not only the trustee but the cestuis que 
 trustent, unless so numerous as to make it impracti- 
 cable, should be made parties to a foreclosure of a 
 mortgage. 35 
 
 § 431#. Where the mortgage provides for foreclo- 
 sure in the event of taxes becoming delinquent, the 
 mortgagee need not pay them as a condition precedent 
 to his right to begin foreclosure. 36 
 
 § 431ft. A mortgage sale advertised to be held at 
 eleven o'clock A. M., is valid if made any time before 
 twelve o'clock M., as it is eleven o'clock until it is 
 twelve. 37 
 
 § 431i. A conveyance by the owner of the equity to 
 the owner of the notes secured by a trust deed vests 
 
 3i Harper v. Ely, 56 111. 179-196; Griffin v. Marine Co., 52 111. 130- 
 139. 
 32 Goelz v. Goelz, 157 111. 33-45. 
 as Knox v. Hunter, 150 App. 392-396. 
 s* Hardin v. Barnes, 5 App. 153-173. 
 ss Rodman v. Quick, 211 111. 546-550. 
 ss Gray v. Robertson, 174 111. 242-247. 
 37 McGovern v. Union Mutual Life Ins. Co., 109 111. 151-155. 
 
MORTGAGES AND PLEDGES. 247 
 
 only the equitable title in the latter, the legal title re- 
 maining in the trustee until he reconyeys it to his 
 grantor, or the latter 's heirs or assigns. 38 
 
 § 431,?. While the rule that a trustee under a trust 
 deed in the nature of a mortgage will not be appointed 
 receiver, the rule is not iron-clad, and, if it appear to 
 be for the best interests of the estate, it may be done 
 without committing a reversible error. 39 
 
 § 432. Where a trust deed in the nature of a mort- 
 gage was foreclosed under the power of sale therein, 
 it was held that judgment creditors, who had merely 
 sued out executions without levying or selling subject 
 to the encumbrance, had no lien on the surplus monies 
 arising from the foreclosure sale which was superior 
 to the lien of general creditors of the mortgagor who 
 had died, and that the surplus should be paid to the 
 executor of the deceased mortgagor. 40 
 
 § 433. Where the owner of the notes secured by a 
 trust deed in the nature of a mortgage required the 
 trustee to sell the land under the power of sale, but did 
 not attempt to get a deed until after he had recovered 
 the full amount of the debt by an attachment suit on 
 personalty, it was held that he had made an election 
 of his remedies and might be enjoined from taking a 
 , deed from the trustee. 41 
 
 § 434. After a foreclosure an oral agreement to per- 
 mit a redemption is violative of the Statute of 
 Frauds. 42 
 
 § 434a. A plea of the Statute of Frauds cannot pre- 
 vail against a parol contract to permit a redemption 
 
 38 Coryell v. Klehm, 157 111. 462-483. 
 
 so Patterson v. Northern Trust Co., 230 111. 334-337. 
 
 4<>Pahlman v. Shumway, 24 111. 127-131. 
 
 « Yourt v. Hopkins, 24 111. 326. 
 
 <2 Wilson v. McDowell, 78 111. S14-<517. 
 
248 TRUSTS AND TRUSTEES. 
 
 from a conveyance in form absolute but in reality a 
 mortgage. 43 
 
 § 4346. A mortgagor who has conveyed by a deed 
 absolute in form may abandon, or lose through laches, 
 his right to redeem and if he tell a third person that 
 he may have the land if he will redeem it he is estopped 
 from afterwards claiming a trust in the land for him- 
 self. 44 
 
 A trust deed in the nature of a mortgage made by a 
 man and his wife contained no waiver of their home- 
 stead; the husband deserted the wife and the latter, 
 upon a foreclosure of the trust deed, agreed with the 
 purchaser that she should have the right to redeem 
 within a year thereafter; this she did not do, but some 
 five years later she filed her bill to be allowed to re- 
 deem, alleging that the land was bought and held on 
 trust for her. She was not permitted to redeem, on 
 the ground of her laches, and only the homestead was 
 set off to her. 45 
 
 A mortgagor seeking to redeem on account of irregu- 
 larities in the sale must act in apt time, and a delay 
 of four years after knowledge of a sale has been held 
 fatal to a recovery. 46 
 
 § 435. A trustee, who releases a mortgage before 
 the debt is paid, is personally liable to the note holder 
 for the actual loss, and if the trustee die the cestui que 
 trust is entitled to have his claim allowed as of the 
 seventh class for his damages resulting from the 
 breach of trust. 47 
 
 *s Linkeman v. Knepper, 226 111. 473-479. 
 4* Carpenter v. Carpenter, 70 111. 457-464. 
 
 45 Mix v. King, 55 111. 434-438. 
 
 46 Eastman v. Littlefleld, 164 111. 124-133. 
 4TLennartz v. Estate of Popp, 118 App. 31-36. 
 
MORTGAGES AND FLEDGES. 249 
 
 § 435a. A mortgagee was induced by the fraudulent 
 promises of the mortgagor that he would support the 
 mortgagee during his lifetime to release the mortgage 
 of record. In such case equity fastens a trust ex male- 
 ficio upon the land, and, if it will best subserve the in- 
 terests of the parties, will keep the encumbrance alive 
 and permit its foreclosure. 48 
 
 ±8 Henschel v. Mamero, 120 111. 660-S64. 
 
250 TRUSTS AND TRUSTEES. 
 
 CHAPTER XXII. 
 
 PARTIES IN CHANCEEY PRESUMPTIONS EVIDENCE. 
 
 § 436. It need scarcely be said that in any litigation 
 in respect of the trust-res it is necessary, in general,, 
 that all parties interested be brought before the court 
 so that a complete decree may be rendered which may 
 be acted upon with assurance by those commanded to 
 obey or execute it, and also in order that future litiga- 
 tion may thus be forestalled. 1 
 
 In a court of law a trustee having the legal title can 
 alone sue and be sued and his duty requires him to pro- 
 tect and defend the fund by an appropriate action. 2 
 But it would seem that the cestui que trust might sue 
 a third person for injuring him in his actual posses- 
 sion, 3 or for withholding monies passing into such 
 third person's hands with knowledge of their trust na- 
 ture. 4 
 
 § 437. Under some circumstances the trustee is con- 
 sidered as standing in a representative capacity so that 
 the cestuis que trustent will not be necessary parties ; 
 as where he has been constituted their representative, 
 and is in court to guard their interests, the benefici- 
 aries will be bound by any decree rendered, unless it 
 can be impeached for the fraud or collusion of the trus- 
 tee with his opponent. 5 
 
 The trustee is also considered as standing in a repre- 
 
 i Beach on Trusts, Sec. 754, citing Speakman v. Tatum, 45 N. J. 
 Eq. 388-390. 
 a Union Coal Co. v. City of LaSalle, 136 111. 119-128. 
 a Frankenthal v. Meyer, 55 App. 405. 
 « State Nat. Bk. v. Payne, 56 App. 147. 
 5 Beach, Sec. 755, citing Kerrison v. Stewart, 93 U. S. 155-1160. 
 
CHANCERY — PRESUMPTIONS — EVIDENCE. 251 
 
 sentative capacity where the parties would be unnec- 
 essarily numerous, are beyond the jurisdiction of the 
 court, or are not in esse, but it would seem necessary, 
 where only a few individuals of a class are before the 
 court, that the record should disclose such fact in order 
 that the court may ascertain whether the rights of all 
 will be sufficiently represented by those before the 
 court, to the end that a complete decree may be made. 6 
 
 § 437a. If the members are numerous in a voluntary 
 society which is Hot incorporated, some of the members 
 may file a bill in behalf of themselves and all of the 
 others, if they stand in a representative capacity, as, 
 for instance, a committee appointed for the purpose. 
 A conveyance was made to an individual in trust for 
 the widows and orphans of the members of the Broth- 
 erhood of Locomotive Engineers ; the trustee took pos- 
 session of the trust fund, but treated it as his own, and 
 it was held that the bill to remove the trustee could be 
 brought by some of the members, not entirely for their 
 own interest but on behalf of all of the members. 7 
 
 § 437&. In foreclosing a mortgage, where a trustee 
 for the benefit of creditors holds title to the land, the 
 creditors need not be brought in as parties, especially 
 if their names are unknown, or if they are numerous, 
 and in such cases the trustee will be deemed the repre- 
 sentative of the creditors ; but ordinarily in equity the 
 cestui que trust is a necessary party as well as the trus- 
 tee. 8 
 
 § 438. If the public be interested in a trust, such as 
 a charity, the attorney general is a proper party com- 
 
 « Beach, Sec. 755, citing McArthur v. Scott, 113 U. S. 340. 
 7 Guilfoil v. Arthur, 158 111. 600-605. 
 
 s Willis v. Henderson, 4 Scam. 13; St. L. & P. R. R. Co. v. Kerr, 
 168 111. 182-196; Clark v. Manning, 4 App. 649. 
 
252 TBUSTS AND TRUSTEES. 
 
 plainant or defendant, as the representative of the 
 public. 9 He is a necessary party if the direction of the 
 court be sought as to the proper manner of adminis- 
 tering the trust fund, or if waste be charged, or that 
 the trust is being abused and the interests of the bene- 
 ficiaries jeopardized, or if the trust instrument failed 
 to name trustees ; but if the trust estate be in the hands 
 of the trustees appointed by the settlor, who are 
 charged specifically in respect of its management and 
 application, and all of such trustees are before the 
 court, either as complainants or defendants, for the 
 mere purpose of having the amount ascertained which 
 the trustees are to take as against individual donees 
 of the settlor, then the Attorney General is not a nec- 
 essary party. 10 
 
 § 439. When a trustee sues or defends, his pleadings 
 should so disclose his representative capacity that the 
 court may have the true status of the case before it 
 prior to adjudication, 11 and if one merely style himself 
 "trustee" in a declaration it will be treated as descrip- 
 tio personae. 12 
 
 § 439a. A mere naked trustee who has no beneficial 
 interest in the controversy cannot be heard in equity 
 unless the cestuis que trustent are parties, and he can 
 claim no affirmative relief. 13 
 
 § 440. Trustees who misappropriate the trust fund 
 are joint tort feasors, and they may be sued separately 
 or collectively for the breaches of trust in which they 
 have taken part. 14 
 
 »Atty. Gen. v. Newberry Library, ISO 111. 329-236. 
 
 io Newberry v. Blatchford, 106 111. 584-695. 
 
 ii Stokes v. Riley, 121 111. 166. 
 
 12 Moll v. Sanitary District, 131 App. 155-1'5>9. 
 
 is Press v. Woodley, 160 111. 433, aff'g 97 App. 123. 
 
 14 Fellrath v. Peoria Assn., 66 App. 77-<82. 
 
CHANCERY PRESUMPTIONS EVIDENCE. 253 
 
 § 440a. Where no relief is sought against the donor 
 of a trust, or his heirs, they are not necessary parties. 13 
 
 § 4406. A contingent remainderman is always a 
 proper and usually a necessary party to any chancery 
 suit involving a trust which may affect his interests. 16 
 
 § 441. If one named as trustee refuse to accept or 
 if he resign afterward and is properly discharged of 
 the trust, he will not he a necessary party to a hill for 
 accounting on account of waste committed hy the re- 
 maining trustees, who, however, are all necessary par- 
 ties, unless the breach of trust committed by one of 
 them was of such a nature, as by way of tort, that the 
 other trustees took no part in such breach. 17 
 
 § 441a. In a proceeding for the appointment of a 
 new trustee all persons, including those standing in a 
 representative capacity, who have a beneficial interest 
 in the subject of the trust should be made parties. 18 
 But where the sole object of a bill is that the trustee 
 appointed by the court shall acquire the legal title from 
 the heirs of a testator, only such heirs, and not lega- 
 tees under the will, are necessary parties. Any trus- 
 . tee who is alive but refuses to act is a necessary 
 party. 19 
 
 § 4416. A bill to have a trust declared and enforced 
 against the heirs of a deceased trustee need not make 
 the latter 's administrator a party. 20 
 
 § 442. Where the creator of a trust has required the 
 trustee to furnish a bond, a surety thereon, who desires 
 
 is Mailer v. Aldrich, 205 111. 242-255. 
 i« Ryder v. Topping, 15 App. 216-220. 
 " Hutchinson v. Ayres, 117 111. 568-565. 
 is Regan v. West, 115 111. 603-608. 
 
 i» Butler v. Butler, 164 111. 171-177; McGraw v. Bayard, 96 111. 
 146-153; Mason v. Bloomington, 237 111. 442-450. 
 20 Hallesy v. Jackson, 66 111. 139-144. 
 
254 TRUSTS AND TRUSTEES. 
 
 the trustee to make an accounting, to be removed, or 
 to be required to furnish other and additional security, 
 cannot be heard by a bill in equity to which the cestuis 
 que trustent are not parties, because the trustee and 
 his surety must be regarded as being interested on one 
 side of the account, and the cestuis que trustent on the 
 other, and the latter would not be bound by such ex 
 parte proceeding. 21 But the cestuis que trustent may 
 bring in the sureties on a bill for accounting against 
 the trustee and fix their liability although there may 
 be a remedy at law. 22 
 
 § 443. Since the Statute vests a church, upon be- 
 coming incorporated, with the legal title to property 
 held for it by trustees, such corporation is a necessary 
 party to all suits affecting such property and it would 
 be anyway, as the beneficiary. 23 
 
 § 444. "When an action, proceeding or complaint, 
 in law or equity, is authorised or directed by law to be 
 brought by or in the name of any public officer, or by 
 any trustee appointed by virtue of any statute, and 
 such officer or trustee dies, or ceases to be such offieer 
 or trustee, before final judgment or decree, the suit 
 shall not on that account abate, but the same may be 
 continued by his successor, in like manner as in case 
 of the death of other parties." 24 
 
 § 445. When the cestui que trust is before the nisi 
 prius court, an appeal from alleged errors in the de- 
 cree affecting only himself should be prosecuted by 
 him and not by the trustee alone. 25 
 
 2i Ridgeway v. Potter, 114 III. 457-460. 
 
 22 People v. Bordeaux, 242 111. 327-334. 
 
 23 Dubs v. Egli, 167 111. 5114-519. 
 
 2* Sec. 19, Abatement Act of 1874. 
 
 25 Press v. Woodley, 160.111. 433, aff'g 57 App. 123. 
 
CHANCERY PRESUMPTIONS EVIDENCE. 255 
 
 § 446. "Where a trust is alleged in a bill, the pre- 
 sumption will be that it was legally created." 26 
 
 § 446a. If a trust be for the benefit of a cestui que 
 trust, his assent to its creation will be presumed until 
 the contrary appears, and an assignment by a corpora- 
 tion of a fund for the benefit of certain of its creditors, 
 in the absence of fraud, will be presumed valid without 
 their assent. 27 
 
 § 4466. In a collateral proceeding the appointment 
 of trustees performing a public or quasi public duty 
 (e. g. the trustees of the old State Bank of Illinois) 
 will be presumed valid so as to shift the burden to those 
 attacking the title of such trustees. 28 
 
 § 446c. The use or non-use of the word "heirs" in 
 a deed or will would raise merely a presumption at 
 common law as to whether a life estate or a fee passed 
 to a trustee, and, by the conveyance act of Illinois the 
 necessity of using words of heirship having been abro- 
 gated, a conveyance or devise to a trustee is prima 
 facie of the fee; but, where the purposes of the trust 
 may be fulfilled by the trustee with a lesser estate, he 
 will be deemed to have taken only an estate for years, 
 or life, as the case may be. 29 
 
 § 447. The presumption is against resulting trusts, 
 and it requires clear and convincing evidence to estab- 
 lish them, as it is presumed that the grantee in a deed 
 is the one who paid all of the money. 30 
 
 § 447a. The presumption of a resulting trust, where 
 one man furnished all or a part of the purchase price, 
 and another took the title, may be rebutted by parol 
 
 so Beach, Sec. 47. 
 
 27 C. T. & T. Co. v. Smith, 158 III. 417-424. 
 
 28 Golder v. Bressler, 105 111. 419-426. 
 
 29 West v. Fltz, 109 111. 425-436. 
 
 30 Francis v. Roades, 146 111. 635-641; Goelz v. Goelz, 157 111. 33-47. 
 
256 TBTJSTS AND TBUSTEES. 
 
 evidence showing an intention upon the part of the one 
 who paid the money that the nominal purchaser should 
 have the benefit, and the extent of such intended bene- 
 fit may be shown to have been by way of fee, or a 
 lesser estate either in the whole or a portion of the 
 land. 31 
 
 § 4476. In cases of resulting trusts where there is 
 evidence that two men paid the money, but it is not 
 shown how much each paid, the presumption is that 
 each paid for a moiety. 32 
 
 | 448. A purchase for a wife or child is presumed to 
 be an advancement but such presumption may be either 
 rebutted or supported by evidence of prior or contem- 
 poraneous acts and facts, as well as those occurring 
 so soon after the purchase as to be fairly a part of the 
 transaction, 33 and proof of an intention to hinder cred- 
 itors will rebut such presumption. 34 
 
 The presumption of an advancement to a wife or 
 child may be unreasonable if the husband or father had 
 no other property at the time, and if there, are other 
 facts and circumstances concurring to show that such 
 was not the donor's intention. 35 
 
 § 448a. There is no presumption of an advancement 
 by a wife to a husband where her money paid for land 
 purchased by him in his own name, as she would not 
 ordinarily be his provider of support and mainte- 
 nance. 36 
 
 si Cook v. Patrick, 135 111. 499-507. 
 
 32 Van Buskirk v. Van Buskirk, 148 111. 9-18. 
 
 33 Maxwell v. Maxwell, 109 111. 5&8-591; Johnston v. Johnston, 138 
 111. 385-389; Goelz v. Goelz, 157 111. 33-46; Deuter v. Deuter, 214 111. 
 308-312. 
 
 3* Bay v. Cook, 31 111. 336-345. 
 
 35 Pool v. Phillips, 167 111. 432-440; Adlard v. Adlard, 65 111. 212- 
 218. 
 so Wright v. Wright, 242 111. 74-79. 
 
CHANCEBY — PRESUMPTIONS — EVIDENCE. 257 
 
 § 449. The law does not presume a conveyance from 
 a parent to a child to have been compelled through 
 fraud or undue influence, proof thereof being neces- 
 sary, 37 or proof of a confidential relation in which the 
 child was the dominating factor. 38 
 
 § 449a. "While gifts from a parent to a child are 
 usually not scrutinised closely, yet gifts from a child 
 to a parent, or to one standing in loco parentis, or from 
 parishioner to priest, are prima facie voidable, al- 
 though not prima 'facie void. The donee must, in such 
 case, show affirmatively the bona fides of the transac- 
 tion and overcome the presumption of undue influ- 
 ence. 39 
 
 § 449&. If a mother let a son use a money-draft with 
 which to purchase land the presumption is that she 
 sold or gave it to him, but if the evidence show that 
 it represented her deceased husband's estate and was 
 treated by all of the family as belonging to all jointly, 
 the son so using it will be considered a trustee. 40 
 
 § 449c. As affecting the fiduciary relations between 
 husband and wife there is no presumption that either 
 one is the dominant member of the family, and it must 
 be a question of fact as to transactions between them. 41 
 
 § 449d. An agreement to purchase and improve land 
 does not of itself give rise to a presumption of a part- 
 nership with the trust consequences flowing from that 
 
 37 Hudson v. Hudson, 237 111. 9-14. 
 
 ss Fitzgerald v. Allen, 240 111. 80-93; McLaughlin v. McLaughlin, 
 24il III. 366-^371. 
 
 3» White v. Ross, 160 111. 56-72; Hays v. Feather, 244 HI. 172; Gil- 
 more v. Lee, 137 App. 498-500; Sayles v. Christie, 187 111. 420-440; 
 Hudson v. Hudson, 237 111. 9-14. 
 
 *o Stephenson v. McClintock, 141 111. 604-612. 
 
 « Mahan v. Schroeder, 236 111. 392-404; Ryder v. Ryder, 244 111. 
 297-316. 
 
 17 
 
258 TRUSTS AND TRUSTEES. 
 
 relation, but rather to the presumption that there was 
 to be a tenancy in common. The intention of the par- 
 ties is to be ascertained as any other question of law. 42 
 
 § 449e. The presumption is always against the va- 
 lidity of purchases made by attorneys from their cli- 
 ents, and, although attorneys are not entirely prohib- 
 ited from buying their clients' property, yet the bur- 
 den is on them to show the client had full and complete 
 knowledge of the entire matter, that no undue influ- 
 ence was used, that there was no lack of good faith and 
 .that a fair price was paid to the client. 43 
 
 § 450. Trustees are presumed to act honestly, and 
 in order to impeach them for want of duty those who 
 complain have the burden of proof. 44 
 
 "The presumption is that persons charged with a 
 trust perform their duty until the contrary appears; 
 and when an act is equally susceptible of two opposite 
 constructions — one consistent with innocence and fidel- 
 ity to duty, and the other the reverse — common charity 
 and the law alike require that we shall presume in fa- 
 vour of innocence and fidelity to duty." 45 
 , § 450a. Where a special deposit of money has been 
 made with a trustee and he mingles the same with his 
 own funds, but attaches to a duplicate of the receipt 
 which he has given a memorandum which is held to 
 identify the trust fund, upon the trustee becoming in- 
 solvent it is presumed that he paid out of the mingled 
 monies his own first, and that what remained in his 
 vaults belonged to the trust fund, rather than presum- 
 es Furber v. Page, 143 111. 620-626. 
 
 « Roby v. Colehour, 135 111. 300-3*1. 
 
 « Goodwin v. Mix, 38 111. 115-120. 
 
 «Munn v. Burges, 70 111. 604-614; Russell v. Peyton, 4 App 473- 
 480. 
 
CHANCERY PRESUMPTIONS EVIDENCE. 259 
 
 ing that he violated his trust, even though the trust 
 fund had been drawn upon to some extent, because the 
 law does not presume wrong-doing beyond what is 
 proven, and in such case the special depositor would 
 be preferred over the general creditors. 46 
 
 § 450&. Where the legal title to a trust estate has 
 devolved upon the heirs of a deceased trustee, an eject- 
 ment suit brought by them will be presumed to have 
 been prosecuted for the protection of the trust estate 
 and not as adversely to the cestui que trust's interest. 4 '' 
 
 § 451. A trust will not be raised by implication or 
 operation of law in contravention of public policy.* 8 
 
 § 452. It will be presumed after a long period of 
 time, has elapsed since it first became the duty of a 
 trustee to convey to an heir at law that such convey- 
 ance was really made. 49 
 
 § 452a. No presumption arises that a deed purport- 
 ing to have been made in a fiduciary capacity was in 
 fact so made, nor will the doctrine of ancient deeds 
 apply to make such deeds admissible in evidence with- 
 out proof of their proper execution. So, too, if a deed 
 offered in evidence appear to have been made under 
 and by virtue of a power, no presumption will be in- 
 dulged in favour of such deed before the power is 
 proven. 50 
 
 § 4526. It is presumed generally that a deed is de- 
 livered on its date, but a trustee's deed, made after 
 the foreclosure of a trust deed in the nature of a mort- 
 gage under the power of sale therein, was presumed 
 
 *« Woodhouse v. Crandall, 197 111. 104-113. 
 « Russell v. Peyton, 4 App. 473—480. 
 48 Thomas v. Chicago, 55 111. 408. 
 is Kirkland v. Cox, 94 111. 400-413. 
 so Fell v. Young, 63 111. 106-110. 
 
260 TRUSTS AND TRUSTEES. 
 
 not to have been delivered until the purchaser had paid 
 his bid in full, and in such case a third person might be 
 entitled to have a resulting trust declared where he 
 had paid installments of the purchase money after the 
 sale had been made. 51 
 
 § 452c. It is presumed that the trustees of an incor- 
 porated church have power to mortgage its property, 
 and such mortgage may be enforced against the church 
 property although the notes are nominally the per- 
 sonal obligations of the trustees. 52 
 
 § 453. A trust will be presumed to have terminated 
 through the lapse of time-where the circumstances are 
 such as to indicate that the purposes of the settlor have 
 been fully carried out. 53 
 
 § 454. "If there is some written evidence that the 
 person apparently entitled is not really so that will 
 open the door to the admission of parol evidence to 
 prove the trust, notwithstanding the statute — Hill on 
 Trustees, 62. ' ' And if there be written evidence which 
 tends to indicate a trust, whether it consist of letters 
 or other written documents and though made long pos- 
 terior to the transaction itself, parol is admissible to 
 prove the truth of the transaction. 54 
 
 If the terms and duration of a trust be clearly set 
 forth in the trust instrument parol is not admissible 
 to vary its contents or limitations. 65 
 
 § 454a. A grantee in a deed in form absolute admit- 
 ted by his answer in chancery that he held under a 
 
 " Goelz v. Goelz, 157 111. 33-45. 
 
 52 Zion Church v. Mensch, 178 111. 225, aff'g 74 App. 115. 
 
 «3 Beach on Trusts, Sec. 762. 
 
 s* Kingsbury v. Burnside, 58 111. 310-334; Fast v. McPherson, 98 
 111. 496-503; Rankin v. Barcroft, 114 111. 441-454; Hiss v. Hiss, 228 
 111. 414-423. 
 
 55 Walton v. Follansbee, 165 111. 480-486. 
 
CHANCEBY — PBESUMPTIONS — EVIDENCE. 261 
 
 parol trust, although he could not remember, its exact 
 terms, and it was held parol evidence was admissible 
 to show the terms thereof. 56 
 
 § 4546. A written declaration of trust having been 
 lost or destroyed, or not produced upon proper notice, 
 its contents may be supplied by witnesses who have 
 read it or heard it read, 57 provided such parol evidence 
 be reasonably clear and certain, as e. g., that a will 
 contained a declaration of trust although a later will 
 by the same testator did not. 58 
 
 § 454c. It is proper to go behind a writing to show 
 its real purpose and even a defendant, although osten- 
 sibly bound as trustee by a trust agreement valid on 
 its face, may show that the trust was a secret one in 
 order to defraud creditors. 59 
 
 § 454d. Parol evidence to establish a trust in the na- 
 ture of a resulting trust in either personalty or realty, 
 as against a contradictory writing, must be so clear 
 and convincing as to satisfy a court of equity that a 
 trust resulted the moment the alleged trustee acquired 
 the legal title, and such evidence is always received 
 with great caution. 60 
 
 § 455. Parol evidence is admissible to show the name 
 of the cestui que trust left blank in a declaration of 
 trust. 61 
 
 § 455a. A will having directed the trustees to dis- 
 pose of the fund in accordance with oral instructions 
 which the testator had given them, upon a settlement 
 
 5« Myers v. Myers, 167 111. 52-66. 
 « Hazeltine v. Fourney, 120 111. 493. 
 
 58 Hiss v. Hiss, 228 111. 40.4-423. 
 
 59 Tyler v. Tyler, 126 111. 625-536. 
 
 so Langlin v. Leigh, 211 111. 192, aff'g 112 Aipp. 119-135. 
 8i Fast v. McPherson, 98 111. 496-504. 
 
262 TRUSTS AND TRUSTEES. 
 
 of the executor's accounts parol evidence of such oral 
 instructions would be admissible in such case. 62 
 
 § 455fc. Where deeds purport to have been executed 
 by one in a fiduciary position, such as an administrator, 
 the doctrine of ancient deeds will not excuse proof of 
 their execution, and so in any case where a deed pur- 
 ports to have been made by virtue of a power the 
 power must be shown before the deed will be admissi- 
 ble. 63 
 
 § 455c. Parol is admissible to show that the pur- 
 chaser of land took title in his own name to secure him- 
 self for monies advanced to purchase the land for an- 
 other. 64 
 
 § 456. "While parol evidence is not admissible to 
 show that redemption was to be allowed from a con- 
 veyance absolute in form, yet it is admissible to show 
 the execution of a debt on account of which the con- 
 veyance was made, and the relations of the parties, in 
 order to establish such an equity as would permit a 
 redemption to be made. 65 
 
 § 456a. A surety or indorser who has received from 
 his principal pledges of property, or collaterals, for 
 the further security of the debt, and who has given his 
 receipt in writing acknowledging that the collaterals 
 had been received as security, is a trustee thereof not 
 only for other sureties but for the creditor as well, and 
 parol evidence offered to show that no trust was in- 
 tended cannot be received; the written contract could 
 not be so varied or contradicted. 66 
 
 «2 Cagney v. O'Brien, 83 III. 72. 
 
 es Fell v. Young, 63 111. 106-110. 
 
 ei Wright v. Gay, 101 111. 333-240. 
 
 «s Conant v. Riseborough, 139 111. 383-390. 
 
 o« Halle v. Nat. Park Bank, 140 111. 413-420. 
 
CHANCERY PRESUMPTIONS EVIDENCE. 263 
 
 § 4566. The evidence to establish an oral trust in 
 personalty must not only be clear and convincing, but 
 must also establish the terms and conditions thereof. 67 
 
 § 456c. Parol is admissible to show that the payee 
 of a note is a trustee for the convenience of collection 
 and not a bona fide holder, on a bill brought by the 
 makers to enjoin collection for failure of consideration 
 and fraud. 68 
 
 § 456d. An order confirming a judicial sale is evi- 
 dence that the purchaser holds the legal title, but is not 
 evidence that it was not held in trust for another. 69 
 
 § 457. A purchase for a wife or child is presumed 
 to be an advancement, but evidence is admissible of 
 prior and contemporaneous acts and facts, as well as 
 acts and facts occurring so soon after the purchase as 
 to be fairly a part of the transaction, in order to rebut 
 or support such presumption, the burden, of course, 
 being on the claimant. 70 
 
 Where a father has taken the title to land in the 
 name of his wife or of a child an advancement will be 
 presumed, and, if he seek to have a trust established, 
 he has the burden of showing that there was no inten- 
 tion of making an advancement, but that some other 
 lawful purpose was intended to be effected. 71 
 
 § 458. It is a matter of public policy that all trans- 
 actions between those of whom one bears a fiduciary 
 relation to the other shall be prima facie voidable, 
 thereby casting the burden upon the one occupying the 
 
 «7 Lurie v. Safcath, 208 111. 401-406, aff'g 108 App. 397; Mahan v. 
 Schroeder, 236 111. 392, aff'g 142 App. 538-549. 
 «s Belohradsky v. Kuhn, 69 III. 547-550. 
 
 69 First Nat. Bank v. Leech, 207 111. 215-221. 
 
 70 Maxwell v. Maxwell, 109 111. 5S8-5I91. 
 " Johnston v. Johnston, 138 111. 385-389. 
 
264 TRUSTS AND TRUSTEES. 
 
 fiduciary position to establish, the entire good faith of 
 such transactions and to prove, at least, that the one 
 who reposed confidence in him suffered no detriment 
 therefrom; in other words that any transaction was 
 "a righteous one." 72 But the court divided in the 
 later case of Sears v. Vaughn 73 and, by the majority 
 opinion, in cases of gifts from parent to child actual 
 fraud or undue influence was required to be shown first. 
 
 § 458a. While the establishing of a fiduciary rela- 
 tion places the burden on the dominant party to a 
 transaction to prove its equity, he may do so either by 
 proof that the weaker party had competent and disin- 
 terested advice, or by proof that the weaker party en- 
 tered into the transaction voluntarily, with a full un- 
 derstanding of its nature and effect which were ex- 
 plained to him at or before the time, and that his con- 
 sent thereto was not obtained by the influence which 
 might be implied to flow from the fiduciary relation. 
 The dominant party, however, is not required to prove 
 both, but only one of these propositions. 74 
 
 § 4586. As against the other heirs the claim of one 
 heir that his father held title to certain land in trust 
 for him under a parol agreement must be of a convinc- 
 ing character, and if such claim could not have been 
 enforced against the ancestor it could not be against 
 the other heirs. 75 
 
 § 458c. A sister who took money left with her by 
 her brother with which she purchased land, and who 
 
 " Thomas v. Whitney, 186 111. 225-231; Sayles v. Christie, 187 111. 
 420-440; Dowie v. Driscoll, 203 111. 480-491; Weston v. Teufel, 213 
 111. 291-299; Day v. Wright, 233 111. 218-221; Fish v. Fish, 235 111. 
 396-403. 
 
 73 Sears v. VaughD, 230 111. 572^590. 
 
 7* Zeigler v. 111. T. & S. Bank, 245 111. 180-197. 
 
 75 Irwin v. Dyke, 109 111. 528. 
 
CHANOBBT — PBESXJMPTIONS — EVIDENCE. 265 
 
 claims that the money was a gift to her, must support 
 such claim of a gift by clear and satisfactory evi- 
 dence. 76 
 
 § 458d. The statements made by a grantor of land, 
 subsequently to making the deed and outside of the 
 presence of the grantee, to the effect that the latter 
 had merely a life estate are not admissible, and the 
 alleged statements of the grantee made to third per- 
 sons but denied by the grantee are not of much weight 
 in raising a trust ex maleficio. Positive fraud or de- 
 ceit as the moving means employed by the grantee to 
 obtain the conveyance must be established clearly and 
 convincingly before a trust ex maleficio will be fas- 
 tened upon the land. The evidence must be received 
 with due caution as against a plea of the Statute of 
 Frauds. 77 
 
 § 458e. The failure of a guardian or of a guardian 
 ad litem to object to improper or incompetent evidence 
 against the interests of his ward, who is the cestui que 
 trust, cannot be taken advantage of, since infants or 
 persons under disability, when drawn into litigation, 
 become the wards of the court which will protect their 
 interests, and not rely upon such incompetent evidence 
 in formulating its decree. 78 
 
 § 459. The burden is on the trustee, in dealing with 
 his cestui que trust in respect of the trust fund, to show 
 that the cestui que trust had full knowledge of his 
 rights and of the trustee's liabilities, and that there 
 was no concealment, fraud or misrepresentation in 
 casting his accounts with his cestui que trust and in ob- 
 
 ™ Dwyer t. O'Connor, 200 111. 52-54. 
 
 " Ryder v. Ryder, 244 111. 297-310. 
 
 78 Johnston v. Johnston, 138 111. 385-3*8. 
 
266 TRUSTS AND TRUSTEES. 
 
 taininga release from the latter, or a conveyance of 
 any part of the trust estate. 79 
 
 § 459a. The harden of proof is on an attorney who 
 has purchased property from his client, to show that 
 the client had full knowledge of the entire matter, that 
 no undue influence was used, that there was no lack 
 of good faith, and that a fair price was paid. 80 
 
 § 4596. Upon proving a claim against the estate of 
 a deceased agent who invested his principal's funds 
 as well as collecting interest thereon, it is sufficient to 
 show that such monies came to the agent's hands, and 
 it is not necessary to show that they were never re- 
 funded to the principal. 81 
 
 § 459c. The evidence to sustain a presumptive trust 
 that a husband used his deceased wife's separate prop- 
 erty as her agent or trustee, and that she had not made 
 a gift of it to him must be clear and convincing, and is 
 always received with caution. 82 
 
 § 459d. While in equity a purchase by a trustee of 
 the trust estate is voidable on the face of it, at law it 
 is necessary to prove not only the purchase by the trus- 
 tee but that there was fraud connected therewith. 83 
 
 § 459e. Where partnership funds have been used to 
 purchase land and the title taken in the name of one of 
 the partners a resulting trust arises for the other mem- 
 bers of the partnership in the transaction and parol 
 evidence is admissible to show the interest of each part- 
 ner in the land. 84 
 
 79 Jones v. Lloyd, 117 111. 597-607. 
 so Roby v. Colehour, 1.35 111. 300-341. 
 si Grant v. Odiorne, 43 App. 402-407. 
 
 82 Reed v. Reed, 135 111. 480-491. 
 
 83 Lockwood v. Mills, 39 111. 602-608. 
 
 8* Frankenstein v. North, 79 App. 669^676. 
 
CHANCERY — PBESTJMPTIONS — EVIDENCE. 267 
 
 § 460. The evidence to establish a resulting trust 
 must be clear, strong, unequivocal, unmistakable and 
 beyond a doubt that the complainant or those under 
 whom he claims paid all or a part of the money for 
 the land, and the exact part paid. 85 
 
 The parol evidence to establish a resulting trust or a 
 trust ex maleficio must not only be clear and convinc- 
 ing, but it must be received with due caution, keeping 
 in mind the question of its truthfulness and its effect 
 if true. 86 
 
 Parol evidence is admissible either to establish or to 
 defeat a resulting trust, 87 either in whole or in part as 
 by showing that the one who paid the money intended 
 the nominal purchaser to have all of the land or a part, 
 either in fee or by way of a lesser estate. 88 
 
 In order to establish a resulting trust after the lapse 
 of many years, and especially if the alleged trustee or 
 the principal witnesses are dead, the evidence must be 
 of the most satisfactory kind, and if more than seven 
 years have elapsed since the alleged trustee claimed to 
 hold adversely the complainant will ordinarily be 
 barred by his laches, in analogy to the Statute of Limi- 
 tations. 89 
 
 § 461. The admissions of an alleged trustee of a re- 
 sulting trust that another^ money paid for all or a 
 part of the land are of greater weight than mere ad- 
 missions that he held title for another, or had agreed 
 to convey to another; and such parol evidence is ad- 
 
 85 Schneider v. Becker, 125 111. 109; Strong v. Messinger, 148 III. 
 431-433; Pickler v. Pickler, 180 111. 168-172; Hogue v. Steel, 207 111. 
 340-342. 
 
 seTowle v. Wadsworth, 147 111. 80-96; Cline v. Cline, 204 111. ISO- 
 IS?; Ryder v. Ryder, 244 111. 297-311. 
 
 87 Donlin v. Bradley, 119 111. 412. 
 
 as Cook v. Patrick, 136 111. 499-507. 
 
 8» Springer v. Springer, 114 111. '550; Heneke v. Floring, 114 111. 
 
268 TKUSTS AND TRUSTEES. 
 
 missible after the death of the alleged trustee, although 
 it will be received then with less credit. 90 
 
 In seeking to establish a resulting trust, while the 
 statements made by the record owner in his lifetime 
 are not competent to prove a contract to convey to the 
 claimant an interest in the land, they are nevertheless 
 competent, if supported by other evidence, to show that 
 the claimant contributed towards the purchase of the 
 land and to show how much. 91 
 
 The parol declarations of a deceased alleged cestui 
 que trust cannot be used to benefit his heir if the al- 
 leged trustee was not present. Such declarations are 
 admissible only against the maker and those claiming 
 under him, and the alleged admissions of the one 
 claimed to be a trustee should also be given little 
 weight. 92 
 
 § 462. In respect of resulting trusts evidence is ad- 
 missible to show that the funds of the one who took 
 the legal title to the land were so inconsiderable that it 
 would have been impossible for him to have paid the 
 purchase price. 93 
 
 § 462a. A claim of the existence of a resulting trust 
 is rebutted by evidence that complainant took the 
 promissory note of the alleged trustee to secure the 
 money advanced by the complainant. 94 
 
 § 463. Declarations of trust, whether oral or in writ- 
 ing, or entries in books, may be admissible in evidence 
 
 554; Francis v. Roades, 146 111. 635-641; McGinnis v. Jacobs, 147 
 111. 24. 
 
 »o Van Buskirk v. Van Buskirk, 148 111. 9-20. 
 
 9i Stephenson v. McClintock, 141 111. 604-612. 
 
 »2 Corder v. Corder, 124 111. 229-282. 
 
 »s Van Buskirk v. Van Buskirk, 148 111. 9-22. 
 
 9*Kelsey v. Snyder, 118 111. 544-5150; Strong v. Messinger, 148 
 111. 431-440. 
 
CHANCEBY — PRESUMPTIONS — EVIDENCE. 269 
 
 as secondary evidence against creditors of the declar- 
 ant, provided the declarant be dead, that such declara- 
 tions were adverse to his own interests, that he had 
 competent knowledge of the matter declared about, and 
 the court should be satisfied that the declarant had no 
 probable motive for stultifying himself. Declarations 
 that another's money paid for property are given 
 greater weight than those which declare merely that 
 title is held in trust for another. 95 
 
 § 463a. Where* an issue was whether an assignment 
 had been made generally for creditors instead of by 
 way of preferences, parol evidence is not admissible 
 to fasten a trust to such property. 98 
 
 § 464. The competency of witnesses in suits brought 
 by or against trustees is provided for in Section 2 of 
 the Act on Evidence and Depositions. 
 
 One seeking to establish a trust for his own benefit 
 in land owned by the heirs of another who died seized 
 of the title is not a competent witness in his own be- 
 half as to matters happening before the death of the 
 heirs' ancestor. 97 
 
 § 464a. Where title to real estate had been acquired 
 by a husband and wife as tenants in common, and after 
 the husband's death the wife claimed that her money 
 had paid for the land and that she had been ignorant 
 for a long time that her husband had had the deed 
 made to both, while she would be an incompetent wit- 
 ness to establish the trust in an undivided one-half, yet 
 the children would be competent because their possible 
 
 95 German Insurance Co. v. Bartlett, 188 111. 165-173. 
 
 o« Union Nat. Bk. v. Browne-Chapin, 159 111. 458, affi'g 59 App. 
 423^-426. 
 
 »7Wachter v. Blowney, 104 111. 610-617; Koster v. Miller, 149 111. 
 195-201; Holderman v. Gray, 130 111. 442 (and see Statute). 
 
270 TRUSTS AND TRUSTEES. 
 
 interest in the land would be too remote, as their 
 mother might sell the property or outlive them. The- 
 grantors in the deed were also held competent, not. to 
 impeach or take away the title they had conveyed but to 
 show that a one-half interest in the title was held in 
 trust. 98 
 
 as Boyd v. Boyd, 163 111. 611-613. 
 
NOTICE AND ESTOPPEL. 271 
 
 CHAPTER XXIII. 
 
 NOTICE AND ESTOPPEL. 
 
 § 465. The doctrine of notice is applied to equitable 
 titles, and the true ground on which courts of equity 
 are governed in cases of notice is fraud or bad faith. 
 As said by Lord Hardwick: 1 "A person who purchases 
 an estate (although for valuable consideration), after 
 notice of an equitable right, makes himself a mala fide 
 purchaser, and will not be enabled by getting in the 
 legal estate, to defeat such prior- equitable interest. ' ' 2 
 
 Actual notice, not predicated upon mere rumour, 
 needs no comment. 
 
 Constructive notice is based upon certain presump- 
 tions of law which grow out of certain facts ; once the 
 necessary facts are established the presumptions of 
 law flow as of course and admit of no dispute. 
 
 Implied notice is a presumption of a fact which may 
 be explained or contradicted, as where proper enquiry 
 is made but the truth could not be ascertained from 
 such enquiry, or that the circumstances tended to allay 
 suspicion and were equally referable to another mat- 
 ter. 3 
 
 § 466. Notice may be given by any one who is enti- 
 tled to reasonable credit, even though he be a stranger. 4 
 
 Notice by an equitable contingent remainderman un- 
 
 i LeNeve v. LeNeve, 2 Lead. Cas. Eq. 35.' 
 
 2 Bispham's Eq. Sec. 262. 
 
 3 Chad wick v. Clapp, 69 111. 119-125 (citing LeNeve v. LeNeve, 
 Supra) . 
 
 i Cox v. Milner, 23 111. 476. 
 
272 TRUSTS AND TRUSTEES. 
 
 der a deed in trust not of record, or by any other cestui 
 que trust, is sufficient to put a purchaser upon enquiry 
 as to the terms of the trust ; the cestui que trust, al- 
 though the legal title is in the trustee, is, nevertheless, 
 the beneficial owner and even a contingent remainder- 
 man may be regarded as an owner for such purpose. 5 
 § 467. Usually the notice of an agent that the prop- 
 erty involved in a given transaction is affected by a 
 secret lien or trust, is notice to his principal, except in 
 certain cases where the knowledge was obtained before 
 the agency began and it might be presumed that the 
 agent had forgot, or if he were an attorney or counsel 
 that it would be a breach of professional duty to dis- 
 close the confidential communications of a client; but 
 if the evidence shows clearly that the knowledge of the 
 agent obtained in a prior transaction was so unequivo- 
 cal and direct that he could not but have borne it in 
 mind at the time of the second dealing with the prop- 
 erty, and there was nothing to prevent him from com- 
 municating it to his principal, then the principal will 
 be deemed to have had constructive notice. 6 
 
 § 467a. The grantee in a deed absolute in form may, 
 by a separate deed or written instrument signed by 
 him, or by an answer in chancery, declare the trusts 
 upon which the title is held, as well as though the trusts 
 had been set forth in the deed to him. 7 
 
 § 467&. Reference in a deed made to a trustee to ar- 
 ticles of a marriage settlement containing the terms 
 of the trust, is sufficient notice of the provisions of 
 such trust to purchasers claiming under a deed from 
 the wife and from the trustee, and which deed was not 
 
 s Morrison v. Kelly, 22 111. 610-625. 
 "Snyder v. Partridge, 138 111. 173-184. 
 7 McLaurie v. Partlow, 53 111. 340-345. 
 
NOTICE AND ESTOPPEL. 273 
 
 executed in conformity with, the power of appointment 
 given by the articles of marriage settlement. 8 
 
 § 468. Notice that a trust exists is constructive no- 
 tice of the terms thereof. 9 
 
 § 468a. One who acquires property from a trustee 
 with actual or constructive notice that it is trust prop- 
 erty, and that the trust is being thereby violated will 
 be constituted a constructive trustee himself with the 
 liabilities flowing therefrom. 10 
 
 § 468&. A deed "stating a nominal consideration is 
 not necessarily constructive notice that the grantee 
 holds upon a trust. 11 But the careful purchaser would 
 better make enquiries if the deed be of recent date. 
 
 § 468c. One who purchases land from a trustee with 
 actual or constructive notice that the latter is violating 
 the power of sale in not selling for cash to pay legacies 
 will be remitted to the liabilities of the trustee, and the 
 land will be charged with the payment of the legacies 
 in such purchaser's hands. 12 
 
 § 468d. Where the chain of title to land indicates 
 that the trustee or his wife had purchased indirectly 
 at the trustee's or administrator's sale the purchaser 
 will be bound by such recitals in the deeds, and held to 
 ha^e had notice of the voidable sale. 13 
 
 § 468e. The purchaser of land at the foreclosure of 
 a power-of-sale trust deed was bound to know that its 
 
 * Breit v. Yeaton, 101 111. 242-270. 
 
 9 Mayfleld v. Turner, 180 111. 332-338. 
 
 io Stahl v. Stahl, 214 111. 131-135; First Nat. Bk. v. Leech, 207 111. 
 215-^20; Lang v. Metzger, 86 App. 117-124, aff'd by 206 111. 475; 
 Wobbe v. Schaub, 143 App. 3161-367. 
 
 ii Home Bank v. Peoria Soc, 206 III. 9-13. 
 
 12 Humphrey v. Hudnall, 223 111. 185. 
 
 13 Lagger v. Mut. Union Loan Assn., ,M6 111. 283-296. 
 
 18 
 
274 TKUSTS AND TRUSTEES. 
 
 terms required the trustee to sell for cash and not for 
 credit. 14 
 
 § 469. The purchaser of the legal title to land, or 
 mortgagees, or judgment creditors without notice of a 
 secret trust will, of course, be protected, 15 or with no- 
 tice of a contract void under the Statute of Frauds. 16 
 
 § 469a. But where the trustee had reconveyed and 
 the deed was lost and never recorded, the possession 
 of the original grantor would protect him against a 
 mortgage made by the record owner. Even though 
 the original conveyance was upon a secret trust the re- 
 conveyance was a valid fulfillment of a moral obliga- 
 tion, which, having been executed without the rights 
 of creditors intervening, would be protected. 17 
 
 The possession of one who has conveyed land with- 
 out consideration to be held upon a parol trust is notice 
 of the equitable title of the grantor as against credit- 
 ors of the grantee. 18 
 
 § 4696. Where a stranger receives monies or other- 
 property belonging to a trust fund from the trustee as 
 a gift, or without a valuable consideration, he may be 
 held as a trustee although he was without knowledge 
 that the property was burdened with a trust. But if 
 the stranger has paid a valuable consideration for such 
 property, without actual or constructive notice of its 
 
 i* Cassell v. Ross, 33 111. 245-258. 
 
 « Pratt v. Stone, 80 III. 440-445; McNab v. Young, 81 111. 11-15; 
 O'Neal v. Boone, 82 111. 589; Emmons v. Moore, 85 111. 304-309; 
 Brown v. Holzman, 157 111. 165; Gary v. Newton, 201 111. 170-186; 
 Erwin v. Hall, 18 App. 315; McDaid v. Call, 111 111. 298-304; Will- 
 iams v. Fletcher, 129 111. 356-366; Home Bank v. Peoria Soc, 206 
 111. 9-11; Camfleld v. Plummer, 212 111. 541-545. 
 
 i« Koenig v. Dohm, 209 111. 468-482. 
 
 "Springfield Homestead Assn. v. Roll, 137 111. 205-212. 
 
 is First Nat. Bk. v. Kurtz, 22 App. 213-223; Maghee v. Robinson, 
 98 111. 458-466; Ford v. Marcall, 107 111. 136-140. 
 
NOTICE AND ESTOPPEL. 275 
 
 character, he will be protected in his purchase. If 
 the trustee apply trust funds to the payment of his 
 private debts, in order to charge such payee as a trus- 
 tee for the funds so received by him it must be shown 
 that he knew the monies or property came from a trust 
 fund and that the credit which he had given to the 
 trustee was made to the latter in his private capacity 
 and not for the purposes of the trust. 19 
 
 § 470. A purchaser of land having notice that his 
 grantor has only a life estate and holds the legal title 
 to the fee in trust for others will take the legal title to 
 the fee as trustee for the equitable owners, but will be 
 entitled to enjoy the life estate during the lifetime of 
 his grantor. 20 
 
 § 470a. A purchaser of land from one who asserts 
 his absolute ownership has notice by the record of a 
 deed in trust that such owner has only a life estate and 
 is a trustee for the remaindermen, and such notice will 
 be imputed no matter how badly the deed in trust may 
 have been abstracted, or that his attorney failed to 
 report correctly upon the state of the title. 21 
 
 § 4706. One who purchases from a receiver with 
 knowledge that the receiver held title to an undivided 
 portion of the land purchased, not as a part of the as- 
 sets of the insolvent corporation, but for individual 
 cestuis que trustent, will hold such undivided portion 
 in trust for the equitable owners, who may be permit- 
 ted to have partition of the tract. 22 
 
 is Fifth Nat. Bank v. Hyde Park, 101 III. 595-604; McLaflin v. 
 Jones, 155 111. 539-543, aff'g 95 App. 518. 
 
 aoMcVey v. McQuality, 97 111. 93-4>8; Torrence v. Shedd, 156 111. 
 194. 
 
 2i Hagan v. Varney, 147 111. 281. 
 
 22 Jackson v. Horton, 126 111. 566-575; I. I. & I. R. R Co. v. Swan- 
 mell, 157 111. 616. 
 
276 TKTJSTS AND TRUSTEES. 
 
 § 471. The doctrine of equitable estoppel, like that 
 of notice, is based upon fraud — a fraudulent purpose 
 and a fraudulent result, and if the element of fraud is 
 wanting there is no estoppel. To have constituted an 
 estoppel by conduct there must have occurred a repre- 
 sentation of material facts with knowledge thereof, 
 to one who was without such knowledge, with the in- 
 tention that the latter rely and act upon such represen- 
 tations, and with the result that such representations 
 were so relied upon as well as acted upon. 23 
 
 § 471a. "The estoppel is a protective, and not an 
 offensive weapon, and its operation should be limited 
 to saving harmless or making whole the person in 
 whose favour it arises, and should not be made an in- 
 strument of gain or profit." 24 
 
 § 472. A trustee who may have accepted the trust 
 only by parol, but who, nevertheless, performs his du- 
 ties in part will be estopped in pais from denying his 
 acceptance. 25 
 
 § 472a. A trustee is estopped to deny that the trust 
 instrument was executed on any date but the one which 
 it bears. 26 
 
 § 4726. The trustee, having admitted the mixing of 
 trust funds with his own, is estopped to deny that the 
 property in which they were invested is trust property, 
 if the beneficiary so choose to regard it. 27 
 
 § 473. The Probate Court could not approve any 
 sale made by a trustee, as such, where he did not re- 
 ceive the proceeds in his capacity as executor, and such 
 
 23 People v. Brown, 67 111. 435. 
 
 2*16 Cyc, 725. 
 
 25 Albretch v. Wolf, 58 111. 189. 
 
 2« Russell v. Peyton, 4 App. 473-483. 
 
 27 Sholty v. Sholty, 140 111. 80-88. 
 
NOTICE AND ESTOPPEL. 277 
 
 approval could not estop the cestuis que trustent from 
 attacking the acts of the trustee in that capacity. 28 
 
 § 474. Whenever an equitable owner of land holds 
 out, or suffers to be held out, the record owner as the 
 true owner, he will be estopped from asserting his 
 equitable title afterwards as against anyone who relied 
 thereon or the latter 's grantee, 29 and the Statute of 
 Frauds cannot be availed of by him or his creditors 
 to defeat the estoppel. 30 
 
 After one has disclaimed all interest in land, in or- 
 der that the holders of the legal title may obtain a loan 
 to save the land from being lost by foreclosure, he will 
 be barred from asserting afterwards that a trust exists 
 for his benefit for monies expended upon the purchase 
 and improvement of the land. And where the defend- 
 ants are the heirs of the one who died seized of the 
 legal title, the heirs being also the apparent equitable 
 owners, the complainant is not a competent witness as 
 to matters happening before the death of the heirs' 
 father. 31 
 
 § 474a. A mortgagor who gave a deed in form ab- 
 solute, and who abandoned or lost his right of redemp- 
 tion through his laches, cannot claim that a third per- 
 son holds as trustee for him where he told the third 
 person to redeem the land and he might have the same. 
 "If one has knowledge of an act, or if it is done with 
 his full approbation, he cannot afterwards have relief. 
 He is estopped by his acquiescence and cannot undo 
 that which has been done." (Perry on Trusts, Sec. 
 870. ) 32 
 
 zsBeall v. Dlngman, 227 111. 294-301. 
 
 29 Burton v. Peary, 146,111. 71-119. 
 
 so Cross v. Weare Com. Co., 153 111. 499-516. 
 
 31 Wachter v. Blowney, 104 111. 610-616. 
 
 32 Carpenter v. Carpenter, 70 111. 457-463. 
 
278 TRUSTS AND TRUSTEES. 
 
 § 4746. A widow, after having inventoried land as 
 a part of her deceased husband's estate, proved a re- 
 sulting trust for her own benefit in the land, and it was 
 held that she was not barred by having so inventoried 
 it^ because, as the facts showed, no third person's 
 rights had been abridged thereby. 33 
 
 § 475. No ratification of a breach of trust can estop 
 the cestui gue trust until he has complete knowledge 
 of all the material facts and circumstances of the trans- 
 action which might exert an influence upon the cestui 
 que trust's mind or throw a different aspect over the 
 transaction. 34 
 
 A life tenant cannot bind a remainderman by acqui- 
 escing in a breach of trust, nor will there be such rati- 
 fication unless the trustee shows that the cestui que 
 trust was informed fully of all substantial facts, of his 
 legal rights, and that the cestui que trust was under 
 no disability or compulsion. If -there be more than one 
 cestui que trust all must concur in the ratification, and 
 a cestui que trust, under no duty to, or having no op- 
 portunity of objecting, will not be barred before the 
 running of the Statute of Limitations. 35 
 
 § 475a. A trustee to pay debts conveyed some of his 
 cestui que trust's land to a creditor by way of security, 
 and after the cestui que trust's death, his heirs having 
 joined the trustee in a conveyance of the equity of re- 
 demption to the creditor, they were held estopped to 
 deny that the trustee had been remiss in his duties in 
 making the conveyance. 36 
 
 23 Madison v. Madison, 206 111. 534-639. 
 8* G. C. & S. Ry. v. Kelly, 77 111. 426-4S7. 
 as White v. Sherman, 168 111. 589^605. 
 
 so Vallette v. Bennett, 69 111. 632^637; and see Prettyman v. Wil- 
 key, 19 111. 235-241. 
 
NOTICE AND ESTOPPEL. 279 
 
 § 4756. The doctrine of election that a beneficiary 
 under a will by accepting its provisions, instead of 
 keeping property to which he would have been entitled 
 had there been no will, ratifies the will in all its parts, 
 does not apply to a mere devisee or legatee so as to 
 estop him from applying to a court of equity to hold 
 certain provisions of the will to be void as perpetui- 
 ties. 37 
 
 § 476. One who is in possession of lands as an agent, 
 or trustee, cannot claim adversely to the title under 
 which: he enters without first surrendering posses- 
 sion. 38 
 
 § 476a. A conveyed land to B on a secret trust to 
 hinder creditors ; afterwards A died and B conveyed to 
 A's executors, believing by so doing that he was re- 
 turning the estate where it belonged, and it was de- 
 cided that the executors were estopped to deny that 
 they held as trustees for the devisees under the will, 
 notwithstanding equity would have refused relief 
 against the secret trust in B. 39 
 
 § 476&. Where one took title to land in his own name 
 to secure himself for money lent to the real purchaser, 
 the fact that the interest was sometimes called "rent" 
 would not work an estoppel to show the trust agree- 
 ment to convey, and that there was no relation of land- 
 lord and tenant. 40 
 
 37 Schuknecht v. Schultz, 212 111. 43-48. 
 
 ss O'Halloran v. Fitzgerald, 71 111. 53-*58; Guilfoil v. Arthur, 158 
 111. 600-607. 
 3» Brown v. Pitney, 39 111. 469-482. 
 «o Whetsler v. Sprague, 224 111. 461-467. 
 
280 TKTJSTS AND TRUSTEES. 
 
 CHAPTER XXIV. 
 
 TKTJSTS OF PERSONAL PROPERTY. 
 
 § 477. Trusts in respect of personalty may be cre- 
 ated in the same manner in which the title thereto may 
 be transferred, i. e. by parol, inasmuch as the Statute 
 of Frauds has no application. Otherwise the same 
 general rules in creating a trust in land apply to cre- 
 ating a trust in chattels — there must be sufficiently 
 definite language used to raise a trust, and the subject 
 and object must also be sufficiently certain. The ex- 
 pression of a mere motive, or a mere promise to make 
 a gift are ineffectual when standing alone. 1 Trusts in 
 personalty are, therefore, sanctioned by the courts so 
 long as they violate none of the rules controlling 
 trusts, including the one directed against perpetuities. 2 
 They may be created in choses in action as well as 
 choses in possession. 3 
 
 § 478. Trusts and uses in personalty and leasehold 
 estates are also exempt from the operation of the 
 Statute of Uses. 4 The rule in Shelly 's case does not 
 apply to a bequest of personalty to trustees with di- 
 rections to pay the net income of the fund to the cestui 
 que trust for life and then to her heirs, where the trust 
 was to terminate within the proper limits, even though 
 
 i See the subject of Precatory Words in Chap. XVII, ante. 
 
 2 Waldo v. Cummings, 45 111. 421-428; Wixon v. Watson, 214 111. 
 158-164. 
 
 s Ames' Cases on Trusts, 2nd Ed. p. 193, foot note 2. 
 
 ♦ Kirkland v. Cox, 94 111. 400-412; Glover v. Condell, 163 111. 566- 
 588; Ure v. Ure, 185 111. 216; Reichert v. Mo. & 111. Co., 231 111. 238- 
 244; Beach on Trusts, Sec. 407. 
 
TEUSTS OF PERSONAL PBOPEBTY. 281 
 
 the rule would be applied to the same clause of the 
 will so far as it affected the real property. 5 
 
 § 479. Upon the acceptance of a trust it becomes the 
 duty of the trustee to reduce to possession the per- 
 sonalty involved in the subject-matter of the trust, and 
 to retain it in his custody and control. If he be dere- 
 lict in this duty he will be personally liable for any re- 
 sultant loss as well as costs. As a necessary implica- 
 tion the trustee may bring any suitable action against 
 any person, including the cestui que trust, in order to 
 perform this duty. 6 It is a settled principle that once 
 the trustee has accepted the administration of a trust 
 he cannot rest inactive, as the law recognises no such 
 person as a passive trustee ; he is, therefore, liable for 
 his negligence in acts of omission as much as in acts of 
 commission, and must answer personally for any loss 
 occasioned the fund resulting from his failure to per- 
 form his duty, whether express or implied. 7 
 
 § 480. The evidence required to establish a trust in 
 personal property must be clear and convincing both 
 as to its existence and as to its terms and conditions, 
 as against the no min al owner, and where stepchildren 
 claimed that their stepmother held certain notes and 
 a mortgage as a trustee on account of the money lent 
 thereon having belonged to their own mother in her 
 lifetime, they must make their proof preponderate 
 clearly. 8 
 
 The evidence to establish a parol trust, in the nature 
 of a resulting trust, in personalty as against a writ- 
 
 b Lord v. Comstock, 240 111. 492-506; Bennett v. Bennett, 217 111. 
 434-444. 
 
 a Lewin, star page 287 ; Beach, Sees. 489-490. 
 
 t Holmes v. McDonald, 226 111. 169-176. 
 
 s Smith v. Smith, 87 111. Ill; Lurle v. Sabath, 208 111. 401-405; 
 Dawes v. Dawes, 116 App. 36; Mahan v. Schroeder, 2i3'6 111. 392. 
 
282 TRUSTS AND TRUSTEES. 
 
 ten contract to the contrary and which raises a pre- 
 sumption against the trust claimed,, must be so clear 
 and convincing as to satisfy a court of equity that the 
 trust resulted the moment the alleged trustee acquired 
 title. Such evidence, as against a written contract, 
 must always be received with due caution. 9 
 
 § 481. If a gift of personal property by way of trust 
 is not to take effect until the death of the donor it will 
 be one of a testamentary nature requiring the same 
 proof as a will and cannot be given effect as a donatio 
 causa mortis which differs from a gift inter vivos in 
 that it is revoked by the recovery of the donor. Both 
 classes of gifts which are not of a testamentary kind 
 must be completed and executed in the lifetime of the 
 donor beyond his power of recall by a transfer of the 
 possession and legal title to the trustee, or donee. A 
 paper executed, or a letter, which purports to pass the 
 legal title but does not in fact do so is unavailing as 
 courts of equity cannot aid or complete an imperfect 
 or defective gift. 10 
 
 - § 482. A handing of personal property to an agent 
 to deliver to the donees is not completed if the donor 
 die before the agent acts, but if a trust be created by 
 the donor in words of the present tense the possession 
 of the trustee would pass the title to the donees. How- 
 ever, no trust will be presumed in the case of an im- 
 perfect gift. The trust and its terms must be clearly 
 established. 11 The agent must also be the agent of 
 
 » Laughlin v. Lee, 112 App. 119-135. 
 
 loBarnum v. Reed, 136 111. 388-388; Telford v. Patton, 144 111. 611- 
 619; McCartney v. Ridgway, 160 111. 129-156; Taylor v. Harmison, 
 179 111. 137-141, Weaver v. Weaver, 182 111. 287-294, rev'g 80 App. 
 370; Mahan v. Schroeder, 236 111. 392; Roberts v. Draper, 18 App. 
 167-171. 
 
 ii Trubey v. Pease, 240 111. 513-519, affg 146 App. 507. 
 
TRUSTS OF PERSONAL PROPERTY. 283 
 
 the donee and not of the donor, else the gift will be re- 
 vocable and imperfect. 12 
 
 § 482a. Yokem v. Hicks 13 was a case where a dece- 
 dent had taken a note payable to the order of himself, 
 "trustee for" A and B. The Appellate Court held 
 that the donor could constitute himself trustee of the 
 gift and that no other delivery was necessary in such 
 case. 
 
 § 482&. A delivery of a note to a third person to be 
 returned to the maker and cancelled constitutes the 
 third person a trustee for the maker even though the 
 third person failed to hand over the note, and the 
 payee's administrator takes no title thereto. 14 
 
 § 483. It would seem that a trust in a master's cer- 
 tificate of sale can be created and enforced without re- 
 gard to the Statute of Frauds, as it is not considered 
 land. 15 
 
 § 483a. A Board of Trade certificate of membership, 
 although not an absolute property right, may be the 
 subject of a resulting trust and will be protected in 
 equity where one person paid the membership fee and 
 another took the certificate in his own name. 16 
 
 § 483&. A parent assigned a life insurance policy to 
 a trustee for the benefit of children by a former wife; 
 the trustee accepted and the insurance company was 
 also notified. The policy never came into the hands 
 of the trustee and after the death of the assured the 
 administrator claimed it on the ground that it had 
 never been delivered and the assignment was therefore 
 
 12 20 Cyc. 1199. 
 
 13 Yokem v. Hicks, 93 App. 667. 
 i* Gibson v. Gibson, 15 App. 328. 
 
 is Reese v. Wallace, 113 111. 589-&94. 
 
 "Weaver v. Fisher, 110 111. 146-153; Ellsworth v. Ames, 125 III. 
 223-225. 
 
284 TBUSTS AND TKUSTEES. 
 
 void ; but it was held that the assignment was not execu- 
 tory, that it had been executed as completely as though 
 the policy had been handed over to the trustee and 
 that no valuable consideration was necessary in the 
 case of parents and children. 17 
 
 § 484. Parker v. Garrison: 18 A tenant, having 
 agreed to pay his landlord one-half of the crops as 
 rent, hauled away a large portion of the grain grown 
 to be stored in an elevator and mingled with that of 
 other owners. The landlord filed a bill in equity al- 
 leging the insolvency of the tenant and praying that 
 the tenant and warehousemen be restrained from dis- 
 posing of the grain. The chancellor sustained a de- 
 murrer to the bill but the Supreme Court reversed his 
 decision, holding that, while equity does not generally 
 attempt to enforce contracts in respect of personalty, 
 yet there were exceptions to the rule, as where the ven- 
 dor has been paid in full for his chattels and the con- 
 tract is unperformed only to the extent that the goods 
 have not been delivered to the vendee, in such case the 
 vendor would be deemed a trustee for his vendee. 
 
 § 484a. The failure of the vendee of a patent-right 
 to pay for the same before the Statute of Limitations 
 had run together with the difficulty of ascertaining 
 what the value of the patent was when sold will not 
 change the relation of vendor and vendee to trustee 
 and cestui que trust so as to give equity jurisdiction of 
 a stale claim. 19 
 
 § 4846. While a bailment of personalty to a factor 
 to sell is a trust to be executed faithfully by the factor, 
 
 " Otis v. Beckwith, 49 111. 121-130; Padfield v. Padfield, 68 111. 210- 
 214; Weaver v. Weaver, 182 111. 287-294. 
 is Parker v. Garrison, 61 111. 250-254. 
 is Kellogg v. Western Electric Co., 108 111. 240, aff'g 67 App. 53. 
 
TEUSTS OF PERSONAL PKOPEKTY. 285 
 
 yet it comes within a class of trusts which are cogniza- 
 ble at law where the remedy is ample as for money 
 had and received, the action of account, etc., and in 
 such cases the defendant should not be compelled to 
 forego his right of trial by jury. 20 
 
 § 485. The Joint Eights Act has not been repealed 
 so far as personal property is concerned. 
 
 Hay v. Bennett : 21 A testatrix bequeathed $10,000 in 
 trust to her executor to pay the income to her son for 
 his life with remainder to the children of the son. The 
 person who was nominated as executor never filed the 
 will for probate, and, having died, the will was found 
 among his papers and it was sought to charge his ad- 
 ministrator with the payment of the trust fund. The 
 administrator answered that the fund which his intes- 
 tate had received consisted of certain notes which the 
 husband of the testatrix had placed in his intestate's 
 hands for the benefit of the testatrix and her son with 
 a right of survivorship in the beneficiaries; that said 
 trustee had administered the fund for the cestuis que 
 trustent, but denied that the testatrix had power to dis- 
 pose of any part thereof by will and admitted that 
 there was something due the son on an accounting. 
 Both the Appellate Court and the Supreme Court held 
 that the Joint Bights Act abolished the right of sur- 
 vivorship in personal property [although it has been 
 held that in respect of real property the Joint Bights 
 Act has been repealed by the Conveyance Act, which 
 allows the creation of survivorships in real prop- 
 erty 22 ] so that the testatrix did have power to dispose 
 
 20 Taylor v. Turner, 87 111. 296-302; Wilson v. Kirby, 88 111. &G6- 
 570. 
 zi Hay v. Bennett, 153 111. 271. 
 22 Mette v. Feltgen, 148 111. 357. 
 
286 TKTJSTS AND TRUSTEES. 
 
 of her share in the joint fund and the administrator 
 was decreed to pay over the testatrix' share of the 
 fund to a trustee appointed by the chancery court to be 
 held by the latter upon the trusts contained in the will. 
 
 § 486. Equity now sustains limitations over of per- 
 sonal property or chattels as executory devises, if they 
 do not violate the rule against perpetuities, although 
 at common law, and formerly in equity, a gift to A for 
 life with a limitation over in case of death without is- 
 sue would have been void, and A would have taken the 
 absolute title. 23 
 
 § 487. Equity treats partnership lands as personal 
 property, and it does not matter which one of the part- 
 ners holds the legal title. The trust is raised by opera- 
 tion of law on account of the partnership relation, and 
 the Statute of Frauds does not apply to such an im- 
 plied trust. 24 
 
 § 487a. Where a power of sale over realty is direct- 
 ory, and not merely permissive, the land is thereby con- 
 verted in equity into personalty so that an assignee 
 of the share of a cestui que trust cannot maintain a suit 
 for partition of the land, 25 and a freehold is not in- 
 volved. 26 
 
 § 4876. Maher v. Aldrich: 27 A parol trust was cre- 
 ated in corporate shares of stock for which the donor 
 afterwards substituted money, and the latter was in- 
 vested in real estate. It was held that the real estate 
 must be treated as personalty, that the Statute of 
 Frauds would, therefore, not apply to such a trust, 
 
 as Glover v. Condell, 163 111. 566-589. 
 2i Speyer v. Desjardins, 144 111. 641-648. 
 
 26 Johnson v. Lee, 228 111. 167. 
 
 z« Nevitt v. Woodburn, 175 111. 376-382. 
 
 27 Maher v. Aldrich, 206 111. 242-355. 
 
TBTJSTS OF PERSONAL. PBOPEETY. 287 
 
 nor would the Statute of Limitations until the trustee 
 had disavowed the trust. 
 
 § 488. If an active trust in personal property be- 
 come passive a conveyance of the legal title from the 
 trustee becomes necessary because the Statute of Uses 
 does not operate upon personalty as it does upon 
 realty. 28 A conveyance is also necessary when an 
 active trust in realty terminates. 29 
 
 § 489. A valid, executed trust in respect of personal 
 property accompanied by a delivery of the securities 
 with the deed in trust cannot be revoked afterwards 
 by the act of the trustees in returning the deed and se- 
 curities to the donor. 30 
 
 as Reiehert v. Mo. & 111. Coal Co., 231 111. 238-244. 
 29 McFall v. Kirkpatrick, 236 111. 281. 
 so Williams v. Evans, 154 111. 98. 
 
288 TEXJSTS AND TETJSTEES. 
 
 CHAPTER XXV. 
 
 TRUSTS OF BEAL PROPERTY. 
 
 § 490. It is elementary that devises in trust and con- 
 veyances in trust by non-resident owners of lands ly- 
 ing within the borders of Illinois must be construed 
 according to local laws. The law of the place where 
 the land is situate governs in respect of all grants or 
 devises of it, and the control of the courts in this State 
 cannot be removed to another jurisdiction by reason of 
 the residence in another State of the settlor, the trus- 
 tee, or the cestui que trust. 
 
 The effect upon real estate of the Statutes of Frauds, 
 Uses and Limitations, has been considered in prior 
 chapters; the effect upon real estate of Perpetuities, 
 Wills, the Estate of the Trustee and his Powers will 
 be reserved to subsequent chapters. There remain to 
 be considered in this chapter only the subjects of ven- 
 dor and vendee, and the rule in Shelly 's case. 
 
 § 491. Until the vendor is paid he is treated in 
 equity as the trustee of the legal title for the benefit of 
 the vendee, and the vendee as the trustee of the pur- 
 chase money for the benefit of the vendor. 1 
 
 § 491a. "Where the vendor did not have the legal title 
 but contracted to obtain it within three years, the ven- 
 dee, by acquiring the outstanding undivided interests, 
 did not constitute himself a trustee for the vendor. 2 
 
 § 491&. If a vendor, after making a contract of sale, 
 convey the land to another with notice of such contract, 
 
 i Sutherland v. Goodnow, 108 111. 528-536; C. & E. I. R. R. Co. v. 
 Hay, 119 111. 493^502; Puller v. Bradley, 160 111. Sl-55 
 2 Green v. Dietrich, 114 111. 636-643. 
 
TBUSTS OF BEAL PKOPEBTY. 289 
 
 the latter will hold as trustee in equity for the vendee, 
 and the latter may tender the money to either such 
 trustee or the vendor before suing for specific per- 
 formance. 3 
 
 Musham v. Musham: 4 The vendee of a lot under a 
 contract of sale went into possession and built a home 
 on the west half of the lot ; the vendee did not complete 
 his payments during his lifetime, and afterwards the 
 vendor, without forfeiting the contract, sold and con- 
 veyed the west half of the lot with the improvements 
 at the price of vacant property to the widow of the 
 original vendee; the widow occupied the west half of 
 the lot as the homestead until her death, devising a part 
 thereof to certain of her children. The remaining 
 children then filed their petition for a partition of the 
 entire west half of the lot, claiming that their mother 
 held the title in trust for all of the heirs of the original 
 vendee because his contract had never been forfeited, 
 and the payments thereon had been completed by al- 
 lowing the vendor to dispose of the east half of the 
 lot to a third person. These contentions having been 
 established it was decreed that the mother had taken ti- 
 tle as trustee for the heirs of her husband, the vendee. 
 
 § 491c. But notice of a prior contract void under the 
 Statute of Frauds cannot estop the grantee of the 
 vendor. 5 
 
 § 492. The holder of the title to land which his agent 
 has contracted to sell under an agreement to share the 
 profits, holds the same in trust for the purchaser found 
 by the agent, but in case the agent die his wife will not 
 have dower in the land but must look to the profits for 
 
 3 Doyle v. Teas, 4 Scam. 202; Forthman v. Deters, 206 111. 159-173. 
 * Musham r. Musham, 87 111. 80-83. 
 s Koenig v. Dohm, 209 111. 468-482. 
 
 19 ; 
 
290 IBUSIS AND TKUSTEES. 
 
 any interest she may have therein as of personal prop- 
 erty. 6 
 
 § 493. Freer v. Lake : 7 A vendee of land agreed with 
 his vendor to give the latter any proceeds in excess of 
 a mortgage indebtedness (which the vendee owned on 
 the land) and which excess proceeds the vendee might 
 be able to make out of a sale of the land within three 
 years. Soon afterwards the vendee disposed of the 
 land for a sum about equal to the encumbrance which 
 he had held. Within three years the land appreciated 
 greatly in value, and could have been sold for a much 
 larger sum than that obtained. Upon a bill brought to 
 recover the difference between the sale price and the 
 value at the end of three years, it was held that there 
 being no right reserved to redeem, here was an active 
 trust requiring special duties of the trustee not to 
 force the land upon the market within three years, and 
 that the trustee was therefore liable to his grantor. 
 
 § 494. A trustee under a will contracted to convey 
 a good title to land, but a contest over the will having 
 been started he was not deemed in a position to enforce 
 specific performance by the vendee before the will had 
 been upheld. 8 
 
 § 495. A voluntary agreement to convey property to 
 trustees to be selected for the benefit of the contestants 
 of a will for their life with remainders to their chil- 
 dren, does not create the relationship of vendor and 
 vendees for the benefit of such proposed remainder-, 
 men, they being mere volunteers who paid nothing for 
 the executory agreement and could not enforce it be- 
 fore a transfer of the property had been completed. 9 
 
 e Porter v. Ewing, 24 111. 617. 
 
 7 Freer v. Lake, 115 111. 662-668. 
 
 s Hale v. Cravener, 128 111. 408-421. 
 
 » McCartney v. Ridgway, 160 I1L 129-158. 
 
TRUSTS OF REAL PROPERTY. 291 
 
 § 496. A trustee of land appointed by a court of 
 chancery in a proceeding to which contingent re- 
 maindermen were not made parties, made a contract 
 of sale with the approval of the court, and, the vendee 
 refusing to perform, the trustee sought to have a spe- 
 cific performance, but the rules enunciated in Close v. 
 Stuyvesant 10 were adhered to that a vendor must show 
 his title to be good beyond a reasonable doubt, and not 
 one which would expose the vendee to litigation by par- 
 ties not before the court; if questions of general law 
 in respect of the title have not been settled, or if there 
 be other matters affecting the title which the court or 
 the purchaser are not able to investigate satisfactorily, 
 specific performance will be denied. 11 
 
 § 497. The rule in Shelly 's case applies to equitable 
 estates as well as legal estates. 12 The case appears to 
 have occurred about the year 1579 in the reign of Eliza- 
 beth, although the rule was enforced long prior thereto, 
 upon the authority of which decisions the decision in 
 Shelly 's case was based. The rule was taken over by 
 Illinois as a part of the common law, and, not having 
 been changed as yet by statute, it remains an inflexi- 
 ble rule of property. Although there appears to have 
 been little reason for the rule, except perhaps to pre- 
 vent land from being kept out of commerce, the fact 
 that it is tinctured largely by its feodal origin makes 
 it none the less binding on the courts, and the legisla- 
 ture alone has power to change it. 13 
 
 § 498. The rule has no application unless four things 
 concur in any given deed or will : 1, there must be a life 
 
 io Close v. Stuyvesant, 132 111. 607. 
 ii Street v. French, 147 111. 342-355. 
 
 12 Glover v. Condell, 163 111. 566; McFall v. Kirkpatrlck, 23'6 111. 
 281. 
 is Baker v. Scott, 62 111. 86-90. 
 
292 TRUSTS AND TRUSTEES. 
 
 estate — a freehold; 2, a gift or conveyance of a free- 
 hold estate to the ancestor, and a limitation by way of 
 remainder to his heirs; 3, the freehold estate and the 
 remainder must be. created by the same writing; and 
 4, the freehold estate and the remainder must be of the 
 same quality, i. e. both legal or both equitable estates. 14 
 
 § 498a. Where there is an executory trust the rule 
 has no application. 15 
 
 § 4986. "The rule in Shelly' s case is a rule of prop- 
 erty in this State and its application to the particular 
 case depends not upon the quantity of estate intended 
 to be given to the ancestor but upon the estate devised 
 to the heir." 16 
 
 § 499. Lord v. Comstock: 17 The rule does not oper- 
 ate if the life estate and the estate in remainder are 
 not of the same quality, if one be a legal estate and the 
 other an equitable estate. A testator devised and be- 
 queathed to trustees the residue of an estate, to man- 
 age the same and pay the net income to the two daugh- 
 ters of the testator during their lifetime, "and upon 
 the death of either her share or income shall go to 
 her heirs until one-half of the principal of my estate, 
 as it shall then be, can be made over to them, the said 
 trustees taking such time as they shall think for the 
 best interest of all concerned in making division of 
 said principal. Upon the death of the other of my 
 daughters the other half shall go to her heirs." The 
 
 i* Johnson v. Buck, 220 III. 226-234; Miller v. -Mowers, 227 111. 
 392; Ward v. Butler, 239 111. 462-470. 
 
 15 Baker v. Scott, 62 111. 86-102. 
 
 leRissman v. Wierth, 220 111. 181-186, quoting from Hageman v. 
 Hageman, 129 111. 164. 
 
 « Lord v. Comstock, 240 111. 492, and see Wicker v. Ray, 118 111. 
 472-475. 
 
TBUSTS OF BEAIi PBOPEEXY. 293 
 
 question whether the daughters had equitable life es- 
 tates with legal remainders was decided in the nega- 
 tive by the Supreme Court without dissent, and the 
 rule in Shelly 's case was held to apply, although the 
 court were disposed to hold "that there was no such 
 thing as an equitable reversion or remainder, except 
 for the purposes of discussion, and that such interests 
 as the daughters took would remain equitable until the 
 trustees had actually conveyed to the heirs after the 
 daughters' death. As to the personalty the rule was 
 held not to apply even though the devise and bequest 
 were made in the same clause of the will. 
 
 § 500. McFall v. Kirkpatrick: 18 This case involved 
 the construction of a deed in trust for the life of A 
 with a power of appointment in the equitable life ten- 
 ant by her last will "and in default of such appoint- 
 ment then to her heirs and assigns, to her and their 
 use forever." The life tenant executed a deed of the 
 land in her lifetime and the mesne grantee B obtained 
 a decree by default against her and her trustee quiet- 
 ing the title in himself and compelling a conveyance 
 from the trustee by master in chancery. At the death 
 of A her will recited the power of appointment and de- 
 vised all her land to C who brought ejectment against 
 B. The Supreme Court divided, four to three, in hold- 
 ing 1, that the rule in Shelly 's case operated to vest in 
 A an equitable fee (notwithstanding, as the minority 
 opinion points out, that the rule does not operate un- 
 less both the life estate and the estate in remainder 
 are of the same quality — that is, both legal, or both 
 equitable) ; 2, that the power of appointment was ap- 
 pendant to her estate, not one in gross, and therefore 
 
 is McFall v. Kirkpatrick, 236 111. 281. 
 
294 TRUSTS AND TRUSTEES. 
 
 her deed extinguished the power, and 3, that the de- 
 cree quieting title was binding upon the contingent re- 
 mainderman C when A was before the court. Upon 
 the whole the minority opinion seems to have much the 
 best of the argument, and the purchasers from A and 
 her grantees could scarcely have felt that they were 
 safely getting the fee. 
 
 § 501. A spendthrift trust was created of money to 
 be kept invested until the spendthrift should attain a 
 certain age, and if he should die before such time then 
 "to his heirs." Had the subject matter of the trust 
 been realty the rule would have applied, and, while by 
 analogy the rule is applied to gifts of personalty as 
 well, yet the intention of the donor must govern in gifts 
 of the latter class of property. Strictly speaking the 
 word "heirs" does not apply to gifts of personal .prop- 
 erty, and if an absolute gift therein is intended the 
 gift should be to the donee and his executors, adminis- 
 trators and assigns. There was no gift to the spend- 
 thrift in praesenti and the word "heirs" was, there- 
 fore, held to be one of purchase or substitution. 19 
 
 § 502. The general rule that a contingent remainder 
 is destroyed if it does not vest before the termination 
 of the particular estate has no application where the 
 rule in Shelly 's case may be applied, as where a deed 
 was made to A and B for their lives with remainder to 
 A's heirs, because A thus takes a vested remainder 
 and there is no contingency even though B died before 
 A. B's deed to A was also held to give A the fee sim- 
 ple title. 20 
 
 is Bennett v. Bennett, 217 111. 434, aff'g 66 App. 28. 
 20 Balls v. Davis, 241 111. 596-538. 
 
PERPETUITIES. 295 
 
 CHAPTEE XXVI. 
 
 PERPETUITIES. 
 
 § 503. At the close of this chapter some space will 
 be devoted to the Thelluson Act, which deals with 
 trusts for accumulation and which has been so recently 
 enacted in Illinois *that we have no Supreme Court de- 
 cisions thereon, as yet; we must therefore look for 
 guidance to the decisions of other jurisdictions where 
 it has long been in force. For the present the former 
 rule will be considered as still unchanged. That rule 
 has been stated thus: "No interest is good unless it 
 must vest, if at all, not later than twenty-one years 
 after some life in being at the creation of the inter- 
 est." 1 
 
 In Waldo v. Cummings 2 a perpetuity was denned 
 by the Supreme Court as a limitation taking the sub- 
 ject thereof out of commerce for a longer period of 
 time than a life or lives in being and twenty-one years 
 and nine months beyond, allowing for ordinary period 
 of gestation, in accordance with the common law. The 
 true reason for the rule is not because it is against pub- 
 lic policy that property shall be taken "out of com- 
 merce" longer than the fixed period, as that is a mere 
 incident, but that the creation of interests on remote 
 contingencies shall be prevented. 3 
 
 § 503a. The rule is concerned only with future es- 
 tates, as present estates are prevented from being tied 
 
 iGray on Perpetuities (1906), Sec. 201. 
 
 2 Waldo v. Cummings, 45 111. 421-426. 
 
 - Gray on Rule against Perpetuities, Sees. 26S and 591. 
 
296 TRUSTS AND TRUSTEES. 
 
 up by being made alienable, while future estates must 
 conform to the rule. 4 
 
 § 5036. There is no restriction on the number of 
 lives upon which the term may be limited, s,o long as 
 they are all in being. 5 
 
 § 504. Trusts are subject to the rule as well as le- 
 gal estates. 6 "All future equitable interests, not 
 vested, are subject to the rule." Vested equitable in- 
 terests, in either real or personal property, are not 
 subject to the rule. 7 
 
 § 504a. The rule applies as well to personal prop- 
 erty as to real property, nor does a provision for a for- 
 feiture of a precedent estate operate in any way 
 against the rule, as its effect would be only to acceler- 
 ate the remainder. 8 
 
 § 5046. In a prior section 9 it was said that charita- 
 ble trusts are exempt, as a general thing, from the rule 
 against perpetuities, and that a gift to charity in prae- 
 sewti is never a perpetuity. But charitable trusts 
 should not be allowed to begin in the remote future. 10 
 
 § 505. Trusts for accumulation must be within the 
 confines of the rule as much as future legal interests. 11 
 
 § 506. "Where a will is in question as creating a per- 
 petuity the period is computed from the date of the 
 testator's death, as the will speaks only from that 
 day. 12 
 
 * Gray, Sec. 268. 
 s 30 Cyc. 1470. 
 
 s Bigelow v. Cady, 171 111. 229-233. 
 i Gray, Sees. 322 and 323. 
 
 sRhoads v. Rhoads, 43 111. 239; Lunt v. Lunt, 108 111. 307; Howe v. 
 Hodge, 152 111. 252-274; Bldred v. Meek, 183 111. 26-37. 
 s Sec. 78. 
 io Gray, Sec. 591. 
 
 ii Howe v. Hodge, 152 111. 262-274; Gray, Sec. 671. 
 12 Madison v. Larmon, 170 111. 65-71. 
 
PERPETUITIES. 297 
 
 A devise in trust to hold until the death of the sur- 
 vivor of certain life tenants, and then to be divided 
 among the testator's grandchildren per stirpes does 
 not conflict with the rule, nor is it against public policy 
 that the property might thus be tied up for fifty 
 years. 13 
 
 § 507. A trust made to continue until a cestui que 
 trust attained twenty-one years of age, and, in case of 
 the cestui que trust's death before that time, the estate 
 "to be distributed in accordance with the cestui que 
 trust's will, or, in default of such a will then to be dis- 
 tributed as certain named persons might appoint, is 
 not in conflict with the rule, nor are the beneficiaries 
 uncertain in the contingencies named. "A court will 
 uot declare a trust void because of some future contin- 
 gency which will render the object of the trust uncer- 
 tain." 14 
 
 § 507a. A spendthrift trust to pay a grandson, or 
 his wife or children enough of the fund to provide for 
 their comfort, at the discretion of, the trustees, termi- 
 nates upon the death of the survivor of the grandson 
 and his wife and not when their children die, the gen- 
 eral scheme of the will creating the trust being that 
 •each child of the testator should take a share per 
 stirpes, and the grandson stood in the place of a de- 
 ceased child. 15 
 
 § 507&. An executor was directed by a will to take 
 ■charge of the estate, sell or rent it at his discretion, 
 and divide the net rentals or net income of the pro- 
 ceeds of sale among certain beneficiaries with a con- 
 
 " Hale v. Hale, 125 111. 399-409. 
 
 "Keyes v. Northern Trust Co., 227 111. 354-3'60; Raymond, v. 
 Northern Trust Co., 150 App. 282-285. 
 
 "King v. King, 1'68 111. 273-280; Hale v. Hale, 135 111. 399-409. 
 
298 TRUSTS AND TRUSTEES. 
 
 tingent remainder over. The judge of the Probate 
 Court was also empowered to appoint successors in 
 trust "for all time to come." It was held that it was 
 apparent the testator intended to create a perpetuity,, 
 as there was no devise of a vested interest to anyone, 
 even of the rentals, and no time was fixed for the ter- 
 mination of the trust, therefore the trust property de- 
 scended as intestate estate. 16 
 
 § 508. Hart v. Seymour: 17 Anoint stock company or 
 co-partnership, better known as a land association, 
 was formed to buy and sell land, the title thereto being 
 vested in trustees with active duties to perform, but 
 with no time fixed in the articles of association when 
 the trust should terminate. The question whether the 
 trust was void as violative of the rule against perpetu- 
 ities came squarely before the Supreme Court which 
 rested its decision in respect of that question on the 
 ground of whether or not alienation of the land had 
 been prohibited, — in other words whether or not the 
 property had been taken out of commerce, and held 
 that the chief aim of the land association was to get 
 the property on the market for the purpose of selling 
 and aliening it, and that, so long as there "are per- 
 sons in being at the creation of an estate, capable of 
 conveying an immediate and absolute estate in fee pos- 
 session, there is no suspension of the power of aliena- 
 tion, and no question as to perpetuities can arise."' 
 As we have seen above the reason for the rule against 
 perpetuities is not predicated upon the mere taking of 
 the property out.of commerce, and it would seem as 
 though it were, at least, possible that the Supreme- 
 Court might not follow this decision if the same ques- 
 
 3«Bigelow v. Cady, 171 111. 229-232. 
 « Hart v. Seymour, 147 111. 598. 
 
PEEPETTJITIES. 299 
 
 tion should be presented to it again in a proper as- 
 pect. We cannot believe that Hart v. Seymour rests 
 upon a lasting foundation. 
 
 § 509. Lawrence v. Smith: 18 "It is not enough that 
 a contingent event may happen, or even that it will 
 probably happen, within the limits of the rule against 
 perpetuities. If it can possibly happen beyond- those 
 limits an interest conditioned on it is too remote (Gray 
 on Perpetuities, Sec. 214). Where trustees are di- 
 rected to distribute among contingent remaindermen 
 as a class, by paying over to the children of the life 
 tenants the share of each attaining twenty-five years 
 of age it would be possible for the rule to be violated 
 by the birth of children to the life tenants after the 
 donor's death, and the gift would, therefore, be void as 
 to the entire class. It is the duty of courts to uphold 
 the rule and not to hinder its operation by adverse 
 construction. No distinction can be made between re- 
 maindermen of a class for which an invalid trust is 
 created as a general scheme; but where trustees, by 
 a will, are directed to pay over bequests to designated 
 legatees, and no trust duties, other than those of ad- 
 ministration of the estate are required, such bequests 
 may be separated from the invalid portions of the in- 
 strument and sustained. 
 
 § 510. Howe v. Hodge: 19 A testator created a trust 
 fund to be accumulated and divided among all of his 
 grandchildren "as they should respectively arrive at 
 the age of thirty years" and in case of the death of 
 
 is Lawrence v. Smith, 163 111. 149-160; Pitzel v. Schneider, 216 
 111. 87; Chapman v. Cheney, 191 111. 574-584; Reid v. Voorhees, 216 
 111. 236-246. 
 
 is Howe v. Hodge, 152 111. 252; see also Lawrence v. Smith, 163 
 111. 149-160; Dwyer v. Cahill, 228 111. 617-622. 
 
300 TRUSTS AND TRUSTEES. 
 
 any grandchild before receiving his share the surviv- 
 ing grandchildren should take the same, the testator 
 also reciting that it was his intention to divide the trust 
 fund equally among all of his grandchildren. The 
 trustees were also authorised to divide the land, or 
 any part among the grandchildren, if they should deem 
 it best, instead of the proceeds. In quoting from the 
 Master of the Rolls in the leading case of Leake v. Rob- 
 inson, 2 Mer. 363, it was pointed out that there was 
 no difference between devises to children "when" 
 "upon" "from" "after" attaining a certain age and 
 "such" children as should attain that age, as affecting 
 the question whether the vesting of the estate is post- 
 poned. "If there were an antecedent gift a direction 
 to pay upon the attainment of twenty-five certainly 
 would not postpone the vesting. But if I give to per- 
 sons of any description when they attain twenty-five 
 * * * is it not precisely the same thing as if I gave 
 to 'such' of those persons as should attain twenty- 
 five? * * * How is it possible, therefore, that a 
 child can be said to have a vested interest before 
 twenty-five when it has neither a right of enjoyment, 
 a capacity of transmission, or a ground of claim, until 
 it shall have attained that age? * * * Then as- 
 suming that after-born grandchildren were to be let 
 in, and that the vesting was not to take place till twen- 
 ty-five, the consequence is that it might not take place 
 till more than twenty-one years after a life or lives in 
 being at the death of the testator." In face of this 
 clear-cut decision'the Supreme Court took the position 
 in the case at bar that the recital of the testator's in- 
 tention to divide the fund equally among all of his 
 grandchildren, expressed in language of the present 
 
PERPETUITIES. 301 
 
 tense, distinguished the case from Leake v. Bobinson, 
 so that there would be a present vesting in the grand- 
 children, as a class, subject to open up and let after- 
 born grandchildren share with them, although not to 
 take effect in possession until the later period had ar- 
 rived. 
 
 § 511. "A vested interest is not subject to the rule. 
 * * * Eeversions and vested remainders; and 
 those equitable interests and interests in personalty 
 which, if they were legal interests in realty, would be 
 reversions and vested remainders, are vested inter- 
 ests. Other future interests are not vested. The pre- 
 ceding qualification must be subjected to one qualifica- 
 tion. When a remainder or other future interest is 
 given to a class, and such remainder or interest is 
 vested in certain members of the class subject to open 
 and let in other members, born afterwards or after- 
 wards fulfilling a condition, the shares in such remain- 
 der or interest may be obnoxious to the Eule against 
 Perpetuities, because their number, and therefore their 
 size may not be determinable until too remote a pe- 
 riod." 20 
 
 § 511a. If a life estate vests within the prescribed 
 time it matters not that the estate may continue and 
 end beyond the time limited by the rule. 21 
 
 § 511&. A devise to a trustee to invest in bonds or 
 mortgages and pay the income to B during her life- 
 time, and then to pay the same "to her children, share 
 and share alike, or held in trust and paid over to them 
 when they are of legal age, at the option of my said 
 brother, the principal may be paid over to said chil- 
 
 20 Gray, Sees. 205 and 205a. 
 
 2i Madison v. Larmon, 170 111. 65-73. 
 
302 TRUSTS AND TRUSTEES. 
 
 dren, share and share alike, when they are twenty-five 
 years of age provided my sister is dead, bnt not other- 
 wise ; or my said brother may hold this interest in trust 
 longer, and may provide for a trustee after his death, 
 principal and interest included" was held not a viola- 
 tion of the rule on the theory that the estate vested 
 upon the death of the testator and only the possession 
 was postponed. 22 
 
 § 512. A testatrix devised land to her executor as 
 trustee to keep repaired, pay the taxes and insurance 
 and "to hold for the space of twenty-five years after 
 the date of the probate of this will, — with no power of 
 sale, conveyance or alienation of said land during the 
 twenty-five years by said trustee or the beneficiaries 
 in said trust, or either or any of them, except that said 
 beneficiaries may convey, one to the other, after both 
 became of lawful age, if they wish." The court held 
 the devise void because whatever interest the executor 
 took under the will could not vest in him until it had 
 been probated, and the mere possibility that it 'might 
 not be probated within twenty-one years of the death 
 of the testatrix rendered the devise obnoxious to the 
 rule. 23 But where the devise is in the present tense 
 and vests title at once in the trustee there is no per- 
 petuity because the granting of probate would relate 
 back to the date of death. 24 
 
 § 513. A devise in trust to keep the fund at interest 
 and pay the same to the children of the testator during 
 
 22Flanner v. Fellows, 206 111. 136-141; see also Dwyer v. Cahill, 
 228 111. 617-623; Armstrong v. Barber, 239 111. 389-402; Mettler v. 
 Warner, 243 111. 600-603; Lunt v. Lunt, 108 111. 307-313. 
 
 23 Johnson v. Preston, 226 111. 447-456. 
 
 24 Armstrong v. Barber, 239 111. 389-396; Mettler v. Warner, 248 
 111. 600-609. 
 
PEBPETTJITIES. 303 
 
 their lives, and after the death of any child his portion 
 to vest at once in his descendant, or, failing issue, in 
 the surviving children, is not merely a devise of the in- 
 terest of the fund to the remaindermen, which might 
 leave the fund in the hands of trustees longer than the 
 permissible period, but is a devise of the principal 
 itself, and there is in such case, no conflict with the 
 rule. 25 
 
 § 513a. A devise of the rentals of land to three 
 daughters until the death of the last survivor of them, 
 the issue of a deceased daughter to take her share of 
 the rentals during such trust period and upon the death 
 of the last of the three daughters the land to be con- 
 verted into money and distributed among the testa- 
 tor's grandchildren does not create a perpetuity. And 
 again the devise of the rentals was a devise of the land 
 so that the daughters were vested with equitable life 
 estates and the grandchildren were vested with equita- 
 ble remainders in fee subject to open up for grand- 
 children born after such vesting and therefore the rule 
 against perpetuities would not apply to a mere post- 
 ponement of possession where there was no postpone- 
 ment of the vesting of the estates. 26 
 
 § 514. If the legal title be vested in the trustee and 
 the equitable title in the cestui que trust, a discretion- 
 ary power given the trustee to turn over to the cestui 
 que trust any part of his estate "at any time after five 
 years from the date of probate hereof" will not be 
 void because the matter of vesting is the primary con- 
 sideration and the matter of possession of minor im- 
 portance. The Supreme Court in admitting that the 
 enjoyment of the estate by a cestui que trust might be 
 postponed for an indefinite time after the vesting in- 
 
 25 Davenport v. Kirkland, 156 111. 169-177. 
 2« Dwyer v. CaMIl, 238 111. 617-622. • 
 
304 TEUSTS AND TRUSTEES. 
 
 timated that such trusts should not continue longer 
 than necessary to accomplish the valid purposes 
 thereof, and that, perhaps, where the cestuis que trus- 
 tent were of age and their equitable interests were not 
 subject to loss or destruction in any way they might 
 compel the trustees to convey the legal title to them. 27 
 
 § 515. A spendthrift trust of personal property, 
 which provided no specific time for its termination, 
 but provided that the trustees might terminate it at 
 any time at their discretion, will be construed to ter- 
 minate, unless sooner brought about, at the death of 
 the spendthrift as a, vested equitable life estate, the 
 possession of the trust estate only being postponed, 
 and, therefore, not violative of the rule. 28 
 
 § 516. A testator's executors having been directed 
 to keep the estate together two years and then to divide 
 the same among the testator's children in equal shares, 
 giving each child or his issue, if any child should die 
 before the end of the two years, a fee in one-half of 
 the share and a life estate in the other half, with re- 
 mainder to the heirs of the testator's body as an en- 
 tailment, might possibly prevent the remainders from 
 vesting within the prescribed limits of time, because 
 if a child should die within the two years his issue 
 would take a life estate in one-half of the share and 
 the remainders would, if the issue of such child dying 
 within two years were born after the testator's death, 
 not be vested soon enough. 29 
 
 § 517. A trust created by a will directing the trus- 
 tees to increase a certain fund by the share of any 
 
 27 Armstrong v. Barber, 239 111. 389-402; Mettler v. Warner, 243 
 111. 600-609. 
 
 28 Wagner v. Wagner, 244 111. 101-110, aff'g 149 App. 73. 
 
 29 Owsley v. Harrison, 190 111. 235-241. 
 
PERPETUITIES. 305 
 
 beneficiary dying without living heirs of his body does 
 not refer to an indefinite failure of issue which might 
 conflict with the rule, but refers to a definite failure 
 of issue as of the date of the first taker's death, and is 
 good as an executory devise. Courts will lay hold of 
 slight circumstances in order to construe such execu- 
 tory devises to refer to a definite failure of issue. 30 
 
 § 518. The cy pres doctrine as relating to perpetui- 
 ties is applied only to wills and not to deeds or to per- 
 sonalty, and is a different doctrine from the cy pres 
 rule of construction which is applied to charities. 
 "Where land is devised to an unborn person for life, 
 remainder to his children in tail, or to his sons in tail 
 male, the unborn person is held to take, in the first 
 case, an estate tail, and, in the second case, an estate 
 tail male." This construction is adopted under the doc- 
 trine of cy pres, since remainders to the issue of an un- 
 born person are too remote ; the adoption of such con- 
 struction makes an exception to the rule that the con- 
 struction of an instrument is not to be affected by the 
 existence of the Eule against Perpetuities. 31 
 
 § 518a.' A devise to grandchildren contingent upon 
 the attainment by them of twenty-five years of age, 
 and in case of death before that time leaving issue, 
 such issue also not to enjoy the property before at- 
 taining twenty-five, is void as a perpetuity. "Where 
 there is a general scheme shown by the instrument, 
 and some of the trusts are legal but others are not, 
 but such general scheme would be defeated if the valid 
 trusts were separated from the invalid, then all must 
 
 so Glover v. Condell, 168 111. 666-^586, re^g ©6 App. 107; Smith v. 
 Kimbell, 153 III. 368-374; Strain v. Sweeney, 163 111. 603--607; Gray, 
 Sec. 632 and note. 
 
 3i 30 Cyc. 1499; Gray, Sec. 643 et seq. 
 20 
 
306 TKTJSTS AND TRUSTEES. 
 
 fall together 32 and a void limitation cannot be held 
 good, under the cy. pres rule of construction, as to that 
 part which keeps within the proper period, and void 
 only as to the excess. 33 
 
 § 519. A devise for the benefit of a life tenant and 
 "at his death to go to his children and at their death, 
 if childless," to go to certain collateral relatives is a 
 plain violation of the rule, but instead of holding it in- 
 testate property the Supreme Court held that there 
 was no such connexion between the limitation to the 
 children of the life tenant and the collateral relatives 
 that both provisions should stand or fall together, and 
 held further that, while the limitation to the collateral 
 relatives was void, the limitation to the children of 
 the life tenant was valid, subject to open up and let in 
 after-born children of the same class as themselves. 34 
 
 § 519a. Quinlan v. Wickman: 35 A devise in trust 
 made provision that upon the death of a daughter 
 leaving one child surviving her the trust estate should 
 be conveyed to such child upon attaining thirty years 
 of age, and if there was more than one child surviving, 
 then the estate should be distributed among such chil- 
 dren when the youngest attained thirty years of age. 
 At the death of the testatrix the daughter was alive 
 and had one child. The estate could not vest, it will 
 be apparent, in such children who might be born after- 
 wards within the limits permitted by the rule and the 
 devise to them was, therefore, void. The will made 
 
 sz Eldred v. Meek, 183 111. 26-38. 
 
 33 Post v. Rohrbach, 142 111. 600-606; Schuknecht v. Schultz, 212 
 111. 43-47; Reed v. Voorhees, 316 111. 236-242. 
 
 3*Nevitt v. Woodburn, 190 111. 283-288; Johnson v. Preston, 226 
 111. 447-461. 
 
 as Quinlan v. Wickman, 233 111. 39-44; see also Chapman v. Cheney, 
 191 111. 574-586. 
 
PERPETUITIES. 307 
 
 further provision that in case the daughter died with- 
 out children then the gift should go over and this pro- 
 vision was properly held good, but another provision 
 that in case all of the children of the daughter, if there 
 should be more than one, should die before attaining 
 thirty years of age was properly held a violation of 
 the rule, even though such event might actually occur 
 within twenty-one years after the daughter's death. 
 "Where a limitation is to arise upon an alternative 
 event, one branch of which is within and the other is 
 not within the prescribed limits, it will take effect or 
 not according to the event" (Citing Jarman on Wills, 
 Sec. 285). "It is only where the other limitations are 
 dependent upon the void limitation that they must fall 
 with it." 
 
 § 520. The act of 39 and 40 George III, 0. 98 (1800), 
 is usually called the Thellusson Act, and sometimes 
 Lord Lougborough's Act. It was "An Act to restrain 
 all Trusts and Directions in Deeds or Wills, whereby 
 the Profits or Produce of Eeal or Personal Estate shall 
 be accumulated, and the beneficial enjoyment thereof 
 postponed beyond the Time therein limited." On 
 July 1, 1907, the Illinois Statute went into force with 
 the same title as the English Act, taking over Sec- 
 tions 1 and 2 thereof with but slight changes in the 
 verbiage. 
 
 The reason in England for the enactment of this 
 Statute was that in 1797 Peter Thellusson died testate, 
 devising his property to trustees to accumulate the in- 
 come during the lives of all of his sons, grandsons, and 
 great-grandsons who were in being at his death, and, 
 at the death of the last of them, to convey the accumu- 
 lated property as directed, etc. It was estimated that 
 ihe accumulations would amount to a sum between one 
 
308 TBTJSTS AND TETJSTEES. 
 
 hundred fifty million and five hundred million dollars. 
 A similar reason appears to have occurred in Illinois 
 where the will of a certain merchant provided for an 
 accumulation which, it is estimated, may amount to 
 about five hundred million dollars when the time for 
 distribution shall have arrived. 
 
 § 521. The act gives the settlor the option to make 
 his fund accumulate during any one of the four periods 
 following: (1) The settlor's lifetime; (2)- twenty-one 
 years thereafter; (3) the minority of any person in be- 
 ing or in ventre sa mere at the settlor's date of death; 
 and (4) the minority of any person who would, if of 
 age, be entitled to the produce of the fund for the time 
 being. 
 
 §522. It is a familiar rule that when one jurisdic- 
 tion adopts an act from another, it will be presumed 
 by the courts of the adoptive State that its legislature 
 intended to adopt it with the construction already 
 placed upon it by the courts of the jurisdiction from 
 which the act emanated. 38 In consequence of which it 
 may be taken as a fair assumption that the following 
 principles laid down by English courts will prevail in 
 the courts of Illinois when like cases come before them 
 in the future. 
 
 § 523. The act contemplates the accumulation of 
 simple as well as compound interest; the suspension 
 of actual enjoyment where there is a right of enjoy- 
 ment ; the settlor must restrict his choice to one of the 
 four periods mentioned above, and cannot combine two 
 or more; the accumulation, if to begin at a date later 
 than that of the settlor's death, must come to an end 
 within twenty-one years of the date of the settlor's 
 
 so Hopkins v. Medley, 97 in. 402-410. 
 
PEEPBTUITIES. 309 
 
 death, excluding from the computation the day of 
 death. 37 
 
 § 524. While a trust for accumulation which offends 
 the rule against perpetuities is absolutely void, yet if 
 the trust be confined within the common-law rule, 
 though coming to almost the limit thereof, it will be 
 void only as to the excess over the statutory limit. 
 The statute applies to implied provisions for accumu- 
 lation, as well as to express. If the income of a resid- 
 uary estate is to be accumulated the void accumulation 
 will result to the heirs or residuary devisees if it be 
 real property, and to the personal representatives or 
 residuary legatees if it be personal property. 
 
 The proviso of the act that it does not cover any 
 provision for. the payment of debts of the settlor or 
 other person or persons, permits the settlor to provide 
 for the payment of the debts of any stranger as well 
 as for his own debts. 38 
 
 § 525. If the fund and all of its accumulations must, 
 perforce, vest in the cestui que trust, so that he will be 
 able within the statutory period to take possession of 
 it and stop the accumulation, then the trust will be 
 good, even though he should permit the accumulation 
 to proceed, just as the rule against perpetuities is not 
 applicable to a postponement of the enjoyment, if an 
 estate be vested. "The law concerns itself with the 
 possibilities of an illegal accumulation, and not with 
 the fact whether a person, having an absolute vested 
 right to a fund,, allows it to go on accumulating in ac- 
 cordance with a void direction." 39 
 
 a? Lewin, 1st Am. Ed. 1888 star pages 90 and 91. 
 38 Lewin, 1st Am. Ed. star pages 92 and 93. 
 so Perry, 6th Ed. Sec. 396. 
 
310 TRUSTS AND TRUSTEES. 
 
 CHAPTER XXVII." 
 
 TESTAMENTARY TRUSTS. 
 
 § 526. The essential distinction between a declara- 
 tion of trust and a testamentary trust is that the for- 
 mer must go into effect, if ever, when it is made, while 
 the latter does not take effect until the death of the tes- 
 tator, and it is said, therefore, to be ambulatory. 1 
 
 The Statute of Wills now in force in Illinois, like 
 its predecessor of 1845, requires that a will shall be 
 reduced to writing, signed by the testator, and attested 
 by two or more credible witnesses. This alone bars 
 the enforcement of any trust instrument which the set- 
 tlor intends shall not take effect until his death, as it 
 would be executory, and could not be given any effect 
 unless it conformed to the Statute of Wills. 2 It is 
 only where the grant in a trust instrument is in words 
 of the present tense and there is no declaration that 
 the title shall not pass until the death of the settlor, 
 that it need not be executed as a will. 3 
 
 § 527. The trust declared ^by any instrument must 
 be reasonably certain in indicating first, the subject 
 matter thereof, second, the beneficiaries, third, the kind 
 and extent of the beneficial interests in the subject 
 matter, and fourth, the manner in which the trust is to 
 be carried into execution. No particular form of 
 
 i Perry, 6th Ed. Sec. 92. 
 
 2 Massey v. Huntington, 118 111. 80-90; Roth v. Michaelis, 125 I1L 
 111. 325-332; Oswald v. Caldwell, 225 111. 224-2311. 
 a Kelly v. Parker, 181 111. 49-60. 
 
TESTAMENTARY TRUSTS. 311 
 
 words is necessary if the intention may be gathered 
 from the entire instrument to conform to the foregoing 
 principles. The use of the words "trust" and "trus- 
 tee" is not a prerequisite to the creation of a valid 
 trust. 4 
 
 § 527a. The objects of a trust are sufficiently certain 
 where it appears from a will that the intention was to 
 provide first for children, and in case of their death 
 for the benefit of their issue, and to exclude the spouses 
 of children from any benefits. 5 
 
 § 5276. No trust is created where a testator gives 
 most of his property to his wife, although there may 
 have been an oral understanding as to how she should 
 dispose of it. 6 
 
 § 527c. A testator who had devised his property to 
 his son and had promised orally to give his daughter 
 fifteen hundred dollars, got the son to promise to pay 
 such amount to the daughter after the testator's death. 
 It was held that the son's promise was enforceable, the 
 consideration being the honesty and rectitude of the 
 thing and the duty of compliance; that no parol trust 
 would be engrafted on the will thereby in opposition 
 to its terms. 7 
 
 § 527<1 A mere devise or conveyance to a life ten- 
 ant "in trust" but without creating any trust or im- 
 posing any duty upon the life tenant in respect of the 
 remaindermen cannot give rise to a trust, and the 
 words "in trust" or "to the use of" may be treated as 
 
 ^Orr v. Yates, 209 111. 222-236; Kemmerer v. Kemmerer, 233 IlL 
 327-333. 
 » Harris v. Ferguy, 207 111. 534-538. 
 eAllmon v. Pigg, 82 111. 149-151. 
 t Lawrence v. Oglesby, 178 111. 122-128. 
 
 1 
 
312 TEUSTS AND TEUSTEES. 
 
 surplusage, where the legal and equitable titles are in 
 the same person. 8 
 
 § 527e. A mere promise by a devisee to pay a prom- 
 issory note of the decedent out of a certain fund, with- 
 out so promising as a consideration that the holder 
 would refrain from having it allowed as a claim 
 against the estate of the decedent will not impress such 
 fund with the trust, even though letters to that effect 
 were written by the promisor. 9 
 
 § 528. While there may be no such thing in law as 
 an equitable remainder, yet the locution has been found 
 convenient to designate a particular form of future es- 
 tate, and is therefore entitled to retention in legal ter- 
 minology. (See Sec. 499.) 
 
 § 528a. A devise in trust to distribute the estate 
 among remaindermen upon the death of a life tenant 
 vests an equitable fee in the former at the time of the 
 testator's death and not at the time specified for dis- 
 tribution. 10 
 
 § 5286. A devise to a trustee merely to administer 
 and pay the net income to certain beneficiaries with- 
 out any further devise being made gives them only 
 equitable life estates and not the remainder which de- 
 scends as intestate estate. 11 
 
 § 528c. A bequest to trustees to pay the income to a 
 beneficiary for his life with remainder to his children 
 and with a direction that any residuary estate not ex- 
 pressly disposed of by the will be converted into money 
 and distributed to the legatees named in the will in 
 
 s Schaeffer v. Schaeffer, 141 111. 537-341; Dick v. Ricker, 222 111. 
 413-419; Strelt v. Fay, 230 111. 3i9-322. 
 » Hamilton v. Downer, 152 111. 651-654. 
 io Carter v. Carter, 234 III. 507-514. 
 ii Lewis v. Harrower, 197 111. 315. 
 
TESTAMENTARY TRUSTS. 313 
 
 proportion to the amounts of their legacies, does not 
 vest any legal title to such residuary estate in either 
 the life beneficiary or the remaindermen, but the same 
 must constitute a part of the trust estate. 12 
 
 § 528d. Where an estate is limited to contingent re- 
 maindermen whose estates do not vest in them before 
 the expiration of precedent vested life estates the con- 
 tingent remainders are lost and the property reverts 
 to the testator's heirs at law. 13 But the loss of the 
 contingent remainders by such an event may be pre- 
 vented by having the legal title held by trustees until 
 the contingency may happen. 14 
 
 § 529. Illinois Land & Loan Co. v. Bonner: 15 This 
 was a devise in trust to convey a moiety to A and 
 a moiety to his sister B when they should attain their 
 majority, and in case B should die without issue be- 
 fore the completion of the trusts leaving A surviving, 
 then the entire estate was to be conveyed to A when 
 he became of age; and in case both A and B should 
 die without issue before A should attain twenty-one 
 years and before B should attain eighteen years of age 
 then the trustee should convey to C and D. 
 
 A died in 1870 intestate and a minor. B died in 
 1860 without issue and after attaining her majority. 
 It was decided that the will should be construed so that 
 A and B took vested equitable estates, only the time 
 of enjoyment being postponed, that the intention was 
 that B should be divested of her estate only if there 
 conjoined two occurrences, viz. : her death without is- 
 sue both before attaining eighteen years of age, and 
 
 12 Crawford v. Mound G. C. Assn., 218 111. 399-407. 
 
 is Madison v. Larmon, 170 111. 65-78. 
 
 "Bond v. Moore, 236 111. 576-591. 
 
 « Illinois Land & Loan Co. v. Bonner, 75 111. 316. 
 
314 TRUSTS AND TRUSTEES. 
 
 before the completion of the trust; also that the con- 
 tingency of both A and B dying without issue before 
 becoming of age never occurred, inasmuch as B lived 
 to be more than eighteen years of age; that where a 
 testator does not foresee and provide for the happen- 
 ing of certain events the courts cannot supply such 
 omissions as against the unambiguous terms of the in- 
 strument. 
 
 § 530. Kellett v. Shepard: 16 A testator, after mak- 
 ing certain bequests, devised and bequeathed the resi- 
 due of his estate to trustees to invest and pay one-half 
 the net income to his daughter during her lifetime, 
 with remainder to her children, and, failing children, 
 then to the testator's heirs. The rest of the estate 
 was to be conveyed to the testator's son when he at- 
 tained thirty years of age. The son attained thirty 
 years of age and died soon after without descendants ; 
 after the death of the son the daughter also died leav- 
 ing no descendants, and the question was whether the 
 testator had intended that "his heirs" should be re- 
 ferred to those in existence at his death or at the death 
 of the life tenant, his daughter. It was held that the 
 date of the testator's death should control, there being 
 no intention manifest in the will to refer the heirship 
 to a later date. 
 
 In Johnson v. Askey, 17 where the gift was in trust 
 for the life of a daughter and in case of her failure to 
 have issue, then remainder to the heirs of the testator 
 and his wife, and the daughter was the sole heir of the 
 testator at the time of his death and she died after- 
 wards without issue, it was held that the date of heir- 
 ship must in such case be referred to the date of the 
 
 i« Kellett v. Shepard, 139 111. 433. 
 " Johnson v. Askey, 190 111. 58. 
 
TESTAMENTARY TRUSTS. 315 
 
 life tenant 's death, because otherwise the testator 
 would be held in effect to have given the daughter a 
 life estate and upon her death to have given her the 
 fee. 
 
 In the case of Smith v. Winsor 18 where the testator 
 had no children and devised his estate to his wife for 
 life with remainder to his heirs, and in case the wife 
 did not survive the testator then to his heirs, and 
 the wife did survive the testator, it was held that the 
 double provision indicated that the testator intended 
 to exclude his wife, the life tenant, as one of his heirs in 
 order that only the heirs of his own blood should take. 
 
 § 531. A devise in trust to hold until the testator's 
 youngest child, if a female, should attain the age of 
 eighteen years, or if a son, twenty-one years of age, 
 "in trust for all said surviving children, their heirs 
 and assigns^ as tenants in, common" was decided to re- 
 fer the date of survivorship to the testator's death, 
 and to create vested executory devises in the children 
 subject, like vested remainders, to alienation and sale 
 on execution subject to the trust term. 19 
 
 § 532. A trust created for a daughter was to last as 
 long as she remained a married woman, and if she sur- 
 vived her husband the corpus of the estate was to be 
 conveyed to her. She obtained a divorce from her 
 husband and it was held that the trust became passive 
 thereupon and that she was entitled to a conveyance, 
 because the intention of the donor was merely that she 
 should survive an event or condition — that of being a 
 married woman — in order that the estate might be con- 
 served for her free from her husband's influence, and 
 not that she must survive his death. The contingency 
 
 is Smith v. Winsor, 239 111. 567. 
 i» Hempstead v. Dickson, 20 111. 193. 
 
316 TRUSTS AND TRUSTEES. 
 
 of her re-marriage to her divorced husband was not 
 of controlling importance. 20 
 
 § 533. A trustee was given power to hold, manage, 
 repair, rebuild in case of fire, to mortgage for that 
 purpose, and out of the net income of the land he was 
 directed to pay the testator's widow and children cer- 
 tain sums yearly until the property should be free of 
 debt and then to pay the widow one-third of the ren- 
 tals and the children the rest until the death of the 
 widow, when all of the income was to be divided among 
 the children and the survivor of them, or until such 
 survivor should attain twenty-one years of age, when 
 the trustee was to convey to the heirs of the children. 
 The only question raised on this will was whether the 
 widow and children had rent charges which would be 
 a lien on the land or whether they had merely annui- 
 ties which would be a lien only on the income. The 
 latter contention was sustained, else the trustee could 
 not hold and keep intact the corpus of the estate if it 
 could be sold or assigned to pay the annuities or the 
 debts of the annuitants. 21 
 
 § 534. Where the general scheme in a will is that be- 
 quests shall be held in trust, a revocation in a codicil 
 of a bequest, making in lieu thereof a devise without 
 express declaration that the same shall be held by the 
 trustees, will, nevertheless, be deemed in trust, espe- 
 cially where another devise in the codicil was made 
 expressly not in trust, but to pass directly to the de- 
 visee, showing that the testatrix knew which property 
 she wished to be held by her trustees, and which she 
 did not so desire. 22 
 
 zocary v. Slead, 220 111. 508-511. 
 
 2i DeHaven v. Sherman, 131 111. 115-121. 
 
 22 Rexford v. Bacon, 195 111. 70-78. 
 
TESTAMENTARY TRUSTS. 317 
 
 § 534a. The general scheme of a will was that each 
 child or his representatives should take an equal share 
 per stirpes, and a spendthrift trust was created for a 
 grandson, who stood in the place of a deceased child, 
 providing that the trustees should pay out of the trust 
 fund enough in their discretion, to provide for the com- 
 fort of the grandson during his lifetime, or of his wife 
 or children, and providing in the event of the grandson 
 and his wife dying without issue, the residue of the 
 trust should pass to those representing the other 
 shares devised. It was held that no equitable fee 
 vested in the grandson or his wife, or his children 
 either, but that his children upon surviving both their 
 parents took the fee then, although there was no ex- 
 press devise to them but only the implied devise under 
 the general scheme of the will. 23 
 
 § 534b. An invalid trust for contingent remainder- 
 men, as a class, which violates the rule against per- 
 petuities cannot be separated and sustained as to a por- 
 tion of such remaindermen who might otherwise be 
 able to take, inasmuch as the general scheme of the tes- 
 tator must stand or fall as an entirety in respect of the 
 class; but where the trustees are directed to pay be- 
 quests to certain individuals and there are no active 
 trust duties to perform, other than those arising from 
 the administration of decedent's estates, such por- 
 tions of the will may be separated from the invalid 
 portions and sustained, although the general trust 
 scheme be void. 24 
 
 § 535. The mere fact that an executrix, upon whom 
 trust duties are imposed, which are separate from her 
 
 23 King v. King, 168-111. 273-276. 
 
 24 Lawrence v. Smith, 163 111. 14S-160; Nevitt v. Woodburn, 190 
 111. 2831-288. 
 
318 TRUSTS AND TRUSTEES. 
 
 duties as executrix, is not styled a trustee by the will 
 will not be a failure to appoint a trustee. 25 
 
 § 536. The doctrine of equitable conversion, as 
 where an executor is directed by his testator to turn 
 real estate into personalty or vice versa and to divide 
 among the beneficiaries, is not always applied, and if 
 the purposes fail for which the conversion was in- 
 tended equity will not do an unnecessary thing by hold- 
 ing the real estate to be personalty or the personalty 
 to be realty. 26 It happens, also, quite often, that all of 
 the beneficiaries elect to take the property in its exist- 
 ing form and they have such option if they all agree 
 so to do, and are under no disability to elect. 27 
 
 § 536a. There is no equitable conversion of real 
 property into personalty and vice versa, unless the 
 trustees are commanded to sell and they have no dis- 
 . cretion but to do so. 28 
 
 § 537. A devise to certain devisees is not repugnant 
 to a proviso creating a trust of their portions for their 
 benefit, the proviso being properly a part of the devis- 
 ing clause. 29 
 
 A devise to life tenants as trustees for themselves 
 alone, with a restraint against alienation of their life 
 estates, is void as a trust, and they will take as life 
 tenants free from any restraint against alienation of 
 their life estates, the latter provision being repugnant 
 to the devise. 30 
 
 25 Welch v. Caldwell, 226 111. 488-494. 
 2« Dorsey v. Dodson, 203 111. 32-36. 
 zt Pasquay v. Pasquay, 235 111. 48-55. 
 28 Haward v. Peavey, 12*8 111. 430-437. 
 
 28 Davenport v. Kirkland, 156 111. 1G9-17'6; Johnson v. Buck, 220 
 111. 226-235. 
 
 »o Streit v. Fay, 230 111. 319-322. 
 
TESTAMENTARY TRUSTS. 319 
 
 § 538. A legacy usually lapses by the death, of the 
 legatee before that of the testator, but where it is given 
 over after the death of the first legatee in trust for an- 
 other legatee in case the first legatee should not dispose 
 of it by will, and such disposition by the first legatee 
 was not made, the legacy does not lapse. 31 
 
 § 538a. A contingent legacy may be assigned in 
 equity and enforced not as a trust but as a right of 
 contract. 32 
 
 § 538&. Where a devise is made charged with the 
 payment of legacies and the devisee accepts the devise 
 to him, a court of equity will hold him to be a trustee 
 and will enforce the execution of the trust reposed. 33 
 But where the devisee is merely charged personally 
 with the payment of legacies and the land is not so 
 charged he will not be considered a trustee. 34 
 
 § 538c. A devise of all the residue of an estate after 
 the payment of debts creates no trust for the benefit 
 of creditors in the real estate and no specific charge 
 thereon other than the law affords and which may be 
 enforced only in the County and Probate Courts before 
 the Statute of Limitations runs against claims. There 
 would, however, seem to be a distinction between a de- 
 vise to pay debts or legacies, and a devise subject to 
 debts or legacies; "in the former case the devise is 
 construed to be a mere trust to pay the debts or other 
 charges, giving no beneficial interest to the devisee, 
 but holding him after the debts and charges are paid 
 a mere trustee for the heir as to' the residue. In the 
 latter case the devise is construed to convey the whole 
 
 si Glover v. Condell, 163 111. 5&6-681. 
 
 32 Bidgeway v. Underwood, 67 111. 419-428. 
 
 33 Mahar v. O'Hara, 4 Gilm. 424-428. 
 
 ^ Zimmer r. Sennott, 134 III. 505-508. 
 
320 TRUSTS AND TRUSTEES. 
 
 beneficial interest to the devisee, subject only to the 
 payment of the debts or other charges. ' ' 35 
 
 § 538d. A will gave the executrix power of sale over 
 land to pay certain legacies; this constituted the ex- 
 ecutrix a trustee, therefore, to sell for cash, and a sale 
 by her in exchange for a claim against the estate was a 
 violation of the power of sale of which the purchaser 
 would be held to have notice, and which would remit 
 him to the position of the trustee until such legacies 
 should be paid. 3e 
 
 § 539. A mere recital in a will that the testator had 
 conveyed lands in trust for a eharity, when, in fact, 
 he had not done so cannot give rise to a trust by impli- 
 cation, because the rule is that, while an erroneous re- 
 cital in a will that a devise has been made by another 
 portion thereof is sufficient to show the intent of the 
 testator and to raise a devise by implication, yet where 
 the erroneous recital is that a conveyance has been 
 made by a different instrument only such instrument 
 may be depended upon to create the estate sought. 37 
 Nor in such case can a deed in trust, not executed, be 
 engrafted into and made a part of the will by a mis- 
 recital that an executed deed has been made. The in- 
 tention of the testator must first be clear that it should 
 be so done before another instrument can be read into 
 his will. 38 
 
 § 540. A devise to trustees to use the fund wholly 
 or in part in their discretion for the benefit of the ces- 
 tuis que trustent, would not permit the trustees to with- 
 hold the benefits from any one of the cestuis que trus- 
 ts Harris v. Douglas, 64 111. 4©6-474, citing 2 Story, Eq. 1245. 
 ae Humphrey v. Hudnall, 233 111. 185-<T88. 
 ST Hunt v. Evans, 134 111. 496-501. 
 8« Hunt v. Evans, 139 111. 496^504. 
 
TESTAMENTARY TKTJSTS. 321 
 
 tent entirely or to give all the benefits to any one of 
 the cestuis que trustent. 39 
 
 A devise to a trustee for his own support during his 
 lifetime and for such charitable donations as he might 
 think proper, with leave to use the principal if neces- 
 sary for any of such purposes, would not authorise the 
 trustee to make charitable gifts greater than his sta- 
 tion in life would demand, nor would there be any 
 necessity for a gift of the real estate to a church so as 
 to deprive the remaindermen of the property. 40 
 
 A devise to a wife "to be used by her for her own 
 support and for the maintenance and education" of 
 the children creates a valid trust, but does not em- 
 power the wife to mortgage the land for the benefit 
 of her second husband, or to do anything with it except 
 to reside upon it, or demise it, or make a like use of it. 41 
 
 Where trustees had power to pay over the principal 
 of the fund to the cestui que trust, but he died before 
 such action was taken, such fund will not be considered 
 a part of the cestui que trust's estate, but will pass 
 according to the terms of the trust, irrespectively of 
 what would have happened had the principal been 
 turned over. 42 
 
 § 541. There may be separate trustees, and separate 
 and distinct trusts in respect of shares devised, if only 
 the trusts be arranged in regard to time and otherwise 
 so that they will not conflict with each other, or be in- 
 consistent with the intention of the testator. And 
 where a devise was made to a general trustee for three 
 beneficiaries and power of sale was given him, but the 
 
 3» Jones v. Jones, 124 111. 254-264. 
 -toLehnard v. Specht, 180 111. 208-212. 
 
 41 Summers t. Higley, 191 111. 193-196. 
 
 42 Keys v. Wohlgemuth, 240 111. 686-591, modifying 146 App. 74. 
 
 21 
 
322 TBTJSTS AND TRUSTEES. 
 
 share of one of the beneficiaries was held by a second 
 trustee, also with a power of sale, and the general trus- 
 tee conveyed the property for the advantage of the 
 general trust estate, neither the second trustee, nor his 
 cestui que trust, could avoid the execution by the gen- 
 eral trustee of his power of sale. 43 
 
 § 542. West v. Fitz : 44 A non-resident testator, own- 
 ing lands in Illinois devised his Illinois property to a 
 trustee to pay the net income to his two children and 
 the survivor of them, and then to pay certain legacies 
 to various legatees; "all the residue and remainder of 
 the trust estate ' ' was devised to certain relatives of the 
 testator. An exemplified copy of the foreign will and 
 order of probate was recorded in Illinois in the county 
 where the land was situate. The trustee having re- 
 fused to accept the trust, another trustee was ap- 
 pointed in the sister state under its statute, and, this 
 trustee dying later on, another was also appointed in 
 the foreign state. The trustee last appointed entered 
 into a contract for the sale of the Illinois lands, and, 
 upon the vendee refusing to complete his purchase the 
 trustee exhibited his bill for specific performance. 
 The original trustee was held to have taken an .estate 
 in fee, the same being necessary for the purposes of 
 the trust, but the courts and statutes of a foreign state 
 were powerless to appoint new trustees of land situate 
 in Illinois who could take the legal title and make a 
 valid conveyance thereof ; the will having failed to pro- 
 vide for the appointment of a successor-in-trust, only 
 an Illinois court of competent chancery jurisdiction 
 could appoint a new trustee to act in respect of the 
 Illinois lands and the legal title would also have to be 
 
 "Jenks v. Jackson, 127 111. 34fl-3'5'6. 
 **West v. Fitz, 109 111. 425-442. 
 
TESTAMENTARY TBUSTS. 323 
 
 vested in the new trustee by proper conveyances from 
 the heirs of the trustee to whom it was devised. 
 
 § 543. A bill filed to obtain a construction of a will 
 cannot be entertained by a court of equity unless there 
 be a present trust or power involved, and not merely 
 one which may have to be performed at some later 
 period according to the terms of the will. 45 But if 
 the duties required of the executor are different from 
 those imposed upon him by Statute a special trust is 
 involved. 46 
 
 Equity will not construe wills involving only legal 
 titles, and where executors having trust duties to per- 
 form cannot agree as to the construction that should 
 be given to a provision requiring them to make a dis- 
 tribution one of them may file a bill against the other 
 for such construction in administering such trust 
 funds. 47 But a life tenant cannot create a necessity 
 for the construction of a will by making a contract to 
 convey the fee. 48 Nor can jurisdiction be conferred 
 upon the court by consent. 49 
 
 § 544. The doctrine of election, with a consequent 
 ratification of a will in all its parts, has no application 
 to a mere legatee or devisee so as to estop him from 
 filing a bill in equity to have certain clauses of a will 
 held void as being perpetuities. 50 
 
 § 545. Trustees of a charitable institution for which 
 a will creates a trust are not incompetent witnesses to 
 
 « Doll v. Cash, 234 111. 53; Harrison v. Owsley, 172 111. 629-632; 
 Strawn v. Jacksonville Academy, 240 111. Ill; Fletcher v. Root, 240 
 111. 429. 
 
 40 Whitman v. Fisher, 74 111. 147-156; Minkler v. Simon, 172 111. 
 323-326. 
 
 *t Parsons v. Millar, 189 111. 107-112. 
 
 is Mansfield v. Mansfield, 203 111. 92-98. 
 
 4» Fletcher v. Root, 240 111. 429-4312. 
 
 bo Schuknecht v. Schultz, 212 111. 43-48. 
 
324 TRUSTS AND TRUSTEES. 
 
 such will, especially where they serve the institution 
 without compensation. 51 
 
 § 546. The question whether testamentary trustees 
 have power under a will to invest funds in real estate 
 does not involve a freehold, as the trustees would not 
 lose or gain a freehold whichever construction might 
 be placed upon the will, and the Supreme Court will, 
 upon their own motion, send such a cause to the Appel- 
 late Court. 52 
 
 si Boyd v. MeConnell, 209 111. 396. 
 
 52 Merchants' L. & T. Co. v. The Northern Trust Co., 245 111. 511- 
 515. 
 
THE XBUSTBE AND HIS OFFICE. 325 
 
 CHAPTEE XXVIII. 
 
 THE TRUSTEE AND HIS OFFICE. 
 
 § 547. "A trustee should be a.person capable of tak- 
 ing and holding the legal estate, and possessed of nat- 
 ural capacity and legal ability to execute the trust, and 
 domiciled within the jurisdiction of a court of 
 equity." 1 The execution of trusts does not require 
 that the trustees be lawyers, but only men of probity 
 and capacity who may hire legal advice on the complex 
 problems arising from the administration of trusts. 2 
 Infants should not be appointed, as they are held in 
 law to be wanting in capacity, and are seldom possessed 
 of sufficient judgment and discretion. 3 The objection 
 to married women is the likelihood of being influenced 
 by their husbands, and as to single women there is the 
 possibility that they may get married. 4 The Admin- 
 istration Act provides that if a married woman be 
 appointed executrix her husband may give bond with 
 her for her faithful performance of the trust. 5 
 
 § 547a. Non-residents and aliens, of course, should 
 not be appointed; it is usually better not to appoint 
 relatives, or one of the cestuis que trustent, on account 
 of a possible conflict between duty and self-interest, 
 although one or more of the cestuis que trustent may 
 act, provided there be other cestuis que trustent be- 
 sides such trustees. While bankrupts are not entirely 
 
 i Lewin, star p. 30 — 1st Am. Ed. 
 
 z Metcalfe v. Bradshaw, 145 111. 124-135. 
 
 s Lewin, star p. 38. 
 
 * Lewin, star p. 33. 
 
 s Rev. Stat. Chap. 3, See. 3. 
 
326 TKtTSTS AND TRUSTEES. 
 
 disqualified from acting as trustees, still it would be a 
 questionable measure to appoint them. Appointments 
 of trustees for charities or religious organizations of 
 a particular creed should be limited, in general, lo per- 
 sons of the same faith. 6 
 
 § 54:7b. "There can be no objection to the appoint- 
 ment of a single trustee, where the trust reposed in 
 him is merely a nominal confidence ; but where the ad- 
 ministration of the trust involves the receipt and cus- 
 tody of money the safeguard of at least two trustees 
 ought never to be dispensed with. * * * The safe 
 rule is, where money is concerned, always to appoint 
 at least three trustees, and to keep the number full." 7 
 
 § 547c. Where a testator directs the sale and conver- 
 sion of his estate into money but fails to nominate an 
 executor or other trustee, only a court of equity can 
 appoint a trustee upon a bill filed for that purpose by 
 the cestui que trust, with full notice to all parties in- 
 terested. The administrator with the will annexed 
 has no power of sale under the will. 8 
 
 § 547d. A trustee does not hold the fund in custodia 
 legis as do receivers, and, if appointed by a court, it is 
 not necessary to obtain leave of the appointing court 
 to sue such trustee. 9 
 
 § 548. It need scarcely be said that an appointment 
 as trustee of an express trust cannot be forced upon 
 one against his wishes, and no title vests in a trustee 
 unless he accept the execution of the trust either ex- 
 pressly or impliedly. 10 If he choose to disclaim he 
 
 « Lewin, star p. 40. 
 
 i Lewin, star p. 43. 
 
 8 Hall v. Irwin, 2 Gilm. 17fi. 
 
 » Nevitt v. Woodburn, 190 111. 2«3^290. 
 
 io McFall v. Kirkpatrick, 236 111. 281-2&3. 
 
THE TRUSTEE AND HIS OFFICE. 327 
 
 should do so with reasonable despatch 11 so that, in 
 case there are no co-trustees who have accepted, and 
 no provision in the trust instrument for a successor in 
 trust, a court of equity may fill the vacancy and pro- 
 tect the trust-res. 
 
 § 549. The most effectual method of signifying ac- 
 ceptance of a trust created by a deed is by signing such 
 deed ; 12 if created by a will, then qualifying as the ex- 
 ecutor is usually deemed an acceptance. 13 An accept- 
 ance may also arise by implication, and by estoppel. 
 
 Where there is only a parol acceptance of a trust by 
 a trustee, yet if he performs the terms in part he will 
 be estopped in pais from denying that he ever accepted 
 the trust. 14 
 
 A trustee named in an instrument signifies his ac- 
 ceptance of the trust sufficiently if he act under it, even 
 though the instrument may never have been delivered 
 to him. 15 
 
 § 549a. "Where title is devised to a trustee also 
 named as the executor, the granting of letters testa- 
 mentary relates back to the date of the testator's death, 
 and likewise the acceptance of the trustee relates back 
 in such case to the time when the testator died so as to 
 vest title in him as of that date, and to validate all 
 acts performed by him within the scope of his duties. 18 
 
 § 5496. An assignee for the benefit of creditors who 
 accepts the deed of assignment accepts merely the 
 trust, and does not have to accept a leasehold estate 
 thereunder unless he elect so to do within a reasonable 
 
 ii Lewin, star p. 197. 
 
 12 Patterson v. Johnson, 113 111. 059-568. 
 
 is Perry, 6th Ed. Sec. 260. 
 
 i* Albretch v. Wolf, 58 111. 189. 
 
 is Crocker v. Lowenthal, 83 111. 579-582. 
 
 i« Mettler v. Warner, 243 111. 600-609. 
 
328 TRUSTS AND TRUSTEES. 
 
 time, and not until then will he be liable on the cove- 
 nants in the lease made by the assignor. 17 
 
 § 550. The Act of 1909, giving the probate and 
 county courts jurisdiction over testamentary trusts, 
 permit them, also, to fix and approve the bonds of tes- 
 tamentary trustees. 18 Other classes of strict trustees 
 are not required to furnish bonds, unless the trust in- 
 strument so require. 
 
 In the absence of a statute or a provision in a trust 
 instrument requiring a bond, a power of sale in a trus- 
 tee, who is also executor acting in a dual capacity, may 
 be exercised by him without filing a bond in addition 
 to that given by him as executor. 19 
 
 An executor who sells real estate either under a 
 power in the will, or under order of court, must fur- 
 nish the additional bond required by statute whether 
 the land is within or outside the state, and the sureties 
 on his general bond cannot be held for any misappro- 
 priation of the^proceeds of a sale for which a special 
 bond should have been given. 20 
 
 § 550a. The failure of a court of chancery to require 
 in its decree appointing a trustee a bond for the pro- 
 tection of the cestuis que trustent, cannot affect a pur- 
 chaser from the trustee, the latter having the legal ti- 
 tle and a power of sale generally- under the terms of 
 the trust. 21 
 
 § 551. Where the creator of a trust has required the 
 trustee to furnish a bond, a surety thereon, who de- 
 sires the trustee to make an accounting, to be removed, 
 
 " Smith v. Goodwill, 149 III. 75-80. 
 is Hurd's 1909 Stats, p. 698, Sec. 1. 
 i» Dingman r. Beall, 213 111. 238-24-5. 
 20 People v. Huffman, 182 111. 390-398. 
 si Regan v. West, 115 111. 603-609. 
 
THE TRUSTEE AND HIS OFFICE. 329 
 
 or to be required to furnish other and additional se- 
 curity, cannot be heard by a bill in equity to which the 
 cestuis que trustent are not parties, because the trustee 
 and his surety must be regarded as being interested on 
 one side of the account and the cestuis que trustent 
 on the other, and the latter would not be bound by such 
 ex parte proceeding. It is only in cases provided for 
 expressly by statute that a surety may obtain his re- 
 lease from a bond, after taking certain steps, as on the 
 bonds of guardians, administrators, and other trus- 
 tees who have been appointed by courts under statu- 
 tory authorisation. 22 
 
 § 551a. Whether trustees have furnished the bonds 
 required of them by the trust instrument cannot be en- 
 quired of in collateral proceedings, as, e. g., in suits 
 for rent, as that is a question for the cestuis que trus- 
 tent alone to be concerned about. 23 
 
 § 5516. The fact that a trustee has furnished a bond 
 will not render him any the less liable to account in 
 equity to his cestui que trust?* 
 
 § 551c. The sureties on the bond of a warden of a 
 prison cannot escape liability for a loss of prison funds 
 due to the failure of a supposedly solvent bank on the 
 ground that the warden was a mere bailee, because, on 
 the contrary, the warden is a public trustee and the 
 public funds coming into his hands are within the 
 scope of the bond required of him. 25 
 
 § 552. The sureties of a trustee are released from 
 liability on his bond for his mismanagement of trust 
 funds where a new trust instrument had been made 
 
 2= Ridgeway v. Potter, 114 III. 457-460. 
 
 23 Reichert v. Mo. & 111. Coal Co., 231 111. 238^245. 
 
 2* People v. Bordeaux, 242 111. 327-334. 
 
 25 Est. of Ramsay v. People, 197 111. 572-<586. 
 
330 TKTJSTS AND TRUSTEES. 
 
 which was substantially different from the instrument 
 contemplated by the bond. 26 
 
 § 552a. If, after a ward becomes of age, he make a 
 secret agreement with his former guardian to with- 
 draw and speculate with the ward's funds before they 
 have been accounted for and such funds are lost, the 
 surety on the guardian's bond will be relieved thereby, 
 because the ward has then become sui juris and can 
 change the contracts made for his benefit. 27 
 
 § 552b. The sureties of an executor are not liable 
 for his conversion of the proceeds of a life insurance 
 policy bequeathed to him in trust by the decedent, al- 
 though the executor inventoried the proceeds as assets. 
 He should have been required to furnish a bond as 
 trustee. 28 
 
 § 553. Trustees who are required by the terms of the 
 trust to deliver possession to a life tenant have no dis- 
 cretion but to do so, and they cannot require a bond 
 from the life tenant for the preservation of the estate 
 as that concerns the remainderman only and not the 
 trustees whose duties have terminated, nor yet third 
 persons. 29 
 
 But where the equitable life tenants were given 
 power to convert the estate and the trustees themselves 
 were under bond it would seem that the trustees might, 
 both as a reasonable precaution for the sake of the re- 
 maindermen and for their own protection, require such 
 a bond. 30 
 
 § 554. A trustee to manage a fund for a life tenant, 
 
 2« McCartney v. Ridgway, 160 111. 129-160. 
 
 2' People v. Seelye, 146 111. 189-224. 
 
 as People v. Petrie, 191 111. 497-504, aff'g 94 App. 652. 
 
 29 Waldo v. Cummlngs, 45 111. 420.^480. 
 
 so Hetfield v. Fowler, 60 111. 45. 
 
THE TETJSTEB AND HIS OFFICE. 331 
 
 and at the latter 's death to pay the fund over to re- 
 maindermen, gave the remaindermen a bond to secure 
 the fulfillment of the trust. The trustee embezzled the 
 funds and died insolvent. A right of action on the 
 bond was held to have accrued to the remaindermen, 
 notwithstanding the equitable life tenant was still 
 alive, because it would have been impossible for the 
 trustee's representatives to have performed at the 
 later date. 31 
 
 § 555. At ctimmon law a trustee was not entitled to 
 compensation for his services in the absence of a con- 
 tract therefor. 32 It was not until 1891 that the Illi- 
 nois Legislature provided reasonable compensation for 
 one class of trustees in the absence of direct provision 
 therefor — testamentary trustees for non-charitable ob- 
 jects — and this provision has been held to permit the 
 granting of compensation to testamentary trustees for 
 services rendered by them after the passage of the act, 
 although such trustees had qualified prior thereto ; and 
 if a trustee be also the executor he will be entitled to 
 remuneration in both capacities for the distinct duties 
 relating to each office. 33 Testamentary trustees of 
 charitable, religious or educational trusts are not en- 
 titled to reward for their services unless the will pro- 
 vide expressly therefor. 34 
 
 § 556. The English rule that trustees are not enti- 
 tled to compensation, in the absence of any express or 
 implied provision therefor, is still adhered to in Illi- 
 nois, notwithstanding a different rule prevails in the 
 
 si Lee v. Pennington, 6 App. 247-251. 
 
 32 Huggins v. Rider, 77 111. 360-362. 
 
 33 Arnold v. Alden, 173 111. 220-234 ; Knight v. Knight, 142 App. 
 62-71. 
 
 a* Boyd v. McConnell, 209 111. 396-399. 
 
332 TRUSTS AND TRUSTEES. 
 
 federal courts and in many of the other States. The 
 reason for the rule is that the trustee should not be 
 tempted to charge and burden the estate for his own 
 benefit by claiming to have made great personal sacri- 
 fices in fulfilling his duties when he had the option of 
 accepting or refusing the trust. 33 
 
 § 556a. Except by agreement a trustee is not enti- 
 tled to compensation either for his labour or time, al- 
 though his reasonable expenses in caring for the trust 
 property should be refunded to him. But even in this 
 courts will guard the fund with jealous care, and be 
 vigilant to prevent the fund from being wasted. 36 
 
 § 5566. In the absence of an agreement or statute to' 
 that effect a trustee can have no allowance or pay for 
 his services for performing a trust, and this rule ap- 
 plies also to all who sustain relations of faith and con- 
 fidence such as executors, administrators, mortgagees, 
 receivers, guardians, and officers, directors and trus- 
 tees of corporations. "If trustees render services 
 to the trust estate in their professional characters as 
 solicitors, factors, brokers, bankers, or in any other 
 capacity they can receive no compensation or commis- 
 sions for such services. 37 " 
 
 § 556c. While a court of equity will not compel one 
 to accept the responsibilities of a trust against his will, 
 yet where he has voluntarily assumed its execution 
 equity will hold him to a faithful performance, even 
 
 ss Cook v. Gilmore, 133 III. 139-143; Buckingham v. Morrison, 136 
 111. 437-455. 
 
 se Constant v. Matteson, 22 111. 546-559; Cook v. Gilmore, 133 111. 
 139-142; Sherman v. Leman, 137-111. 94-98; Payson v. Ross, 77 App. 
 635-640. 
 
 37 Hough v. Harvey, 71 111. 72-75, citing Perry, Sec. 904; Cook v. 
 Gilmore, 133 111. 139-142. 
 
THE TBUSTEE AND HIS OFFICE. 333 
 
 without compensation, in order to preserve the rights 
 of all persons affected in any way by the trust. 38 
 
 § 557. If the cestuis que trustent have consented to 
 previous charges of the trustee for his services it may 
 be implied that there was a contract to pay the trustee 
 for future services by him of a like nature. Where 
 there are co-trustees their compensation should be 
 divided among them in proportion to the services ren- 
 dered by each on a quantum meruit basis, unless they 
 agree otherwise. 39 
 
 A trustee for creditors having been allowed, by 
 agreement, pay for his services, a subsequent agree- 
 ment entered into by the parties enlarged the duties 
 of the trustee, but did not provide for compensation. 
 The court, however, decided that the trustee was en- 
 titled to additional reward to a reasonable amount for 
 his increased responsibilities and services. 40 
 
 § 558. A trustee through his fraud, bad faith and 
 abuse of the trust should not be allowed compensation 
 under a contract therefor, and the court should rescind 
 the contract. 41 In cases of administrators, guardians, 
 etc., the statute does not contemplate that they should 
 be paid for neglecting their duties. 42 
 
 If the trustee failed or refused to do his duty and 
 was compelled so to do he will not be entitled, after 
 having done his duty under compulsion, to any com- 
 pensation therefor. 43 
 
 as Cooper v. McClun, 16 111. 486-443; Walden v. Karr, 88 111. 49-61; 
 Allen v. Jackson, 122 111. 567-571. 
 
 39 Huggins v. Rider, 77 111. 360-363. 
 
 40 Jarrett v. Johnson, 216 111. 212-218, aff'g 116 App. 592. 
 43 Towle v. Ambs, 123 111. 410-425. 
 
 42 Whittemore v. Coleman, 239 111. 450-456. 
 
 43 Lehman v. Rothbart, 159 111. 270-282. 
 
334 TETJSTS AND TRUSTEES. 
 
 No compensation may be given a trustee for services 
 rendered in furtherance of a conspiracy to defraud 
 creditors. The law cannot reward the doing of illegal 
 acts. 44 
 
 § 559. The law will allow the expenses of trustees, 
 but not compensation for their services unless provi- 
 sion be made therefor by deed of trust, or articles of 
 partnership. 45 
 
 § 559a. A trustee, in defending a suit in that capac- 
 ity, is entitled to his reasonable solicitor's fees. 46 
 
 If a trust deed in the nature of a mortgage provide 
 that the trustee shall be paid by the mortgagor for his 
 services as well as his fees and charges in and about 
 the execution of the trust, he will be entitled to pay for 
 his own services and his counsel's fees in foreclosing 
 and selling the property. 47 
 
 § 560. A trustee's compensation for filing a bill to 
 obtain a construction of a trust instrument should be 
 moderate, especially where he has received the usual 
 compensation under it for years on account of his serv- 
 ices. 48 
 
 § 560a. Where it is permissible to allow a trustee 
 compensation for his services, he cannot charge for le- 
 gal services rendered by himself, as he cannot be per- 
 mitted to pay fees to himself as counsel; the tempta- 
 tion would be inconsistent with his duties. 49 
 
 ** French v. Commercial Nat. Bank, 199 111. 213^-2i2'6, aff'g 97 App. 
 533. 
 
 *» King v. 'Hamilton, 16 111. 190-196; Constant v. Matteson, 22 111. 
 546-559. 
 
 *e Johnson v. Askey, 190 111. 58-64; McGillis v. Hogan,, 190 111. 176- 
 184, aff'g 85 App. 194. 
 
 « Guignon v. Union Trust Co., 156 111. 135-146. 
 
 « Rackeinann v. Tilton, 236 111. 49-62. 
 
 "9 Heacock v. Durand, 42 111. 230-232. 
 
THE TRUSTEE AND HIS OFFICE. 335 
 
 § 561. While a trustee has a lien on the trust fund 
 for his proper expenses and charges in administering 
 the trust, yet an agent for the trustee must look to the 
 trustee personally for compensation, and no departure 
 will be made from that rule by the courts, so long as 
 the trustee has the right to apply to a court of chancery 
 to make the services of his agents a charge upon the 
 trust estate if he cannot acquire such services on his 
 own responsibility. 50 
 
 § 562. The compensation of receivers when not fixed 
 by statute should be determined by the court in accord- 
 ance with the ability of the receiver, and the responsi- 
 bilities imposed upon him in the particular case, 51 and 
 the action of the chancellor will not be disturbed by 
 reviewing courts unless it was plainly wrong. 52 
 
 § 563. A trustee, before being entitled to compensa- 
 tion, has the burden of showing both an agreement to 
 compensate him and that he has performed his duties 
 as trustee. 53 
 
 § 564. So long as a cestui que trust, or his interest 
 in the fund, contributed no part of the compensation 
 received by a trustee, he can make no objection to re- 
 muneration of the trustee. 54 
 
 § 565. A trustee, whose accounts have been taken be- 
 fore a master, cannot bring his claim for personal com- 
 pensation into a court of appeal without having made 
 the claim below. 55 
 
 oo Johnson v. Leman, 131 111. 609-611. 
 si Heffron v. Rice, 149 111. 216-224. 
 
 52 Culver v. Allen Medical Assn., 206 111. 40. 
 
 53 Jenkins v. Doolittle, 69 111. 415-418. 
 
 5* Dempster v. Lansingh, ISO App. 55-62. 
 56 Hurd v. Goodrich, 59 111. 450-4158. 
 
336 TBTJSTS AND TEXJSTBES. 
 
 CHAPTEE XXIX. 
 
 § 566. The effect of the Statute of Uses has been 
 considered in a prior chapter, 1 where it was shown that 
 in certain classes of dry or passive trusts the grantee 
 never acquires title even for a moment, although words 
 of trust may be used ; 2 that the Statute does not oper- 
 ate on active trusts, or those which require the grantee 
 to perform some duty, agency or power in respect of 
 the estate. 3 
 
 § 567. The legal title in case of a devise in trust de- 
 scends to the heirs and remains there until the trustee 
 accepts. If the trustee refuses to accept the trust and 
 there is no provision for a sucoessor-in-trust the legal 
 title will continue in the heirs until they are compelled 
 by the decree of a court of chancery of competent ju- 
 risdiction to convey to the trustee whom the court may 
 appoint. 4 
 
 § 567a. Where the subject matter and beneficiaries 
 of a trust with valid purposes may be ascertained, 
 equity will enforce it. 5 
 
 While no particular form of words is necessary to 
 raise a trust, and while the use of the words "trust" 
 and "trustee" is unnecessary, yet there must be suffi- 
 cient to show a clear intention upon the part of an 
 alleged donor to create a valid trust, and a devise to a 
 
 i Chapter XVI. 
 
 aWitham v. Brponer, 63 111. 344; Lynch v. Swayne, 83 111. 336. 
 
 3 Kellogg v. Hale, 108 111. 164-169. 
 
 *West v. Fitz, 109 111. 425; Regan v. West, 115 111. 603-606. 
 
 o Flanner v. Fellows, 206 111. 136-141. 
 
THE TRUSTEE'S LEGAL ESTATE. 337 
 
 wife to use during her widowhood and "to receive all 
 the rents and profits for the benefit of my family" does 
 not create a trust for the benefit of such family, but the 
 widow will take a life estate subject to termination 
 upon her re-marriage. 6 
 
 A conveyance to individuals styled "trustees," etc., 
 where no trust is created by the instrument is prima 
 facie a conveyance to the individuals, the word "trus- 
 tees" being rejected as mere descriptio personarum 
 in the absence of proof of a valid trust. 7 If the words 
 "as trustees" were used it might be different. 8 
 
 A trustee in an active trust may also occupy the po- 
 sition of a beneficiary so long as there are other bene- 
 ficiaries, and there will be no merger of the legal and 
 equitable estates in such case. 9 
 
 § 567b. The vesting of the legal title in an executor- 
 trustee to whom land has been devised relates back 
 after his acceptance or qualifying as executor to the 
 date of death of the donor and validates acts done 
 within the scope of his duties before so qualifying. 10 
 
 § 567c. A trustee under a valid trust is regarded at 
 law as having "the unconditional and sole ownership" 
 and fee simple title as required by a fire insurance 
 policy as a condition to recovery thereon. A court of 
 law does not regard the cestui que trust as having ti- 
 tle. 11 
 
 § 567d. The cestuis que trustent need not be named 
 expressly in a deed to a trustee so long as they can 
 
 e Dee v. Dee, 212 111. 338-350. 
 i Hart v. Seymour, 147 111. 598-609. 
 
 s United Brethren Church v. First M. E. Church, 138 111. 608-611. 
 » Burbach v. Burbach, 217 111. 547-650. 
 io Mettler v. Warner, 243 111. 600-609. 
 ii Security Ins. Co. v. Kuhn, 207 111. 166, aff'g 108 App. 1. 
 22 
 
338 TRUSTS AND TRUSTEES. 
 
 be ascertained and distinguished, or if some one is 
 named to point them out. 12 
 
 § 567e. The delivery of a deed in trust for the bene- 
 fit of creditors to a third person for the trustee is ef- 
 fectual if the grantor retained no control over it. 13 
 
 § 567/. Section 7 of the Conveyance Act provides 
 that after acquired title shall enure, etc., and that it 
 shall be held to have been taken in trust for the use of 
 the grantee or vendee of the covenantor so acquiring 
 it. 
 
 § 568. "Trustees must be presumed to take an es- 
 tate only commensurate with the charges or duties im- 
 posed on them ; but this, however, is subject to the qual- 
 ification that such presumption shall be consistent with 
 the intention of the party creating the trust, as mani- 
 fested by the words employed in the instrument by 
 which it is created." "Where their duties require it 
 they will take the legal title to land in fee, otherwise 
 such estate as will fulfill the trust purposes. 14 
 
 A fee will not necessarily vest in a trustee simply 
 because words of inheritance are used, but he will take 
 such an estate, whether it be a fee or a lesser estate 
 as the complete execution of the trust may require. 15 
 A trust to sell or mortgage implies the^granting of a 
 fee. 16 
 
 12 First Natl. Bank v. Schween, 127 111. 573-580. 
 
 "Gunnell v. Cockerill, 79 111. 74-81; Gunnell v. Cockerill, 84 111. 
 319. 
 
 i* Kirkland v. Cox, 94 111. 400-411; Preachers' Aid Soc. v. England, 
 106 111. 125-129; Walton v. Follansbee, 131 111. 147-tt57; Ebey v. 
 Adams, 135 111. 80-85; McCartney v. Osburn, 118 111. 403-424; Wicker 
 v. Ray, 118 111. 472-475; Lawrence v. Lawrence, 181 111. 248-251; Se- 
 curity Ins. Co. v. Kuhn, 207 111. 106-171; Olcott v. Tope, 213 111. 124- 
 133; Bergmann v. Arnhold, 242 111. 218-225. 
 
 is Lord v. Comstock, 240 111. 492-501; Drake v. Steele, 242 111 301- 
 308. 
 
 "Green v. Grant, 143 111. 61-71; Lash v. Lash, 209 III. 595-602. 
 
THE TBTJSTEE's LEGAL, ESTATE. 339 
 
 The Conveyance Act of Illinois having abolished the 
 need of using words of heirship, it will be presumed 
 that a deed or devise to a trustee passes the fee to him, 
 but, if the trustee can perform the duties of the trust 
 with a lesser estate he will have only an estate for 
 years, or lives, as the case may be, even though words 
 of heirship were used'in the instrument. Where, how- 
 ever, his active duties must continue to be performed 
 for an indefinite length of time he will take the fee; 
 or, if the trustee be directed to pay debts or legacies, 
 or to invest in personal property he will also take the 
 fee, regardless in the case of a will, whether or not 
 there is sufficient personal property, or whether or not 
 such debts and legacies be expressly or impliedly 
 charged by the will upon the real estate, because the 
 trustee should have protection in making such pay- 
 ments and some unseen contingency might make a re- 
 sort to the land necessary by him. 17 
 
 § 568a. Where the trustee is required to convey real 
 estate the fee is necessarily implied to be in him. 18 
 
 Where trustees have discretion to pay over any por- 
 tion of the trust fund under a spendthrift trust they 
 will take the fee. 19 
 
 A bequest of a fund to trustees for the benefit of an 
 insane son with remainder to a charity in case he died 
 insane, passes the legal title to the trustees in fee; so 
 that the administrator of the son dying insane will not 
 take it. 20 
 
 § 568&. Where a life tenant is given the sole use of 
 property and no greater duties to the remaindermen 
 
 "West v. Fitz, 109 111. 425-436; Lawrence v. Lawrence, 181 111. 
 248-251; Flanner v. Fellows, 206 111. 136-139. 
 is Spengler v. Kuhn, 212 111. 186-192. 
 i» King v. King, 168 111. 273-285. 
 20 Abend v. Commission, 174 111. 96-105, aff'g 74 App. 654. 
 
340 TRUSTS AND TRUSTEES. 
 
 are required than usually grow out of the relation of 
 life tenant to remaindermen the mere fact that a will 
 names the life tenant as trustee to control and man- 
 age the property will not give rise to a trust, but such 
 words will be treated as surplusage, 21 or at most a 
 dry, passive trust executed by the Statute of Uses. 22 
 
 § 568c. Baulos v. Ash : 23 Here a deed had been made 
 by and between A and B "and the heirs of her body 
 through C, her trustee and agent," the grant was "to 
 the said party of the second part, her heirs and as- 
 signs" while the habendum clause was "to have and to 
 hold to the only proper use and benefit of B and the 
 heirs of her body through C, her trustee, and who 
 holds said land in trust only for the said B, the said 
 party of the second part, her heirs and assigns for- 
 ever." The granting clause was held to be the con- 
 trolling one so as to exclude both the trustee and the 
 heirs of the body of B, thus giving B the fee. 
 
 § 568d. Walton v. Follansbee : 24 A husband made a 
 deed in trust of certain real estate under which the 
 trustees were to manage the same, pay the income to 
 the donor 's wife, and, at the latter 's request in writing, 
 to execute leases, conveyances, contracts and agree- 
 ments in respect thereof, and to permit the wife to use 
 any portion of the premises during her natural life- 
 time; the deed provided further that in case the wife 
 died before the donor the property should descend to 
 her children, and, in default of children should revert 
 to the donor, but if the donor died before his wife she 
 
 21 Thompson v. Adams, 205 111. 552-557. 
 ■ 22 Drake v. Steele, 242 111. 301-308. 
 ss Baulos v. Ash, 19 111. 187. 
 
 si Walton v. Follansbee, 131.111. 147-152; Walton v. Follansbee. 
 165 111. 480. 
 
THE TRUSTEE'S LEGAL ESTATE. 341 
 
 should take the property absolutely and the trust 
 should end. The donor and his wife together with 
 their daughter, but not their two sons, joined the trus- 
 tees in a deed with covenants to a purchaser. The 
 wife of the donor died before him, and the daughter 
 also died after her mother, leaving a son surviving her 
 as the daughter's only heir at law. An ejectment suit 
 was brought by the two sons of the donor and his 
 grandson, and the Supreme Court decided that the in- 
 tention of the donor was to limit the estate taken by 
 the trustees to the joint lives of the donor and his wife, 
 and the right of the trustees to make " conveyances" 
 would, therefore, have to be construed with reference 
 to such joint Eves, and that the trustees had no duties 
 to perform which would make it necessary to have an 
 estate for a longer period. Each of the children had, 
 therefore, a remainder contingent upon his mother dy- 
 ing before the father, and also contingent upon each 
 child surviving the mother, and the two sons were al- 
 lowed to recover their interests; the grandson was 
 barred because of the covenants which his own mother, 
 daughter of the donor, had made in the conveyance to 
 the purchaser to whom the daughter's after-acquired 
 title enured. 
 
 § 569. The legal estate being in the trustee, he is, 
 in general, the only one who may sue or defend in 
 courts of law in respect of the trust-res. But in some 
 jurisdictions, if the trustee refuse to protect the estate 
 by suing or defending at law when necessary, the ces- 
 tui que trust is permitted, upon proper allegations and 
 at the discretion of the chancellor, to maintain a bill 
 in equity against the third person and the trustee. 25 
 
 25 Perry, 6th Ed. p. 552, foot note A. 
 
342 TRUSTS AND TRUSTEES. 
 
 § 569a. ' ' Trustees of freeholds are the legal owners 
 of the estate, and they alone can be recognised in a 
 court of law. Their right to the possession will de- 
 pend entirely upon the construction of the instrument 
 of trust, and the nature of the duties required. If 
 their duties are such that they cannot perform them 
 without the possession, the court will give it to 
 them." 26 
 
 In a suit at law the trustee, who has the legal title, 
 and he alone, can sue or defend. 27 
 
 § 569&. In ejectment, or other suit at law, only legal 
 titles can be considered, and, if a deed made by trus- 
 tees be sufficient to pass the legal title it will not mat- 
 ter whether the trustees violated their trust in so con- 
 veying. 28 
 
 An equitable title cannot be set up as a bar or an aid 
 to a recovery in ejectment where only legal rights are 
 adjudicated. 29 But it would seem to be proper in an 
 ejectment suit to supply a missing link in a chain by 
 parol evidence of a resulting trust, although such 
 would be an equitable title. 30 
 
 Where even a naked trustee has the legal title he 
 may recover in ejectment against the cestui que trust. 31 
 
 An ejectment suit brought by heirs of a deceased 
 trustee will be presumed to be in line with their duties 
 as successors-in-trust to protect the trust estate for 
 
 s« Perry, Sec. 526. 
 
 27 Union Coal Co. v. City of LaSalle, 136 111. 119-128. 
 
 28 Walton v. Follansbee, 131 111. 147-156. 
 
 2» Wales v. Bogue, 31 111. 464-468; McFaU v. Kirkpatrick, 236 111. 
 281-292. 
 
 so Collins v. Smith, 18 111. 160-163. 
 
 " Reece v. Allen, 5 Gilm. 236-241; Wilson v. South Park Commis- 
 sioners, 70 111. 46. 
 
THE TRUSTEE'S LEGAL ESTATE. 343 
 
 the benefit of the cestui que trust and not as adverse 
 to the latter 's interest. 32 
 
 § 569c. A deed to A, B, and C, "trustees" of a 
 church, will not be sufficient to vest the legal title in 
 the church corporation so that it can maintain eject- 
 ment. The Statute of Uses would not operate in such 
 case because it would seem to apply only to express 
 trusts, or to a feoffment to one in trust for, or the use 
 of, another. If the deed had been made to A, B, and C, 
 as trustees the "court intimated that it might have made 
 some difference. 33 
 
 § 569d. An equitable life tenant under a deed in 
 trust had a power of appointment by her last will, and, 
 in default of such appointment remainder to her heirs 
 and assigns. She made a deed purporting to convey 
 the fee, and upon her death, her will was found to have 
 recited the power and to have devised all her estate to 
 her brother who brought ejectment against the mesne 
 grantee of the life tenant. The majority of the Su- 
 preme Court held the power to appoint was appendant 
 or appurtenant, not in gross, and therefore the convey- 
 ance extinguished the power to appoint by will, so that 
 the devisee under the will acquired nothing thereby 
 and could not maintain ejectment. The minority opin- 
 ion in this case will be found most instructive, and its 
 arguments more cogent than those of the majority. 34 
 [See the same case under "Powers" where it is dis- 
 cussed more fully. J 
 
 § 569e. In McNab v. Young 35 it was intimated that 
 where the trust has been executed the Statute of Uses 
 
 82 Russell v. Peyton, 4 App. 473-481. 
 
 as United Brethren Church v. First M. E. Church, 138 I1L 608-611. 
 
 34 McFall v. Kirkpatrick, 236 111. 281-288. 
 
 35 MoNab v. Young, 81 111. 11-14. 
 
344 TBTJSTS AND TBTJSTEES. 
 
 so operates that the equitable owner may maintain 
 ejectment. But this was criticised unfavourably in 
 Kirkland v. Cox 36 "where the legal title (under an 
 active trust) is vested in the trustee, nothing short of a 
 reconveyance can place the legal title back in the 
 grantor or his heirs, subject, of course, to the quali- 
 fication that, under certain circumstances, such recon- 
 veyance will be presumed without direct proof of the 
 fact." The legal title being in a trustee an heir can- 
 not maintain ejectment. 37 
 
 § 570. "When trustees are charged with the pay- 
 ment of annuities, debts, or legacies, or any other 
 sums out of the estate, but have no power of sale, they 
 have an implied power of leasing upon the ordinary 
 terms or custom of the State or town in which the land 
 is situated. * * * If the trustees have a fee, de- 
 terminable upon a contingent event, they nevertheless 
 have power to make a lease to extend beyond their in- 
 terest in the land. * * * Where the trust prop- 
 erty consists of leasehold estates * * * rapidly 
 diminishing in value through the expiration of the 
 term, it is the duty of the trustee to sell the lease and 
 invest the proceeds, and to pay the income of such in- 
 vestment to the tenant for life, and the principal to 
 the remainderman. ' ' 3S 
 
 § 571. In suits for rent brought by trustees collat- 
 eral matters, such as the failure of the trustees to give 
 the bonds required of them by the trust instrument, 
 cannot be enquired into. 39 
 
 ae Kirkland v. Cox, 94 111. 400-413. 
 
 a? Dickson v. N. Y. Biscuit Co., 211 111. 468-487; McFall v. Kirk- 
 patrick, 236 III. 281-294. 
 ss Perry, Sees. 628-531. 
 39 Reichert v. Mo. & 111. Coal Co., 231 111. 238-245, aff'g 119 App. 14* 
 
THE TKTJSTEE's LEGAL ESTATE. 345 
 
 § 571a. Where trustees have the power to let and 
 demise lands, the provisions of the law allowing double 
 rent when tenants hold over may be enforced by such 
 trustees as well as by other landlords. 40 
 
 § 572. A trustee for an equitable life tenant with no 
 power of sale but merely the power to control and lease 
 the real estate whose minerals have not been devel- 
 oped, has no power to grant to a lessee the right to re- 
 move oil and gas for a term of five years and so much 
 longer as the same should be found in paying quanti- 
 ties, as that would be in legal effect a sale of a part of 
 the freehold and also a waste which a contingent re- 
 mainderman could enjoin from being committed in the 
 future although he could not recover for a past waste. 
 A life tenant cannot develop new mines nor can his 
 trustee thus waste the inheritance. 41 
 
 § 573. A tenant having agreed to pay his landlord 
 one-half of the crops as rent, hauled away a large por- 
 tion of the grain grown to be stored in an elevator and 
 mingled with that of other owners. The landlord filed 
 a bill in equity alleging the insolvency of the tenant 
 and praying that the tenant and warehouseman be re- 
 strained from disposing of the grain. The chancellor 
 sustained a demurrer to the bill, but the Supreme 
 Court reversed his decision, holding that, while equity 
 does not generally take jurisdiction of contracts in re- 
 spect of personalty, yet there were exceptions to the 
 rule, as e. g. when the vendor has been paid in full for 
 his chattels and the contract is unperformed only in 
 so far that the goods have not been delivered to the 
 
 40 Granger v. Trustees, 18 III. 443. 
 
 « Ohio Oil Co. v. Daughetee, 240 111. 361-365. 
 
346 TRUSTS AND TRUSTEES. 
 
 vendee; in such case the vendor would he deemed a 
 trustee for his vendee. 42 
 
 § 574. An employe who obtains by fair means a lease 
 of premises for himself after his employer had re- 
 fused one from the landlord cannot be deemed a trus- 
 tee where he has taken no advantage of his principal. 43 
 
 § 575. A lessee, under a ninety-nine year lease re- 
 quiring him to erect buildings, having died his admin- 
 istrators expended large sums from the estate without 
 order of the probate court in attempting to complete 
 the contract, and, having failed to do so and the land- 
 lord having forfeited the lease, the heirs of the lessee 
 sought by bill in equity to impress a trust upon the 
 land because the landlord knew the funds of the estate 
 were being used without order of court, but it was held, 
 in the absence of a showing of fraud or collusion upon 
 the lessor's part, no trust could be implied as against 
 him, and it was a matter for adjustment between the 
 heirs and the administrators. 44 
 
 § 576. "Where A took title to land to secure himself 
 for advances to B in order to enable the latter to pur- 
 chase the land the fact that installments of interest 
 paid by B to A were sometimes called "rent" will not 
 estop B from showing that the true relation was not 
 that of landlord and tenant, but of trustee and cestur 
 que trust.* 5 
 
 § 577. One who obtained title to land at his own re- 
 quest to clear the title and present it as a gift to his 
 grantor's wife, upon leasing the land to a tenant with 
 the consent of his grantor's wife will be deemed to 
 
 *2 Parker v. Garrison, 61 111. 250-254. 
 48 Fairman v. Bavin, 29 111. 75. 
 ** Kadish v. Lyon, 229 111. 35. 
 "Whetsler v. Sprague, 224 111. 461-467. 
 
THE TRUSTEE'S LEGAL ESTATE. 347 
 
 have acted for her and not in his own right as land- 
 lord. 46 
 
 § 578. Trustees under a will to take possession of 
 land, etc., who let the same while in a bad state of re- 
 pair will be personally liable for injuries to a .third 
 person not a trespasser. 47 
 
 § 579. "While a receiver is not compelled to accept a 
 leasehold estate held by his insolvent, yet, if he con- 
 tinue in possession longer than a reasonable time 
 within which to make an express election, he will bind 
 the trust estate by implication for the performance of 
 the covenants contained in the lease in its entirety. 48 
 
 A receiver must pay, also, an installment of rent 
 which becomes due before his appointment, as there is 
 a valid, subsisting contract in such case. 49 
 
 § 580. Trustees hold as joint tenants, the survivors 
 having the entire estate devolved upon them, and, un- 
 less the trust instrument is mandatory in requiring 
 vacancies among the trustees to be filled, conveyances 
 made by the surviving trustees within the purview of 
 the trust will be valid. 50 
 
 § 581. Hagan v. Varney 51 arose out of a conveyance 
 of land in trust for the benefit of the grantee during 
 her lifetime and the support of her children, and in 
 case her husband survived her then for his benefit dur- 
 ing the rest of his life, with remainder to the children 
 
 "White v. Cannon, 125 111. 412-417. 
 
 *■> Everett v. Foley, 132 App. 438-442. 
 
 "DeWolf v. Royal Tr. Co., 173 111. 436-437, rev*g 72 App. 411; 
 Smith v. Goodwin, 149 111. 75-80; Link Belt Co. v. Hughes, 174 111. 
 154-160; Spencer v. World's Columbian Exposition, 163 111. 117. 
 
 *9 Chemical Bank v. Hartford Deposit Co., 156 111. 522-528. 
 
 5<>Golder v. Bressler, 105 111. 419-434; Reichert v. Mo. & 111. Coal 
 Co., 231 111. 238-243. 
 
 si Hagan v. Varney, 147 111. 281. 
 
348 TRUSTS AND TRUSTEES. 
 
 of the grantee. The deed in trust also provided that 
 the legal title should be conveyed to the children upon 
 the death of the surviving parent, but did not provide 
 for the appointment of a successor-in-trust so to con- 
 vey, which is not material to the present discussion. 
 The trustee and her husband, representing themselves 
 as the absolute owners, sold and conveyed the land to 
 a purchaser whose attorney had examined the title 
 and had reported that the trustee had a good fee sim- 
 ple title. After the death of the trustee and her hus- 
 band their children, the remaindermen, obtained a de- 
 cree establishing their equitable title and for a con- 
 veyance to them of the legal title in fee, it being held, 
 i. a., that the trust to convey was not impossible of per- 
 formance, that the purchaser had notice of the trust 
 from the record of the deed in trust, however badly it 
 may have been abstracted, and that the remaindermen 
 should have the land. 
 
 § 582. Street v. French: 32 A bequest in trust was 
 made for the benefit of the testator's sons with contin- 
 gent remainders over to others in case both died be- 
 fore attaining a certain age without leaving issue. 
 The trustee misappropriated the trust fund to his own 
 use, and, having become insolvent and wishing to make 
 some restitution to his cestuis que trustent, conveyed 
 his own real estate to another as trustee upon the same 
 trusts contained in the will. The latter trustee re- 
 fused to act and upon a bill brought by the sons of the 
 testator, but to which cause the contingent remainder- 
 men were not parties, the court appointed a trustee. 
 The sons of the testator had not then attained the age 
 which would have destroyed the contingent remainders. 
 
 52 Street v. French, 147 111. 342-355. 
 
THE TRUSTEE'S LEGAL ESTATE. 349 
 
 The trustee -appointed by the court, with the latter 's 
 approval and with the consent of the two sons of the 
 testator, made a contract of sale and the vendee refus- 
 ing to perform, the trustee exhibited his bill to compel 
 specific performance. It was held that the land con- 
 veyed by the original trustee was held upon exactly 
 the same trusts as those created by the will, and, in 
 view of the fact that the contingent remaindermen 
 were not parties to the proceeding in which the court 
 appointed a trustee there was a reasonable doubt as to 
 the state of the title which would relieve the vendee 
 from performing; that the rules as laid down in Close 
 v. Stuyvesant, 132 111. 607, would not aid a vendor who 
 could not show that his title was good beyond a reason- 
 able doubt. 
 
 § 583. Where there is no restraint against aliena- 
 tion the cestui que trust of a vested equitable estate 
 may convey the same, and, although the trustee's con- 
 currence is necessary in order to convey the legal title, 
 yet, in such case, the trustee must recognise the right 
 of the cestui que trust's grantee. 53 
 
 § 584. A trustee cannot ordinarily secure his own 
 individual claims against his cestui que trust out of the 
 estate held by him, but where he advances his own 
 money to protect the cestui que trust's estate from be- 
 ing forfeited or lost to the latter, the trustee will be 
 entitled to an equitable lien on the trust property 
 which he may even foreclose in equity, or, if the trus- 
 tee devise the property, the devisee will acquire the 
 lien and may foreclose it. 54 
 
 § 585. No express words of joint tenancy are nec- 
 essary in appointing trustees as they are excepted by 
 
 53 Bryan v. Howland, 98 111. 625-630. 
 b* Stewart v. Fellows, 128 111. 4>80-484. 
 
350 TBTJSTS AND TBTJSTEES. 
 
 the Statute, and the survivor takes the entire estate 
 unless the trust instrument provide differently. 55 
 
 § 585a. If there be only one trustee and no suc- 
 cessor-in-trust named in the instrument creating the 
 trust, upon the trustee's death the estate will descend 
 to the trustee's heirs subject to the trust and also sub- 
 ject to be divested upon the proper appointment of a 
 new trustee, unless the heirs should also happen to be 
 the beneficial owners of the estate and entitled to take 
 it absolutely at that time. 56 
 
 § 586. Eeceivers are simply quasi trustees having 
 the custody of the trust fund under the direction of 
 the court for the benefit of whomsoever may establish 
 title thereto. 57 
 
 That class of receivers not provided for by Statute 
 when appointed by a court of chancery take possession 
 of the property only, and no title thereto before the 
 real estate at least, has been conveyed to them, and the 
 practise is also to have the personal property assigned 
 to them, where it is desirable that they should hold the 
 title as well as the possession. They may, of course, 
 sell the property under order of court and without hav- 
 ing title the same as a master in chancery may do. 58 
 But in Young v. Clapp, 59 although an assignment of 
 the personal property had been made to the receiver 
 the court thought that title would have vested in him 
 without it. 
 
 BsReichert v. Mo. & 111. Coal Co., 231 111. 238-244; LaForge v. 
 Binns, 125 App. 527-532. 
 
 5« West v. Fitz, 109 111. 425-442; Lawrence v. Lawrence, 181 111. 
 248~2S'2. 
 
 " Burleigh v. Keck, 84 App. 607-609. 
 
 5" Union Trust Co. v. Weber, 96 111. 346-956; Heffron v. Gage, 149 
 111. 182-193. ' 
 
 59 Young v. Clapp, 147 111. 176-187. 
 
THE TRUSTEE'S LEGAL ESTATE. 351 
 
 A receiver of an insolvent firm or corporation when 
 vested with the legal title to the property of the in- 
 solvent takes no better title to the fund than the in- v 
 solvent had and holds subject to the equities, if any, 
 pre-existing in favour of any cestui que trust of the 
 insolvent who can identify his particular trust fund. 60 
 
 § 587. While the mere appointment of a new trus- 
 tee to fill a vacancy does not ordinarily vest the legal 
 title of the trust property in -him, in the absence of a 
 conveyance thereof, yet, where his appointment is pro- 
 vided and regulated by Statute, the legal title in such 
 case is, by operation of law, divested from his prede- 
 cessor and vested in him. 61 
 
 Where a sole surviving trustee resigned and under 
 the terms of the trust instrument new trustees were 
 appointed by a majority of the cestuis que trustent it 
 was held that • such new trustees became thereupon 
 vested with the legal title without any conveyance from 
 anyone, even though the trust instrument provided 
 that all the real estate should be conveyed to such ap- 
 pointees upon the like trusts. 62 But this decision can- 
 not be relied upon as being the law in Illinois. 
 
 § 588. The legal title taken by a trustee remains in 
 him until the purposes of the trust have been accom- 
 plished, and even afterwards until the cestui que use is 
 put in possession of the property. 63 
 
 so National Life Ins. Co.. v. Mather, 118 App. 491-494. 
 si Golder v. Bressler, 105 111. 419-432. 
 
 62 Reichert v. Mo. & 111. Coal Co., 231 111. 238-244. 
 
 63 Glover v. Condell, 163 111. 566-58'8; Security Ins. Co. v. Kuhn, 
 207 111. 166-171. 
 
352 TRUSTS AND XETJSTEES. 
 
 CHAPTEE XXX. 
 
 THE TRUSTEE'S CONVEYANCES. 
 
 § 589. Where a number of trustees are named and 
 accept the trust they, or their survivors, must act as 
 a body in making conveyances. 1 
 
 § 590. A trustee may convey the trust estate by any 
 sort of instrument that would be operative to pass the 
 title from an absolute owner. 2 
 
 When a decree requires a trustee to convey to his 
 cestui que trust only a special warrantee against his 
 own acts and not a general warrantee deed should be 
 required, 3 and an administrator selling to pay debts 
 cannot warrant the title either on behalf of the estate 
 or himself. 4 
 
 § 590a. Where deeds purport to have been made by 
 the grantors in a fiduciary capacity the doctrine of an- 
 cient deeds will not apply so as to excuse proper proof 
 of execution, and without such proof the deeds will not 
 be available as evidence. So, too, if a deed purports 
 to have been executed under and by virtue of a power 
 such power must first be shown before the deed will 
 be admissible in evidence. 5 
 
 § 5906. Where one signs a contract, deed or lease by 
 merely adding the words "guardian" or "trustee," 
 
 i Golder v. Bressler, 105 111. 419-433; Penn. Co. v. Bauerle, 143 111. 
 459-474; Wilson v. Mason, 158 111. 304-313. 
 ? West v.Fitz, 109 111. 425-441. 
 a Hoare v. Harris, 11 111. 24. 
 *Shup v. Calvert, 174 111. '500-602. 
 b Fell v. Young, 63 111. 106-110. 
 
THE TBUSTEE's CONVEYANCES. 353 
 
 etc., after his name he will be personally liable on the 
 covenants therein unless there be an express provi- 
 sion, or circumstances indicating clearly that some 
 trust fund should be looked to in case of a breach of 
 covenant. 6 
 
 If it appear from the contracts or negotiable paper 
 signed by trustees, or from the surrounding circum- 
 stances, that there was no intention of binding them- 
 selves personally only the trust fund may be looked to 
 for any liability arising from such contracts. The 
 usual method of determining whether the contracts are 
 personal or those of the trust estate is by looking to 
 the covenant or obligation to see whether the agent 
 merely described himself as such or whether the prin- 
 cipal acted by his agent. 7 
 
 § 591. The trustee should give every cestui que trust 
 notice of a sale, and if it be conducted secretly, and 
 made* to an interested party at an inadequate price the 
 sale will be set aside. 8 
 
 § 591a. A trustee's conveyance of land, depending 
 upon the consent or request of the cestui que trust to 
 be valid, may be shown to have been made upon such 
 consent or request, whether oral or written, as the 
 Statute of Frauds does not apply to the consent of the 
 cestui que trust. 9 
 
 § 591&. A will authorised a trustee to convey upon 
 the written request of a majority of the cestuis que 
 trustent; there were eight cestuis que trustewt, includ- 
 ing the trustee, who was also a beneficiary; upon the 
 
 e Nichols v. Sargent, 125 111. 309-311. 
 
 7 Empire F..P. Co. v. Comstock, 121 App. '518-525; New Market 
 Sav. Bank v. Gillet, 100 111. 355-2158. 
 s Fredrick v. Fredrick, 219 111. 5G8-578. 
 o Rogers v. Tyley, 144 111. 652. 
 23 
 
354 TKTJSTS AND TRUSTEES. 
 
 request of four of the cestuis que trustent the trustee 
 conveyed to one of the four, but it was decided that a 
 majority had not requested it, inasmuch as it would 
 be improper to count either the trustee or his grantee. 10 
 
 § 591c. So long as a cestui que trust retains his 
 equitable title to land no other trust can be fastened 
 upon it either by the trustee or any other person ; but 
 if the cestui que trust has the power to convey his in- 
 terest and joins the trustee in doing so the land will 
 be freed of the original trust so that the grantee may 
 declare a new trust for the benefit of the original trus- 
 tee, if there be a proper consideration therefor. 11 
 
 § 591d. A conveyance to trustees to pay the rents 
 and profits to the donor 's wife, and at her death to sell 
 the land and divide the proceeds among the children 
 of the donor and his wife, without any conveyance to 
 the children of a remainder gives them merely remain- 
 ders in the proceeds of sale contingent upon their sur- 
 viving their mother, and the descendants of a child 
 who died before the mother have no interest. The 
 beneficiaries might choose to take the land instead of 
 the money if all so agreed. A mortgage made by the 
 trustees and the contingent remaindermen, which was 
 sufficient to carry their after-acquired interest, would, 
 after foreclosure and the death of the life tenant, ter- 
 minate all their interest in the land. 12 
 
 § 591e. A trustee's legal title may be conveyed by a 
 master in chancery where the trustee refuses to obey 
 a proper decree directing him to convey. Where a 
 deed in trust gave the equitable life tenant a power of 
 appointment by will, and in default of such appoint- 
 
 10 Fredrick v. Fredrick, 219 111. 568-578. 
 
 " Hiss v. Hiss, 228 III. 40.4-424. 
 
 12 Strode v. McCormick, 158 111. 142-146. 
 
THE TRUSTEE'S CONVEYANCES. 355 
 
 ment limited the remainder to her heirs and assigns, 
 the power was held appendant, not in gross, and was 
 therefore extinguished by the life tenant's deed pur- 
 porting to convey the fee and the trustee could be com- 
 pelled to convey the legal title to such grantee. We 
 do not believe the majority opinion was correct in this 
 case and commend the minority opinion to the reader. 
 The case will be found discussed at more length herein 
 under the subjects of "Powers" and the "Rule in 
 Shelly 'a Case.*'" 
 
 § 592. Only the absolute owner of the equitable title 
 can have a conveyance decreed to be made to him of 
 the legal title, and not the beneficiary under a trust 
 deed in the nature of a mortgage made by the equitable 
 owner under a resulting trust. But when such cestui 
 que trust under the mortgage also becomes the owner 
 of the equity of redemption in the land through the 
 bankruptcy of the mortgagor and the sale of his inter- 
 est the owner of the encumbrance will then become 
 entitled to a conveyance of the legal title. 14 
 
 § 592a. If an active trust in personal property be- 
 come passive a conveyance of the legal title from the 
 trustee is necessary because the Statute of Uses does 
 not apply to personalty. 15 
 
 § 592 b. A deed in trust by way of a divorce settle- 
 ment provided for a reconveyance upon the death of 
 the wife to the husband "or his heirs." The husband 
 having died testate his devisee and not "his heirs" 
 were held entitled to a conveyance, such words being 
 words of limitation and not of purchase. 16 
 
 « McFall v. Kirkpatrick, 236 111. 281-296. 
 
 i* Coryell v. Klelim, 157 111. 462-483. 
 
 is Reichert v. Mo. & 111. Coal Co., 231 111. 2,38-244. 
 
 i« Hobbie v. Ogden, 178 111. .357-366. 
 
356 TRUSTS AND TRUSTEES. 
 
 § 593. Unless the trustee comply with the conditions 
 imposed upon him by the trust instrument in making 
 sales, his conveyances will be set aside in a court of 
 equity. 17 
 
 § 593a. "Where the trustee has exercised a discre- 
 tionary power of sale his deed will not be set aside 
 unless it be shown that he was guilty of fraud or col- 
 lusion or that the price obtained was grossly inade- 
 quate. 18 
 
 § 594. Where a trustee had conveyed land and the 
 title so conveyed failed as against an ejectment suit, 
 the purchaser was allowed to recover his money from 
 the trust fund which had benefited by its use, irrespec- 
 tively of whether or no the trustee had power to bind 
 his cestuis que trustent in so conveying. 19 
 
 § 595. Where trustees are required to sell and con- 
 vert land into money and such sale is accomplished 
 under a decree of court no statutory redemption is al- 
 lowable to one who claims that he has a lien on the land 
 in the nature of a mortgage where one of the benefici- 
 aries had assigned his interest in the proceeds of sale 
 as security for a debt. 20 
 
 § 596. The rule requiring the purchaser from a trus- 
 tee to see to the application of the purchase money 
 must give way before an express or implied intention 
 of the settlor that the trustee's receipt shall discharge 
 the purchaser from such liability. No question arises 
 where the settlor has expressly exempted the pur- 
 chaser. The exemption of the purchaser is implied 
 
 w Swift v. Castle, 23 111. 209-226. 
 is Mason v. Mason, 219 III. 609-615. 
 is Kirkwood v. Kidwell, 72 App. 492. 
 aoHyman v. Bogue, 13'5 111. 9-15. 
 
THE TRUSTEE'S CONVEYANCES. 357 
 
 where the settlor directs a sale to be made before the 
 cestuis que trustent are capable of giving binding re- 
 ceipts; or where the trust is to pay debts generally, 
 - but not specially. 21 
 
 In general one who purchases trust property from 
 the trustee in an improper manner with express or 
 implied knowledge of the trust must show in a court of 
 ' equity that the cestuis que trustent obtained the benefit 
 of the purchase money, and such purchaser will be 
 treated as a trustee himself. 22 
 
 A purchaser will not be bound to see to the applica- 
 tion of the purchase money where the trust is to pay 
 debts generally and to apply the surplus to the use of 
 the creator of the trust or his family. 23 
 
 A purchaser need not see to the application, etc., if 
 it appear that some particular person was designated 
 by the donor to use his discretion in the application of 
 the proceeds of sale, as where the trustees were di- 
 rected to improve the portions of land remaining un- 
 sold as the cestuis que trustent should direct. 2 * 
 
 If the trustees exercise a power of sale which is dis- 
 cretionary with them then the purchaser need not see 
 to the application of the money. 25 
 
 A lender of money is not affected with the knowledge 
 of a loan agent that the proceeds are to be used to pay 
 off a prior mortgage so as to constitute him a trustee 
 to see to the application, and his purchase later on of 
 
 21 Lewin, 1st Am. Ed. star pp. 454-435. 
 
 22 I. I. & I. R. R. v. Swannell, 157 111. 616, afl'g 54 App. 260. 
 
 23 Cherry v. Greene, 115 111. 591-597; Bates v. Woodruff, 123 I1L 
 205-209. 
 
 24 Franklin Savings Bank v. Taylor, 131 111. 376-8183; Ely v. Pike, 
 115 App. 284-289. 
 
 25 Dickson v. N. Y. Biscuit Co., 211 111. 468-488. 
 
358 TRUSTS AND TRUSTEES. 
 
 the prior mortgage does not amount to a satisfaction 
 thereof. 26 
 
 § 597. Sections 68 and 69, of the Act of 1897, for the 
 registration of land titles provides that when any 
 transfer appears to be upon any trust, condition or lim- 
 itation the registrar shall, unless the deed or instru- 
 ment directs expressly the contrary, note in the cer- 
 tificate and duplicate thereof, or memorial, the words 
 "in trust" or "upon condition" or "with limitations," 
 as the case may he, and no transfer, etc., shall there- 
 after be registered unless pursuant to the order of 
 some court, or upon the written opinion of two exam- 
 iners that such transfer, etc., is in accordance with the 
 true intent and meaning of the trust, condition or limi- 
 tation. 
 
 2« Seaverns v. Presbyterian Hospital, 64 App. 463-474, aff'd by 173 
 111. 414. 
 
THE TBUSTEE'S DUTIES. 359 
 
 CHAPTER XXXI. 
 
 THE TRUSTEE'S DUTIES. 
 
 § 598. In considering the subject of trusts in per- 
 sonal property in a prior chapter herein 1 it was shown 
 that it is the trustee 's duty to reduce to possession the 
 personalty, and that he has implied power to bring 
 any suitable action in order to fulfill such duty. Hav- 
 ing reduced the personal property to possession his du- 
 ties of custody and control are considered to be such 
 as would be reasonably expected of him if he were the 
 absolute owner thereof. 
 
 § 598a. A trustee who has accepted the execution of 
 a trust cannot remain dormant, as the law recognises 
 no such person as a passive trustee. He is, therefore, 
 liable for his negligence in omission as much as in com- 
 mission, and should be required to answer pecuniarily 
 for any loss due to his failure to perform his duty, 
 whether express or implied. 2 He must also make him- 
 self acquainted with the condition of the trust prop- 
 erty and the circumstances surrounding it, in order 
 that he may manage and guard it with the same care 
 as would be reasonably expected of one who had the 
 absolute title. 3 
 
 § 5986. The skill and diligence required of trustees, 
 even where no compensation is provided for, is that 
 which would be reasonably expected of men in dealing 
 
 i Chapter XXIV. 
 
 2 Holmes v. McDonald, 226 111. 169-176. 
 
 » Perry, Sec. 266; Waterman v. Alden, 144 111. 90-101. 
 
360 TBTJSTS AND TKUSTEES. 
 
 with their own property, but it is not every mistake or 
 slight negligence on their part which will cause a court 
 of equity to remove them. It must appear that the 
 trust property has been jeopardised to some extent, or 
 that the personal characteristics of the trustees are 
 such as to render them unworthy of the trust reposed 
 in them, or incapable of executing the trust with rea- 
 sonable precision and fidelity. 4 
 
 Where trustees are also executors the fact that they 
 were negligent as executors will not prevent a court 
 of equity from taking jurisdiction of their acts or omis- 
 sions as trustees, and the matter need not be sent to 
 the county or probate court to charge them with a loss 
 to the trust fund arising out of their negligence. 5 
 
 § 598c. One who purchases improperly the trust es- 
 tate from the trustee with either express or implied 
 knowledge of the trust, and so constitutes himself a 
 trustee, is bound to exercise both good faith and ordi- 
 nary diligence in respect of the beneficiaries, and must 
 show in a court of equity that the purchase money 
 was properly applied for the use of the beneficiaries. 6 
 
 § 599. In general, a trustee should invest moneys 
 in his hands within a reasonable time, so that they 
 may be earning something for the beneficiary; but if 
 money be given one to hold for a mere temporary pur- 
 pose, such as to pay over to the vendor of land when 
 the title should be perfected, and such trustee might 
 be liable to pay over the same at any time, he should 
 not be chargeable with interest before the date when 
 
 * Waterman V. Alden, 144 111. 90-101. 
 
 s Waterman v. Alden, 144 111. 9O-.105, rev'g 42 App. 294; Penn v. 
 Fogler, 182 111. 76-»2. 
 
 s I. I. & I. R. R. Co. v. Swannell, 54 App. 260-2«8, aff'd by 157 111 
 616. 
 
THE TRUSTEE'S DUTIES. 361 
 
 the trust became determinate, and then with only sim- 
 ple interest in the absence of any fraud. 7 
 
 § 599a. Unless the trust instrument permits invest- 
 ment to be made in the bonds and stocks of private 
 corporations, the trustee should invest only in real es- 
 tate securities or government securities, whether Na- 
 tional or State. "All speculative risks are forbid- 
 den." Nor should the trustee purchase in his own 
 name, else it will amount to a conversion of the trust 
 fund. If he be acting under the direction of the court 
 he should select only such securities as the court may 
 approve of. 8 
 
 The Act of 1905 specifies the kinds of bonds in which 
 investments may now be made. 9 
 
 § 600. It is a breach of trust for a trustee who has 
 a discretionary power of sale to exercise the power in 
 the absence of necessity at a time when he knows the 
 land will not bring an adequate price, and it is also his 
 duty to ascertain the fair value thereof, 10 also to give 
 the cestuis que trustent and all persons interested no- 
 tice of the intended sale and not to make it secretly, 
 or for an inadequate price. 11 
 
 § 601. Under a declaration of trust in a land pur- 
 chase showing the cestuis que trustent to be entitled to 
 the proceeds of the land if sold, it might be that the 
 trustee could sell all of the land, but he would have no 
 power to divide the land and sell what he might con- 
 sider to be equal to the undivided interest of a cestui 
 
 i Matthewson v. Davis, 191 111. 391-398, rev'g 91 App. 153. 
 
 s White v. Sherman, 168 111. 589-602; Penn v. Fogler, 182 111. 76- 
 103, rev'g 77 App. 365. 
 
 o Hurd's Statutes 1909, Chap. 140b. 
 
 loDingman v. Beall, 213 111. 238-246; Dingman v. Beall, 227 111. 
 294-288. 
 
 " Fredrick v. Fredrick, 219 111. 568-579. 
 
362 TEUSTS AND TRUSTEES. 
 
 que trust and require the latter to accept the proceeds 
 of sale for such portion without the latter 's consent or 
 sanction. 12 
 
 § 602. Trustees should keep proper books of account 
 and prevent the trust fund from being depleted, and 
 their dereliction of duty in this respect is sufficient 
 ground for their removal. 13 
 
 If the trustees fail to keep proper accounts of their 
 stewardship all presumptions are resolved adversely 
 to them. Private account books containing any entries 
 relating to the trust will not be excused from produc- 
 tion in court, as the cestuis que trustent have the right 
 to inspect all documents relating to the trust, unless 
 there is a denial that any trust exist at all. 14 
 
 § 603. An agent or other trustee cannot speculate in 
 the execution of his trust, and if he compromise or set- 
 tle an obligation of his cestui que trust for a sum less 
 than that furnished him for the purpose he must ac- 
 count for the remainder. 15 
 
 § 603a. If the cestui que trust elects to hold the trus- 
 tee personally liable for a breach of trust the latter 
 must respond in damages for the actual value of the 
 trust property lost or converted, and, if the trustee be 
 dead, the claim should be allowed against his estate as 
 a claim of either the sixth or seventh class, depending 
 upon the nature of the trust. 16 
 
 § 604. When the time for distribution of a trust 
 fund, created by a will, arrives, the duties of the trus- 
 
 12 Rogers v. Tyley, 144 111. 652-661. 
 is Nevitt v. Woodburn, 190 111. 282-293. 
 1* Perry, Sees. 821-823. 
 is Hitchcock v. Watson, 1« 111. 289. 
 i« Lennartz v. Popp, 118 App. 31-35. 
 
THE TRUSTEE'S DUTIES. 363 
 
 tees are thereafter terminated, and the setting apart 
 of a portion of the fund to found a free public library 
 in accordance with the provisions of the will does not 
 continue the testamentary trustees' power after such 
 portion has been conveyed to, and accepted by, a public 
 corporation created to administer the charitable trust ; 
 nor will the provisions of the will restricting the power 
 of the testamentary trustees to lease the trust property 
 apply to the portion dedicated to public use after it has 
 been so accepted and distributed. 17 
 
 § 604a. A trustee was directed by a will to distribute 
 the funds remaining in his hands after the death of his 
 spendthrift cestui que trust, and these funds consist- 
 ing partly of real estate, and there being doubt as to 
 the identity of the distributees and the shares intended 
 for them by the will, it was held a proper exercise of 
 the duties of the trustee to file a bill to obtain a con- 
 struction of the will after the cestui que trust's death, 
 and also for the purpose of having a partition of the 
 land made. 18 
 
 § 6046. Trustees to support and maintain minor 
 children until they become of age cannot be compelled 
 to turn over any of the trust monies to the statutory 
 guardian of the children, as the trustee's duty is to ex- 
 pend the monies themselves for the benefit of their 
 cestuis que trustent. 19 
 
 § 604c. A trustee of a deed in the nature of a mort- 
 gage to whom the proceeds of a fire insurance policy 
 have been paid after a loss by fire should hold such 
 funds, unless the mortgage provide otherwise, until 
 
 " Attorney General v. Newberry Lihrary, 150 III. 229-236. 
 isRackemann v. Tilton, 236.111. 49-61. 
 i» Capps v. Hickman, 97 111. 429-437. 
 
364 TRUSTS AND TRUSTEES. 
 
 the mortgage debt matures, and then apply it thereon 
 if it be not otherwise paid. 20 
 
 § 604d The duties of one occupying the dual posi- 
 tions of executor and trustee should not be confounded, 
 and where a testator directed that all collections be 
 completed within five years, the settlement and closing 
 of the estate in the probate or county court should not 
 necessarily be postponed until the lapse of that period, 
 nor should the beneficiaries be deprived of all income 
 for that period. 21 
 
 § 605. Morris v. Thomas : 22 A bank having obtained 
 a judgment levied on certain lands of its debtor, and its 
 receiver compromised this judgment some time later 
 by taking a conveyance of other lands of little value 
 in satisfaction of its judgment. A subsequent receiver 
 of the bank sued out a venditioni exponas for the sale 
 of the lands levied upon under the original execution, 
 and the judgment debtor sought to have the sale en- 
 joined. The Supreme Court held that the first re- 
 ceiver had grossly violated his trust in agreeing to take 
 almost worthless land in satisfaction of the judgment ; 
 that a trustee, in making compromises and settlements 
 must be able to show that they were made not only in 
 good faith, but that in good faith and truth they were 
 the best arrangement that could have been effected 
 under the circumstances, or at least a fair and reason- 
 able one, and that it was not only the. right, but the 
 duty of the successor-in-trust to protect the trust fund 
 from all improvident acts of his predecessor. 
 
 20 Fergus v. Wilmarth, 17 App. 98, aff'd 117 111. 542. 
 
 si Penton v. Hall, 235 111. 552. 
 
 22 Morris v. Thomas, 17 111. 112-116. 
 
BREACHES OF TRUST. 365 
 
 CHAPTER XXXII. 
 
 BREACHES OP TRUST. 
 
 § 606. A trustee cannot make any admission to the 
 prejudice of the trust fund and against his cestui que 
 trust. 1 
 
 § 606a. An answer in chancery by a defendant, who 
 it was alleged held the title to land under an express 
 parol trust, that her husband had conveyed it to her 
 for the purpose of changing the devises in his will is 
 not an admission that she holds title upon any trust. 2 
 
 § 607. It is a general rule that Administrators, Ex- 
 ecutors, Guardians, Attorneys, Officers of the Court, 
 and all trustees sustaining a fiduciary and confidential 
 relation cannot deal on their own account with the 
 thing or person falling within that trust, or relation- 
 ship. Any such transaction, however, is not void but 
 voidable, and the proper practise is for the cestuis que 
 trustent or judgment creditors to file their bill in equity 
 to have such sale set aside and to have the property 
 resold. In case no greater sum is realised from the 
 resale the court will hold the trustee to his purchase. 3 
 
 § 607a. A trustee's purchase of the trust estate 
 
 i Thomas v. Bowman, 29 111. 426-429 ; Thomas v. Bowman, 30 111. 
 84-92; Bragg v. Geddes, 93 111. 39-58. 
 
 2 Scott v. Harris, 113 111. 447-459. 
 
 a Thorp v. McCullum, 1 Gilman, 614; Wickliff v. Robinson, 18 111. 
 145; Borders v. Murphy, 125 111. 577; Lagger v. Mut. Union L. Assn., 
 146 I1L. 283-294; Coward v. Coward, 148 111. 268; Galbraith v. Tracy, 
 153 III. 54; Elting v. First Nat. Bank, 173 111. 368; Ames v. Witbeck, 
 179 111. 458; Matthewson v. Davis, 91 App. 153-167; Mansfield v. 
 Wallace, 216 111. 610-622. 
 
366 TRUSTS AND TRUSTEES. 
 
 while voidable in equity will not be set aside as against 
 a subsequent grantee for value and without notice that 
 the trustee had taken title indirectly before the com- 
 pletion of the trust. 4 (But this does not apply to 
 ohoses in action which are subject to all equities.) 5 
 The chain of title to land showing that the trustee or 
 his wife had taken title indirectly would be notice. 6 
 
 § 607b. While in equity a trustee's purchase of the 
 trust estate is voidable, at law it is necessary to prove 
 that the trustee was the purchaser and that there was 
 fraud in the transaction. 7 
 
 When the trustee denies the existence of the trust 
 all of his transactions with his cestui que trust, whom 
 he induces to sell the trust property to him, will be 
 tainted with fraud. 8 
 
 If there was no fraud upon the part of the trustee 
 and he attempted earnestly to get bidders to come to 
 the sale and paid more for the property than any one 
 else was willing to pay, while his title would be con- 
 structively fraudulent and voidable, the cestui que 
 trust should not permit himself to delay an unreason- 
 able length of time'in asserting his rights. 9 
 
 § 607c. School trustees cannot negotiate the bonds . 
 of their district to themselves, even without discount. 10 
 
 § 607d. Where a life tenant in land, which was fore- 
 closed and the time for redemption gone by, obtained 
 
 *Farrar v. Payne, 73 111. 82-86; Higgins v. Curtis, &2 111. 28-33. 
 
 = Sutherland v. Reeve, 151 111. 384-383, aff'g 41 App. 295. 
 
 o Lagger v. Union Mut. Loan Assn., 146 111. 283-296. 
 
 i Lockwood v. Mills, 39 111. 602-608. 
 
 s Scanlan v. Scanlan, 134 111. 630-640; Roby v. Colehour, 1S5 111. 
 ■300-343. 
 
 o Williams v. Rhodes, 81 111. 571-580; Sloan v. Graham, 86 111. 
 26-29. 
 
 io Hewitt v. Normal School District, 94 111. 528. 
 
BEEACHES OF TKUST. 367 
 
 the title in good faith, the remaindermen being unable 
 to redeem, no fiduciary relation will be raised by a 
 court of equity for the benefit of the remaindermen. 
 Fraud and injury resulting therefrom must concur be- 
 fore a court of equity will enforce a moral obligation. 11 
 
 § 607e. If a life tenant in a fund invest it in real 
 estate in his own name and the remaindermen so desire 
 they may have the title decreed to be in such grantee 
 for his life only with remainder to them, any enhance- 
 ment in value to belong to the remaindermen, but no 
 trustee should be appointed in such case and no bond 
 required of the life tenant. 12 
 
 § 607/. Brophy v. Lawlor: 13 A remainderman in- 
 duced the life tenant and her trustee to convey the 
 trust estate to him to sell a portion thereof in order 
 to pay the taxes on the entire estate, and agreed that 
 he would then make a declaration of trust that he held 
 the rest of the property subject to paying the income 
 to her for life. The remainderman having sold a part 
 of the premises refused to make the declaration of 
 trust as to the residue and by reason of the fraud prac- 
 tised upon her the life tenant was entitled to be re- 
 stored to her life estate. It was also held that the re- 
 mainderman could not complain because he was de- 
 creed to convey a life estate directly to the life tenant 
 instead of to a trustee, as before, inasmuch as the court 
 deemed it to be practically a dry trust. (Inasmuch as 
 the trust in this case was to receive and apply the rents, 
 issues and profits to the use of the life tenant, and, 
 after her death, to convey to the remainderman, it 
 
 " Galford v. Eastman, 242 111. 41-48. 
 izvanatta v. Carr, 229 111 47-54. 
 13 Brophy v. Lawlor, 107 111. 284-289. 
 
368 TRUSTS AND TRUSTEES. 
 
 would seem that it was a good example of an active 
 trust.) 
 
 § 608. An agent who takes a conveyance in his own 
 name of an estate which he agreed to purchase for an- 
 other will, in equity, be considered as holding the es- 
 tate in trust for his principal. 1 * 
 
 If one profess to act for another who has placed con- 
 fidence in him, even though such agent be a mere vol- 
 unteer, he cannot in equity deal with the subject -mat- 
 ter on his own account, and buy an interest in it which 
 would be inconsistent with his duties as a trustee, 
 whether such duties grew out of a direct fiduciary re- 
 lation or were raised impliedly by equity and good con- 
 science. 15 
 
 A railway company placed certain bonds in the hands 
 of its president under a trust agreement that they 
 should be held to protect accommodation endorsers of 
 notes made for the company's benefit. The president, 
 at the direction of his company, made another disposi- 
 tion of the bonds and was held liable for breach of his 
 trust, his duties as trustee having no connexion with 
 those of president of the company. 16 
 
 § 608a. If an administrator of the last surviving 
 partner of a firm purchase firm lands at a foreclosure 
 sale he will be held to be trustee for the heirs of the de- 
 ceased members of the firm, even though he did not 
 have sufficient partnership funds with which to redeem 
 
 " Switzer v. Skiles, 3 Gilm. 529-534; Follansbe v. Kilbreth, 17 
 III. 522-524; Dennis v. McCagg, 32 111. 429-444; King v. Cushman, 
 41 111. 31; Wright v. Gay, 101 111. 233-241; Weaver v. Fisher, 110 
 111. 146-153; Vallette v. Tedens, 122 111. 607-618; Conant v. Risebor- 
 ough, 139 111. 383-391. 
 
 is Conant v. Riseborough, 139 111. 383-391; Chicago Hansom Cab 
 Co. v. Yerkes, 141 III. 320-333. 
 
 e Wilkinson ^v. Stewart, 30 111. 48-57. 
 
BREACHES OP TRUST. 369 
 
 all of the land. He will not be allowed in equity to 
 adopt an equivocal position in relation to the trust 
 duties which he has assumed. 17 
 
 § 609. The presumption is always against the va- 
 lidity of purchases made by attorneys from clients, 
 and before such a transaction will stand the test in a 
 court of equity the attorney has the burden of showing 
 that his client had full and complete knowledge in re- 
 spect of all matters affecting his interests in the prop- 
 erty, and that the attorney used no undue influence 
 over him, but acted in good faith and paid a fair 
 price. 18 
 
 § 609a. The mere fact that the purchaser of lands 
 had sold other lands for the grantors under a power 
 of attorney would not create such a trust relation as 
 to make his purchase voidable in the absence of any 
 fraud. 19 Nor will the fact that an attorney, who pur- 
 chased at a foreclosure sale, had been employed to pro- 
 cure another loan with which to pay the one foreclosed, 
 in the absence of any concealment or bad faith upon 
 the part of the attorney, make the sale voidable. 20 
 
 Mere silence, unaccompanied by any acts or repre- 
 sentations, would not be a concealment of a cause of 
 action unless there was some duty to speak. 21 
 
 § 6096. Stanford v. Mann: 22 A, an attorney-at-law, 
 had been negotiating with B, the owner of an undivided 
 interest in land for its purchase, A expecting that cli- 
 ents of his would advance the money and let him at- 
 
 17 Galbraith v. Tracy, 153 111. 54-62. 
 
 isRoby v. Colehour, 135 111. 300-340; Sutherland v. Reeve, 151 
 111. 384-392; Herr v. Payson, 157 111. 244-2*52. 
 i» Brown v. Brown, 154 111. 35-43. 
 20 Herr v. Payson, 157 111. 244-252. 
 2i Lancaster v. Springer, 239 111. 472-482. 
 22 Stanford v. Mann, 167 111. 79. 
 24 
 
370 TRUSTS AND TRUSTEES. 
 
 tend to its subdivision and sale for a share of the 
 profits. A had also made an arrangement with B's 
 agent for a division of commissions so that A would 
 get $275.00 if B sold. A became insane and afterwards 
 B 's agent went to C, who was an attorney with whom 
 A had had an office, and offered to sell at the price A 
 had been willing to give. C agreed to purchase if he 
 could find some of A's clients who would advance the 
 money so that the commission of $275.00 might be ob- 
 tained for the insane A. C was unable to get any of 
 A's old clients to purchase and arranged with clients 
 of his own to handle the transaction. C also turned 
 over the commission of $275.00 for the benefit of A. 
 Upon a sale of the land the conservator of A sought 
 to obtain the profits upon the theory that C was an 
 agent of A and had committed a breach of trust in pur- 
 chasing for himself, but under the facts stated above 
 it was held there had been no such breach. 
 
 § 609c. Ogden v. Larrabee: 23 William B. Ogden, as 
 attorney in fact for a vendor, made a contract of sale, 
 taking from the vendee as collateral security for the 
 purchase price, certain mortgages owned by the vendee 
 on other lands. After the death of the vendee without 
 having paid the purchase price, Ogden foreclosed the 
 mortgages given as collateral and acquired title to the 
 lands so mortgaged, and the vendor not only forfeited 
 and disposed of the land covered by the contract of 
 sale, but obtained the allowance of his claim against the 
 estate of the deceased vendee for the unpaid purchase 
 money. The administrator exhibited his bill to charge 
 Ogden as a trustee of the collateral placed in his hands 
 by the intestate vendee during his lifetime. The court 
 
 23 Ogden v. Larrabee, 57 111. 389-402. 
 
BREACHES OF TRUST. 371 
 
 held that, while Ogden's purchases were effectual to 
 bar the equity of redemption of the mortgagors named 
 in the collateral security and were valid and binding on 
 all persons except the cestui que trust of Ogden, as to 
 whom it was voidable, the cestui que trust, as a general 
 rule, might elect to hold the trustee to the amount of 
 his bid or to have the property resold, without regard 
 to whether the trustee had sold at public auction, in a 
 bona fide way and for a fair price. The cestui que trust 
 may so elect to have the trustee's sale to himself set 
 aside without regard to whether it was for the cestui 
 que trust's interest, and without proof that the cestui 
 que trust was damnified, or even without enquiring into 
 that question. It matters not that the rule may often 
 appear harsh, it has never been relaxed by the courts 
 on that account, and rests upon the broad foundation 
 of public policy that all fiduciary obligations shall be 
 fulfilled faithfully. And where the trustee sold the es- 
 tate in separate parcels and not en masse the cestui que 
 trust would be permitted to disaffirm as to some sales" 
 and to stand by others. ' ' The courts by way of making 
 full compensation will sometimes compel the trustee 
 to purchase other estate of equal value, or they will 
 permit the cestui que trust, at his option, to exact the 
 proceeds of the same, with interest, and even in some 
 instances he has been permitted to demand the present 
 estimated value of the estate, in case of a resale to a 
 third party. The latter rule, where the price and 
 value of real estate advances with such rapidity as in 
 this western country, would be deemed a very harsh, 
 and in many instances an inequitable rule, and the 
 party is seldom, if ever, permitted to elect to have that 
 rule enforced. If the trustee has kept an exact ac- 
 
372 TBUSTS AND TRUSTEES. 
 
 count, the equitable rule is that he should account to 
 the cestui que trust for all hejias realised by the use 
 of the fund." But where he has kept no such account, 
 or refuses to account to the beneficiary the settled rule 
 in this country, as well as in England, is that he must 
 account for the original fund with interest compounded 
 with annual rests. 
 
 § 610. A trustee cannot sell the trust estate to a 
 land association, or joint-stock company, of which he is 
 a member, and all his associates in the land association 
 would be chargeable with the same knowledge as the 
 trustee himself, 24 and if the trustee or agent be a cor- 
 poration it cannot sell to one of its officers for less than 
 the real value. 25 
 
 § 610a. Co-directors and co-shareholders in a cor- 
 poration do not sustain such fiduciary relations to each 
 other that they cannot make valid sales of the shares 
 among each other. 26 
 
 § 611. A trustee who sells the estate for a sum less 
 than he was authorised must account to the cestui que 
 trust for the difference. 27 
 
 § 611a. If a trustee buy in outstanding claims 
 against the trust estate it is treated as merely a pay- 
 ment for which he may, or may not, be allowed 
 credit, depending upon the facts. The trustee, of 
 course, is not permitted to speculate to his own ad- 
 vantage in respect of the trust fund and must account 
 for all profits so obtained. 28 
 
 2i Robbins v. Butler, 24 III. 387-432. 
 
 25 Fidelity Trust Co. v. Poole, 136 App. 266-273. 
 
 so Perry v. Pearson, 135 111. 218-236. 
 
 27 Cadwell v. Brown, 36 111. 103-106. 
 
 as Rankin v. Barcroft, 114 111. 441-456; Roby v. Colehour, 135 111. 
 300-339; Conant v. Riseborough, 139 111. 383-391; Russell v. Peyton, 
 4 App. 473-481; Johnston v. Fletcher, 32 App. 589-994. 
 
BREACHES OF TRUST. 373 
 
 § 611&. A trustee will be liable as for a conversion 
 if he invest in speculative securities, unless the trust 
 instrument allows it, and should invest only in real 
 estate securities or government securities. If he in- 
 vest in his own name it will also amount to a conver- 
 sion and subject him to the same liabilities. 29 
 
 § 612. The cestui que trust may compel a reconvey- 
 ance if the property is still in the trustee's hands, but 
 he will ordinarily be compelled to refund the purchase 
 money with Mterest and repay sums expended for the 
 betterment of the estate by which it would sell to better 
 advantage. But the trustee is not bound to make up 
 the difference between what he paid and the true or 
 probable value at the time he bought, as the customary 
 decree is that the property be resold, and unless a 
 greater price be obtained, then the trustee is to be 
 held to his purchase. 30 
 
 Where a brother left money with his sister for safe- 
 keeping merely, and she used part of it to buy land, 
 claiming that he had made a gift of it to her, which 
 claim she was unable to prove by clear and satisfactory 
 proof, the brother was entitled to a decree requiring 
 that the title be conveyed to him. 31 
 
 § 612a. If the holder of the legal title to real estate 
 has invested a substantial portion of the purchase 
 price, and later a cestui que trust establishes that his 
 trustee has diverted trust funds towards the purchase 
 of the same property, the equities require that the 
 holder of the legal title should be permitted first to 
 pay the amount belonging to the cestui que trust, and 
 
 29 White v. Sherman, 168 111. 689-602, aff'g 62 App. 271. 
 so Conn. Life v. Stinson, 174 111. 125, aff'g 62 App. 319-3219; Wright 
 v. Bruschke, 166 111. 183. 
 8i Dwyer v. O'Connor, 200 III. 52-54. 
 
374 TRUSTS AND TRUSTEES. 
 
 upon a failure to do so that the property be partitioned 
 or sold. 32 
 
 § 612b. The court of chancery, having established a 
 fund to be a trust fund and having determined the sum 
 due to the beneficiary, should definitively order the 
 trustee to pay it over to the beneficiary, and not award 
 the latter merely an execution at law which might not 
 be successful in reaching the fund. 33 
 
 § 612c. It is no justification for a trustee to with- 
 hold monies from the person entitled thereto because a 
 wrongful claim or suit is brought for it by another, 
 and, unless the trustee pays the fund into court, he will 
 be liable to pay interest to his cestui que trust. 3 * 
 
 § 613. The cestui que trust may follow and claim 
 specifically the thing in which his money has been con- 
 verted or misappropriated by the trustee, agent, or 
 partner, whether with fraudulent intent or not, and as 
 against all others who purchase with notice of the trust 
 as well as against the heirs of a deceased trustee. 35 
 
 If the identity of the fund can be established without - 
 regard to the particular pieces or kind of money, it 
 may be pursued in equity. 36 
 
 The investment by a trustee of trust funds in his 
 own name is treated in equity as a breach of trust and 
 
 32 MeFarland v. Conlee, 44 111. 45<5~4S7. 
 
 38 Halle v. Nat Park Bank, 140 111. 413-422. 
 
 a* Knapp v. Marshal, '56 111. 362-364. 
 
 s&King v. Hamilton, 16 111. 190-197; Brush v. Blanchard, 19 111. 
 31-37; Alwood v. Mansfield, 59 111. 507; Breit v. Yeaton, 101 111. 242- 
 268; White v. Sherman, 168 111. 589.-603; Maher v. Aldrich, 205 111. 
 242-255; Heintz v. Dennis, 216 111. 487^492; Worrell v. Torrance, 
 242 111. 64-68; Hinsey v. Supreme Lodge, 138 App. 248-272. 
 
 so School Trustees v. Kirwin, 25 111. 73; Clapp v. Emery, 98 111. 
 523-i531; Union Nat. Bk. v. Goetz, 138 111. 127-133; Wetherell v. 
 O'Brien, 140 111. 146-151; Mutual Accident Assn. v. Jacobs, 141 111. 
 261-268. 
 
BREACHES OF TBUST. 375 
 
 the cestui que trust may follow the property into the 
 hands of any one who has notice of the trust, or he 
 may elect to hold the trustee to a personal liability. 37 
 
 § 614. If the trust instrument be silent as to the 
 manner in which the trustee shall keep the fund in- 
 vested, it becomes his duty, in the absence of express 
 or implied directions, to keep the trust fund invested 
 in good and safe securities (i. e. real estate securities 
 or government securities). He will have no authority 
 to convert la»d into money, or money into land upon 
 his own motion, and the cestui que trust may, if he 
 choose, pursue the trust fund into the investment, or 
 hold the trustee personally liable. 38 
 
 The cestui que trust must elect whether he will take 
 the property into which the trust funds have been con- 
 verted, or hold the trustee liable as his debtor 39 and 
 if it be decreed that the property be sold and the pro- 
 ceeds applied upon the loss occasioned the trust fund, 
 the purchasers with notice, if the property be land, 
 will not be entitled to redeem. 40 
 
 A parol trust created in respect of personalty may 
 be fastened upon real estate purchased by the trustee 
 with the proceeds of the personalty, and the Statute 
 of Frauds will not apply to such a parol trust. 41 
 
 § 614a. Billings v. Warren : 42 A trust estate created 
 by will was given to a trustee to manage, invest, re- 
 invest, etc., as he deemed best, and to pay the "net in- 
 come" to himself and to his wife, the trust to end upon 
 
 37 Graham v. Graham, 85 App. 460-464. 
 
 3»sholtz v. Sholtz, 140 111. '81-87; White v. Sherman, 168 111. 589- 
 603. 
 is Dickson v. Ni. Y. Biscuit Co., 211 111. 468-489. 
 *o Hinsey v. Supreme Lodge, 138 App. 248-273. 
 « Maher v. Aldrich, 205 111. 242-255. 
 « Billings v. Warren, 216 111. 281-288. 
 
376 TRUSTS AND TRUSTEES. 
 
 the death of the survivor, when the principal of the es- 
 tate should pass into the possession of the remainder- 
 men. The trustee survived his wife, becoming the sole 
 life tenant, and used some of the trust funds together 
 with some of his individual funds with which to pur- 
 chase unproductive real estate. Upon the termination 
 of the trust "the remaindermen sought to charge the 
 heirs of the deceased trustee not only for the principal 
 of the trust funds invested in the land, but also the 
 profits and enhancement in value of the realty because, 
 it was claimed, the will did not empower the trustee to 
 invest in land which would fail to produce a "net in- 
 come," and if he chose to invest therein as a specula- 
 tion the remaindermen could elect to take the whole. 
 The heirs of the deceased life tenant and trustee 
 claimed that "net income" included such gain and it 
 should belong to the life tenant. The Supreme Court 
 held that the intention of the testator, in giving the 
 life tenant and trustee discretion to invest and alter 
 investments and have the "net income" therefrom, 
 indicated that the testator considered "net income" 
 to cover "gains" or "increase" and that the remain- 
 dermen would, therefore, take only that portion of the 
 profits which had accumulated after the death of the 
 life tenant. Mr. Justice Hand, in dissenting in a 
 strong opinion from the majority opinion, adhered to 
 the well-known rule that a trustee who invests trust 
 funds with his individual funds can have no part of the 
 profits. 
 
 § 615. To charge a stranger with being a party to 
 the misapplication by a trustee of the trust funds, it 
 must be proved that such stranger knew first, that they 
 were trust funds, and secondly, that the trustee was 
 not expending them in the course of his duties as 
 
BREACHES OF TRUST. 377 
 
 trustee, but was using them to further his own pur- 
 poses. 43 
 
 § 616. A vendor's lien having been retained on a 
 mill and its fixtures, after the destruction of the mill 
 by fire some of the machinery was severed from the 
 realty and sold by the owner of the equity who was 
 held liable as a trustee for the proceeds. 44 And where 
 one purchased a house and lot pending a proceeding 
 to establish a mechanic's lien thereon, and sold the 
 house, and induced the vendee to remove it to another 
 lot, the vendor was considered to be trustee of the pro- 
 ceeds of sale for the benefit of the lienor, who might 
 pursue either the property or its proceeds. 45 
 
 § 617. Where property is impressed with a valid 
 trust the rule, both at law and in equity, is that no 
 change or conversion of its form will operate to defeat 
 the cestui que trust's right to pursue the fund if he 
 can but identify it in its new form, and if the rights of 
 innocent and bona fide purchasers for value have not 
 intervened. But where the fund has been converted 
 and intermingled with other like money or like goods, 
 so that not one item of the trust property can be dis- 
 tinguished from the rest of the mass, the cestui que 
 trust must be content to occupy the position of a cred- 
 itor, and resort to the personal liability of the wrong- 
 doing trustee. 46 
 
 § 618. A township treasurer who was employed by 
 
 « McLaflin v. Jones, 155 111. 539-543, aff'g 56 App. 518; Fifth Nat. 
 Bank v. Hyde Park, 101 111. 595-604; Slocum v. Slocum, 9 App. 142; 
 Goldstein v. Goldstein, 11 App. 530-634. 
 
 ** Hammer v. Johnson, 44 111. 192. 
 
 <5 Ellett v. Tyler, 41 111. 44'9. 
 
 *« Union Nat. Bank v. Goetz, 138 111. 127-134, aff'g 35 App. 396; 
 Wetherell v. O'Brien, 140 111. 146-151; Mut. Ace. Assn. v. Jacobs, 
 141 111. 261-268. 
 
378 TBUSTS AND TETJSTEES. 
 
 a banker deposited the town's funds with the latter in 
 his own name ; both the treasurer and the banker hav- 
 ing died the school trustees filed a bill against their ad- 
 ministrators for the recovery of the school funds, but 
 the Supreme Court held that while the banker had 
 knowledge and was a voluntary trustee, yet it was nec- 
 essary to identify the fund as separate and distinguish- 
 able from any other fund, and this the school trustees 
 failed to do, except in the case of one bag of silver for 
 which a decree was affirmed. "It is not necessary, if 
 the trust be moneys, that the particular coin, or the in- 
 dividual pieces, shall be identified, in order to pursue 
 it, but its identity as a fund must be preserved so that) 
 it can be distinguished from all other money. ' ' 47 
 
 § 618a. A private banker having become insolvent, 
 and haying died soon afterwards, the holder of a cer- 
 tificate of deposit alleged that the banker had promised 
 to place the money represented by the certificate in a 
 separate package and to keep it so isolated until called 
 for by the depositor. Even if the proof to that effect 
 had been competent and unquestioned, yet the fact that 
 the banker did not set the deposit apart in a separate 
 trust fund had the undoubted effect of relegating such 
 depositor to the position of an ordinary creditor. 48 
 
 § 618fe. A special deposit was made in a bank which 
 issued a receipt therefor showing the terms of the 
 trust. Without the knowledge of the cestui que trust 
 the bank mingled the fund with its own, but, for the 
 purpose of its book-keeping it attached to the dupli- 
 cate of the receipt given a memorandum on a certifi- 
 cate of deposit in order to identify the fund. The 
 
 47 School Trustees v. Kirwin, 25 111. 73-76. 
 
 *«Bayor v. Am. Trust & Sav. Bank, 157 111. 62-68, affi'g 51 App. 
 180. 
 
BREACHES OF TRUST. 379 
 
 bank, having become insolvent, it was held, under the 
 facts, there was a presumption thai; a trustee would 
 use his own funds before trust funds, so that what re- 
 mained in the vaults would be presumed to be , trust 
 funds, although less than the amount of the special de- 
 posit. This case seems to have turned wholly upon 
 the point whether the memorandum was an identifica- 
 tion of the trust fund and the reasoning upon that 
 point is none too satisfactory. 49 
 
 § 618c. A Judgment creditor of a grain warehouse- 
 man took an assignment of the warehouseman's prop- 
 erty and grain contracts, and went into possession 
 after buying up some of the receipts issued for grain 
 intermingled with that of other owners; the grain ap- 
 peared to have shrunk in quantity and it was held that 
 the assignee of the warehouseman, being a trustee for 
 all of the owners of the grain, could not in equity set 
 off to himself the full amount called for by the receipts 
 which he had purchased, but that equity would enter- 
 tain jurisdiction to ascertain the rights of all the own- 
 ers and to adjust the shortage pro rata? 
 
 § 619. A trustee is bound to account for the fund 
 even though he has mixed it so inextricably with his 
 own funds that no lien can attach to the entire 
 amount. 51 
 
 The trustee by confusing and mixing trust funds 
 with his own is estopped to deny that the form of prop- 
 erty into which they were invested is trust property 52 
 and the cestui que trust may follow the trust fund and 
 
 4» Woodhouse v. Crandall, 197 111. 104-107, rev'g 99 App. 952. 
 so Dole v. Olmstead, 36 111. 150-154. 
 " Nat. Pk. Bank v. Halle, 41 App. 19-21. 
 
 5= Sholty v. Sholty, 140 111. 81-88; Wobbe v. Schaub, 143 App. 361- 
 367. 
 
380 TBTJSTS AND TRUSTEES. 
 
 claim every part of the blended property, unless the 
 trustee can identify his own, or unless he is insolvent. 33 
 
 The burden is on the trustee to show what portion of 
 his own funds were contributed by him where he has 
 used trust funds to purchase property in his own name 
 and claims an interest therein. 54 
 
 § 619a. If the trustee becomes insolvent after hav- 
 ing so mixed trust funds with other funds as to render 
 them indistinguishable, the cestui que trust can occupy 
 no position better than a general creditor. It is only 
 when the trustee is solvent that the burden is on him 
 to separate his own property from that of his cestui 
 que trust; when he becomes insolvent the rights of 
 creditors must also be considered. 55 
 
 § 620. Where County Commissioners have mixed a 
 special fund, given to a county by the legislature in 
 trust for certain purposes, with the general funds, 
 mandamus will lie to direct an order to be drawn on 
 the general funds for the benefit of the person entitled 
 to the special fund. 56 
 
 § 621. It is only in cases of gross delinquency that 
 interest should be compounded, and where the pur- 
 chase price of land was given to a third person to be 
 held by him until the title to the land was perfected, 
 and such trustee deposited the fund to his own account 
 in his bank, but always had sufficient funds there to 
 pay it, and it was held for a mere temporary purpose 
 
 53 Halle v. Nat. Park Bank, 140 111. 413-431; Diversey v. Johnson, 
 93 111. 547-569. 
 
 s* Vanatta v. Carr, 229 111. 47-53. 
 
 55 Est. of Seiter v. Mowe, 182 111. 3S1-3&5; Hauk v. Van Ingen, 
 196 111. 20-J38; Moninger v. S. T. & T. Co., 90 App. 246-248; Chapin v. 
 Wabash R. Co., 43 App. 446; Richelieu v. Miller, 50 App. 390; Kneis- 
 ley v. Weir, 81 App. 261. 
 
 se County Commissioners v. People, 11 111. 202-210. 
 
BREACHES OF TRUST. 381 
 
 liable to be called for at any time, it was held that the 
 estate of the deceased trustee should not be chargeable 
 with interest before the title was perfected, and then 
 only with simple interest. 57 
 
 § 622. If a trustee has converted trust funds to his 
 own use, it has been said that he may restore such 
 funds to the rightful beneficiaries by setting apart 
 from his own money the sum converted, or by buying 
 real estate with his own money and dedicating the 
 same to the purposes of the abused trust. This hap- 
 pens sometimes when the trustee has mingled trust 
 funds with his own so that identification has become 
 impossible, and he is, nevertheless, desirous of making 
 proper restitution. 38 
 
 57 Matthewson v. Davis, 191 111. 391-393, rev'g 91 App. 153. 
 ss Lang v. Metzger, 206 111. 475-487. 
 
382 TRUSTS AND TRUSTEES. 
 
 CHAPTER XXXIII. 
 
 THE TRUSTEE'S POWERS AND DISCRETION. 
 
 § 623. A settlor or testator may authorise his trus- 
 tee, expressly or impliedly, to exercise certain author- 
 ity or powers over the subject-matter of the trust, 
 whether it be personalty or realty. 
 
 Certain powers flow as of course from the mere ex- 
 istence of a trust stewardship, and these are desig- 
 nated as general powers; again, the trust instrument 
 may point out specifically how little or how great au- 
 thority the trustee may exercise, as well as over what 
 particular portions of the trust-res and to what bene- 
 ficiaries an appointment may be made, and these are 
 designated as special powers. 
 
 A trustee may have a naked or bare power which is 
 optional with him to exercise and not mandatory, and 
 which a court will not and cannot exercise for him; 
 or he may have a power which is imperative and man- 
 datory, and one which a court of chancery will compel 
 to be exercised. 
 
 A court of law will consider only legal powers which 
 affect the legal estate, and not equitable powers which 
 affect the equitable estate and which are cognisable 
 only in a court of chancery. 
 
 A power appurtenant or appendant is one where the 
 donee is confined to exercising it only over the estate 
 which he has taken. 
 
 A power collateral is one where the donee has no in- 
 terest in the estate and is authorised to dispose of the 
 estate to another. 
 
THE TRUSTEE'S POWERS AND DISCRETION. 383 
 
 A power in gross is one where the donee has an in- 
 terest in the estate and is authorised to dispose of 
 every interest in the estate except his own. 
 
 A power coupled with an interest is self-explanatory. 
 
 § 624. The execution of a power by a trustee, or the 
 execution of a power of appointment by an equitable 
 tenant for life or years, must be in strict accordance 
 with the terms of the instrument creating the power, 
 and where witnesses to a deed were required the exe- 
 cution of a de*ed not attested could not be deemed a 
 valid exercise of the power nor will equity aid a defec- 
 tive execution of a power at the behest of the donee of 
 the power, a husband, grandchildren, strangers or vol- 
 unteers, but only to aid purchasers, creditors, charity, 
 a wife or a child. 1 
 
 § 624a. Breit v. Yeaton: 2 A marriage settlement 
 made prior to the Married Woman's Act of 1861, 
 placed the wife's property in the hands of trustees 
 with power to convey it upon the direction of the wife 
 by her writing, signed, sealed and attested by three or 
 more credible witnesses, or by her will, and in default 
 of such appointment or will to convey to the issue when 
 of age. The trust fund was re-invested in land pur- 
 chased from the husband, — later the wife and the trus- 
 tee made a deed to the husband purporting to convey 
 the land for a nominal consideration and which deed 
 was not witnessed. The husband conveyed portions 
 of the land to purchasers for value, who had notice, 
 however, of the terms of the trust by recitals in the 
 deed from the husband to the trustee referring to the 
 
 i Yeaton v. Yeaton, 4 App. 579-591, and see Swift v. Castle, 23 111. 
 209-226. 
 2 Breit v. Yeaton, 101 111. 242-269. 
 
384 TRUSTS AND TRUSTEES. 
 
 articles of marriage settlement. The wife died intes- 
 tate, and without having by an attested writing di- 
 rected the trustee to convey, and the remaindermen 
 filed their bill to recover the land and for partition. 
 The court held that the Act of 1861 giving the control 
 of their property to married women related only to 
 their separate estate and not to property held in trust 
 for them or to powers to be exercised by them; that 
 where a power of appointment is given it must be exer- 
 cised in the manner prescribed and in no other. In re- 
 spect of marriage settlements a defective execution of 
 a power by a wife for the benefit of her husband can- 
 not be aided by a court of equity because in such cases 
 it is not a matter of mere form but one of substance 
 intended for the protection of the wife. 
 
 § 625. A doubtful power of sale in a will is rendered 
 certain by a codicil which directs the trustees ' ' to con- 
 vey such portion as remains in their hands." 3 
 
 § 626. If a power of sale be given trustees for sev- 
 eral different objects and purposes, the failure of one 
 of such objects will not annul the power. 4 
 
 § 627. A trustee may be given power to convey to a 
 certain person, upon condition either precedent or sub- 
 sequent that such person shall perform some desig- 
 nated act or duty. 5 
 
 § 628. Where deeds purport to have been made by- 
 virtue of a power, such power must be shown before 
 the deeds jssdll become admissible in a cause as evi- 
 dence. 6 
 
 a Dickson v. N. Y. Biscuit Co., 211 111. 468-482, (listing. Thompson 
 v. Adams, 205 111. 552. 
 * Ely v. Dix, 118 111. 477-482. 
 b Wilson v. Gait, IS 111. 431-437. 
 o Fell v. Young, 63 111. 106-110. 
 
THE TRUSTEE'S POWERS AND DISCRETION. 385 
 
 § 629. A power of sale will be implied where the 
 trust instrument directs that debts be paid, or to de- 
 vote so much of the principal fund as might be deemed 
 necessary to accomplish some purpose named, or a di- 
 rection to "pay over" the fund to persons named; all 
 of these, as well as words which indicate that the trus- 
 tee is given duties to perform which may be impossible 
 of performance without a power of sale will give rise 
 to an implied power. 7 
 
 A power of ' attorney to "sell" land includes the 
 power to convey, and, while a strict construction must 
 be given to such a power, the intention of the constitu- 
 ent and constituee should not be defeated thereby. 8 
 
 A power given to a trustee to invest in bonds or 
 mortgages is a power of sale over real estate the title 
 to which vests in such trustee by implication in order 
 to permit bim to comply with the direction to invest. 9 
 
 § 629a. "Where a life tenant as trustee is given no 
 express power of sale, a doubtful power arising from 
 the use of the words "then remaining" in disposing 
 of the remainder in the property will not be construed 
 as a power of sale, and the corpus of the estate cannot 
 be disposed of by the life tenant. 10 Or if the life ten- 
 ant be nominated also as executrix and given a discre- 
 tionary power of sale the power will be limited to the 
 right to sell for the purposes of administration only 
 and not a general power. 11 
 
 7 Cherry v. Greene, 115 III. 591--&96; Davenport v. Kirkland, 1©6 
 111. 169-178; Lash v. Lash, 209 111. 595-602. 
 
 s Hemstreet v. Burdick, 90 III. 444-450. 
 
 sFlanner v. Fellows, 206 111. 136-139; Spengler v. Kuhn, 212 111. 
 186-192. 
 
 io Thompson v. Adams, 205 111. 552-557. 
 
 ii Clark v. Clark, 172 111. 355-358. 
 25 
 
386 TRUSTS AND TRUSTEES. 
 
 A direction in a will that after the expiration of a 
 life estate the property be divided among the remain- 
 dermen does not confer an implied power of sale upon 
 the executors after the death of the life tenant, be- 
 cause the remaindermen may have a partition in a court 
 of chancery where , advancements and other equities 
 may be adjusted by the court. 12 
 
 A will provided that the real estate should "remain 
 in the care and control" of the trustees "well and 
 safely invested," and it was held that no power of sale 
 could be implied, as the intention was that the property 
 should "remain" as it was "well and safely invested" 
 and that the investment, though unremunerative, could 
 not be changed by the trustees in the absence of neces- 
 sity. 13 
 
 An express power of sale given by a will to a life 
 tenant with remainders, etc., "if not already disposed 
 of" can be exercised only by a deed, and no power of 
 disposition by the life tenant's will can be inferred 
 from the words "if not already disposed of." 14 
 
 A trustee has no implied power to create a lien upon 
 the trust fund except in rare cases. 15 
 
 § 630. A power given to an executor, who was also 
 styled a trustee by the will, to distribute among the 
 remaindermen when the life tenant died, including a 
 power to sell real estate, was held to be merely a naked 
 power not coupled with an interest. 16 
 
 § 630a. A direction to an executor to sell real estate 
 is a naked power and the legal title will remain in the 
 
 is Poulter v. Poulter, 193 111. 641-643. 
 is Hale v. Hale, 125 111. 399-403'. 
 n Kirkpatrick v. Kirkpatrick, 197 111. 144-154. 
 15 Chgo. Fire Place Co. v. Tait, '58 App. 293-295; Smith v. Hutchin- 
 son, 108 111. 662-668. 
 
 to Drake v. Steele, 2-42 111. 301-310. 
 
THE TRUSTEE'S POWERS AND DISCRETION. 387 
 
 heirs until a sale be made and the executor will not 
 become a trustee thereby; but a devise to an executor 
 with power of sale gives him a power coupled with an 
 interest and he will take the legal title then. 17 
 
 § 6306. A testamentary trustee having a power of 
 sale, with power to invest the proceeds and to use them 
 as he should deem best for his cestuis que trustent has 
 a power coupled with an interest, and his deed based 
 upon such a power will be held effective, although it 
 also purports to have been made in pursuance of a de- 
 cree entered without jurisdiction of the court. 18 
 
 § 630c. West v. Fitz : 19 If there be simply a direction 
 to a trustee to sell real estate and apply the proceeds 
 to certain designated objects such trustee will take a 
 power only, but if there be a conveyance or a devise to 
 such trustee to sell and apply the proceeds in a certain 
 manner he will then take an estate in the land in addi- 
 tion to the power. The estate, which the trustee takes 
 in the latter case, depends upon (a) the terms of limi- 
 tation thereof expressed in the instrument itself, 
 (b) the sort of duties devolved upon the trustee in re- 
 spect of the property, and (c) the Conveyance Act. 
 The use or non-use of the word "heirs" in the deed 
 or will would raise merely a presumption at common- 
 law as to whether a life estate or a fee passed to the 
 trustee, and, by our Conveyance Act the necessity of 
 using the word having been entirely abrogated, a con- 
 veyance or devise to a trustee is prima facie of the fee, 
 but, although words of heirship be used and although 
 
 « Smith v. Hunter, 241 III. 514-618. 
 
 is White v. Glover, 59 111. 459-463. 
 
 "West v. Fitz, 109 111. 425-435; see also Cherry v. Greene, 115 
 111. 591-596; Green v. Grant, 143 111. 61-71; Lord v. Comstock, 240 
 111. 492-501: Smith v. Hunter, 241 111. 514-618; Clinefelter v. Ayers, 
 16 111. 329-332. 
 
388 TRUSTS AND TRUSTEES. 
 
 it be presumed that the fee passed to the trustee, yet, 
 if the trustee can perform the purposes of the trust 
 with a lesser estate only the latter will be deemed to 
 have been given him. If the trustee be required to 
 manage property and pay over the income for a cer- 
 tain length of time, as for years or lives, he will take 
 an estate commensurate therewith for years or lives; 
 if his active duties are to continue for an indefinite 
 term he will take the fee, or if the trustee be directed 
 to pay debts or legacies he will also take the fee, re- 
 gardless, in the case of a will, whether or not there is 
 sufficient personal property, or whether or not such 
 debts and legacies be expressly or impliedly charged 
 by the will upon the real estate, because the trustee 
 should have protection in making such payments and 
 some unseen contingency might make a resort to the 
 land necessary by him. 
 
 § 631. A power given to a County Court as a tri- 
 bunal and not as an individual to appoint a successor- 
 in-trust after the death, resignation, refusal or inabil- 
 ity to act of the trustee is void, because, in Illinois the 
 only tribunal having jurisdiction to exercise such a 
 power is a court of chancery. The power will not be 
 effective if the agency invoked to execute it is lacking 
 in capacity. 20 
 
 § 632. "Where there is a trust or power given to sev- 
 eral persons jointly, all must join in an execution 
 thereof unless it be shown clearly that those trustees 
 or donees not joining have in some lawful manner di- 
 vested themselves of the estate, duties, rights and pow- 
 ers given them by the creator of the trust, 21 or have re- 
 
 20 Leman v. Sherman, 117 111. 657-663. 
 
 siPenn. Co. v. Bauerle, 143 111. 459-174; Casey v. Canavan, 93 
 App. 538. 
 
THE TRUSTEE'S POWERS AND DISCRETION. 389 
 
 fused, not merely failed or neglected, to act or qualify 
 as trustees. 22 The Administration Act of 1872, but 
 not of 1845, contains the words "shall fail * * * 
 to qualify." 23 
 
 The Statute of 21 Hen. VIII, Cap. 4, is a part of the 
 law of Illinois and that act permitted an executor with 
 a power of sale who had qualified, to convey alone if 
 the other executors named had refused the trust. But 
 neglect would not be construed as a refusal. 24 
 
 Surviving trustees or those trustees who neither 
 failed nor refused to accept the trust may exercise all 
 of the powers conferred by the trust instrument 
 whether such powers be naked, coupled with an inter- 
 est, discretionary or mandatory. 25 
 
 § 633. A power to improve and build on the property 
 also permits the trustee after he has completed a build- 
 ing to make reasonable changes in the construction of 
 the building so that it can be let to better advantage. 26 
 
 A trustee having power to use the income to pay 
 "the annual taxes and insurance and also all reason- 
 able repairs and improvements" the rest of the in- 
 come to be paid to the cestuis que trustent may deduct 
 frqm the income the amount of special assessments 
 paid by him for "reasonable improvements" made to 
 the property although such amount could not be de- 
 ducted as "annual taxes." 2T 
 
 § 634. A trustee who holds the legal title to land 
 until an equitable life estate shall terminate, with 
 
 22 Coleman v. Connolly, 242 111. 574-580. 
 as Ely v. Dix, 118 111. 477--481. 
 
 24 Clinefelter v. Ayers, 16 111. 329-334; Wardwell v. McDowell, 31 
 111. 364-369. 
 
 25 Ely v. Dix, 118 111. 477-482. 
 
 26 Patterson v. Johnson. 113 111. 5159-577. 
 
 27 Warren v. Warren, 148 111. 641-652. 
 
390 TBUSTS AND TRUSTEES. 
 
 power to lease and control has no power to make a 
 lease giving the lessee the right to remove oil or min- 
 erals for a term of five years and so much longer as 
 gas or oil should be found in paying quantities. Oil 
 is a mineral and a grant of an unlimited right to re- 
 move it is a freehold estate, and, in effect, a sale of a 
 part of the realty, and neither the life tenant nor his 
 trustee may remove minerals where no mines have been 
 developed as it is a waste which a contingent remain- 
 derman may enjoin from being committed in the fu- 
 ture, although he could not recover for a past waste. 28 
 
 § 635. A deed in trust, which authorises the trustee 
 to mortgage the land in order to take up or extend an 
 existing mortgage, does not empower the trustee to 
 make a new mortgage after the old had been dis- 
 charged by other means, although the deed in trust 
 contained the further provision that the trustee might 
 do with the land, in his own discretion, as "he could or 
 would were the title to the property vested in him ab- 
 solutely." 29 
 
 § 635a. A power of sale to executors to sell at their 
 discretion, etc., and to act for the best interests of the 
 cestuis que trustent, gives them wide latitude in the 
 matter of making contracts in respect of the fund, and' 
 Perry on Trusts, Sec. 476, states that trustees will, in 
 an emergency, be protected in doing without a decree 
 of the court what the court would have directed upon 
 the presentation of the facts to it. 30 But generally a 
 power of sale or to lease does not include the power 
 to mortgage. 31 
 
 zs Ohio Oil Co. v. Daughetee, 240 111. 361-365. 
 
 2» Union Mut. Life Ins. Co. v. Spaids, 98 111. 249-263. 
 
 so Hughes v. Washington, 72 111. 84-90. 
 
 si Smith v. Hutchinson, 108 111. 662-*6'8. 
 
THE TRUSTEE'S POWERS AND DISCRETION. 391 
 
 § 6356. A devise to a wife "to be used by her for her 
 own support and for the maintenance and education" 
 of the children creates a valid trust, but does not em- 
 power the wife to mortgage the land for the benefit of 
 her second husband, or to do anything with it except 
 to reside upon it, let it or make a like use of it. 32 
 
 § 636. A power of sale or disposal given to a life 
 tenant permits him to dispose of only the life estate 
 and not of the fee, unless the power given him was 
 couched in words which indicated plainly that a 
 broader grant of power was intended. 33 
 
 If a trustee with a power of sale convey the property 
 in which he himself has an interest, as well, in his per- 
 sonal capacity, but without referring to the power, it 
 will be presumed that he conveyed merely his personal 
 interest. 34 
 
 § 637. A power "to control" an estate until certain 
 persons become of age does not authorise the trustee 
 to sell under such a power, there being no express or 
 implied power to sell in the trust instrument. 35 
 
 § 637a. A trust that the fund shall be loaned and 
 kept loaned by the trustee at interest gives him an im- 
 plied power to sell the real estate. 36 
 
 § 6376. A discretionary power to lease or to sell 
 land vests the fee of necessity in the trustee. 37 
 
 § 637c. A direction by a testator that his executor 
 sell the property "at any time" requires the exercise 
 
 32 Summers v. Higley, 191 111. 193-196. 
 
 as Metzger v. Schopp, 202 111. 275-286; Mansfield v. Mansfield, 203 
 111. 92-97; Wardner v. Seventh Day Baptists, 232 111. 606-613. 
 
 34 Coffing v. Coffing, 16 111. 457-474. 
 
 36 in re Estate of Whitman, 22 111. '511-520. 
 
 36 Davenport v. Kirkland, 156 111. 169-178; Flanner v. Fellows, 
 206 111. 136-139. 
 
 37Qlcott v. Tope, 213 111. 124-138. 
 
392 TBUSTS AND TRUSTEES. 
 
 of such power within such time as the purposes of the 
 trust would indicate, and an attempt to exercise it at 
 a later period would be futile. 38 
 
 A testator having empowered his executors to sell 
 real estate for the purpose of paying debts but, having 
 also directed that a certain tract should not be sold 
 until a certain price could be obtained for it, the execu- 
 tors are not thereby compelled to wait until the land 
 will bring that price but may sell for the highest price 
 obtainable for the purpose of paying debts, even 
 though it could be so sold by order of court. 39 
 
 Trustees who are directed to hold real and personal 
 estate for a daughter of the donor until she should at- 
 tain twenty-one years of age and thereafter, with her 
 consent, to lease the same, and at the discretion of the 
 trustees and with the cestui que trust's consent to con- 
 vert the property into money and invest the proceeds, 
 need not wait until the cestui que trust attains twenty- 
 one before they may, at their' discretion, exercise the 
 power of sale. 40 
 
 In the absence of necessity a trustee with a discre- 
 tionary power of sale should not exercise it at a time 
 when he knows the land will not sell for an adequate 
 price, and it is a breach of duty for him not to inform 
 himself of its fair value and to wait in such case until 
 conditions are more propitious. 41 
 
 § 637d. Under a declaration of trust that the cestuis 
 que trustent have certain specific interests in the land 
 which are to be conveyed to them upon request, or in 
 
 as Smyth v. Taylor, 21 111. 296-299. 
 so Kurtz v. Graybill, 192 111. 445-451. 
 40 Fisher v. Fail-bank, 188 111. 187-192. 
 
 4i Dingman v. Beall, 213 111. 238-246; Dingman v. Beall, 227 111. 
 294-298. 
 
THE TBUSTEE'S POWERS AND DISCRETION. 393 
 
 case of a sale of the land they are to take their specific 
 shares of the proceeds, it might be that the trustee 
 could sell all of the land, but he would have no power 
 to divide the land and sell what he considered to be the 
 undivided share of a cestui que trust and require the 
 latter to accept the proceeds of sale of such portion so 
 sold without the consent and sanction of that cestui 
 que trust.* 2 
 
 § 637e. A devise of an estate to a general trustee 
 for certain beneficiaries one of whose shares was to be 
 held by another trustee creates separate trusts as to 
 such shares, which trusts may be valid, provided they 
 do not conflict with each other in point of time and 
 otherwise; and, where the general trustee was given 
 power of sale his execution thereof in good faith could 
 not be avoided by the second trustee and his cestui que 
 trust.* 3 
 
 § 637/. A will gave the executrix power of sale over 
 the land for the purpose of paying certain legacies, 
 thereby constituting her a trustee to sell for cash; in- 
 stead of so doing she conveyed the land to. one who 
 held a claim against the estate and who paid no cash 
 therefor; this purchaser was held to have notice that 
 the power of sale had been violated, and was held to bs 
 remitted to the position of the trustee until the legacies 
 were paid. 44 
 
 § 637g. Where the trust instrument makes no di- 
 rections as to the manner of making a sale the trustee 
 may use his discretion in selling at public or private 
 vendue. 45 
 
 « Rogers v. Tyley, 144 111. 652-661. 
 43 Jenks v. Jackson, 127 111. 341-366. 
 « Humphrey v. Hudnall, 233 111. 1S5-188. 
 45 White v. Glover, 59 111. 459-464. 
 
394 TEUSTS AND TRUSTEES. 
 
 § 638. There is no equitable conversion of real prop- 
 erty into personalty and vice versa, unless the trustees 
 are commanded to sell and have no discretion in the 
 matter. 46 
 
 The mere fact that the creators of an active trust 
 are also the cestuis que trustent thereof will have no 
 effect upon the construction of a power of sale given 
 to a trustee and where a deed directed a trustee to sell 
 real estate, giving him discretion only as to the time 
 and reasonable price to hold the land at, unless the 
 cestuis que trustent should direct him in writing to sell 
 at an earlier day, the power of sale must be deemed 
 directory, not permissive, and therefore an equitable 
 conversion of the land into personalty is thereby ef- 
 fected which would prevent an assignee of one of the 
 shares of the cestuis que trustent from maintaining a 
 partition suit. 47 
 
 A testator having devised a part of his estate to 
 aliens it was held that the Statute rendered such a de- 
 vise of real estate nugatory, but that the inhibition 
 against the acquirement by aliens of real estate did not 
 include personal property, and there being a power in 
 the will to the executor to sell and distribute "but the 
 proceeds to be by her given to my legatees" it was 
 held that this power was not discretionary but was 
 mandatory, and that therefore, the will worked an 
 equitable conversion of the realty into personalty and 
 the aliens were entitled to take under the will. 48 
 
 § 639. Where a power of appointment is given to 
 certain named persons to designate who shall be the 
 
 « Haward v. Peavey, 128 111. 430-437. 
 
 47 Johnson v. Lee, 228 111. 167. 
 
 48 Greenwood v. Greenwood, 178 111. 387-400. 
 
395 
 
 distributees of a trust estate in case the cestui que 
 trust should die before attaining twenty-one years of 
 age leaving no child or will, the power does not vio- 
 late the rule in respect of perpetuities, because it must 
 be exercised, if at all, within twenty-one years and by 
 persons in being, and if such power were not exercised 
 the trustee would hold the estate under a resulting 
 trust for the donor's heirs-at-law. 49 
 
 § 639a. A power given to executors to partition the 
 estate, whether or no the power be mandatory, permits 
 them to wait a reasonable time before so doing, and 
 one who is entitled to receive a portion of the estate 
 should not come into equity to secure a statutory par- 
 tition before a reasonable period has expired subse- 
 quently to the death of the testator. 50 
 
 § 6396. Butler v. Huestis: 51 A trust settlement for 
 a wife to last during her lifetime, gave her a power to 
 appoint the fee by will, and in default of such appoint- 
 ment then with certain limitations over. The wife de- 
 vised the estate to her appointee for the latter 's life 
 with remainder to the heirs of the body of the ap- 
 pointee. The question was whether the wife having 
 power to appoint the fee could appoint a lesser estate, 
 and it was decided that she could, so long as there were 
 no restrictions upon the power to appoint a particular 
 estate in a certain way and in no other way. But the 
 Supreme Court refused to give effect to the words 
 "heirs of the body" as later cases have done which 
 hold them to create an estate-tail upon which the stat- 
 ute operates." 
 
 *» Keyes v. No. Trust Co., 227 111. 354-363. 
 bo Fischer v. Butz, 224 111. 379-384. 
 si Butler v. Huestis, 68 111. 594. 
 
396 TBUSTS AND TRUSTEES. 
 
 § 639c. Hawthorn v. Ulrich: 52 A testator gave his 
 wife a life estate with power to appoint the fee in one- 
 half of the property among her heirs in the manner in 
 which she might decide. She died testate giving all 
 the half of the estate to one of her heirs with the ex- 
 ception of $5.00 a piece to the others, and it was held 
 that her discretionary power of appointment had been 
 properly exercised, inasmuch as the doctrine of illu- 
 sory appointment formerly in vogue in England, and 
 which required that a substantial amount be given to 
 each of the beneficiaries, has never been adopted by 
 the courts of equity in Illinois. No amount is so small 
 that it may be called illusory in law. And a donee of 
 land and personal property who was directed to pro- 
 vide for. two persons named, had power to use discre- 
 tion in appointing to such persons the quantity each 
 should take, whether it was more or less than a moiety, 
 or whether one should have all personal property or 
 all real. 53 
 
 § 639d. Equity will neither aid the defective execu- 
 tion of a power where no meritorious consideration has 
 moved from the one seeking aid, nor will it usually 
 interfere where a discretionary power to appoint 
 among a certain class has never been exercised, espe- 
 cially where the property has been limited over to 
 other persons if the power be not exercised. 54 
 
 § 640. A power given to trustees to pay over to two 
 equitable life tenants, or either of them, such amounts 
 as the trustees should think best, the other cestui que 
 trust consenting thereto in writing, authorises the trus- 
 
 52 Hawthorn v. Ulrich, 207 111. 430. 
 
 sa Biggins v. Lambert, 213 111. 626, aff'g 115 App. 576. 
 
 s* Sayer v. Humphrey, 216 111. 42-6-135. 
 
THE TRUSTEE'S POWERS AND DISCRETION. 397 
 
 tees to encroach upon the principal when it would be 
 for the best interests of the cestuis que trustent and 
 with their consent. 55 
 
 A devise to a trustee to use the income during his 
 own lifetime for his support and for such charitable 
 donations as he might thing proper with power of con- 
 version of the real property into personalty, and with 
 power to use the principal if necessary for any of such 
 purposes, will not authorise the trustee as life tenant 
 to make greater* gifts to charity than his station in life 
 and the size of the fund would reasonably call for, and 
 a gift of the land by him to a church will be deemed 
 unnecessary as against the interests of the remainder- 
 men. 56 
 
 § 640a. Bergman v. Arnhold : 57 A devise to a trustee 
 for the benefit of the testator's wife during her life- 
 time provided, i. a., that upon the written request of 
 the life tenant the trustee should convey to her, or to 
 such others as she might designate, the whole or any 
 part of the trust estate, and also gave the life tenant 
 a power of appointment by her last will as to any trust 
 estate remaining and in default of such appointment 
 then with remainders over. The life tenant requested 
 in writing that a conveyance be made to herself of all 
 of the land, the trustee complied with the request, and 
 later on the life tenant died intestate. It was deter- 
 mined, as against the remaindermen, that the life ten- 
 ant had power under the will to divest the estates of 
 the remainderman, even by having the entire fund 
 conveyed to herself instead of to others, and without 
 
 so Lord v. Comstock, 240 111. 492-507, and see Perry, 6th Ed. p. 
 433, foot-notes. 
 eeLehnard v. Specht, 180 111. 208-212. 
 OS Bergman v. Arnhold, 242 Ill» 218-220. 
 
398 TRUSTS AND TRUSTEES. 
 
 regard to whether she needed any or all of the corpus 
 of the estate for her support, so long as such was the 
 testator's intention; we beg to differ, however, from 
 the construction placed upon the testator's intention in 
 this case and feel constrained to say that we think 
 purchasers from the trustee and life tenant should have 
 required for their own protection a recital in the trus- 
 tee 's deed that the conveyance of the entire estate was 
 necessary for the proper support of the life tenant. 58 
 
 "Any attempt on the part of the donee of a special 
 power to gain a benefit to himself in consideration of 
 the execution of the power in a certain way will be re- 
 garded as a fraud on the power, and will render the 
 execution of the power void. ' ' 59 
 
 § 640&. A power given by a testator to his wife "to 
 dispose of to our children * * * as long as she re- 
 mains unmarried and my widow" means that the 
 power could be exercised only during her widowhood, 
 and therefore only by a deed and not a will. 60 
 
 § 640c. Pool v. Potter: 61 The heirs of an estate en- 
 tered into an agreement to have the estate managed, 
 settled and divided by a "trustee" who was to be ap- 
 pointed by the circuit judge, and was to give a good 
 and sufficient bond running to the heirs and to be ap- 
 proved by the circuit judge. The trustee appointed by 
 the circuit judge did not file a bond running to all of 
 the heirs severally, but only to some of them jointly, 
 and such a bond that it was not enforceable at law. 
 Some of the heirs, in order to prevent a sale of the land 
 
 ss Perry, Sec. 254 and cases cited. 
 
 so See Am. notes Cunningham v. Anstruther, Bng. Rul. Cases, 
 XXI, p. 533. 
 
 «o Sayer v. Humphrey, 216 111. 426-432. 
 «i Pool v. Potter, 63 111. 533-536. 
 
THE TRUSTEE 's POWEES AND DISCRETION. 399 
 
 by the trustee, filed their bill to have him enjoined 
 from acting as trustee because of his failure to file a 
 proper bond; the chancellor sustained a demurrer to 
 the bill but the Supreme Court in reversing the decree 
 said that a distinction must be drawn in cases of pow- 
 ers of appointment by deeds, wills, and in connexion 
 with uses, from those cases where the trustee is merely 
 an agent to sell and convey land, make contracts, or 
 manage any particular business under more or less 
 specific instructions. In the former class of cases 
 courts of equity have generally placed a liberal con- 
 struction upon the language of the instrument, while 
 in the latter class a strict interpretation has been im- 
 posed so that the authority of the trustee would usually 
 be limited strictly to the terms of the trust instrument 
 or power of attorney. 
 
 In the case at bar the complainants could not apply 
 to the circuit judge personally to require the trustee 
 to give a new bond, inasmuch as the judge had exer- 
 cised no judicial power in making the appointment and 
 it was doubtful if his power was not exhausted after 
 having acted once; the powers of the circuit judge 
 could be invoked only by the customary bill in chan- 
 cery. 
 
 § 640d. McFall v. Kirkpatrick: 62 An equitable life 
 tenant in land was given by a deed in trust a power of 
 appointment by her last will "and in default of such 
 appointment then to her heirs and assigns to her and 
 their use forever." The life tenant made a deed pur- 
 porting to convey the fee, and her mesne grantee ob- 
 tained a decree by default against her and her trustee 
 quieting the title in fee in the mesne grantee and com- 
 
 02 MoFall v. Kirkpatrick, 236 III. 281. 
 
400 TBUSTS AND TRUSTEES. 
 
 pelling a conveyance from the trustee by master-in- 
 chancery. At the death of the life tenant her will re- 
 cited the power of appointment in herself and devised 
 all her property to her brother, who brought ejectment 
 against the mesne grantee of the life tenant. The Su- 
 preme Court divided four to three in holding the 
 power of appointment to be appendant and not in gross 
 so that an alienation of the estate would destroy the 
 power which would not be true if it were a power in 
 gross. The leading case cited in the majority opinion 
 was.Penne v. Peacock (cases in Eq. Temp. Talbot), 
 but in that case the life tenant made no attempt to ap- 
 point by her last will, and the Lord Chancellor said: 
 "It must inevitably follow that an estate for life lim- 
 ited to the wife and the remainder limited to her own 
 right heirs in default of any appointment made by her 
 last will are both disposed of," etc. The minority 
 opinion pointed out quite clearly that "a tenant for 
 life may execute a power of appointment as to the re- 
 version though he may have aliened his own life es- 
 tate, and though he may have attempted to convey the 
 fee." * * * ""Where there is an express limita- 
 tion for life with power to dispose by will, the interest 
 is equivalent only to an estate for life," and the minor- 
 ity of the Supreme Court believed, therefore, that the 
 power was not appendant but in gross and that the 
 life tenant's deed should be construed to have passed 
 only her life estate. Penne v. Peacock, supra, would 
 seem not to bear out the majority opinion which was 
 probably swayed in great part by their feeling that the 
 trust had never been accepted by the trustee and that 
 he had never taken the legal title. The purchasers 
 under the deed of the life tenant, as well as their at- 
 torneys, must admit that they were passing a precari- 
 
THE TRUSTEE'S POWERS AND DISCRETION. 401 
 
 ous title if they expected to get the fee thereby and if 
 they paid the market value of the fee. 
 
 § 640e. Pres't of Harvard v. Balch: 63 A testator de- 
 vised a share of his estate to a trustee for the benefit 
 and during the lifetime of one of his sons, A, to be in- 
 ' vested, and with power in the trustee to appropriate 
 to the use of A so much of either the income or prin- 
 cipal as the trustee might judge best, and in case the 
 trustee did not turn over the principal to A, then A 
 was given a power of appointment by his will, and in 
 default of the exercise of the power of appointment, 
 then the share of A remaining in the trustee's hands 
 was to be divided among the testator's other four chil* 
 dren, B, C, D, and E. A died in 1893 intestate, with- 
 out having received the principal and, of course, the 
 power of appointment was not exercised. C died in 
 1890 before A, testate, and devising, after certain be- 
 quests, etc., the residue of his estate to Harvard Col- 
 lege, which claimed that C had held a vested remainder 
 in that portion of the estate held in trust for A, and 
 therefore that the same had passed to Harvard under 
 the residuary clause in C's will. 
 
 The Supreme Court, in following its customary ac- 
 tion in holding a remainder vested and not contingent 
 if the court can possibly do so (and sometimes it has 
 gone pretty far in this respect, until Golladay v. 
 Knock 64 was handed down), considered that C must 
 have had a vested estate because C was neither a du- 
 bious personage nor was A's death a dubious event, 
 and the only way in which O's remainder could have 
 been divested would have been by the trustee appro- 
 priating the principal to A's use, or by A having exer- 
 
 «3 Pres't of Harvard v. Balch, 171 III. 275-278. 
 «* Golladay v. Knock, 235 111. 412. 
 26 
 
402 TBTJSTS AND TBTTSTEES. 
 
 cised his power of appointment by his will; that the 
 mere fact that a power of appointment exists will not 
 prevent a remainder from vesting, nor will a power to 
 give the life tenant the principal and thus merge the 
 life estate in the fee prevent a remainder from vesting, 
 as no estate is limited under such powers until they 
 are actually exercised and the remainders are actually 
 divested thereby. The remainders would "not be con- 
 tingent merely because of uncertainty whether a power, 
 would ever be exercised, as their contingency depends 
 rather upon the uncertainty of the remaindermen and 
 the uncertainty of some event upon which they are 
 made dependent. 65 The Supreme Court also consid- 
 ered that the remainders here were not within the rule 
 that a gift with directions to distribute does not vest 
 before the time for distribution occurs, because of the 
 exception to the rule that where the time of distribu- 
 tion is postponed for the purpose of accumulating the 
 trust fund, or letting in a prior estate for life or years, 
 the vesting of the remainders will not be postponed 
 until the time for distribution shall occur. 66 
 
 § 640/. It is frequently a question whether a power 
 has been executed by a given deed, where the trustee 
 to whom the power was given has also a personal or 
 equitable interest in the property. The intention to 
 execute the power is the prime factor and such inten- 
 tion may appear expressly or by implication. The 
 surest way, of course, is to recite the power, but it will 
 also be effectual to refer to it, or to the subject, or 
 property covered by the power, or again where the 
 
 «5 See also Kirkpatrick v. Kirkpatrick, 197 111. 144-158; Carter v. 
 Carter, 234 111. 507-513. 
 ee See also Hinrichsen v. Hinrichsen, 172 111. 462-465. 
 
THE TRUSTEE'S POWERS AND DISCRETION. 403 
 
 given deed would be of no effect at all without the aid 
 of the power then the intention to execute it would be 
 implied. And a reference by a deed to a will contain- 
 ing the power was deemed a sufficient execution 
 thereof. 67 
 
 § 640^. Upon a bill to obtain a construction of a will 
 involving a doubtful power of the trustees to invest in 
 real estate no freehold is involved as the trustees will 
 neither gain nor lose a freehold no matter which con- 
 struction may olbtain, and the Supreme Court will, 
 upon its own motion send such a cause to the Appel- 
 late Court. 68 
 
 § 641. The creator of a trust may not only empower 
 the trustee to sell and convey the trust property, but 
 may require that the trustee shall only exercise such 
 power at the request of the donor himself, or of some 
 other person, and the beneficiaries may not complain 
 thereof 69 and the donor may by express terms in the 
 instrument, reserve the income and use of the property 
 to himself during his lifetime and the right of revoca- 
 tion. 70 
 
 § 641a. The power to revoke a trust after it is com- 
 plete, or executed, does not exist in the donor, nor can 
 a court of equity do so in the absence of some abuse 
 by the trustee of the terms of the trust. 71 
 
 § 6416. A mandatory power given to an executor to 
 sell lands as soon as practicable after the testator's 
 death and to make a certain distribution of the pro- 
 
 87 Goff v. Pensenhafer, 190 111. 200-211. 
 
 68 Merchants L. & T. Bank v. Northern Trust Co., 245 111. 511-515. 
 
 S9 Taylor v. Walson, 177 111. 439-444. 
 
 ™ Kelly v. Parker, 181 111. 49-60. 
 
 ti Light v. Scott, 88 111. 233-244. 
 
404 TRUSTS AND TEUSTEES. 
 
 ceeds is a trustee's power which is not revoked by the 
 closing of the estate in the County or Probate Court 
 and the consequent discharge of the executor. 72 
 
 § 642. A trust cannot be delegated unless there be a 
 power coupled with an interest. A guardian has no 
 such interest which he could delegate to an attorney- 
 in-fact, or a testamentary trustee to his co-trustee. 73 
 
 § 642a. Trustees were directed by a testator to in- 
 vest in real estate and pay the income therefrom to the 
 cestui que trust during her lifetime, etc. The trustees 
 invested in real estate and conveyed the same to the 
 cestui que trust for her life, and this was held void as 
 a delegation of the trust not warranted by the will. 74 
 
 § 6426. Trustees may, without any delegation of 
 their power, employ solicitors and agents, such as auc- 
 tioneers, to do mere ministerial acts for them in the 
 sale and management of the trust estate. 75 But not 
 to make the sale itself or a contract for a conveyance. 76 
 They should be present at the sale in order to see that it 
 is made fairly and without sacrificing the interests of 
 the owner of the equity, although the holder of the sim- 
 ple legal title, without any interest in the trust fund 
 cannot in equity question such a sale. 77 
 
 § 642c. While legislative bodies of the public or of 
 churches, etc., cannot delegate their general legislative 
 
 T2 Starr v. Willoughby, 218 111. 485-492. 
 
 "Mason v. Wait, 4 Scam. 127; Wilson v. Mason, 1'58 111. 304-313; 
 Spengler v. Kuhn, 212 111. 186-195. 
 
 7* Binns v. LaForge, 191 111. 698-607, and see 126 App. 527; Will- 
 iams v. Evans, 154 111. 98. 
 
 7s Gillespie v. Smith, 23 111. 473-481; Schweiker v. Husser, 146 111. 
 399-422. 
 
 7« Coleman v. Connolly, 242 111. 574-580. 
 
 77 Taylor v. Hopkins, 40 111. 442-445; Beach v. Shaw, 57 111. 17; 
 Grover v. Hale, 107 111. 638-642. 
 
THE TRUSTEE'S POWEES AND DISCEETION. 405 
 
 authority they may employ sub-agents to exercise cer- 
 tain powers which such sub-agents could do more ad- 
 vantageously or conveniently than themselves, as by 
 way of appointing commissions, boards and the like, 
 even though some discretion be involved, and the deci- 
 sions of such delegates will not ordinarily be inter- 
 fered with by civil courts. 78 
 
 § 643. A discretionary power may exist either by 
 virtue of the express terms of the trust .instrument, 
 or it may be raised by implication of law where the du- 
 ties of the trustee are such as require of him the use of 
 his own judgment. 79 The use of the words "I author- 
 ise my trustees to provide, ' ' etc., does not give them a 
 mere discretionary power but raises an implied trust. 80 
 
 The mere fact that a trustee is given wide discre- 
 tionary powers to use the trust fund wholly or in part 
 for the benefit of the cestuis que trustent cannot oper- 
 ate to defeat the trust, nor could such discretion be 
 used arbitrarily to withhold all benefit from the cestuis 
 que trustent? 1 
 
 A discretionary power given a trustee to turn over 
 the control of the trust estate to the cestui que trust 
 for such part of the trust period as he might think best 
 will not be held invalid as being inconsistent with the 
 trustee's duties. 82 
 
 § 644. Where the exercise of a power is discretion- 
 ary in trustees a court of equity will not interfere with 
 such discretion in the absence of fraud or collusion, 83 
 
 ts Schweiker v. Husser, 146 111. 399-428. 
 
 7» Patterson v. Johnson, 113 111. 559-583. . 
 
 so Ingrabam v. Ingraham, 169 111. 432-470. 
 
 si JonSs v. Jones, 124 111. 254-264. 
 
 8z Orr v. Yates, 209 111. 222-239. 
 
 83 Dickson v. N. Y. Biscuit Co., 211 111. 468-487. 
 
406 TRUSTS AND TRUSTEES. 
 
 and if they cannot agree upon the mode of exercising 
 their discretionary powers nothing can be done, unless 
 the removal of one should appear necessary to the 
 court for the proper conservation of the estate. 84 
 
 § 644a. "Where a trustee is given discretion to fur- 
 nish necessaries, etc., to cestuis que trustent or their 
 children, the court "can look with the eyes of the trus- 
 tee," substitute its judgment for his, and, if it does not 
 appear that there is any lack of necessaries, etc., among 
 the cestuis que trustent the court may, at the expira- 
 tion of the trust period divide the fund equally among 
 the cestuis que trustent following the maxim ' ' equality 
 is equity." 85 
 
 § 645. A trustee under a will having power of sale 
 to sell such unproductive property as would, in her 
 discretion, be to the interest of the estate to sell, or to 
 convert the same into productive property by making 
 improvements thereon, conveyed a portion for the pur- 
 pose that the grantee might mortgage the same and 
 then reconvey the equity to the estate. The cestuis que 
 trustent sought to have a foreclosure enjoined, and the 
 deeds of conveyance set aside, but it was decided that 
 the trustee had a power to mortgage under the terms 
 of the will and that a court of equity should not inter- 
 fere where the trustee had acted in good faith, the pro- 
 ceeds of the loan had been used under the discretion- 
 ary powers of the trustee, and the mortgagee had lent 
 the money in good faith. 86 This is contrary to the 
 weight of authority which holds that powers of sale 
 include the power to mortgage only when the power of 
 sale is given for the purpose of raising a particular 
 
 84 Manhardt v. 111. S. Z. Co., 90 App. 315-323, 
 
 ss Glover v. Condell, 163 111. 566-596. 
 
 se Starr v. Moultoa, 97 111. 525-530; Ely v. Pike, 115 A.pp. 284-288. 
 
THE TRUSTEE'S POWERS AND DISCRETION. 407 
 
 charge and it appears that a mortgage will accomplish 
 the purpose better than a sale, the court treating the 
 mortgage as a conditional sale. 87 
 
 § 646. Under a deed of marriage settlement to a 
 trustee giving the wife a life estate, and providing that 
 it should be lawful for the wife to enable the trustee 
 by her separate writing, to sell the land and pay her 
 the proceeds, or to re-invest the same upon like trusts, 
 as she might in writing elect or direct, it was held that 
 the trustee's power was so far discretionary that the 
 life tenant could not compel him to sell, but that she 
 could only enable him so to do in case his judgment 
 concurred with hers that there was either a necessity 
 therefor, or that advantage to the fund would accrue 
 therefrom. The power conferred did not imply that 
 it had to be exercised, but only that it might be; nor 
 could the donor have intended that the life tenant 
 might be enabled to annihilate the trust and destroy 
 the remainder by her election to convert the fund. 88 
 
 § 646a. If trustees have a discretionary and not a 
 mandatory power of sale there is no equitable conver- 
 sion of the real property into personalty, or the per- 
 sonalty into real property before sale. 89 
 
 § 647. A discretionary power given to a trustee is 
 personal, and a succeeding trustee cannot exercise it 
 in the absence of an enabling provision in the trust in- 
 strument. 90 
 
 French v. Northern Trust Co.: 91 A trustee was di- 
 
 87 i Lewin on Trusts, Sec. 426; Paine v. Barnes, 100 Mass. 470, 
 and cases 31 Cyc. 1080. 
 
 as Wallace v. Wallace, 82 111. 530-532. 
 
 89 Haward v. Peavey, 128 111. 430-438. 
 
 ooBigelow v. Cady, 171 111. 229-232; Spengler v. Kuhn, 212 111. 
 186-195. 
 
 »i French v. No. Trust Co., 197 111. 30. 
 
408 TBUSTS AND TBTJSTEES. 
 
 rected by will to maintain the cestui que trust com- 
 fortably, using such amount therefor as in his discre- 
 tion should seem best, with power of sale in his dis- 
 cretion, and with power to convey the trust estate to 
 the cestui que trust when the trustee should be satisfied 
 that the cestui que trust was competent to take care of 
 the same, but the cestui que trust was to have no power 
 to dispose of or encumber the fund before it should 
 have been actually conveyed to him. The trustee hav- 
 ing resigned a court of chancery appointed a successor 
 with like duties and powers. The reason why the trust 
 had been created was stated in the will to be that the 
 cestui que trust had shown indications of not being in 
 his right mind. A judgment creditor of the cestui que 
 trust sought by bill in chancery to reach the trust fund 
 on the ground, as admitted by the cestui que trust, that 
 the cestui que trust had been sane for a long time and 
 that the trust had therefore terminated and the estate 
 should be conveyed to the cestui que trust. The court 
 held that the duty of the trustee to see that the cestui 
 que trust was properly maintained, while discretion- 
 ary in some degree, was one over which the court might 
 exercise its control, but that the power of the original 
 trustee to convey the corpus of the estate to the cestui 
 que trust was wholly discretionary and could not be 
 conferred upon the trustee appointed by the court; 
 that, the original trustee having failed to exercise his 
 discretionary power in that respect, and the trust in- 
 strument not having provided that the trust should 
 cease when the cestui que trust should appear sane, 
 the trust must be construed to last during the lifetime 
 of the cestui que trust and, therefore, the judgment 
 could not be satisfied out of the trust estate. 
 
THE TRUSTEE'S LIABILITIES. 409 
 
 CHAPTER XXXIV. 
 
 THE TRUSTEE'S LIABILITIES. 
 
 § 648. One who receives money as a trustee is bound 
 to account for it no matter what may have happened 
 to the fund, such as being mixed with general funds. 1 
 
 § 648a. Trustees of all sorts must account not only 
 for profits made by them but also for savings effected 
 by them in the management of the trust estate as it is 
 their duty so to foster and protect the fund. 2 
 
 § 6486. Trustees who make contracts not within the 
 scope of their authority but purporting to bind the 
 trust estate must be held personally liable thereon. 3 
 
 § 648c. A cestui que trust will not be bound by a set- 
 tlement made with his trustee unless he is made fully 
 cognizant of both his own rights and the extent of the 
 trustee's liabilities, and the cestui que trust's release 
 will be voidable if he be the victim of any substantial 
 concealment, false statements or fraud upon the part 
 of the trustee. The trustee has the burden of remov- 
 ing any cloud from his dealings with his cestui que 
 trust in respect of the trust fund, and such transac- 
 tions will be scrutinised closely by the court. The ces- 
 tui que trust is entitled to a complete statement in his 
 trustee's accounts. 4 
 
 § 649. A trustee who converts the trust fund to his 
 own uses is liable to account to the cestui que trust for 
 all losses occasioned to the fund thereby. 5 
 
 i National Park Bank v. Halle, 41 App. 19-21. 
 
 2 Wlngate v. Poole, 26 111. 118-121. 
 
 s Mason v. Caldwell, 5 Gilm. 196-206. 
 
 * Jones v. Lloyd, 117 III. 598-607. 
 
 « Hinsey v. Supreme Lodge, 138 App. 248-274. 
 
410 TBTJSTS AND TRUSTEES. 
 
 The fiduciary relation of principal and agent renders 
 the latter liable to account in equity as a trustee for 
 any profit he may have made at the expense of his 
 principal, a constructive trust being impressed upon 
 such profit in every case where a trustee commits such 
 a breach by using the trust fund for his own purposes. 6 
 
 Where a trustee for creditors is enabled, solely by 
 virtue of being such trustee, to obtain corporate stock 
 at a nominal price in a company doing a like business 
 he will be accountable for profits therefrom to his ces- 
 tuis que trustent, the creditors. 7 
 
 § 649a. Mansfield v. Alwood: 8 The land of several 
 co-tenants was about to be lost to them unless they 
 could effect a redemption; one of the co-tenants ap- 
 plied for a loan, but was refused by the person applied 
 to, who, however, told him that he would purchase a 
 part of the land ; this was acceded to, but the other co- 
 tenants were induced to execute a deed upon represen- 
 tations made by their co-tenant and his customer that 
 the transaction was in the nature of a mortgage. The 
 liens were removed from the land and the spurious 
 purchaser enjoyed the rents and profits of that deeded 
 to him and made contracts of sale for portions thereof, 
 which contracts of sale, however, were abandoned by 
 the mesne purchasers on account of the title, their ven- 
 dor retaining the earnest money. The spurious pur- 
 chaser, having been decreed to reconvey to those co- 
 tenants who had been induced to believe that they con- 
 veyed to him merely by way of security, was required 
 
 « Weaver v. Fisher, 110 111. 146-152; Elting v. First Nat Bank, 
 173 111. 368-385. 
 i Jarrett v. Johnson, 216 111. 212-220. 
 s Mansfield v. Alwood, 84 111. 497. 
 
the' trustee 's liabilities. 411 
 
 to account to them for the rents and profits, hut the 
 Supreme Court held it was error to charge him with 
 the earnest money retained hy him on abandoned con- 
 tracts hecause he might still be liable to his vendees on 
 his contracts and thus might have to pay the earnest- 
 money twice if required to account therefor to his ces- 
 tuis que trusteni, the defrauded co-tenants. 
 
 § 650. ' ' The rule seems to be that in all cases where 
 the trustee has used the trust fund, and the court can 
 see from the evidence that the trustee has realised 
 large gains and profits to himself, and has failed to 
 keep any exact account of the same, or has refused to 
 render an account to the beneficiary, the law will re- 
 quire him, in order that complete justice may be done, 
 to account for the original fund so used, with interest 
 computed with annual rests. No better mode has yet 
 been devised to effectuate and promote the ends of jus- 
 tice. This rule may be said to be the settled doctrine of 
 this country and of England on this question." Inter- 
 est is compounded both as a punishment and as a meas- 
 ure of damages for unascertained profits. 9 
 
 In an accounting the burden is on the trustee to show 
 what was done with the trust fund. "Where he has 
 used trust funds for his own ends at least compound 
 interest may be allowed even though the transaction 
 may he called a loan to the trustee. 10 
 
 The trustee, in failing to turn over money in his 
 hands to cestuis que trustent in accordance with, the 
 terms of the trust, renders himself liable as well for 
 
 »Ogden v. Larrabee, 57 111. 389-409: Hurd v. Goodrich, 59 111. 450- 
 457; Matthewson v. Davis, 91 App. 153-168; Wobbe v. Schaub, 143 
 App. 361-369. 
 
 io Lehman v. Rothbarth, 159 111. 270-281. 
 
412 TEUSTS AND tbustees. 
 
 interest as principal from the date when he should 
 have paid over the trust funds. 11 
 
 An intestate's estate having been decreed to pay 
 over a trust fund, the intestate's estate should pay le- 
 gal interest from the day of the decree, and if the ad- 
 ministrator realised any profits from the use of the 
 fund he will be liable personally therefor. 12 
 
 § 651. A guardian who places out his ward's money 
 in a manner contrary to the statute should be charged 
 with compound interest. 13 
 
 A constructive trustee, who as agent of a guardian 
 uses the trust fund for his own advantage, cannot re- 
 lieve himself of liability to pay interest on an account- 
 ing by reporting falsely that he had the funds on hand 
 and was unable to invest them. 14 
 
 § 652. The purchase-price of land was to be held by 
 a third person until the title should be perfected; the 
 trustee deposited the fund in a bank with his own ac- 
 count, but the account was always sufficient to pay the 
 trust fund; the trustee died before the title was per- 
 fected, but afterwards it was perfected by the Statute 
 of Limitations operating for the benefit of the vendee. 
 It was held that because the trustee held the funds for 
 a mere temporary purpose, being liable to pay it over 
 to the vendor at any time, his estate should not be 
 chargeable with interest before the date when the title 
 was perfected by the Statute of Limitations, and then 
 only for simple interest and not compound interest, 
 notwithstanding the mingling of the funds, because in- 
 
 ii Jenkins v. Doolittle, 69 111. 415; Cool v. Jackman, ia App. 560- 
 564. 
 
 12 Haines v. Hay, 169 111. 94-98, rev*g 67 App. 445. 
 
 is Hughes v. People, 111 111. 457-461; White v. Sherman, 168 HI. 
 589-610. 
 
 "Lehmann v. Rothbarth, 111 111. 185-200. 
 
THE TBTJSIEE's LIABILITIES. 413 
 
 terest -will not be compounded except in cases of gross 
 delinquency. 15 
 
 § 652a. It is a general rule that an administrator is 
 not liable for interest on monies of his intestate be- 
 cause he is not required to invest the same, but to have 
 them constantly subject to the order of the court. 16 
 
 § 653. If the trustee prove that he has acted hon- 
 estly, even though some few of the items of his account 
 are disallowed, he will be entitled to recover from the 
 estate his expenses and counsel fees in. making the ac- 
 counting demanded by the cestui que trust. 11 
 
 The failure of trustees to keep accounts will justify 
 charging them with at least a part of the costs of a 
 proceeding to charge them with liability for their neg- 
 ligence in respect of the trust fund. 18 
 
 § 653a. If litigation be hostile to a trust and does 
 not involve a construction of the trust instrument 
 itself, but only grows out of questions over the law of 
 trusts and trustees, the expenses of such suit should 
 not be borne by the trust estate. 19 
 
 A will directed that the county court should appoint 
 a trustee; this appointment was properly held to be 
 nugatory by the circuit court which removed him and 
 appointed its own trustee; the trustee named by the 
 County Court refused to turn over the estate and ap- 
 pealed from the decree which was affirmed both by the 
 Appellate Court and the Supreme Court. On an ac- 
 counting by the trustee appointed by the County Court 
 it was held that he was not entitled to the expenses of 
 
 isMathewson v. Davis, 191 111. 381-393, reVg 91 App. 153. 
 i« Haines v. Hay, 67 App. 445. 
 "Kingsbury v. Powers, 131 111. 182-198. 
 
 is Waterman v. Alden, 144 111. 90-106; Nevitt v. Woodburn, 190 111. 
 283-293. 
 
 i» Billings v. Warren, 216 III. 281-288. 
 
414 TRUSTS AND TRUSTEES. 
 
 his appeals because the circuit court had full power and 
 jurisdiction to remove a trustee even when appointed 
 lawfully, and the interests of the trust estate did not 
 require the appeals which involved personal matters 
 only of the unlawful trustee; but, inasmuch as his ap- 
 pointment had been made in accordance with the provi- 
 sions of the will, it was proper to allow him his costs 
 and expenses in the circuit court in determining the 
 validity of his appointment. 20 
 
 § 654. Where a bill in chancery is brought by a ces- 
 tui que trust under a will to have ascertained and de- 
 creed the proper amount which ought to be paid the 
 cestui que trust, under a direction by the testator that 
 she should be suitably supported, her costs and solici- 
 tors ' fees are properly chargeable against the estate.* 1 
 The opposite view was apparently taken in Wilson v. 
 Clayburgh 22 where solicitors ' fees were disallowed to a 
 beneficiary who filed a bill for the appointment of a 
 trustee in lieu of the trustee who had resigned. The 
 McLean case was not cited by the Supreme Court in 
 this case. In both cases the cestui que trust acted for 
 the benefit of the estate. 
 
 § 655. A trustee de son tort, as well as other trustees, 
 is entitled upon an accounting to allowances for ad- 
 vancements made by him to protect the trust estate by 
 way of taxes, proper repairs and interest upon en- 
 cumbrances 23 and improvements made at the request 
 of the cestui que trust. 24 
 
 20 Sherman v. Leman, 137 111. 94-98; Haines v. Hay, 169 111. 93^98. 
 si McLean v. Thomas, 159 111. 227-235. 
 
 22 Wilson v. Clayburgh, 118 App. 193-196; 215 111. 506. 
 
 23 Fishbeck v. Gross, 1112 111. 208-215; Roby v. Colehour, 135 111. 
 340; Nevitt v. Woodburn, 190 111. 283-298; Miller v. Rich, 204 111 
 444-455. 
 
 24 De Walsh v. Braman, 160 111. 416-419. 
 
THE TRUSTEE'S LIABILITIES. 415 
 
 A trustee under a will directing him to pay "annual 
 taxes and insurance and also all reasonable repairs 
 and improvements," and to pay the net income to the 
 cestui que trust, may pay for special assessments as 
 being "reasonable improvements," although they 
 could not be considered as "annual taxes." 25 
 
 § 655a. Trustees not only may, but should employ 
 counsel where there is any difficulty or doubt over the 
 proper administration of the trust, or where legal aid 
 may preserve the fund, and may also, of course, apply 
 to a court of chancery for directions and a construction 
 of the trust instrument as well, and such costs are to 
 be borne by the trust estate. 26 But courts should not 
 permit a trustee to waste the fund by employing more 
 counsel or incurring more expense than necessary in 
 a reasonable fulfillment of the trust objects and pur- 
 poses. 27 
 
 § 656. Where one man agrees with another to bid 
 in the title to certain land at a foreclosure sale, and to 
 convey to the latter when re-imbursed the amount of 
 his advancement, and also upon the payment of a debt 
 due from the latter to the former, both payments are 
 conditions precedent to a claim for relief before the 
 cestui que trust can enforce the trust; and where, in 
 such case, the trustee has conveyed a part of the land 
 to secure bis own indebtedness to one without notice 
 of the trust, such trustee must account for the value 
 of that portion of the land so conveyed by him. 28 But 
 
 as Warren v. Warren, 148 111. 641-652. 
 
 2« Waterman v. Alden, 144 111. 90-J.07 ; Abend v. Endowment Fund 
 Commission, 174 111. 96-107; Keys v. Wohlgemuth, 240 111. 586-692; 
 Hutmacher v. Anheuser, 71 App. 154-159. 
 
 27 Emig v. Barnes, 77 App. 616. 
 
 2s Bradley v. Luce, 99 HI. 234-243. 
 
416 TRUSTS AND TRUSTEES. 
 
 the trustee cannot set off an independent debt due him, 
 individually, from the cestui que trust as the debt is 
 not owing to him in the same capacity, i. e. as trustee. 29 
 § 657. Where land has descended to the heirs of a 
 trustee under a resulting trust, but without such knowl- 
 edge by the heirs, upon an accounting under a decree 
 establishing the trust, only the rents and profits actu- 
 ally received, less taxes and necessary repairs ex- 
 pended, should be charged against such trustees, and 
 not what they might have received as a fair cash rental 
 each year, because such trustees were in no manner to 
 blame or guilty of any bad faith. 30 
 
 § 658. The trustee is not liable for the value of trust 
 property taken from him by operation of law under 
 prior existing liens. 31 
 
 § 659. Where an administrator has been decreed to 
 pay over a trust fund held by his intestate, the latter 's 
 estate should pay the cost of litigation and not the 
 trust fund, the litigation not being for its benefit. The 
 intestate's estate should also pay legal interest on the 
 trust fund. 32 
 
 § 660. A father, having collected the income from 
 his children's property during his lifetime without hav- 
 ing been appointed guardian of their estates, it was 
 proper for the county (or probate) court to allow a 
 claim against his estate as for trust funds, the county 
 court having equitable jurisdiction to that extent, and 
 to take an accounting, applying equitable principles 
 thereto. 33 
 
 2» Knowles v. Goodrich, 60 App. 50&-510. 
 
 so Van Buskirk v. Van Buskirk, 148 III. 9-26. 
 
 si Baehr v. Wolf, 59 111. 470. 
 
 32 Haines v. Hay, 169 111. 93-97. 
 
 88 Bedford v. Bedford, 136 111. 354-360. 
 
THE TRUSTEE'S LIABILITIES. 417 
 
 § 661. The mere fact that the trustee has furnished 
 a bond will not render him any the less liable to ac- 
 count in equity to the cestpis que trustent, and the 
 sureties may also be brought into the same proceeding 
 and their liability fixed. 34 
 
 § 662. A surety on a trustee's bond cannot require 
 the trustee to make an accounting in equity without 
 making the cestuis que trustent parties also, because 
 the trustee and surety are interested together on one 
 side of the account and such ex parte proceeding could 
 not bind the cestuis que trustent. While it would seem 
 that a surety may ordinarily, after the debt has be- 
 come due, go into equity and compel the creditor to 
 sue the principal for the debt, yet a trustee cannot be 
 compelled to give new or additional security on his 
 bond in the absence of any complaint by the cestui que 
 trust, unless the Statute makes express provision that 
 the surety may obtain his release after taking certain 
 steps, as the Statute does in cases of the bonds of trus- 
 tees appointed by courts such as guardians, adminis- 
 trators, etc. 35 
 
 a* People v. Bordeaux, 242 III. 327-334. 
 ssRidgeway v. Potter, 114 111. 457-460. 
 
 ' ^27 •>• ■ ■ * *< ' i 
 
 .-,,,£ 
 
 
 X; 
 
418 TBTTSTS AND TBUSTEES. 
 
 CHAPTER XXXV. 
 
 VACANCIES IN THE TETJSTEESHIP. 
 
 § 663. If some of the trustees named are dead, or 
 do not qualify, or do not assume the execution of the 
 trust, those who do qualify will be vested with all of 
 the estate, power and duties which would have vested 
 otherwise in their joint nominees who were unable or 
 unwilling to act as trustees and there will be no va- 
 cancy for a court of equity to fill. 1 But it should ap- 
 pear that the other trustees refused to act, "neg- 
 lected" is not sufficient. The Statute of 1845 did not 
 contain the present words of "shall fail * * * to 
 qualify." 2 
 
 § 663a. Where a will appointed two daughters as 
 executrices and trustees with power of sale over real 
 estate, and provided that a third daughter should also 
 become an executrix and trustee upon her becoming of 
 age and qualifying, the trustees first named could not 
 contract for the sale of real estate after the third 
 daughter attained her majority and without her join- 
 der, although she did not qualify as an executrix until 
 long afterwards. When the third daughter became of 
 age she also became a trustee, did not have to qualify 
 as an executrix in order to be a trustee, and her mere 
 failure to act was not such a refusal to act that her 
 joinder in a deed or contract of sale could be dispensed 
 with. 3 
 
 iPahlman v. Smith, 23 111. 448-452; Spengler v. Kuhn, 212 111. 
 186-191; Mullaney v. Nangle, 212 111. 247-255, aff'g 113 App. 457. 
 
 2 Ely v. Dix, US 111. 477-481; Clinefelter v. Ayers, 16 111. 329-334; 
 Wardwell v. McDowell, 31 111. 3«4-369. 
 
 s Coleman v. Connolly, 242 III. 574-581. 
 
VACANCIES IN THE TRUSTEESHIP. 419 
 
 § 664. The surviving trustees of an active trust take 
 as joint tenants and have power to continue to perform 
 the duties of the trust without filling the vacancy, un- 
 less the provisions of the trust instrument are manda- 
 tory in respect of filling the vacancy in their number. 4 
 
 Surviving trustees and those, as well, who accept 
 the- trust, where one or more have failed or refused to 
 qualify as trustees, take all of the powers conferred 
 by the trust instrument and may exercise them 
 whether such powers be naked, coupled with an inter- 
 est, discretionary or mandatory. 5 
 
 § 664a. The survivor of two assignees of an insol- 
 vent bank was held to have power to sue on a note 
 given to both assignees. 6 
 
 § 665. The failure of one of several co-trustees to 
 act does not prevent the others who have accepted the 
 trust from executing it and equity will compel per- 
 formance. 7 , 
 
 A deed in trust provided that the trustee should con- 
 vey on the written request of the cestui que trust. The 
 cestui que trust made a deed of her equitable estate 
 to a purchaser thereof, and the trustee refusing to con- 
 vey, this was held to be a sufficient request to justify a 
 court of equity to compel the trustee to act, and to as- 
 sess the. costs against the trustee. 8 
 
 §666. Trustees hold as joint tenants, but the donor 
 of a trust may provide in the deed the manner of fill- 
 ing vacancies occurring in the number of the trustees, 
 and, when such provision has been made that mode 
 
 < Golder v. Bressler, 105 111. 419-434; Reichert v. Mo. & 111. Coal 
 Co., 231 111. 238-244. 
 
 s Ely v. Dix, 118 111. 477-482. 
 «Richeson v. Ryan, 15 111. 13. , 
 i Nicoll v. Miller, 37 111. 387-407. 
 s Knowles v. Knowles, 86 111. 1-10. 
 
420 TRUSTS ^ND TBUSTEES. 
 
 is exclusive; it is only when the remaining trustees 
 have failed or refused to act that chancery will afford 
 its aid, but notice of such suit should be given to all 
 concerned, including any trustee living but refusing 
 to act. 9 
 
 § 666a. The donor may empower the trustee to ap- 
 point a successor in trust and if the power be not ex- 
 ercised arbitrarily or unwisely it will be sustained. 10 
 
 § 666&. The creator of a trust may provide in the 
 trust instrument for the appointment of one or more 
 successors in trust in case of the death of the trustee, 
 or his refusal or inability to act, or his temporary or 
 permanent removal to a foreign jurisdiction, or in 
 case of his removal from office by a court of competent 
 jurisdiction; Where no such provision has been made 
 the vacancy can be filled only by decree of a court of 
 chancery upon due notice to all concerned, including 
 any trustee refusing to act, and such decree should re- 
 quire the proper conveyances of the legal title to be 
 made to the new trustee. Inasmuch as courts of chan- 
 cery cannot vest legal titles in the absence of enabling 
 statutes of the state where the. land is situate — such 
 statutes of foreign states cannot, of course, have any 
 effect upon lands lying in Illinois, nor can the courts 
 of another state exercise jurisdiction further than 
 over the persons of those subject to their decrees. 11 
 
 Mere absence from the state of a trustee without a 
 showing that he has been negligent or guilty of a 
 
 • -.';,' 
 
 » Golder v. Bressler, 106 111. 419-431; French v. No. Trust Co., 197 
 111. 30-38; Reichert v. Mo. & 111. Coal Cp„ 231 111. 238-244; Mason v. 
 Bloomington, 237 111. 442-450; Coleman v. Connolly, 242 111. 574; 
 Irish v. Antioch, 126 111. 474-482. 
 
 10 Orr v. Yates, 209 111. 222-2\0. 
 
 "West v. Fitz, 109 111. 425-442; Lake v. Brown, 116 111. 83-88. 
 
VACANCIES IN THE TRUSTEESHIP. 421 
 
 breach of trust in respect of the trust property will 
 not justify his removal. 12 
 
 § 666c. A deed in trust provided that in case of the 
 death of the trustee the court of chancery of a certain 
 county should be vested with the legal title and should 
 perform the trusts as it should "order or decree, or 
 according to the practice of the court." Under this 
 provision the chancellor could and should appoint a 
 successor in trust upon the death of the trustee. But 
 this case held that it was not necessary to acquire ju- 
 risdiction of the deceased trustee's heirs or personal 
 representatives first, and this may be considered as 
 doubtful law. 13 
 
 § 666d. A testator directed that in case of the death, 
 resignation, refusal or inability of his trustee to act 
 then the County Court should appoint a successor with 
 like powers. If the donee of the power had been 
 named as an individual, any words designating him as 
 judge of a certain court would have been mere descrip- 
 tio personae and the power would have been valid; 
 but the power was given to the County Court as a tri- 
 bunal, and the only court in Illinois which has jurisdic- 
 tion to exercise such a power is a court of chancery. 
 The power is not effective if the agency invoked to 
 execute it is lacking in capacity. 14 
 
 § 667. The fact that one who is nominated as trus- 
 tee of a legacy refuses to act does not operate to vest 
 the legal title in the cestui que trust unless the trust 
 is a passive one. If the trust be an active one a court 
 
 12 LaForge v. Binns, 125 App. 627-530. 
 w Morrison v. Kelly, 22 111. 610-628. 
 
 i*Leman v. Sherman, 117 111. 657-662; Dwyer v. Cahlll, 228 111. 
 617-626. 
 
422 TRUSTS AND TRUSTEES. 
 
 of chancery will fill the vacancy if the trust instrument 
 does not name a successor in trust. 15 
 
 § 667a. Where a sole surviving trustee resigned, 
 and, under the provisions of the trust instrument, a 
 majority of the cestuis que trustent appointed new 
 trustees, it was held that such new trustees became 
 thereupon vested with the legal title without any con- 
 veyance to them from anyone, even though the trust 
 instrument provided that all the real estate should be 
 conveyed to such appointees upon the like trusts. 16 
 But this decision is out of line with other decisions of 
 the Supreme Court bearing upon this point, and it 
 should not be relied upon. 
 
 While the mere appointment of a new trustee to take 
 part in an active trust does not ordinarily vest the le- 
 gal title to the trust property in him without some con- 
 veyance thereof, yet where his appointment is regu- 
 lated and provided for by statute (as for instance re- 
 ceivers of building and loan associations) such trustee 
 will, by operation of law, become seized of the legal 
 title and his predecessor will also be divested thereby 
 without any conveyance. 17 . 
 
 § 668. A successor in trust appointed by a court of 
 chancery cannot succeed to the discretionary powers 
 of his predecessor, unless the trust instrument should 
 so provide, and the court can only confer the minis- 
 terial duties and powers upon its appointee in the ab- 
 sence of such a provision in the trust instrument. 18 
 
 Where trustees have discretionary powers a court 
 of equity cannot interfere with the execution thereof 
 
 ib Bennett v. Bennett, 217 111. 434-445. 
 
 is Reichert v. Mo. & III. Coal Co., 213 111. 238-244. 
 
 " Golder v. Bressler, 105 111. 4H9-432. 
 
 is French v. Northern Trust Co., 197 111. 30-39. 
 
VACANCIES IN THE TBTTSTEESHIP. 423 
 
 in the absence of fraud or collusion. And if the trus- 
 tees cannot agree to act jointly in respect of their dis- 
 cretionary powers nothing may be done thereto, unless 
 the proper preservation of the trust estate should make 
 the removal of some of the trustees appear necessary 
 to the court. 19 But this latter power of the court to 
 remove should be exercised most judiciously as it will 
 be obvious that the court is thereby placed in an equiv- 
 ocal position of seeming to determine which of the dis- 
 agreeing trustees had the better quality of discretion, 
 and in effect substituting the court's discretion for 
 that of the trustee or trustees removed. 
 
 § 669. Where a sole trustee dies before the time for 
 the distribution of the fund and the trust instrument 
 makes no provision for a successor the cestuis que trus- 
 tent should have a new trustee appointed by a court 
 of chancery and they cannot sue upon the deceased 
 trustee's bond before the period for distribution ar- 
 rives; only the successor in trust with the legal title 
 may do so. 20 
 
 § 670. The removal or appointment of trustees by a 
 court of chancery does not involve a freehold for the 
 purposes of appeals or writs of error, as the title to 
 land is not thereby adjudicated. 21 
 
 if Mannhardt v. 111. S. Z. Co., 90 App. 315-323; Clinefelter t. Ayers, 
 1C 111. 329-334. 
 
 zo People v. Petrie, 94 App. 652^661, affd by 191 111. 497. 
 
 2i Schwitters v. Barnes, 243 111. 493; Casey v. Canavan, 93 App. 
 538-541. 
 
424 TRUSTS AND TRUSTEES. 
 
 CHAPTEE XXXVI. 
 
 REVOCATION AND TERMINATION. 
 
 § 671. The mere absence of a power of revocation, is 
 not, of itself, ground for setting aside a voluntary deed 
 for the benefit of another. 1 
 
 § 672. A deed in trust, made for the purpose of de- 
 feating the dower right of a woman whom the grantor 
 was about to marry, by conveying land in trust for the 
 grantor's use during his lifetime with remainder over, 
 cannot be revoked by the grantor after such wife's 
 death as against the remainderman, and the grantor 
 would be coming into equity with unclean hands. 2 
 
 § 672a. Nor can a valid executed trust of personalty 
 be revoked or defeated by the trustees handing over 
 the personal property to the donor. 3 
 
 § 673. A widow in the settlement of an estate took 
 notes from the heirs who agreed to pay her interest 
 and such part of the principal as might be necessary 
 for her support ; these notes were placed by the widow 
 in the hands of one of the heirs together with a trust 
 instrument, under which he was to retain the custody 
 of the notes and collect from the heirs such part 
 thereof as he might judge the needs of the widow re- 
 quired. Under this trust arrangement the widow was 
 not permitted to revoke the trust in the absence of any 
 abuse of it on the part of the trustee, and the heirs, 
 under the circumstances, were held to have as much 
 right as the widow to have the trust continued. 4 But 
 
 i Patterson v. Johnson, 113 111. 559-573. 
 aMulIer v. Blake, 154 III. 110-114. 
 s Williams v. Evans, 154 111. 98-106. 
 * Light v. Scott, 88 111. 239-244. 
 
REVOCATION AND TERMINATION. 425 
 
 the donor of a trust may, by an express reservation 
 contained in the trust instrument itself retain the right 
 of revocation. 5 
 
 § 674. If a will give certain powers to the executors 
 as such to act as trustees the revocation in a codicil of 
 the nomination of one executor will also revoke his 
 right to act as trustee where he was not expressly 
 named as a trustee. 6 
 
 § 675. Where A, a depositor in a bank, had no 
 knowledge that B had made a special deposit with the 
 bank to cover a supposed shortage in A's account but 
 which shortage did not occur, upon the bank's failure 
 B could revoke the trust and recover his special de- 
 posit. 7 
 
 § 676. If the trustee fail to perform his duties prop- 
 erly the remedy should be by having him removed 
 from office, a new trustee appointed in his stead, and 
 not the setting aside of the deed of trust. 8 
 
 § 677. When the trust instrument fixes definitely the 
 time when the trust shall end it is conclusive, except, 
 perhaps, where minor details of the settlement of the 
 estate demand a reasonable period thereafter, during 
 which period the trust may be kept alive for such 
 perfunctory purposes. And, in any evenj, when all 
 the purposes of the trust have been fulfilled, including 
 a proper distribution, and proper conveyances of the 
 legal title of land or of delivery and assignment of the 
 personalty to the beneficiaries, the trust will have 
 ceased to exist. 9 
 
 » Kelly v. Parker, 181 111. 49-60. 
 
 e Mullaney v. Nangle, 212 111. 247-263, aff'g 113 App. 457. 
 
 * Star Cutter Co. v. Smith. 37 App. 212 111. 215. 
 
 s Brower v. Callender, 105 111. 88-104. 
 
 o Spengler v. Kuhn, 212 111. 193. 
 
426 TBTJSTS AND TBTJSTEES. 
 
 § 677a. A conveyance may be presumed to have been 
 made by the trustee where a long time has elapsed. 10 
 
 § 677fc. Courts of chancery may, also, by their de- 
 crees, terminate trusts before the express time set, if 
 they have become impossible of performance, or if all 
 of the parties are sui juris, are before the court, and 
 unite in praying for a termination, and there are no 
 contingent interests which cannot be protected. 11 
 
 § 678. If the equitable estate merge with the legal 
 estate, and they are co-extensive, the trust will deter- 
 mine; so, too, if the legal estate be of greater extent 
 than the equitable a merger will end the trust. But if 
 the legal estate be less comprehensive than the equita- 
 ble then a merger will not be permitted in equity to 
 annihilate the trust. 12 
 
 § 678a. Nor will equity so permit in opposition to a 
 plain intention. 13 
 
 loMcFall v. Kirkpatrick, 236 111. 281-302. 
 
 «■ Perry, 6th Ed. Sec. 920; Beach, Sees. 705-759; State Bank of 
 Nauvoo v. Lobdell, 78 App. 600-602, aff'd by 180 111. 56. 
 12 Perry, 6th Ed. Sec. 347; Burbach v. Burbach, 217 111. 547-550. 
 is Perry, Sec. 347. 
 
INDEX 
 
 [The numbers refer to sections.] 
 
 ABATEMENT, 
 
 suits regarding public trusts do not abate by death of trus- 
 tees, 444. 
 
 ABSTRACT MAKERS, 
 
 sustain a fiduciary relation to customers, 376f. 
 no matter how badly abstracted, records of a trust put a pur- 
 chaser upon notice, 470a, 581. 
 
 ACCEPTANCE, 
 
 of offer to charity precludes later modification of offer, 81a. 
 agreement to execute trust in futv.ro without compensation is 
 not binding, 269. 
 unless trustee enter into performance, 269. 
 a parol, of a trust with part performance estops a trustee 
 
 from denying his acceptance, 472. 
 no title vests in a trustee until he accepts expressly or im- 
 pliedly, 548. 
 how trustee may accept trust, 549. 
 when it relates back to a testator's death, 549a. 
 having accepted", equity holds a trustee to a faithful perform- 
 ance, even though he must act without pay, 556c, 5986, 665. 
 until acceptance the legal title descends to the heirs, 567. 
 
 ACCOUNTING (see Liability of the Trustee), 
 
 every trustee subject to in equity, 44, 648. 
 
 when administrator of deceased trustee cannot set-oft dower, 
 123. 
 
 administrators and executors must account at reasonable in- 
 tervals, 158. 
 
 their accounts may be taken in chancery as well as probate 
 court, 158, 660. 
 
 trustees must account not only for all profits but for savings 
 effected to fund, 170, 603, 611, 648a. 
 
 administrator of deceased trustee must account for trust fund 
 when identified, 172. 
 
 when partnership accounting barred by Statute of Limita- 
 tions, 196. 
 
428 INDEX. 
 
 [The numbers refer to sections.] 
 
 ACCOUNTING — Continued. 
 
 when borrower from trustee may set-off overdraft *y trustee 
 
 at bank, 239. 
 when maker of purchase-money notes given to pay debts of 
 
 business bought may and may not set-off claims bought by 
 
 him, 272. 
 in resulting trusts where trustee has sold the land cestui 
 
 takes not only original amount invested by him but all 
 
 profits, 342. 
 if grantee of deed in form absolute but really a mortgage sell 
 
 land he must account for proceeds, 360. 
 defendant in resulting trust cannot have without a cross-bill, 
 
 372. 
 when an agent of a trustee must account to the cestui, 377, 
 
 405, 651. 
 cestui may elect to hold a constructive trustee either for what 
 
 he has made or for what cestui has lost, 390, 609c. 
 may be had from the administrators of an investing agent, 398, 
 
 399. 
 agents and trustees must account for all profits made with 
 
 principal's money, 404, 609c, 649. 
 bill for between partners may be barred by Statute of Limi- 
 tations, 418. 
 unless there be a continuing trust, 418a. 
 as between the trustee and sureties on his bond, 442. 
 the burden is on the trustee to show no concealment from 
 
 cestui in settling his accounts, 459, 648c. 
 filing of a bond by the trustee does not exempt him from, 5516. 
 trustee must claim his compensation, if at all, in nisi prius 
 
 court, 565. 
 the trustee must keep proper books of account, 602. 
 when the trustee's private books must be produced, 602. 
 the trustee must account for all funds mingled with his own, 
 
 619. 
 the cestui is entitled to a complete statement from the trus- 
 tee, 648c. 
 when a constructive trustee is liable for rentals but not for 
 
 earnest-money obtained by making contracts of sale, 649a. 
 if a converting trustee has not kept exact accounts he Is lia- 
 ble for the principal and compound interest, 650. 
 when trustees may and may not receive their expenses of, 653. 
 trustees may have advancements made properly by them, 655. 
 trustee cannot set off an independent debt due him from the 
 
 cestui, 656. 
 
INDEX. 429 
 
 [The numbers refer to sections.] 
 
 ACCOUNTING — Continued. 
 
 what may be charged to the heirs of a deceased trustee of a 
 resulting trust, 657. 
 
 a surety on trustee's bond cannot make trustee account un- 
 less cestuis are parties, 662. 
 
 ACCUMULATION (see Perpetuities), 
 
 trusts for must keep within Rule against Perpetuities, 505. 
 Thellusson Act, 520, 525. 
 
 ACTION (see Chose in Action), 
 
 concurrent in law and equity, 31. 
 
 ACTIVE TRUSTS, 
 Section 14. 
 Chap. XVI, 301-316. 
 
 are not operated upon by Statute of Uses, 301. 
 what are, 304, et seq. 
 
 ADEQUATE REMEDY AT LAW, 
 
 usually on personal property contracts, 32. 
 on bailments, 32. 
 
 ADMINISTRATORS (see Estates of Decedents), 
 occupy a fiduciary relation, 397. 
 must not use funds of estate for own profit, 401c. 
 
 ADMINISTRATION OF ESTATES (see Estates of Decedents), 
 when Probate and Chancery jurisdiction concurrent, 35. 
 Act of 1909, 35. 
 
 ADMINISTRATOR (see Estates of Decedents). 
 
 ADMISSIONS (see Evidence). 
 
 ADVANCEMENTS, 
 
 presumed from gift to wife or child, 115, 127, 448. 
 
 unless intention was to hinder creditors, 2686. 
 presumption is same whether parent was the father or mother, 
 
 357. 
 when presumption rebutted, 115, 127a, 144, 2686, 3576, 448, 457. 
 no presumption if wife buys for husband, 1276, 448a. 
 a question of intention, 141, 357, 448. 
 not paid for may he charge on father's estate, 142. 
 may be personalty, 142. 
 to grandchild when, 143. 
 if parent had no other property, 144a, 4476. 
 
430 INDEX. 
 
 [The numbers refer to sections.] 
 
 ADVANCEMENTS— Continued. 
 
 rebut alleged resulting trusts, 337. 
 
 no resulting trust can arise before the presumption is over- 
 come, 357. 
 taking title in name of an idiot son is an irrevocable, 357a. 
 by grantee in deed absolute but really a mortgage to protect 
 
 property, are saved to him, 426. 
 when evidence is admissible to support presumption of, 457. 
 by trustee to protect trust estate gives him and his- devisees 
 a lien which they may foreclose, 584. 
 and which he is entitled to an allowance for on ac- 
 counting, 655. 
 
 ADVERSE POSSESSION (see Limitations, Statute of; Possession). 
 
 AGENCY (see Principal and Agent). 
 
 AGENT (see Principal and Agent). 
 
 AGREEMENT, 
 
 to execute trust in futuro without compensation is not bind- 
 ing, 269. 
 unless trustee entered into performance, 269. 
 
 ALIEN, 
 
 when he may take a devise of land by equitable conversion, 
 638. 
 
 ALIENATION, 
 
 of income of estate may be forbidden but not of corpus, 294. 
 when an equitable title may be divested without, 401a. 
 when no restraint against, a cestui may alien a vested equita- 
 ble interest and the trustee should concur, 583. 
 may destroy a power appendant to appoint, 640d\ 
 
 ANNUITY, 
 
 gift subject to for donor, 29, 117. 
 
 when executor and not trustee should provide fund for, 166c. 
 
 when agreement to pay, is void as to creditors, 258. 
 
 creditors of one of several annuitants cannot take property 
 held in trust, 270. 
 
 but debtor annuitant may assign income unless trust instru- 
 ment forbids, 270. 
 
 when a devise of income does not make a rent charge but 
 only an annuity, 533. 
 
INDEX. 431 
 
 [The numbers refer to sections.] 
 
 ANSWER IN CHANCERY, 
 
 when it may or may not be availed of to establish trust, 
 
 247a-6, 606a. 
 when rival claimants of land bound by answer of trustee, 265a. 
 parol evidence is admissible to prove terms of trust admitted 
 by answer in chancery to exist, 454a. 
 
 APPEAL, 
 
 when the cestui should join the trustee in prosecuting an, 445. 
 
 APPLICATION OF PURCHASE MONET, 
 
 lender of money on mortgage is not bound to see to, 430a. 
 when a purchaser is and is not required to see to, 596. 
 a constructive trustee by an improper purchase must see to, 
 598c. 
 
 APPOINTMENT (see Powers), 
 
 a trustee is appointed under a will if the executor be given 
 
 trust duties, 535. 
 illusory, does not prevail in Illinois, 639c. 
 powers of, are construed liberally, 640c. 
 
 ART, 
 AS, 
 
 trusts for, valid as charities, 85. 
 
 does as before "trustees" remove objection of descriptio per- 
 sonam? 388. 
 
 ASSENT (see Presumptions). 
 
 ASSETS (see Corporations; Partnerships). 
 
 ASSIGNEE, 
 
 a trustee, 36. 
 
 of insolvent, a naked trustee after claims are barred, 3086. 
 
 ASSIGNMENT, 
 
 of part of Chose in Action, 34, 242. 
 
 of expectancy, 52. 
 
 when assignment of insurance to trustee is complete, 148. 
 
 of contract for purchase of land as relating to Statute of 
 
 Frauds, 265b. 
 of income of annuity unless trust instrument forbids, 270. 
 when assignment of a legacy by a son to his father does not 
 
 raise a constructive trust, 3816. 
 by cestui of proceeds of sale of trust property does not give 
 
 assignee the right to redeem from sale, 4286. 
 
432 INDEX. 
 
 [The numbers refer to sections.] 
 
 ASSIGNMENT— Continued. 
 
 of mortgage trust deed and notes by delivery does not change 
 
 rule of being subject to all equities, iZOd. 
 of contingent legacy is good in equity, 538a. j, 
 
 the survivor of two assignees of an insolvent bank; has power 
 to sue on a note given to both, 664a. 
 
 ASSOCIATIONS (see Land Associations), 
 
 assuming to be corporations, may nevertheless incur indebt- 
 edness in excess of capital stock, 202. 
 
 ASSUMPSIT (see Jurisdiction at Law). 
 
 ATTORNEYS^ 
 
 occupy a confidential relation, 398. 
 assignment to of part of action, 34. 
 
 to whom client conveyed land in payment of fees is not trus- 
 tee for other counsel employed by him, 270b. 
 cannot take any advantage of client in respect of latter's 
 
 property without being held as constructive trustees, 398. 
 presumptions are against validity of purchases by, from cli- 
 ents, 449e, 609. ,';■:!,» 
 and burden is on attorney to show fairness, 459a. 
 opinion of, that a trustee owned the equitable fee, cannot ef- 
 fect remaindermen, 581. ' * 
 
 ATTORNEY GENERAL, 
 
 proper party In suits involving public trusts, -54. 
 not necessary party when, 93. 
 
 B. 
 
 BAILMENTS, 
 
 are not technical trusts, 484. 
 
 adequate remainder at law on, 32, 4846. 
 
 warehouseman purchasing receipts, 33, 618c. 
 
 special deposits (see Banks). 
 
 when a bailor occupies a fiduciary relation and becomes a 
 
 constructive trustee, 376e. * * 
 
 a prison warden is not a mere bailee of prison funds but a 
 public trustee, 551c. 
 
 BANKS, Chap. XIII (see Mingling. Trust Funds), 
 
 directors cannot divert? funds by making gifts to charities, 
 92, 236a. 
 
INDEX. 433 
 
 [The numbers refer to sections.] 
 
 BANKS — Continued. 
 
 stockholders cannot discharge double liability by buying up 
 at discount claims against, 207c, 238. 
 
 relation to depositors, 226. 
 
 special deposits are trust funds and must not be mingled with 
 general funds, 227, 618. 
 
 when not liable for employee's conversion of special deposit, 
 228. 
 
 must provide usual safeguards for special deposits, 228a. 
 
 when cheque left with banker as collateral security is not 
 special deposit, 229. 
 
 when deposit to pay draft is a trust fund, 229a. 
 
 promise unfulfilled to keep fund separate will not prefer de- 
 positor, 230, 618. 
 
 cheque with memo, attached held to be a special deposit, 230a. 
 
 duties of, to transmit funds, 231. 
 
 as collecting agents are not trustees unless they are also to 
 remit funds, 232. 
 
 having notice that depositor is not real owner may refuse 
 to honour his cheques, 233. 
 
 and compelled to pay fund to owner, 233. 
 
 taking paper endorsed by one as trustee cannot rely on doc- 
 trine of descriptio personae, but must enquire, 233a. 
 
 may assume that cheques. against general trust deposits are 
 issued properly, 234. 
 
 may disregard memoranda on cheques, 234. 
 
 may levy on debtor's land, though a director knew debtor 
 held land in trust, 234a. 
 
 having knowledge that debtor is not real owner of deposit, 
 cannot attach same, 2346. 
 
 having no notice that trustee is embezzling trust funds, not 
 liable, 235. 
 
 directors are quasi trustees, 236. 
 
 directors cannot divert funds of bank out of scope of busi- 
 ness, 236a. 
 
 trustee of voluntary savings society has greater responsibil- 
 ity than a bank director, 237. 
 when trust estate owning shares in bank becoming Insolvent 
 
 must pay assessment, 238a. 
 when overdraft on bank made good by borrower from over- 
 drawing trustee may be set off, 239. 
 
 28 
 
434 INDEX. 
 
 [The numbers refer to sections.] 
 
 BANKS — Continued. 
 
 the president of a bank having held title to land for it the 
 grantees of its receiver may have a conveyance of the legal 
 title from the heirs of the deceased president, 309a. 
 
 the survivor of two assignees of an insolvent bank has power 
 to sue on a note given to both assignees, 664a. 
 
 BANKRUPTCY, 
 
 discharge of debtor does not end a trust created for benefit 
 
 of creditors, 292. 
 a trustee in, after claims are barred, holds under naked trust, 
 3082). 
 
 BENEFICIARY (see Cestui Que Trust). 
 
 BEQUEST (see Legacy; Wills). 
 
 BIDDER (see Purchaser; Sales). 
 
 BILL IN AID OF EXECUTION, 
 
 unnecessary where breach occurs of express trust for benefit 
 of creditors, 292. 
 BILLS AND NOTES (see Negotiable Instruments). 
 
 BOARD OF TRADE, 
 
 Certificate of Membership may be the subject of a resulting 
 
 trust, 365, 483a. 
 BONA FIDES (see Purchasers). 
 BONDS OF THE TRUSTEE, 
 
 when they may tje required, 550. 
 
 when a purchaser is protected though the court required 
 
 none, 550a. 
 failure to file, cannot be attached collaterally, 551a. 
 filing, does not exempt from liability to account, 5516, 661. 
 sureties of public trustees, such as wardens of prisoners, are 
 
 liable for loss by failure of a bank, 551c. 
 sureties of executor are not liable for his conversion as trus- 
 tee, 169a. 
 as to parties in bills in chancery brought by and against the 
 
 sureties, 442, 551. 
 sureties are released by the making of a new trust instrument 
 
 substantially different, 552. 
 a surety on a guardian's bond is released when ward after 
 
 becoming of age joins his guardian in speculating with 
 
 fund, 552a. 
 
INDEX. 435 
 
 [The numbers refer to sections.] 
 
 BONDS OP THE TRUSTEE— Continued. 
 
 sureties of an executor are not liable for life insurance money 
 
 held in trust as a trustee's bond should have been required, 
 
 5526. 
 when trustees may and may not require a bond of a life ten- 
 ant in possession, 553, 607e. 
 when remaindermen may sue on trustee's bond though life 
 
 tenant be alive, 554. 
 a circuit judge cannot require a trustee to give bond unless 
 
 he do so judicially, 640c. 
 sureties cannot require trustee to account unless the cestui* 
 
 que trustent are in court, 662. 
 sureties cannot compel their release unless Statute provides 
 
 for, 662. 
 sureties may require a creditor to sue the principal, 662. 
 cestuis may not sue on a deceased, trustee's bond before time 
 
 for distribution; only the successor may, 669. 
 
 BREACHES OF TRUST, Chapter XXXII, 
 
 the trustee cannot make an admission prejudicial to the trust, 
 
 606. 
 when an answer in chancery does not admit a trust, 606a. 
 as to the practice when a trustee purchases from himself, 
 
 607, 612. 
 
 innocent purchasers without knowledge of a trustee's breach 
 
 are protected, except as to choses in action, 607a. 
 the chain of title to real estate may show, and be notice, 607a. 
 in equity a trustee's purchase is voidable but at law fraud 
 
 must be shown, 607&. 
 when ratification of, by cestui does not estop him, 475. 
 a remainderman is not bound by a life-tenant's ratification of, 
 
 475. 
 as to the liability of a trustee for, 603a. 
 if the trustee deny the trust his transactions with his cestui 
 
 will be tainted with fraud, 6076. 
 but cestui should not delay in attacking, 6076. 
 practise when a trustee refuses to make a declaration of trust 
 
 which he promised in order to obtain title, 607/\ 
 as to the trustee purchasing and taking title in his own name, 
 
 608, 6116. 
 
 a railway president acting as trustee of bonds must not con- 
 fuse his distinct duties, 608. 
 
436 INDEX. 
 
 [Tine numbers refer to sections.] 
 
 BREACHES OP TRUST— Continued. 
 
 an administrator of a partner redeeming from foreclosure 
 sales must give heirs of other deceased partners the bene- 
 fit, 608a. 
 
 what an attorney must show in purchasing from a client, 609. 
 
 former sales by vendee for vendor do not create a trust, 609a. 
 
 silence is not a breach, in the absence of a duty to speak, 609a. 
 
 ■when the purchase of land by an office-associate and for which 
 land the Other had been bargaining is not a breach of trust 
 6096. 
 
 when foreclosing on collaterals gives rise to, 609c. 
 
 a trustee cannot sell to organizations of which he is a mem- 
 ber, 6i0. 
 
 occur if trustees fail to account for savings effectuated by 
 them, 611. 
 
 occur if trustees speculate by buying up claims against the 
 estate, 611a. 
 
 occur if trustees invest in speculative securities, 6116. 
 
 where property has been converted the cestui may elect to 
 follow it, or hold the trustee liable, 613. 
 
 the trustee cannot change the form of investment from land 
 into personalty or vice versa unless instrument so per- 
 mits, 614. 
 
 when the heirs of a life tenant and trustee with power to re- 
 invest may have the increase in value of real estate, 614a. 
 
 when a stranger is chargeable with a trustee's misappropri- 
 ation, 615. 
 
 removing or selling fixtures or buildings from land subject 
 to a lien is a breach of trust, 616. 
 
 as to following and identifying trust property which has been 
 wrongfully converted, 617 et seq. 
 
 how the trustee may make restitution for mixing trust funds, 
 beyond the possibility of identification, 622. 
 
 BROKER, 
 
 not strict trustee, 32. 
 BURDtEN OF PROOF (see Evidence). 
 BY-LAW (see Corporation; Compensation). 
 
 C. 
 CAPITAL (see Corpus of Estate). 
 CEMETERY TRUSTEES, 
 
 hold fee for lot owner's use, 62. 
 
INDEX. 437 
 
 [The numbers refer to sections.] 
 CEMETERY TRUSTEES— Continued. 
 
 trusts to keep lots in order void, 87. 
 may apply revenues to stock, 87a. 
 
 CERTAINTY REQUISITE, 17, 19, 527. 
 
 in the objects of a testamentary trust, 527a. 
 
 CERTIFICATE, 
 
 Board of Trade membership may be subject of a resulting 
 
 trust, 365. 
 of sale assigned leaves no resulting trust for assignor in land, 
 
 368. 
 
 CESTUI QUE TRUST, 
 
 has no title in law, 567c. 
 
 when he may sue at law, 10, 436. 
 
 relation of does not arise out of imperfect gift, 22. 
 
 takes entire income of estate and not merely support, unless 
 
 limited by settlor, 151. 
 becomes a mere creditor when he takes trustee's note in fair 
 
 settlement, 154. 
 minor, may impeach decree by bill in equity, 155. 
 when not entitled to have trustee return promissory notes, 
 
 1666. 
 may follow converted estate so long as he can identify it, 
 
 and no innocent purchasers have bought it, 180, 193, 197a, 
 
 617. 
 cannot be made to contribute to expenses of a partnership 
 
 of which trustee was a member and converted trust funds 
 
 to use of firm, 197a. 
 may hold any partner of firm liable who knows that co-part- 
 ner diverted trust funds to firm's use, 197a. 
 who can identify trust fund in receiver's hands has prior 
 
 equity, 223. 
 may sue bank at law if it withhold funds for trustee's debt, 
 
 2346. 
 if consent of, necessary to sale of land it may be oral as 
 
 Statute of Frauds does not apply, 246a. 
 Statute of Frauds is not available against creditors, 265. 
 may compel in equity conveyance of legal title in undivided 
 
 interests when trust becomes passive, 306, 309. 
 cannot maintain ejectment on passive trust once active, except, 
 
 etc., 314. 
 
438 INDEX. 
 
 [The numbers refer to sections.] 
 
 CE8TVI QUE TRUST— Continued. 
 
 what cestui in possession as trustee for himself and others 
 
 has implied power to mortgage, 321. 
 in resulting trusts where land has been sold cestui takes not 
 
 only original amount invested but all profits, 342. 
 may compel reconveyance where deed absolute was really a 
 
 mortgage or have an accounting of proceeds, 360. 
 or his grantee may enforce a resulting trust against all hav- 
 ing notice thereof, 364a. 
 may recover in assumpsit on resulting trust if land has been 
 
 sold, 371. 
 when agents of trustees must account to, 377. 
 may elect to hold a constructive trustee for what he has 
 
 made, or for what cestui has lost, 390. 
 of agent to purchase who takes title in own name may adopt 
 
 several remedies, 401a. 
 keeping silent when equity requires him to speak, cannot 
 
 speak when equity requires him to be silent, 401a. 
 cannot speculate on increase in value of land acquired wrong- 
 fully by trustee, but must act promptly, 401a, 612. 
 is not guilty of laches before he has knowledge, 408. 
 when cestui need not enquire as to administration of trust, 
 
 408. 
 possession of may excuse laches, 411a. 
 insane, not guilty of laches, 407a. 
 and not barred by Statute of Limitations, 414a. 
 is barred if his trustee is barred and his remedy is against 
 
 trustee, 419c. 
 may be the trustee in a mortgage deed of trust, 423. 
 is liable on assumption clause in deed to his trustee, 4266. 
 assignment of proceeds of a trust sale by the cestui does not 
 
 give his assignee a right to redeem from sale, 4286. 
 may mortgage for spouse's benefit, 4306. 
 when not necessary parties in chancery, 437o-6. 
 when he should join the trustee in an appeal, 445. 
 assent to creation of trust, when personal, 446a. 
 name of, in a declaration of trust left blank may be supplied 
 
 by parol evidence, 455. 
 the burden is on the trustee in obtaining a release from the 
 
 cestui to show no concealment in accounting, 459. 
 is competent to give notice to a purchaser, 466. 
 when he may attack the acts of an executor-trustee although 
 
 approved by the probate court, 473. 
 
INDEX. 439 
 
 [The numbers refer to sections.] 
 
 CESTUI QUE TRUST— Continued. 
 
 when not bound by his ratification of a breach of trust, 475. 
 
 all the cestuis must join in a ratification, 475. 
 
 not under duty to object to a breach of trust is not barred 
 before Statute of Limitations has run, 475. 
 
 may obtain aid of a court of equity to appoint a trustee where 
 trust instrument did not do so, 547c. 
 
 when life-tenant in possession may or may not be required to 
 furnish a bond, 553. 
 
 cannot object to compensation of trustee if neither he nor 
 his share contributed, 564. 
 
 need not be named in deed if he can be ascertained, 567(2. 
 
 may maintain a bill in equity against the trustee and third 
 persons if trustee refuses to protect the estate, 569. 
 
 may alien a vested equitable interest and trustee should con- 
 cur, 583. 
 
 every cestui is entitled to notice from the trustee of any sale, 
 591, 600. 
 
 how cestui may treat the trustee's sales to himself, 609c, 612. 
 
 how cestui may treat purchases by trustee in his own name, 
 612. 
 
 where the trustee has invested some of his money, 612a. 
 
 where the trustee has mingled trust funds with his own the 
 cestui may take all unless the trustee can identify his own 
 or unless the trustee be insolvent, 619. 
 
 cannot object if the donor has reserved certain rights to him- 
 self, 641. 
 
 is entitled to a complete statement of account from the trus- 
 tee, 648c. 
 
 when expenses of, on obtaining a decree appointing a new 
 trustee or obtaining a construction of the trust instrument 
 are and are not allowable, 654. 
 
 cannot enforce a trust before performing conditions precedent 
 required of him, 656. 
 
 cannot sue on a deceased trustee's bond before time for dis- 
 tribution; only the successor may, 669. 
 
 CESTUI QUE USE (see Statute of Uses). 
 
 CHANGE OF PROVISIONS, 
 
 equity alone may in urgent cases, 48, 49, 133, 151a. 
 by second instrument, 52, 110$. 
 
440 INDEX. 
 
 [The numbers refer to sections.] 
 
 CHARITABLE TRUSTS. Chapter VI, 
 _ definitions of, 72. 
 
 cy pr6s doctrine, 73, 74. 
 
 cannot be altered under cy pris doctrine unless the charity 
 become impracticable, 74a, 79. 
 
 cy pres does not warrant court in employing extraordinary 
 agencies, 746. 
 
 when cy pr&s may permit substitution of corporation, 74c. 
 
 no uncertainty, if someone is to point out cestui, 75. 
 
 valid for corporation formed later, 76, 95. 
 
 "what remains" is uncertain, 77. 
 
 when words are precatory, 77. 
 
 for woman suffrage upheld, 77a. 
 
 for erection of church buildings upheld, 776. 
 
 may be executed if a substantial sum be available, 77c. 
 
 exempt in general, from Rule against Perpetuities, 79. 
 
 not perpetuities if estate- be vested, 79. 
 
 will not fail for lack of trustee, 80. 
 
 valid for religious, educational and philanthropic purposes, 81. 
 
 valid for schools even though some tuition be charged, 81. 
 
 acceptance of offer to, precludes later modification of offer, 81a. 
 
 when hospital is a charity, 82. 
 
 when hospital is liable for taxes, 82a. 
 
 bequests to "the poor of the county" must be administered by 
 the County Board, 83. 
 
 a gift to trustees of an institution is a gift to the institution, 
 84. 
 
 devise to village school does not vest title in the directors or 
 trustees, 84a. 
 for art, valid, 85. 
 , for fountains, valid, 86. 
 
 for cemetery purposes invalid, 87. 
 
 when cemetery corporation is not a charity, 87a. 
 
 bequests for masses valid, 88. 
 
 power to make gifts to, must be reasonable as against remain- 
 dermen, 89. 
 
 when powers of trustees over fund for partly charitable pur- 
 poses cease, 89a. 
 
 corporation may incur indebtedness, 896. 
 
 when reference to another instrument does not imply a trust, 
 90. 
 
 not liable for negligence of servants, 91. 
 
 bank directors cannot give bank's funds to, 92. 
 
INDEX. 441 
 
 [The numbers refer to sections.] 
 CHARITABLE TRUSTS— Continued. 
 
 attorney general not necessary party to suits, when, 93. 
 lands are within scope of Statute of Frauds, 245. 
 trustees may be witnesses to a will aiding their charity, 545. 
 trustees may not have compensation unless provided for in 
 the trust instrument, 555. 
 
 CHATTELS (see Personal Property). 
 
 CHATTEL MORTGAGE (see Mortgages). 
 
 CHATTELS REAL, 
 
 within scope of Statute of Frauds, 245. 
 
 CHEQUES (see Banks). 
 
 CHILDREN, TRUSTS FOR. Chapter X, 
 jurisdiction of chancery over, 140. 
 
 purchases by parent in name of, presumed advancement, 115, 
 127, 141, 144. 
 - if parent owned other property, 144a, 3576. 
 advancement not paid for by father may be charge on his es- 
 tate, 142. 
 advancement may be of personalty, 142. 
 advancement may be to grandchild, 143. 
 when failure of child to make promissory notes to parent does 
 
 not invalidate gift, 147. 
 when assignment of life insurance to trustee for children is 
 complete, 148. 
 when not, 148a. 
 parent may give property to any one, 149. 
 entitled to entire income of estate if not limited by deed, 151. 
 father of, cannot collect their income without liability to ac- 
 count as a trustee, 152. 
 stepmother holds fiduciary position, 153. 
 
 when a devise to a wife upon condition that children be sup- 
 ported does not raise a precatory trust, 329. 
 father may have resulting trust in land paid for by his minor 
 children, 350. 
 trusts for guarded in equity, 38, 140. 
 minors may impeach decree, 38, 155. 
 equity may convert their realty into personalty, 50. 
 gifts from, to parent are prima facie voidable, 69, 153, 381. 
 but not gifts to, from parents, 376. 
 consideration in gifts to presumed, 110a. 
 
442 INDEX. 
 
 [The numbers refer to sections.] 
 
 CHILDREN, TRUSTS FOR— Continued. 
 
 consideration not presumed for grandchild, 111. 
 
 included in trusts for wives, 138. 
 
 unless born in later marriage, 150. 
 
 when a trust will result for children on a partition sale, one 
 only taking title, 350a. 
 
 when father's acquirement of title on son's contract of pur- 
 chase gives rise to a resulting trust for son, 3506. 
 
 the presumption of an advancement to a child is the same as 
 against either parent, 357. 
 
 taking title in name of an idiot son creates an irrevocable 
 advancement and parent is an incompetent witness to as- 
 sert a resulting trust, 357a. 
 
 when an adult son may purchase his father's obligations, 381a. 
 
 the failure of anyone to object to incompetent evidence against 
 an infant cannot be availed of by the infant's opponent, 458e. 
 
 CHOSE IN ACTION, 
 
 part assigned, 34. 
 
 trust in may be created, 477. 
 
 a purchaser of is not protected, 607a. 
 
 CHURCHES, 
 
 religious disputes not usually heard in equity, 37, 96. 
 
 not incorporated may hold any number of acres, 71. 
 
 trust for building, valid as charities, 776. 
 
 charities for religious purposes are valid, 81. 
 
 members must submit to jurisdiction, 94. 
 
 equity interferes only, when, 94. 
 
 incorporation not necessary to enforcement of trust, 95. 
 
 mission cannot compel mother church to convey title by incor- 
 porating, 95a. 
 
 invading pastors enjoined, 96. 
 
 corporations limited in land holdings, 97. 
 
 corporations not limited to value of land held, 97a. 
 
 devise to individual to convert is not land, 976. 
 
 missionary and benevolent corporations not limited as to land 
 holdings, 976. 
 
 seceding part of congregation may take part of property, 98. 
 
 seceding portion must prove right so to do, 98a. 
 
 when ecclesiastical courts' decrees are binding on civil courts, 
 986. 
 
 when alleged schism not sufficient for division of property, 98c. 
 
 pastorship involves a property right, 98<Z. 
 
INDEX. 443 
 
 [The numbers refer to sections.] 
 
 CHURCHES — Continued. 
 
 a freehold involves a property right, 98<2. 
 
 trustees may enforce agreements made before incorporation, 
 99, 102. 
 
 title held by trustees vests in church when incorporated, 99a. 
 
 misnomer of church in deed to it, 996. 
 
 devise to corporation vests title, notwithstanding, when, 99c. 
 
 when Statute of Uses does not operate on conveyance to in- 
 dividuals, 99<Z. 
 
 when "trustees" ( mere description at law, 99o\ 
 
 when title belongs to particular congregation, 99e. 
 
 when title does not revert to donor for non-use, 100. 
 
 when deed not void for uncertainty, 100a. 
 
 cannot erect commercial buildings, 101. 
 or make long term leases, 101. 
 
 when trustees may remove pastor, 101a. 
 
 trustees must act jointly to bind, 102a. 
 
 when church debt is ratified, 1026. 
 
 trustees may mortgage property when, 103. 
 
 trustees may sell property when, 104. 
 
 when priest may recover advances to congregation, 105. 
 
 when subscription held revoked, 106. 
 
 when presumed dissolved, 107. 
 
 when title reverts to donor, 107. 
 
 when trustees may act by committees, etc., without delegating 
 their functions, 642c. 
 
 CITIES (see Municipalities). 
 
 CLAIMS, 
 
 against decedents (see Estates of Decedents). 
 
 CLASSIFICATION OP TRUSTS. Chapter II. 
 
 CODICILS (see Wills). 
 
 COLLATERAL ATTACK, 
 
 failure of a trustee to file a bond cannot be subject of, 551a, 
 
 571. 
 on acts of directors of corporation will not avoid liability on 
 
 stock subscription, 207a. 
 the appointment of trustees is presumed valid as against, 4466. 
 
 COLLATERALS (see Pledges). 
 
 COMMERCIAL PAPER (see Negotiable Instruments). 
 
444 INDEX. 
 
 [The numbers refer to sections.] 
 COMMITTEE, 
 
 of creditors (see Creditors). 
 
 COMPENSATION, 
 
 when directors of corporation may and may not have, 211, 221. 
 agreement to execute trust in futuro without, is not binding, 
 269. 
 unless trustee entered into performance, 269. 
 an agent of a trustee must look to the trustee alone and not 
 
 to the estate unless the court has ordered his employment, 
 
 405a. 
 a mortgage trust deed may allow, 427. 
 but trustee acting as solicitor cannot have fees allowed until 
 
 he withdraws, 427a. 
 at common law trustees were not entitled to, without con- 
 tract, 555. 
 testamentary trustees for non-charities may have since 1891 
 
 though apointed before, 555. 
 trustees for charities may not have if not so provided in trust 
 
 instrument, 555. 
 the- reason for non-compensation is that the trustee need not 
 
 accept the trust, 556. 
 trustee may have his reasonable expenses, 556a. 
 
 and solicitors fees, 559a. 
 trustees may not recover for services rendered in a profes- 
 sional capacity, 556b, 560a. 
 even without, equity holds trustees to a faithful performance, 
 
 556c. 
 when a contract for, may be implied and how divided, 557. 
 a contract right to may be forfeited by misconduct of the 
 
 trustee, 558. 
 for filing a bill to obtain a construction of a trust instrument 
 
 the trustee's reward should be moderate, 560. 
 an agent of the trustee must look to the trustee for his pay 
 
 and not to the fund, 561. 
 of receivers, how fixed, 562. 
 burden is on trustee to show contract for, and that duties 
 
 were performed, 563. 
 cestui can make no objection to • if neither he nor his share 
 
 contributed to, 564. 
 trustee must claim compensation in nisi prius court when 
 
 accounting there, 565. 
 
INDEX. 445 
 
 [Thte numbers refer to sections.] 
 
 CONCURRENT REMEDIES (see Jurisdiction), 
 when cestui may sue at law, 10. 
 court first taking jurisdiction retains it, 163. 
 Statute of Limitations may run against express trust if there 
 be an adequate remedy at law, 319. 
 
 CONDITION, 
 
 a power may be given on precedent or subsequent, 627. 
 precedent required of a cestui must be performed by him 
 before he can enforce a trust, 656. 
 
 CONFIDENCE REPOSED, 
 
 not a trust in equity, 32. 
 
 CONFUSION OF TRUST FUNDS (see Mingling). 
 
 CO-PARTNER (see Partner). 
 
 CONSERVATORS, 
 
 make elect for insane heirs to adopt act of administrator, 403 c. 
 
 CONSIDERATION, Chapter III, 
 
 not necessary in executed trusts, 27, 111. 
 
 nominal, not notice of trust, 27a. 
 
 unless improperly executed, 276. 
 
 marriage sufficient for voluntary settlement, 28, 111. 
 
 of promissory note for charity, 29. 
 
 dismissal of will contest as consideration for creation of 
 trust, 29a. 
 
 when implied, 108, 110c. 
 
 not implied for grandchild, 111. 
 
 indebtedness to creditors is sufficient for deed in trust for 
 their benefit, 269. 
 
 a precatory trust inter vivos cannot be implied from words 
 , of desire, without a promise and a consideration therefor, 
 328. 
 
 when sufficient on assignment of a certificate of sale, 368. 
 
 gross inadequacy of in a deed between fiduciaries is control- 
 ling evidence of fraud, 376c. 
 
 obtaining title without, on false promises to convey as di- 
 rected, raises a constructive trust, 378. 
 
 when a purchaser from a trustee for a grossly inadequate 
 consideration becomes a constructive trustee, 384. 
 
 a nominal, in a deed, is not constructive notice of a trust, 4686. 
 
 a stranger without notice who takes a gift of trust property 
 may be held as a constructive trustee, 4696. 
 
446 INDEX. 
 
 [Thie numbers refer to sections.] 
 
 CONSIDERATION— Continued. 
 
 no valuable, necessary in the case of parents and children, 
 
 4836. 
 as affecting a sole devisee's promise to pay a certain sum to 
 
 another, 527c. 
 for promise of a devisee to pay his testator's note if claim not 
 
 filed against estate, 527e. 
 
 CONSTRUCTION (see Intention). 
 
 CONTINGENT, 
 
 interests assignable in equity, 52. 
 
 CONTINGENT REMAINDERS (see Remaindermen). 
 
 CONSTRUCTIVE TRUSTS. Chapter XIX (see Fiduciary Rela- 
 tions; Fraud; Implied Trusts), 
 ■when raised, 374, 375. 
 
 equity may require trustee to convey title, 42. 
 may arise in equity from fiduciary relations, 114, 374, 376, 397. 
 when not raised in gift from wife to husband, 115a. 
 raised if dominant party to transaction does not prove bona 
 
 fides of transaction, 153. 
 what must be proved, 376, 376a. 
 raised for purchasers on fraudulent sale by administrator, 
 
 169c. 
 arise on preferences made by insolvent corporations to their 
 
 officers or stockholders, 206. 
 are not within Statute of Frauds, 246, 264, 374. 
 title acquired by one with knowledge of contract void under 
 
 Statute of Frauds does not raise, 257a. 
 are not operated on by Statute of Uses, 311, 374, 388. 
 may arise if an agent of a trustee use the fund for his own 
 
 purposes, 377, 405. 
 arise on obtaining title on false promises to convey as di- 
 rected, 378. 
 cannot be avoided by vague evidence of an intent to hinder 
 
 creditors, or by the Statute of Frauds, 3786. 
 when an adult son may purchase his father's obligations, 381a. 
 when a son's assignment of a legacy to his mother does not 
 
 create, 3816. 
 when relationship does and does not establish, 382. 
 
INDEX. 447 
 
 [The numbers refer to sections.] 
 CONSTRUCTIVE TRUSTS— Continued. 
 
 purchaser with notice of improper sale to pay legacies must 
 pay them himself, 383. 
 
 when a purchaser at a trustee's sale with notice of value be- 
 comes a constructive trustee, 384. 
 
 when the wife of an administrator with the will annexed may 
 take title, 385. 
 
 what creditors must show to fasten, on debtors, 387. 
 
 equity presumes fraud and raises, on less evidence than at 
 law, 389. 
 
 when possession of equitable owner of land makes purchaser 
 of record title a constructive trustee, 392. 
 
 purchaser at a judicial sale making false statements to stifle 
 competition is held as a constructive trustee, 393. 
 
 the purchaser of an equity on agreement to redeem and divide 
 proceeds of sale must make a bona fide sale of land, 394. 
 
 payee of note secured by chattel mortgage who buys at fore- 
 closure for inadequate sum is a trustee for sureties on the 
 note and cannot hold them, 395. 
 
 administrators, executors, agents, attorneys and partners can- 
 not advantage themselves out of their position, 397. 
 
 if delay has occurred in impeaching a transaction the evidence 
 must be very clear to raise, 4076. 
 
 usually barred by laches, 410. 
 
 the purchaser with notice of a trust becomes himself a con- 
 structive trustee, 468a. 
 
 a stranger taking a gift of trust property without knowledge 
 of the trust is held as a constructive trustee, 4696. 
 
 when title to land is obtained by misrepresentations, the 
 trustee is liable for rentals but not for earnest-money re- 
 ceived on contracts of sale made by him, 649a. 
 
 CONTINGENT REMAINDERS (see Remainders). 
 
 CONTINGENT USES AND TRUSTS, 
 
 not operated upon by Statute of Uses during contingency, 301. 
 
 CONTRACTS, 
 
 no equitable jurisdiction generally of personalty, 32. 
 not enforced when against public policy, 676. 
 trustee liable personally on, w-hen, 177, 6486. 
 of agents of corporation against public policy where their in- 
 terests might conflict with corporations, 2006. 
 
448 INDEX. 
 
 [The numbers refer to sections.] 
 
 CONTRACTS— Continued. 
 
 assignment of contract for purchase of land, as related to 
 
 Statute of Frauds, 2656. 
 void under Statute of Frauds are not binding on later pur- 
 chasers, 469. 
 
 CONVERSION BY TRUSTEE (see Following Trust Funds). 
 
 CONVERSION, EQUITABLE (see Equitable Conversion). 
 
 CONVEYANCE BY TRUSTEE (see The Trustee's Conveyances). 
 
 CONVEYANCES (see Deeds; Statute of Uses). 
 
 CORPORATIONS (see Railways), 
 
 agents and officers must not speculate at expense of, 67b. 
 
 charitable, may incur indebtedness, 896. 
 
 officers are quasi trustees, 156. 
 
 hold assets in trust for creditors and shareholders, 199. 
 
 only fraud raises express or constructive trust, 199. 
 
 when directors are creditors of, they cannot take advantage 
 of their office, 200. 
 
 while solvent, directors of, are quasi trustees of stockholders 
 as a body, 200a. 
 
 directors of insolvent, are quasi trustees of creditors, 200a. 
 
 agents of, forbidden by public policy to contract where inter- 
 ests might conflict, 2006. 
 
 when directors cannot release subscriptions for stock or ac- 
 cept substitution of notes given for, 201. 
 
 directors are personally liable to creditors if corporation's 
 indebtedness exceeds capital stock, 202. 
 
 directors are not protected by Statute of Limitations in mis- 
 appropriations, 203, 4186. 
 
 stockholders purchasing corporate property take subject to all 
 equities, 204. 
 
 directors may deal with each other and with stockholders, 
 204a, 610a. 
 
 directors being all of the shareholders may let one director 
 use corporate property without fraud, 2046. 
 
 majority of stockholders cannot purchase corporate property 
 against objection of minority, 205. 
 
 may make preferences, 206, 278a. 
 
 may not make preferences for officers or stockholders, 206. 
 
 corporate property in hands of preferred mala fide creditors 
 impressed with a trust, 206a. 
 
INDEX. 449 
 
 [The numbers refer to sections.] 
 
 CORPORATIONS — Continued. 
 
 when preferences of corporate officers may be valid, 2066. 
 
 corporate officers taking preferences must prove good faith, 
 2066. 
 
 officers may in good faith dispose of assets to pay off or se- 
 cure creditors even if some be preferred, 206c. 
 
 subscriptions to capital stock form trust fund for creditors 
 and other subscribers, 207. 
 
 subscriptions may not be cancelled without consent of all, 207. 
 
 subscriptions may not be avoided by collateral attack on acts 
 of directors, 207a. 
 
 subscriptions must be paid in money or property at fair valu- 
 ation, 2076. 
 
 stock called "fully paid" unless actually so, no bar to credit- 
 ors, 2076. 
 
 all subterfuges to obtain non-assessable stock are void, 207c. 
 
 subscriber called "trustee" is personally liable, except when, 
 207a\ 
 
 statutory non-liability of trustees and right to vote stock, 208. 
 
 trustee or pledgee of stock should have same issued to him as 
 such, 2086. 
 
 life-tenant of shares takes cash dividends, but not stock divi- 
 dends or subscription rights, 209. 
 
 when foreign trust company needs, or needs not, take out 
 Illinois license, 210. 
 
 directors cannot be paid for services, in absence of by-law, 
 211. 
 
 directors may be paid for unusual services, 211. 
 
 when they may hold title to land in trust, 211. 
 
 a corporation acting as a trustee may not sell to one of its of- 
 ficers for less than the real value of property, 610. 
 
 CORPUS OF ESTATE, 
 
 cannot be broken into except by decree in urgent case, 151a. 
 
 cannot be made inalienable against creditors, but only in- 
 come of, 294. 
 
 to be held for a daughter so long as she was married and if 
 she survived her husband corpus to be conveyed to her, 
 trust ends upon her divorce, 308c. 
 
 even though she might re-marry her divorced husband, 308c. 
 
 as to encroachments authorised by trust instrument, 540, 640, 
 640a. 
 
 29 
 
450 INDEX. 
 
 [Thie numbers refer to sections.] 
 
 CORPUS OF ESTATE— Continued. 
 
 cannot be disposed of by life tenant under a doubtful power of 
 
 sale, 629a. 
 trusts to pay income to life tenants cannot be delegated by 
 conveying the corpus to them for life, 642a. 
 
 COURTS (see Jurisdiction). 
 
 COUNTY, 
 
 former treasurer cannot invoke Statute of Limitations, 59. 
 county board must manage bequests to county's "poor," 83. 
 
 CREDITORS. Chapter XV, 
 
 when unrecorded declaration of trust admissible against, 25, 
 463. 
 
 cannot break spendthrift trusts', 70. 
 
 protected in voluntary settlements, 125, 143. 
 
 deeds, though absolute in form, may be notice to, 135. 
 
 are cestuis of partnership assets, 186. 
 
 may follow converted partnership funds or hold non-convert- 
 ing partners liable, 193a. 
 
 when they are directors of corporations they cannot take ad- 
 vantage of office, 200. 
 
 may follow corporate property purchased by stockholder, 204. 
 
 may be preferred by corporations in absence of fraud, 206. 
 
 may have corporate property impressed with a trust if cor- 
 poration prefer its officers, stockholders or mala fide credit- 
 ors, 206a. 
 
 when corporate officers may be preferred, 2066. 
 
 corporate assets may be disposed of in good faith by officers 
 to pay or secure creditors even though some are preferred, 
 206c. 
 
 subscriptions form a trust fund for, 207. 
 
 when stock-liability in corporation enforced for benefit of, 
 207-a-6-c. 
 
 special depositor in insolvent bank who cannot identify fund 
 becomes only a creditor, 227. 
 
 trusts for not within Statute of Frauds, 246, 293. 
 
 secret trusts are void as to both prior and subsequent, 258, 266, 
 267. 
 
 when creditors of equitable owner of land cannot use Statute 
 of Frauds to defeat estoppel against him, 259. 
 
 trust to raise funds to defend criminal prosecution is valid, 
 260. 
 
INDEX. 451 
 
 [The numbers refer to sections.] 
 CREDITORS — Continued. 
 
 when possession is notice of trust which will protect against, 
 
 261, 363a. 
 Statute of Frauds not available as against creditors of cestui, 
 
 265. 
 secret trust may be express or implied and proved by parol, 
 
 266. 
 grantees and creditors of a trustee without notice that he 
 
 holds land under secret, oral trust are protected, 267a. 
 all life insurance taken in wife's name to hinder creditors 
 
 enures to them* 2676. 
 trusts for, cannot impose unreasonable conditions or reserve 
 
 advantages to debtor, 268. 
 but such deeds are good as between the parties and a lost re- 
 conveyance may be given effect in equity if no creditor's 
 
 rights had intervened, 268a. 
 gifts to child are not presumed advancements if proof of fraud 
 
 or intention to hinder creditors be made, 268b. 
 indebtedness to, is sufficient consideration for deed in trust 
 
 for benefit of, 269. 
 agreement to execute trust for in futuro and without com- 
 pensation is not binding, 269. 
 unless trustee enter into performance, 269. 
 bill will not reach property conveyed in trust in good faith for 
 
 benefit of debtor by someone else, 270. 
 cannot get annuity for benefits of several including debtor, 
 
 270, 282. 
 but debtor may assign income of annuity unless trust instru- 
 ment prohibits, 270. 
 cannot levy on property conveyed by third person for a part 
 
 of the creditors of the debtor, 270a. 
 vendee assuming vendor's debts does not become trustee of- 
 
 the creditors but only debtor, 2706. 
 when committee of creditors are not liable to all creditors 
 
 as trustees, 271. 
 when maker of purchase-money notes given to pay debts ot 
 
 business bought, may or may not set off claims bought up 
 
 by him, 272. 
 a surety or endorser receiving collateral security becomes a 
 
 trustee for the creditor, 273, 428. 
 may be identified by parol, in trust created for them, 273. 
 trustee for, must apply assets pro rata unless preferences be 
 
 established, 274. 
 
452 INDEX. 
 
 [The numbers refer to sections.] 
 
 CREDITORS — Continued. 
 
 what wife must prove to establish a preference, 275. 
 
 when objecting creditor not bound by change in form of trust, 
 276. 
 though he was protected by a bond, 276. 
 
 when trustee not liable on alleged preference, 277. 
 
 an insolvent partnership cannot make preferences, 278. 
 
 when corporation may prefer, though a receiver is appointed 
 soon after, 278a. 
 
 a receiver appointed for complainants only holds for whom, 
 279. 
 
 how various creditors are permitted to proceed, 280. 
 
 when creditors cannot attach or garnish trust fund, 281. 
 
 when judgment creditors cannot claim surplus of foreclosure 
 sale, 283, 432. 
 
 when a creditor by agreeing tacitly to appointment of a trus- 
 tee is bound by latter's acts, 284. 
 
 when creditor cannot compel donee of power to act so cred- 
 itor might levy, 285. 
 
 when creditor can and cannot enforce promise of his debtor 
 to convey property in trust for his benefit, 286. 
 
 conveyances by wives in trust for their husbands' creditors 
 are binding, 287. 
 
 when creditors of wife cannot take husband's land though 
 he let her use the income in her business, 287a. 
 
 how a conveyance in hindrance of, may be impeached, 288. 
 
 when declarations of decedent that he held title for another 
 are admissible, 289. 
 
 may have equity compel the trustee to apply assets to pay- 
 ment of debts, and if debtor has died his administrator 
 may be compelled, 290. 
 
 a deed of voluntary assignment must contain a declaration of 
 trust, 291. 
 
 may, after discontinuance of a voluntary assignment, proceed 
 as before, 291a. 
 
 not consenting to fraudulent discontinuance of voluntary as- 
 signment may pursue fund, 2916. 
 
 bankruptcy discharge of debtor does not terminate trust for 
 creditors, 292. 
 
 may enforce express trusts in equity without reducing claims 
 to judgment, 292. 
 a creditor's bill is not necessary in such case, 292. 
 
INDEX. 453 
 
 [The numbers refer to sections.] 
 
 CREDITORS— Continued. 
 
 cannot claim resulting trust where debtor has abandoned a 
 contract for purchase of land, 363. 
 
 execution creditor with notice that debtor holds as a trustee 
 under a resulting trust acquires no title, 363a. 
 
 where widow invests heirs' funds in land in her own name, 
 creditors of the heirs may enforce the resulting trust, 3636. 
 
 trustees for execution creditors taking title in their own 
 names hold on a resulting trust, 363c. 
 
 where surviving partner in land speculation pays all of pur- 
 chase-money but takes title jointly with heirs of deceased 
 partner he is only a creditor of the other's estate, 363d". 
 
 vague evidence of an intent to hinder, will not overcome a con- 
 structive or ex maleficio trust, 3786. 
 
 intention to hinder, prevents restoration of a title even though 
 obtained by fraud, 386. 
 except, see, 476a. 
 
 what creditors must show to fasten constructive trusts on 
 debtors, 387. 
 
 when assent of, to a trust for their benefit is presumed, 446a. 
 
 when parol is not admissible on an issue of a general assign- 
 ment for, or a preference, 463a. 
 
 what is necessary to charge a creditor who takes trust funds 
 in payment of the trustee's private debt, 4696. 
 
 a devise of residuary estate creates no trust for, 538c. 
 
 when a delivery of a deed for, to a third person passes title, 
 567e. 
 
 CY PRES, 
 
 doctrine as applied to charities, 73, 74. 
 
 applied only to fulfill intention, 74a. 
 
 court will not employ extraordinary agencies, 746. 
 
 when substitution of corporation permissible under, 74c. 
 
 applies to charities when mere method of management is void, 
 
 79. 
 doctrine as applied to wills and perpetuities, 518. 
 void limitations cannot be separated from those not perpetui- 
 ties, 518a. 
 
 D. 
 DEBT, 
 
 assignment of part of, 34. 
 
 of corporation must not exceed capital stock else directors are 
 personally liable to creditors, 202. 
 
454 INDEX. 
 
 [The numbers refer to sections.] 
 
 DEBT — Continued. 
 
 of trustee does not authorize bank to withhold cestuis' funds, 
 234b. 
 
 DECEIT (see Fraud). 
 
 DECLAEATIONS. 
 
 of grantor after conveying, 24. 
 alleged of grantee, 24. 
 weight of, 25. 
 
 DECLARATIONS OF TRUST. Chapter III, 
 
 how and when declared, 18, 135, 250, 265a, 526. 
 
 certainty necessary, 19. 
 
 when oral agreement within Statute of Frauds, 20. 
 
 only grantee may make, 20. 
 
 admissions of grantee binding on claimants, 20. 
 
 lost, proved by parol evidence, 21, 129, 4546. 
 
 when not enforced against cestuis not signing same, 21. 
 
 good as between parties, though void as to creditors, 21. 
 
 cannot arise out of executory agreements, 22. 
 
 in land speculations, 23. 
 by vendor after sale, 26, 250. 
 violated by wife's conveyance of legal title, 129. 
 oral agreement to make, is within Statute of Frauds, 247. 
 is implied when a devise is charged with payment of legacies, 
 
 317. 
 what may be proved in resulting trusts by declarations of a 
 
 deceased trustee made in his lifetime, 345a". 
 name of cestui left blank in, may be supplied by parol, 455. 
 when admissible as against creditors of the declarant, 463. 
 when title is obtained by an agreement to make, 607f. 
 
 DECREE, 
 
 impeachable by minors, 38. 
 
 DEDICATIONS, 
 
 to city by plat, 60a. 
 
 when plat sufficient to save case from Statute of Frauds, 252a. 
 
 DEEDS (see Trustee's Conveyances), 
 
 may be reformed in executed trusts, 38a. 
 
 made under discretionary powers not set aside except for 
 
 fraud, 43. 
 misnomer in deed to church, 99a. 
 
INDEX. 455 
 
 [The numbers refer to sections.] 
 
 DEEDS — Continued. 
 
 required passing of title to trustee not so strict in cases of 
 
 relatives, 110a. 
 if not to take effect before donor's death are testamentary, 112. 
 as notice to creditors of trust, though absolute in form, 135. 
 ■when cannot be defeated by Statute of Frauds if absolute on 
 
 face, 265a-6. 
 lost deed may be enforced in equity if creditors' rights have; 
 
 not intervened, though it would have been fraudulent as to 
 
 creditors, 268a. 
 possession under lost deed is notice to any mortgagee of rec- 
 ord owner, 268a. 
 of voluntary assignment must contain a declaration of trust, 
 
 291. 
 when the grantor bars himself from claiming a resulting trust, 
 
 347. 
 when not so barred, 347a. 
 
 voluntary, cannot give rise to a resulting trust, 352. 
 gross inadequacy of consideration as between fiduciaries is 
 
 controlling evidence of fraud, 376c. 
 in trust to secure indebtedness are mortgages, 421. 
 absolute in form, except for a condition of defeasance, are 
 
 mortgages, 422. 
 delivery of mortgage deed of trust to trustee is not necessary 
 
 if delivered to cestui, 424. 
 what estate a trustee is presumed to take under, 446c. 
 when doctrine of ancient deeds does not apply to, 452a, 590a. 
 no presumption arises that deeds purporting to have been 
 
 made in a fiduciary capacity or under a power were so made, 
 
 452a, 628. 
 presumed to have been delivered on their date, except when, 
 
 4526. 
 when the grantors are competent witnesses to show a trust, 
 
 464a. 
 grantee in a deed in form absolute may declare a trust by a 
 
 separate instrument, 467a. 
 references to a trust contained in another deed are notice 
 
 thereof, 4676. 
 a nominal consideration is not constructive notice of a trust, 
 
 4686. 
 of record put a purchaser on notice no matter how badly ab- 
 stracted or what legal advice may have been, 470a. 
 
456 index. 
 
 [The numbers refer to sections.] 
 
 DEEDS — Continued. 
 
 the date of the trust instrument is controlling on the trustee 
 as to when it was executed, 472a. 
 
 cy pres doctrine of perpetuities is not applied to, 518. 
 
 the cestui need not be named if he can be ascertained other- 
 wise, 567ef. 
 
 when delivery to a third person passes title, 567e. 
 
 granting clause as controlling of the habendum clause, 568c. 
 
 neither the trustee nor the grantee, if both are cestuis, can be 
 counted if the request of a majority of the cestuis be nec- 
 essary, 5916. 
 
 when a trustee's deed has been made under a discretionary 
 power it will not be set aside in absence of fraud or collu- 
 sion, 593a. 
 
 not executed in accordance with a power pass no title, 624, 
 624a. 
 
 whether a power has been executed depends upon the inten- 
 tion so to do and such intention may be implied when, 640f. 
 
 the mere absence of a power of revocation is not ground for 
 setting aside a voluntary conveyance, 671. 
 
 when a fraudulent deed cannot be revoked as against remain- 
 dermen, 672. 
 
 conveyances necessary to terminate 'a trust are presumed after 
 a long time to have been made, 677a. 
 
 DEFINITIONS OF TRUSTS. Chapter II. 
 
 DEFINITION OF A CHARITY, 72. 
 
 DEFINITION OF A SPENDTHRIFT TRUST, 294. 
 
 DELAY (see Laches). 
 
 DELEGATES (see Powers). 
 
 DELEGATION OF POWERS (see Powers). 
 
 DELIVERY (see Deeds; Personal Property), 
 of subject matter (see Gifts), 
 when symbolic does not occur, 114a, 118. 
 when symbolic does occur, 118. 
 of promissory note necessary, 116, 146. 
 of personalty sufficient when trust becomes passive unless 
 
 cestui be an infant, 310. 
 delivery of personalty in trust, 482a. 
 
INDEX. 457 
 
 [The numbers refer to sections.] 
 DENIAL, 
 
 of trust not such fraud as to take case out of Statute of 
 
 Frauds, 255. 
 of trust does not forbid trustee from buying trust property 
 
 at adequate price, 406a. 
 cestui not guilty of laches in express trusts before denial by 
 
 trustee o'f trust, 409a. 
 nor barred by Statute of Limitations, 417. 
 if denial be withdrawn, a new one is necessary before Statute 
 
 of Limitations will begin to run again, 417. 
 
 DEPOSITS (see Banks). 
 
 DESCENT, 
 
 of remainder undisposed of in spendthrift trust, 297. 
 if no- successor in trust be named estate descends to trustee's 
 heirs, 585a. 
 
 DESCRIPTIO PERSONAE, 
 
 when "trustees" title not considered at law, 99<Z, 567a. 
 
 when personally liable on contracts, 177, 590&. 
 
 subscription to capital stock by "trustee" makes him person- 
 ally liable, except when, 207o\ 
 
 bank taking paper endorsed by one as trustee cannot rely on 
 doctrine of, 233a. 
 
 a trustee's pleadings in chancery must disclose his true status, 
 439. 
 
 DEVELOPMENT OF TRUSTS. Chapter I. 
 
 DEVISE (see Wills). 
 
 DIRECT TRUST (see Express Trust). 
 
 DIRECTORS (see Corporations). 
 
 DISAVOWAL OF TRUST (see Denial). 
 
 DISCLAIMER, 
 
 by trustee and refusal to accept should be prompt, 548. 
 
 DISCRETION (see Powers), 
 
 deeds made under discretionary powers not set aside except 
 
 for fraud, 43. 
 precatory trusts cannot be implied if donee be given a clear 
 
 discretion to act or not to act, 326. 
 a discretionary power to act at an uncertain time does not 
 
 violate as a perpetuity if the estate be vested, 514, 639. 
 
458 INDEX. 
 
 [The numbers refer to sections.] 
 
 DISCRETION— Continued. 
 
 of trustees as to use of fund for cestuis must not be abused, 
 
 540, 643. 
 of trustees to turn over corpus to a spendthrift gives them the 
 
 fee, 568a. 
 in respect of powers is not" usually interfered with by equity, 
 
 639(2, 668. 
 discretionary powers may be delegated to some small extent 
 
 by legislative bodies, 642c. 
 discretionary powers do not vest in a successor in trust unless 
 
 the trust instrument so provides, 647. 
 
 DISTRIBUTION, 
 
 equity cannot order in active trust, 40. 
 
 trustees in doubt as to who are proper distributees should 
 
 seek the court's aid, 604a. 
 gifts with directions to distribute do not usually vest before 
 
 the time arrives for, 640e. 
 before time for, cestuis may not sue on a deceased trustee's 
 
 bond, but the successor may, 669. 
 
 DIVIDENDS (see Corporations). 
 
 DOMINANT PARTY, 
 
 gifts to prima facie voidable, 69, 381. 
 
 DONATIO CAV8A MORTIS (see Gift). 
 
 DONOR (see Settlor), 
 
 gifts from to dominant party are prima facie voidable, 69. 
 must part with all control over gifts, 109. 
 unless he be the trustee, 113. 
 may have annuity in executed gift, 117. 
 when not a necessary party in chancery, 440a. 
 of personalty may be the trustee, 482a. 
 
 may reserve to himself the income, the right of revocation 
 and regulation of the trustee's powers, 641. 
 but not after the trust is complete, 641a. 
 
 DOWER. Chapter IX, 119, 
 
 when equitable estates subject to, 120. 
 interest in profits not subject to, 121. 
 interest in land is subject to, 121a. 
 exists in passive trusts, 1216. 
 barred by accepting equitable devise, 122. 
 
INDEX. 459 
 
 [The numbers refer to sections.] 
 
 DOWER — Con tinned. 
 
 when administrator of decedent cannot claim, as a set-off, 123. 
 
 wife of trustee cannot take, 124. 
 
 when it attaches in a passive trust it cannot he defeated by 
 
 making a later active trust, 309. 
 wife of a sales agent sharing in profits cannot have, 492. 
 
 DRY TRUSTS (see Statute of Uses). 
 
 DUTIES. Chapter XXXI, 
 
 of trustee (see The Trustee). 
 
 of executor (see Estates of Decedents and Wills). 
 
 of partners (see Partnership). 
 
 of corporate officers (see Corporations). 
 
 of receivers (see Receivers). 
 
 of hanks and bank officers (see Banks). 
 
 trustees for creditors are to apply assets pro rata unless pref- 
 erences be established, 274. 
 
 imposed upon a grantee or executor which would require 
 him to have legal title, give it to him by implication, 318. 
 
 of trustee in a mortgage to insure buildings in solvent com 
 panies, 425c. 
 
 of trustee in a mortgage on collecting insurance money, 425d\ 
 604c. 
 
 must reduce the personalty to possession, 479, 598. 
 
 must not force land on market at inopportune time, 493, 600. 
 
 trust duties imposed upon an executor create him a trustee, 
 535. 
 
 as to trustee's duty to sell leaseholds, 570. 
 
 to give cestuis notice of sales, 591, 600. 
 
 the trustee must be active and acquaint himself with the con- 
 dition of the estate, 598a. 
 
 the trustee must exercise reasonable skill and diligence, 5986. 
 
 a purchaser who is a constructive trustee must see to the ap- 
 plication of the money, 598c. 
 
 a trustee must invest trust monies, unless held for a tem- 
 porary purpose, 599. 
 
 a trustee may invest only in certain bonds, 599a. 
 
 a trustee in selling must act impartially as between the ces- 
 tuis, 601. 
 
 the trustee must keep proper books of account, 602. 
 
 a trustee who settles a claim for less than amount given him 
 so to do, must account for surplus, 603. 
 
460 INDEX. 
 
 [The numbers refer to sections.] 
 
 DUTIES — Continued. 
 
 terminate with the particular trust and do not continue in a 
 
 charitable trust to which they have conveyed, 604. 
 trustees in doubt as to who are proper distributees should go 
 
 into a court of chancery for directions, 604a. 
 of trustees to support minors cannot be turned over by them 
 
 to the guardian, 6046. 
 of joint executors and trustees should not be mixed, 604*. 
 of a successor in trust to disregard improper compromises 
 
 made by the original trustee, 605. 
 
 E. 
 ECCLESIASTICAL COURTS (see Churches). 
 
 EJECTMENT (see Jurisdiction at Law), 
 
 does not lie by cestui on passive trust once active, unless con- 
 veyance to him has been made or conveyance preserved, 314, 
 569e. 
 
 deed to "trustees" of a church does not vest legal title in 
 church, 388, 569c. 
 
 brought by heirs of a deceased trustee presumed not adverse 
 to cestui, 4506, 5696. 
 
 only legal titles are considered in, 5696. 
 
 even though a trust has been violated, 5696. 
 
 but resulting trust may be shown when, 5696. 
 
 ELECTION, 
 
 where trustee purchases property in his own name cestui has 
 
 several courses to choose from, 401a, 609c, 612. 
 conservator of an insane heir may elect for heir to adopt 
 
 wrongful act of administrator in respect of heir's portion, 
 
 401c. 
 when a devisee or legatee electing to take under a will is not 
 
 estopped to have parts thereof held perpetuities, 4756, 544. 
 doctrine of equitable conversion is not applied if cestuis have 
 
 elected to take the property in its unchanged form, 536. 
 as to a receiver electing to continue as a tenant under his in- 
 solvent's lease, 579. 
 a cestui may elect to follow converted property or hold the 
 
 trustee liable, 613, 614. 
 
 ENCROACHMENT (see Corpus). 
 ENDORSER (see Negotiable Instruments). 
 
INDEX. 461 
 
 [The numbers refer to sections.] 
 EQUITABLE CONVERSION, 
 
 may be decreed in cases of infants, lunatics, etc., 50. 
 
 cannot be made by cestuis to defeat dower, 1216. 
 
 of partnership lands, 189, 487. 
 
 arises of land under a mandatory power of sale, 487a, 638. 
 
 doctrine not applied if purposes of trust have failed, or if 
 
 cestuis have elected otherwise, 536. 
 does not occur unless the trustees are without discretion to 
 
 sell, 536a, 638, 646a. 
 when an alien may take a devise of land by, 638. 
 
 EQUITABLE ESTATES (see Estates). 
 
 EQUITY, 
 
 refuses to aid defective voluntary trusts, 13, 110, 481. 
 will not enforce contracts against public policy, 67b. 
 when railway voting trust enforced, 217. 
 may enforce lost deed, if creditors' rights have not intervened, 
 though transaction would have been fraudulent as to cred- 
 itors, 268a. 
 may compel trustee for benefit of creditors to apply estate, 
 
 or administrator of deceased debtor, 290. 
 may compel trustee of trust which has become passive to con- 
 vey in undivided interests, 306. 
 fastens trust ex maleficio on titles obtained by false promises, 
 
 378a. 
 will not restore a title to a grantor if he intended to delay 
 creditors or defeat his wife's rights, even though he him- 
 self was defrauded, 386. 
 raises constructive trusts and presumes fraud on less evidence 
 
 than at law, 389. 
 how constructive trustees are compelled to act, 390. 
 will not permit cestui to speak if he kept silence when equity 
 
 required him to speak, 401a. 
 may excuse laches, when, 4076. 
 cannot grant relief to a naked trustee unless the cestuis are 
 
 parties, 440. 
 when limitations over of personalty are valid in equity, 486. 
 treats partnership lands as personalty, 487. 
 permits assignments of contingent legacies, 538a. 
 holds even trustees receiving no pay to a faithful performance 
 
 of the trust, 556c. 
 will set aside a trustee's conveyances if he has not complied 
 with conditions imposed by trust instrument, 593. 
 
462 INDEX. 
 
 [The numbers refer to sections.] 
 
 EQUITY— Continued. 
 
 will not set aside a deed made under a discretionary power 
 in absence of fraud, 593a, 644. 
 
 when trustees will be removed from office, 5986. 
 
 how property purchased by a trustee in his own name is dealt 
 with, 612, 612a, 6126, 612c. 
 
 will not "aid the defective execution of a power except when, 
 624, 624a, 639re\ 
 
 will not interfere with discretionary powers, 639a\ 
 
 except when, 644 et seg. . 
 
 may substitute its discretion for that of a trustee where the 
 supplying of sufficient necessaries is involved, 644a. 
 
 compels trustees who have accepted to act, 665. 
 
 may terminate trusts when, 6776. 
 
 when a merger of legal and equitable estates will not termi- 
 nate a trust, 678a. 
 
 EQUITY JURISDICTION (see Jurisdiction of Equity). 
 
 ESTATES (see Joint Rights Act; Rule in Shelly's Case; Future 
 Interests), 
 
 equitable, subject to dower, 120. 
 
 purchase of land by several not presumed partnership but 
 tenancy in common, 192a. 
 
 life tenant of corporate shares takes cash dividends, 209. 
 
 remainderman of corporate shares takes stock dividends and 
 subscription rights, 209. 
 
 a tenant in common occupies a fiduciary relation to his co- 
 tenant, 376<Z. 
 
 what estate is presumed taken by trustee, 446c. 
 
 when a purchaser with notice of a trust may enjoy a life es- 
 tate, 470. 
 
 a life tenant by ratifying a breach of trust cannot estop a re- 
 mainderman, 475. 
 
 where the Rule in Shelly's Case applies there is no contin- 
 gent remainder which can be lost by the failure of the par- 
 ticular estate, 502. 
 
 as to vesting of, "when," "upon," etc., attaining a certain age, 
 510. 
 
 a devise in praesenti is a vested, 510. 
 
 vested interests are not subject to the Rule against Perpetui- 
 ties, 503, 511. 
 
 what are vested, 511. 
 
INDEX. 463 
 
 [The numbers refer to sections.] 
 ESTATES — Continued. 
 
 if a life estate vest without offending Rule against Perpetui- 
 ties it may continue beyond proper time, 511a. 
 
 when a devise of income gives a vested, 5116, 513. 
 
 when an entailment after a two year trust may be a perpetu- 
 ity, 516. 
 
 a provision for a definite failure of issue does not violate Rule 
 against Perpetuities, 517. 
 
 when a life tenant in possession may and may not be required 
 to give bond, 553, 607e. 
 
 what estate vests in the trustee, 568, 630. 
 
 no trust is raised by directing a life tenant to manage and 
 control, 5686. 
 
 no trust estate passes to a life tenant who was directed to 
 manage and control, . 5686. 
 
 when a power to convey refers only to a life estate and not to 
 the fee, 568<Z. 
 
 of trustees are joint tenancies, 580. 
 
 if no successor in trust be named and sole trustee die, the trust 
 estate descends to the trustee's heirs, 585a. 
 
 the life tenant may not dispose of the corpus under a doubt- 
 ful power, 629a. 
 
 a power to appoint a fee includes the power to appoint a lesser 
 estate, 6396. 
 
 a limitation for life with power to appoint by will is only a 
 life estate, 640(2. 
 
 gifts with directions for distribution do not vest until then, 
 except when, 640e. 
 
 when a merger of the legal and equitable estates will termi- 
 nate a trust, 678. 
 
 when not, 678a. 
 
 ESTATES OF DECEDENTS, 
 
 must account for trust monies, 152. 
 
 father's estate liable to children for trust monies cannot set- 
 off cost of their support, 152. 
 or claim for unassigned dower, 152. 
 administrators and executors are quasi trustees, 156. 
 and represent creditors, heirs, etc., 158. 
 must keep correct accounts, 158. 
 jurisdiction of county and probate courts over is not exclu- 
 sive, 157. 
 
464 INDEX. 
 
 [The numbers refer to sections.] 
 
 ESTATES OP DECEDENTS — Continued. 
 
 administrators and executors hold surplus of personalty as 
 
 trustees, 158. 
 executor sometimes under higher degree of liability than or- 
 dinary trustee, 159. 
 letters relate back to date of death, 160. 
 successor in trust to executor-trustee should be commissioned 
 
 as executor and not as administrator de bonis non with the 
 
 will annexed, 160c. 
 anyone withholding property from estate must disgorge, 161. 
 agent of decedent is held not as debtor but as a trustee, 161, 
 
 399. 
 inventorying land will not estop widow from asserting result- 
 
 ing trust therein if creditors are not injured, 162. 
 sixth class claims for trust property must refer to technical 
 
 trusts, 163. 
 confidence reposed in an agent is not a sixth class trust, 163. 
 what are, and what are not, proper sixth class claims, 164, 603a. 
 equity powers which probate and county courts may exercise, 
 
 165. 
 executor-trustee has distinct duties, 166, 173. 
 executor-trustee should close estate though trust duties not 
 
 completed, 166, 604(2. 
 duties of executor in respect of foreclosing mortgages, 166a. 
 when executor cannot surrender cestui's notes, 1666. 
 when executor and not trustee should provide for payment of 
 
 annuity, 166c. 
 executor-trustee with power of sale to pay legacies must sell 
 
 for cash and not for claim against estate, 167. 
 administrator may mingle estate's funds with his own if he 
 
 can always produce estate's, 167a. 
 administrator with the will annexed cannot be given powers 
 
 of a trustee, 168, 547c. 
 administrator is liable for funds deposited in bank in his own 
 
 name, 169. 
 sureties of executor not liable on bond for conversion of funds 
 
 as trustee but not as executor, 169a. 
 when administrator is and is not liable for interest, 1696, 
 
 652a. 
 when administrator's sale fraudulent as to purchasers thereof, 
 
 169c. 
 administrators and executors must not purchase at own sales, 
 either directly or indirectly, 170. 
 
INDEX. 465 
 
 [The numbers refer to sections.] 
 
 ESTATES OF DECEDENTS— Continued. 
 
 when wife of administrator with the will annexed may ac- 
 quire title, 385. 
 when administrator's sale is not to himself, 170a. 
 personal property of estate is taxable at administrator's resi- 
 dence until distributed, 171. 
 administrator of deceased trustee must account for trust funds 
 
 when identified, 172, 650. 
 when declarations of decedent that he held title for another 
 
 are admissible, 289. 
 administrator of deceased debtor, who had conveyed property 
 
 in trust for creditors may be ordered in equity to apply 
 
 estate in due course, 290. 
 a deceased trustee in a mortgage having wrongfully released 
 
 same, the noteholder has a seventh class claim for his loss, 
 
 435. 
 when an executor need and need not file an additional bond 
 
 to execute a power of sale, 550. 
 sureties of an executor are not liable for monies held by him 
 
 in trust without a trustee's bond, 5526. 
 an executor-trustee's title relates back to testator's death, 
 
 5676. 
 a power of sale to an executor to sell and distribute is not 
 
 revoked by his discharge as executor, 6416. 
 an estate is liable for interest on trust funds from the date 
 
 of a decree to pay over, 650. 
 
 ESTOPPEL. Chapter XXIII, 471. 
 
 doctrine of is based on fraud, 471. 
 is a protective and not offensive weapon, 471a. 
 when a parol acceptance of a trust estops a trustee from de- 
 nying his acceptance, 472. 
 one holding out another as owner of land is not only estopped 
 himself but his creditors cannot defeat estoppel by Statute 
 of Frauds, 259, 474. 
 husband by letting wife use income of his land in her busi- 
 ness, is not estopped from asserting his ownership when, 
 287a. 
 when the grantor in a deed bars himself from claiming a re- 
 sulting trust, 347. 
 a widow by inventorying land in her husband's estate is not 
 estopped to claim a resulting trust, when, 359a. 
 see also 360a, 4746. 
 30 
 
466 INDEX. 
 
 [The numbers refer to sections.] 
 
 ESTOPPEL — Continued. 
 
 the right of redemption from a deed absolute, but really a 
 mortgage, may be lost by, 4346, 474a. 
 
 the date of the deed in trust is controlling on trustee as to 
 when it was executed, 472a. 
 
 the trustee having admitted mingling trust funds with his own 
 cannot deny that investment of same is trust property, 472&. 
 
 cestuis are not estopped from attacking acts of executor 
 trustee by approval of his acts by the probate court, when, 
 473. 
 
 when cestui's ratification of a breach of trust does not estop 
 him, 475. 
 
 when cestui's heirs are estopped to dispute an improper con- 
 veyance, 475a. 
 
 when a beneficiary under a will is not estopped to have parts 
 of the will held perpetuities, 4756. 
 
 an agent or trustee in possession cannot claim adversely until 
 he surrenders possession, 476. 
 
 when executors are estopped to deny that they hold in trust 
 for devisees, though original trust was void, 476d. 
 
 when calling interest "rent" does not estop one from denying 
 relation of landlord and tenant, 4766. 
 EVIDENCE. Chapter XXII (see Declarations), 
 
 when parol admissible to prove trust, 454. 
 
 the trustee cannot make an admission prejudicial to the trust, 
 606. 
 
 when unrecorded declaration of trust is admissible as second- 
 ary evidence, 25, 289, 463. 
 
 to raise resulting trust for wife must be clear, 127c, 345c. 
 
 those alleging a trust have burden of proof usually, 149, 458. 
 
 in cases of fiduciary relations the dominant party has burden 
 of proving bona fides of transaction, 153, 182, 376, 449, 458. 
 
 what must be proved, 376a, 458a. 
 
 but burden is not on child as against parent, 376, 458. 
 
 when presumption of gift to child is rebutted, 4496. 
 
 burden is on one asserting existence of partnership, 192a. 
 
 interest of each partner in resulting trust may be shown by 
 parol, 194, 459e. 
 
 corporate officers taking preferences over general creditors 
 must prove good faith, 2066. 
 
 burden is on one who asserts a trust in negotiable paper, 240. 
 
 parol, may show failure of consideration and fraud on prom- 
 issory note given to trustee, 240a. 
 
INDEX. 467 
 
 [The numbers refer to sections.] 
 t 
 
 EVIDENCE — Continued. 
 
 writing lost or not produced on demand, and relied on as 
 
 against Statute of Frauds may be established by parol, 253. 
 may go behind language of an instrument ostensibly binding 
 
 to show void secret trust, 258, 454c. 
 secret trusts may be proven by parol, 266. 
 parol is admissible in all cases of actual fraud, else frauds 
 
 put in writing would escape, 266. 
 parol is admissible to identify creditors in a trust created for 
 
 them, 273. 
 what wife must prove to establish a preference over other 
 
 creditors, 275. 
 how creditors may impeach a conveyance intended to hinder 
 
 them, 288. 
 parol is not admissible to prove express trusts in land, 316. 
 parol is admissible to prove express trusts in personalty and 
 
 in land bought wrongfully with proceeds of personalty, 316. 
 in resulting trusts, if trustee has invested some of his own 
 
 money he has burden of proving amount, 340. 
 parol is admissible in resulting trusts to show ownership of 
 
 money invested, 344. 
 what is required of parol evidence in resulting trusts, 344a, 
 
 346, 447, 447a, 450, 454<Z, 4586. 
 how admissions are received in cases of resulting trusts, 344a, 
 
 461. 
 in resulting trusts parol is admissible to show intention of 
 
 owner of money that nominal purchaser should have an in- 
 terest, 345. 
 when resulting trust is rebutted by evidence that claimant 
 
 took promissory notes from alleged trustee, 345a, 462a. 
 resulting trust will not be decreed if executor makes it doubt- 
 ful whether or not money was lent to alleged trustee, 3456. 
 what may be proved in resulting trusts by the declarations in 
 
 his lifetime made by a deceased trustee, 345d, 461. 
 father taking title in name of an idiot son is not a competent 
 
 witness to deny advancement and to assert a resulting trust, 
 
 357a. 
 gross inadequacy of consideration for a conveyance between 
 
 fiduciaries is controlling evidence of fraud, 376c. 
 a trust ex maleficio cannot be evaded by vague evidence of an 
 
 intent to defraud creditors or by the Statute of Frauds, 3786. 
 necessary to prove a presumptive trust must be clear and is 
 
 received with caution, 380, 459c. 
 
468 INDEX. 
 
 [The numbers refer to sections.] 
 
 EVIDENCE! — Continued. 
 
 what creditors must prove to fasten constructive trusts on 
 debtors, 387. 
 
 equity raises constructive trusts on less evidence than law, 
 389. 
 
 when fraudulent representations of a stranger to a vendor are 
 not binding on the vendee, 391. 
 
 on filing a claim against a deceased investing agent's estate, 
 only proof necessary is that the money came to agent's 
 hands, 399, 4596. 
 
 if delay has occurred in impeaching a transaction the evi- 
 dence must be very clear to raise a constructive trust, 4016. 
 
 parol is admissible to show a right to redeem from a convey- 
 ance in the nature of a mortgage, 426a, 456. 
 
 or a contract for redemption after foreclosure, 426a.' 
 
 burden is on one alleging a trustee to have acted dishonestly, 
 450. 
 
 a trust having been admitted by an answer in chancery its 
 terms may be shown by parol, 454a. 
 
 when a lost declaration of trust may be supplied by parol, 
 4546. 
 
 parol may supply the cestui's name left blank in a declaration 
 of trust, 455. 
 
 parol is admissible to show what were oral instructions re- 
 ferred to in a will, 455a. 
 
 the doctrine of ancient deeds does not excuse proof of execu- 
 tion when made apparently under a power or by a fiduciary, 
 4556, 590a, 628. 
 
 parol may show that nominal purchaser of land took title as 
 security for loan, 455c. 
 
 one receiving collaterals as security cannot, as against his 
 written receipt, show by parol that no trust was intended, 
 456a. 
 
 what is necessary to prove an oral trust in personalty, 4566. 
 
 parol may show that payee of note is only a trustee for col- 
 lection, 456c. 
 
 confirmation of a judicial sale is no evidence that title is held 
 for anyone but the purchaser, 456d. 
 
 how the presumption of an advancement may be rebutted or 
 supported, 457. 
 
 trusts ex maleflcio cannot be raised by alleged statements of 
 the grantor to third persons; actual fraud or deceit must 
 be proven, 458<f. 
 
INDEX. 
 
 469 
 
 [The numbers refer to sections.] 
 EVIDENCE — Continued. 
 
 the failure to object to incompetent evidence against an in- 
 fant cannot be availed of by the opponent, 458e. 
 the trustee has burden of proving settlements with his cestui 
 to have been fair, 459. 
 and of compromises with debtors, 605. 
 burden is on an attorney purchasing from his client to show 
 
 fairness, 459a. 
 at law to set aside a purchase by the trustee from himself 
 
 fraud must be shown, 459d, 607b. 
 in resulting trusts the lack of the nominal purchaser's funds 
 
 may be shown by parol, 462. 
 when parol is not admissible to fasten a trust on property as 
 
 against creditors, 463a. 
 as to the competency of witnesses for or against the trustee, 
 
 464. 
 when the children of the claimant and the grantors are com- 
 petent witnesses to establish a trust, 464a. 
 what is necessary to show to charge a creditor as a trustee who 
 takes trust funds in payment of the trustee's personal 
 debt, 4696. 
 when a claimant is not a competent witness against heirs of 
 
 an alleged trustee, 474. 
 what must be shown to establish a trust in personalty, 480. 
 trustees of a charity benefiting under a will are not incompe- 
 tent witnesses to it, 545. 
 to recover compensation, trustees have burden of showing a 
 
 contract for, and a performance of duties by them, 563. 
 when the trustee's private account-books must be produced, 
 
 602. 
 when an answer in chancery is not an admission of a trust, 
 606a. 
 EXECUTED TRUSTS, 13. 
 
 » consideration for not necessary, 27, llOd. 
 cannot be modified by later will, llOd. 
 gift may be subject to annuity for donor, 117. 
 EXECUTION (see Creditors; Sales; Title). 
 EXECUTOR (see Estates of Decedents; Wills), 
 
 may also be trustee, 16. 
 EXECUTORY AGREEMENTS, 
 
 cannot operate as declarations of trust, 22. 
 
 not enforceable until a transfer of the property, 495. 
 
470 INDEX. 
 
 [The numbers refer to sections.] 
 
 EXECUTORY TRUSTS (see Gifts), 13, 109, 146, 495. 
 are not subject to Shelly's Case, 498a. 
 
 EX MALEFICIO TRUSTS (see Constructive Trusts). 
 
 EXPENSES, 
 
 trustees may have their reasonable expenses paid out of fund, 
 556a. 
 
 EXPRESS TRUSTS, 15, Chapter XVII, 
 
 duties of directors of corporations are in nature of, 203. 
 when performed in part, not subject to Statute of Frauds, 246. 
 for benefit of creditors may be enforced in equity by them 
 
 without reducing their claims to judgment, 292. 
 may not be proved by parol in respect of land, 316. 
 may be proved by parol in respect of personalty or in land 
 
 brought wrongfully with proceeds of, 316. 
 are not barred by Statute of Limitations before trustee has 
 
 openly disavowed trust, 319, 413. 
 unless there be an adequate concurrent remedy at law on, 318. 
 not barred by laches of cestui before trustee has disavowed 
 
 trust, 409a. 
 
 P. 
 FACTOR, 
 
 not strict trustee, 32. 
 
 FAILURE OF ISSUE (see Issue). 
 
 FIDUCIARY RELATIONS. Chapter XIX, 
 
 when they exist, 376. 
 
 administrators, executors, partners, attorneys, etc., have spe- 
 cial trust reposed in them, 397. 
 
 attorneys cannot take advantage of without being liable as 
 constructive trustees, 398. 
 
 transactions in, prima facie voidable as against public j>olicy, 
 69, 114, 376, 381, 449a. 
 
 burden is on dominant party to prove bona fides, 376, 458. 
 
 what must be proved, 376a, 458a. 
 
 when weaker party not barred by laches or Statute of Limita- 
 tions, 3766. 
 
 cteim of gift by sister from brother must be clearly proven, 
 115B, 458c. 
 
 whether husband exerts dominant influence over wife is ques- 
 tion of fact, 137. 
 
INDEX. 471 
 
 [The numbers refer to sections.] 
 
 FIDUCIARY RELATIONS— Continued. 
 
 no undue influence is presumed in conveyances from parent 
 
 to child, 145, 376. 
 unless proof made that child exerted dominant influence, 145, 
 
 376, 458. 
 stepmother occupies, toward stepchildren, 153. 
 gross inadequacy of consideration in a deed is controlling evi- 
 dence of fraud, 376c. 
 a tenant in common occupies, in respect of his co-tenant, 376d. 
 when a bailor stands in, 376e. 
 abstract makers sustain towards customers, 376/. 
 when agent of trustee is liable to cestui, 377. 
 as between husband and wife, 380. 
 as to gifts between parents and children, 381. 
 when an adult son may buy up his father's obligations, 381a. 
 when son's assignment to father of a legacy is binding on 
 
 son, 3816. 
 when relationship does and does not invalidate conveyances, 
 
 382. 
 when Statute of Limitations does not bar trusts based upon, 
 
 414c. 
 no presumption that a deed purporting to have been made in 
 
 a fiduciary capacity was so made, 452a. 
 the doctrine of ancient deeds does not aid deeds purporting 
 
 to have been made by a fiduciary, 4556. 
 
 FOLLOWING TRUST FUNDS (see Mingling), 
 
 cestui* may follow converted funds so long as recognisable, 
 if innocent purchaser's rights have not intervened, 180, 193, 
 197a, 613, 614, 617. 
 
 creditors of corporation may pursue its property into hands 
 of purchasing stockholders, 204. 
 
 creditors, not consenting to a fraudulent discontinuance of a 
 voluntary assignment, may pursue funds, 2916. 
 
 trustee cannot change form of investment unless trust Instru- 
 ment so permits, 614. 
 
 FOREIGN, 
 
 Trust Co. (see Corporations). 
 
 FORFEITURE, 
 
 of precedent estate accelerates remainder, 504a. 
 
 FOUNTAINS, 
 
 trusts for, valid as charities, 86. 
 
472 INDEX. 
 
 [The numbers refer to sections.] 
 FRAUD (see Constructive Trusts; Fiduciary Relations), 
 
 a ground of equitable jurisdiction, 31. 
 
 no fraud on husband where joint earnings of wife were in- 
 vested in land in her name "to keep peace in family," 130a. 
 
 constructive trust arises when husband by false promises get 
 possession of wife's property, 1306. 
 i guardian's settlements are constructively fraudulent, 182. 
 
 any actual fraud may be proven by parol, else all frauds put 
 in writing would escape, 26G. 
 
 gross inadequacy of consideration in a conveyance between 
 fiduciaries is controlling evidence of, 376c. 
 
 obtaining title by false promises to convey as directed raises 
 a constructive trust, 378, 607/. 
 
 release of mortgage obtained by false promises raises a trust 
 ex maleftcio, 378c 
 
 trusts ex maleflcio arise only out of positive fraud or deceit, 
 379, 458d\ 
 
 a title cannot be restored if intent was to hinder creditors, 
 although it was obtained by fraud, 386. 
 
 extent of, necessary to avoid sales of goods on credit, 387. 
 
 equity raises constructive trusts and presumes fraud on less 
 evidence than at law, 389. 
 
 no trust ex maleflcio arises in land speculation where one 
 partner had to pay all the money and then refused to con- 
 vey, 396. 
 
 or on purchase of a leasehold estate where an option had 
 expired, 390a. 
 
 when vendee of land is not bound by fraudulent representa- 
 tions of a stranger, 391. 
 
 purchaser at a judicial sale making false statements to stifle 
 competition is held as a constructive trustee, 393. 
 
 purchaser to redeem land, sell same and divide proceeds with 
 former owner must make sales for fair amount, 394. 
 
 payee of note secured by chattel mortgage who buys at fore- 
 closure for inadequate sum cannnot hold sureties on note 
 for difference, 395. 
 
 if delay has occurred in impeaching a transaction the evidence 
 must be very clear to raise a constructive trust, 407&. 
 
 when Statute of Limitations will not bar trusts founded on 
 fiduciary relations, 414c; 
 
INDEX. 473 
 
 [The numbers refer to sections.] 
 
 FRAUD — Continued. 
 
 purchaser of land with notice of an unrecorded mortgage 
 from one without knowledge of it is not guilty of construc- 
 tive fraud, 430. 
 
 must be shown at law to avoid a trustee's purchase of trust 
 property, 459a\ 
 
 FRAUDS, STATUTE OF. Chapter XIV, 
 when declaration of trust within, 20. 
 does not apply to resulting trust when one partner takes title 
 
 to firm land," 192. 
 chattels real within act, 245. 
 but not personalty or land bought wrongfully with proceeds 
 
 thereof, 245. 
 lands of charitable trust are within, 245. 
 to what trusts act does not apply, 246, 319, 378b. 
 does not apply where part performance of express trust has 
 
 been made, 246, 254. 
 nor to trust for benefit of creditors, 246, 293. 
 nor to consent of cestui to sale of land, 246a, 591a. 
 oral agreement to make declaration of trust is within, 247. 
 parol trust may be saved by separate instrument, 247. 
 if answer in chancery be relied on, . it must show clearly a 
 
 valid trust, 247a. 
 when answer in chancery or deposition will not avail, 2476. 
 when court may raise, 248. 
 trusts need not be declared in writing if so manifested and 
 
 proven, 249. 
 but such instruments must be made while declarant has title, 
 
 or is parting with same, and not afterwards, 250. 
 when recitals in revoked wills may or may not raise valid 
 
 trusts, 251. 
 when memoranda are sufficient, 252. 
 when town plat is sufficient, 252a. 
 lost writing relied on may be established by parol, 253. 
 effect on, of possession and part performance, 254, 2556. 
 denial of trust is not such fraud as to take case out of statute, 
 
 255. 
 court may permit statute to be pleaded any time before final 
 » decree, 255. 
 
 to what, relief in cases of fraud is limited, 255, 257. 
 
474 INDEX. 
 
 [The numbers refer to sections.] 
 
 FRAUDS, STATUTE OF— Continued. 
 
 when purchaser of land pays his own money his breach of 
 
 parol contract will not prevail against his plea of statute, 
 
 256. 
 when resulting trust not repelled by parol contract, 256a. 
 obtaining title by means of false promises is fraud sufficient 
 
 to take case out of statute, 257. 
 agreements to allow redemptions are not within, 257a, 434a. 
 title obtained with knowledge of contract void under Statute 
 
 is not constructive trust, 257a. 
 secret trusts are void as to both prior and subsequent credi- 
 tors, 258, 260. 
 the proof may go behind language of an instrument to show 
 
 its void purpose, 258. 
 when cannot be availed of by creditors of one who held out 
 
 another as owner of land, 259. 
 trust to raise funds to defend criminal prosecution is valid, 
 
 260. 
 when possession is notice of trust, though oral, which will be 
 
 protected against creditors, 261. 
 unless statute is pleaded court must enforce parol trust, 262. 
 when statute may be raised by demurrer, 262a. 
 when wrong section of statute pleaded, 2626. 
 informal pleading of statute held sufficient, 262c. 
 trust in master's certificate of sale is not within statute, 263. 
 parol partnership agreement to speculate in lands is not with- 
 in, 264. 
 parol agreement to let wife furnish part of purchase money 
 
 and share in profits is within, 264a. 
 defense of statute is personal and cannot be raised when, 265. 
 defense of statute not available to those seeking to defeat 
 
 deeds absolute on their face, 265a. 
 when may not available against an assignment of contract 
 
 for purchase of land, 2658. 
 does not protect actual fraud put in writing and such fraud 
 
 may be shown by parol, or by bill to establish, 266. 
 contracts void under the Statute of Frauds cannot affect later 
 purchasers, 469. 
 unless the cestui be in possession, 469a. 
 
 FREEHOLDS, 
 
 when involved in resulting trusts, 373. 
 
 not involved in land subject to a mandatory power of sale, 
 487a. 
 
INDEX. 475 
 
 [The numbers refer to sections.] 
 
 FREEHOLDS — Continued, 
 
 not involved in question whether trustees have power to in- 
 vest in land, 546, 6400. 
 not involved in filling vacancies in trusteeship, 670. 
 
 FUTURE ESTATES (see Future Interests). 
 
 FUTURE INTERESTS (see Estates; Remainders; Perpetuities; 
 Wills), 
 are assignable in equity, 52. 
 
 alone are subject to the rule against perpetuities, 503a. 
 when given to a class, subject to open up, may violate rule 
 
 against perpetuities, 511. 
 gifts with directions for distribution do not vest until then, 
 640e. 
 
 G. 
 GIFTS. Chapter VIII. 
 
 when consideration sufficient for, 29, 111. 
 
 promissory note subject to annuity for donor, 29. 
 
 to schools, 56b. 
 
 from child to parent prima facie voidable as part of public 
 
 policy, 69, 1146, 381, 449a. 
 to trustees of an institution is a gift to the institution, 84. 
 power to make, must not destroy remainders, 89. 
 by bank's directors to charity void, 92. 
 in trust are inter vivos not causa mortis, 108. 
 must be executed, not executory, 109. 
 donor must part with all control over, 109. 
 more latitude allowed in language of executory trusts, 109. 
 when equity will not aid volunteers, 110, 146. 
 title must vest in trustee before trust executed, 110a. 
 title presumed to have passed in cases of trusts for relatives, 
 
 110a, 110c. 
 how validity determined, HOB, HOd. 
 incomplete may be revoked, HOe. 
 deed not to take effect before donor's death is testamentary, 
 
 112. 
 delivery of personalty to agent, when valid gift, 113. 
 made during fiduciary relationship give rise to presumption 
 
 of undue influence, 114. 
 where donor retained part of property, H4a. 
 to wife or child presumed advancements, but may be rebutted, 
 
 115, 2686. 
 when husband not constructive trustee of gift from wife, 115a. 
 
476 INDEX. 
 
 [The numbers refer to sections.] 
 
 GIFTS — Continued. 
 
 claim of sister that brother gave her property must be clearly 
 proven, 1156, 458c. 
 
 promissory note, unless delivered, not a valid gift, 116, 446. 
 
 executed gift not invalid if subject to an annuity for donor, 
 117. 
 
 voluntary gifts of land upon oral trusts cannot raise resulting 
 trusts, 117a. 
 
 when they are complete and perfect, 118, 146, 481, 482. 
 
 use of wife's money in husband's business implies gift to him, 
 127e. 
 
 when failure of child to execute promissory notes to parent 
 does not avoid, 147. 
 
 parent may make discrimination between children, 149. 
 
 if fraud or an intention to hinder creditors be proven, pre- 
 sumption of advancement is rebutted, 2686. 
 
 or if parent had no other property, 357a. 
 
 doctrine of precatory trusts applied to gifts inter vivos, 3246. 
 
 when the presumption of a gift to a child is rebutted, 4496. 
 
 a stranger who takes without knowledge of a trust is, never- 
 theless, held as a trustee, 4696. 
 
 the donor may be the trustee, 482a. 
 
 with directions to distribute do not usually vest before the 
 time for distribution, 640e. 
 
 GUARDIAN AND WARD, 
 
 a father, though natural guardian, cannot collect income of 
 
 children's estate without being liable to account as a trustee, 
 
 152, 181. 
 a guardian is a quasi trustee, 156. 
 
 concurrent jurisdiction of chancery over, is retained, 174. 
 best interests of ward primary consideration, 174. 
 equity may take jurisdiction away from county or probate 
 
 court if remedy inadequate there, or if any fraud in settle- 
 ment, 174. 
 when equity may take jurisdiction after ward becomes of age, 
 
 175, 182. - 
 when guardian cannot compel trustees of ward to pay ward's 
 
 funds to him, 176. 
 guardian liable for any conversion of fund with compound 
 
 interest, 178, 651. 
 guardian's purchases with ward's funds impressed with trust, 
 
 179, 322. 
 
INDEX. 477 
 
 [The numbers refer to sections.] 
 
 GUARDIAN AND WARD— Continued. 
 
 guardian's purchase with own funds, on misrepresentation to 
 vendor that ward was buying not a constructive trust, 179a. 
 
 guardian having converted, cestuis may follow fund or hold 
 guardian liable, 180. 
 
 guardian has burden of proving bona fides of settlement with 
 ward, 182. 
 
 Statute of Limitations does not bar ward living with guar- 
 dian, 183. 
 
 if guardian is life tenant and ward is remainderman, posses- 
 sion of neither is adverse, 183a. 
 
 guardian's right to resign is not absolute, he must show what, 
 184. 
 
 a resulting trust arises if guardian take title by foreclosure 
 of a note belonging to his ward's estate, the guardian pay- 
 ing nothing, 349. 
 
 widow of guardian being devisee of guardian charged with 
 paying legacies cannot have credit for paying legacies after 
 bill filed to establish resulting trust, 349a. 
 
 a surety is released if, after ward becomes of age he join his 
 guardian in speculating with the fund, 552a. 
 
 trustees having the duty of supporting minors cannot turn 
 the fund over to their guardian, 6046. 
 
 an agent of a guardian cannot escape liability for a conver- 
 sion by asserting his inability to invest fund for ward, 651. 
 
 H. 
 HEIRS, 
 
 of deceased partner having title to firm's lands take as trus- 
 tees, 188. 
 the use or non-use of the word "heirs" will not determine 
 whether a fee was given to a trustee, 630c. 
 
 HOSPITALS, 
 
 when charities, 82. 
 
 when liable for taxes, 82a. 
 
 HUSBAND (see Wife). 
 
 I. 
 IDENTIFICATION OF TRUST FUNDS (see Mingling). 
 IDIOTS (see Lunatics). 
 ILLUSORY APPOINTMENT (see Powers), 
 
 doctrine of does not prevail in Illinois, 639c. 
 
478 INDEX. 
 
 [The numbers refer to sections.] 
 
 IMPEACHMENT, 
 
 of decree by minors, 38, 155. 
 
 IMPLIED TRUSTS, 15. Chapter XVII (see Constructive Trusts), 
 when reference to different instrument does not imply gift to 
 
 charity, 90. 
 arise when guardian takes title in own name, 179. 
 arise when partner takes title in own name to firm land, 192. 
 are not within Statute of Frauds, 246, 319. 
 when spendthrift trust arises, 296. 
 are not within Statute of Uses, 311, 388, 319. 
 when they arise from contracts and out of wills, 317. 
 devise of legal title to trustees may be implied if duties and 
 
 powers imposed require that they have it, 318, 630c. 
 are, in general, within Statute of Limitations, 319. 
 are raised by authorizing trustees "to provide," 320. 
 what cestui in possession as trustee for himself and others 
 
 has implied power to mortgage, 321. 
 are raised when a guardian takes title in his own name to 
 
 land bought with ward's funds, 322. 
 are not raised in contravention of public policy, 323. 
 are raised by use of precatory words, 324. 
 precatory trusts not raised from expressions of motives for 
 
 gifts, 326. 
 trusts are not implied from language used where absolute 
 
 ownership or clear discretion are given, 326. 
 a precatory trust inter vivos cannot be implied from words 
 
 of desire without a promise and a consideration therefor, 
 
 328. 
 cannot be raised contrary to an expressed intention, nor if 
 
 repugnant, 330. 
 whether barfed by laches depends upon particular facts of 
 
 case, 409a, 414. 
 when raised by a codicil, 534. 
 when and when not raised by recitals in wills and references 
 
 to other instruments, 539. 
 when a power of sale may be implied, 629. 
 when it may be implied that a power was executed by a deed, 
 
 640f. 
 discretionary powers may be implied, 643. 
 INCOME, 
 
 cestui takes not only support, but entire, unless limited by 
 
 donor, 151. 
 
INDEX. 479 
 
 [The numbers refer to sections.] 
 INCOME — Continued. 
 
 probate of estate should be closed so that cestui may have, 
 
 166. 
 of annuity may be assigned unless trust instrument forbids, 
 
 270. 
 when a devise of income is a vested estate, 5116. 
 if beneficiaries under a will are given only the net income, 
 
 the remainder is intestate estate, 5286. 
 when a devise of, does not make a rent charge but only an an- 
 nuity, 533. 
 when the trustee is the life tenant of the net income and 
 
 makes investments in real estate his heirs may take the 
 
 increase in value, 614"a. 
 the donor may reserve the income for himself for life, 641. 
 trusts to pay income to life tenants do not permit the trustees 
 
 to convey to the life tenants for life, 642a. 
 
 INDEBTEDNESS (see Debt). 
 
 INDORSER (see Negotiable Instruments). 
 
 INFANTS (see Children). 
 
 INSANE (see Lunatics). 
 
 INSURANCE, 
 
 when assignment of policy to a trustee is complete, 148, 483 b. 
 
 when not, 148a. 
 
 all life, taken in wife's name to hinder creditors enures to 
 
 them, 2676. 
 trustee in mortgage required to insure buildings should select 
 
 solvent companies, but is not liable if they fail later, 425c. 
 money must be held by trustee until debt matures, 425d, 604c. 
 sureties of an executor are not liable for proceeds of, given 
 
 to executor in trust without a trustee's bond, 5526. 
 a trustee owns the fee in respect of fire insurance, 567c. 
 
 INTENTION, 
 
 as affecting executed or executory trusts, 13. 
 implied trust may arise from, 39. 316. 
 
 as presumed to permit change of provisions of trust instru- 
 ment, 49, 51. 
 in charities cy prds applied only to carry out intention, 74a. 
 to deliver a gift not sufficient, 118. 
 advancement determined by, 141, 357. 
 
480 INDEX. 
 
 [The numbers, refer to sections.] 
 
 INTENTION — Continued. 
 
 in deed for wife and children held not to include children by 
 later husband, 160. 
 
 as affecting real estate used by partnership, 189. 
 
 whether partnership was intended is a question of law, 192. 
 
 when spendthrift trust is implied, 296. 
 
 to terminate trust may be inferred when objects are accom- 
 plished, 307. 
 
 if intention to create trust appears no particular form of lan- 
 guage is necessary, 316, 527. 
 
 to create a trust may be implied from powers and duties im- 
 posed on grantee or executor, 318. 
 
 that a precatory trust exists may be rebutted by indications 
 that donor had a contrary intention, 325. 
 
 trusts cannot be implied against an expressed contrary inten- 
 tion or if they would be repugnant, 330. 
 
 in resulting trusts intention of owner of money that nominal 
 purchaser should have an interest in land may be shown 
 by parol, 345. 
 
 resulting trusts cannot arise if owner of money did not in- 
 tend to acquire title to all, or a distinct portion of, the land, 
 345. 
 
 whether a resulting trust arose or an advancement was made 
 to a child depends upon, 357. 
 
 to hinder creditors prevents restoration of a title, though ob- 
 tained by fraud, 386. 
 
 of settlor governs when the rule in Shelly's case is applied 
 to personalty by analogy, 501. 
 
 whether a deed has executed a power depends upon the grant- 
 or's intention which may be often implied, 640f. 
 
 when a plain intention that a trust shall continue will pre- 
 vent its termination by a merger of the estates, 678a. 
 
 INTEREST, 
 
 in profits of land speculation, no dower, 121. 
 
 in land gives dower, 121a. 
 
 when administrator is and is not liable for, 1696, 652a. 
 
 guardian liable for compound, on any loss due to conversion, 
 
 178, 650. 
 agent of trustee is liable for, when he uses fund to his own 
 
 advantage, 377. 
 when called "rent" does not estop real owner from asserting 
 
 title, 4766, 576. 
 
INDEX. 481 
 
 [The numbers refer to sections.] 
 
 INTEREST — Continued. 
 
 where a trustee was not bound to invest he should be charged 
 with simple interest from date when trust ended, 599. 
 
 trustees who have kept no accounts are liable for original 
 fund and compound interest, 609c, 650. 
 
 a trustee withholding a fund wrongfully must pay it into 
 court or be liable therefor, 612c. 
 
 where a trustee held a fund for a mere temporary purpose 
 and mingled it with his own bank account which was al- 
 ways sufficient, compound interest should not be charged, 
 621, 652. 
 
 as to powers coupled with an interest, 630a, b, c, 642. 
 
 compound interest is only charged against trustees in cases of 
 gross delinquency, 652. 
 
 INTERESTS, FUTURE (see Future Interests). 
 
 INVESTMENTS, 
 
 question whether trustees have power to invest in land- does 
 not involve a freehold, 546, 640p. 
 
 a trustee should invest trust monies unless held for a tem- 
 porary purpose, 599. 
 
 as to the kind of securities which a trustee may take, 599a. 
 
 when the heirs of a life-tenant and trustee may take enhance- 
 ments of, 614a. 
 ISSUE, 
 
 when a trust refers to a definite failure of, 517. 
 
 not to take before 25 years of age void as a perpetuity, 518a. 
 
 JOINT, 
 
 earnings of husband and wife in land in her name, 130a. 
 donees of powers must exercise them jointly, except when, 
 632. 
 
 JOINT INTERESTS (see Estates). 
 
 JOINT RIGHTS ACT, 
 
 applies to personalty but not to realty, 485. 
 
 JOINT STOCK COMPANIES, 
 are co-partnerships, 191. 
 
 JUDICIAL SALES (see Sales; Purchases). 
 31 
 
482 INDEX. 
 
 [The numbers refer to sections.] 
 
 JURISDICTION AT LAW (see Ejectment), 
 
 when equity has concurrent, 31, 33, 35, 157. 
 
 usually exclusive in contracts in personalty, 32. 
 and pledges, 33. 
 
 promissory note given by husband for wife's benefit may be 
 recovered on at law, 134. 
 
 Administration Act allowing sixth class claims gives probate 
 court only concurrent jurisdiction, 163. 
 
 what equity powers county and probate courts may exercise, 
 165, 370, 550, 660. 
 
 in general, the trustee alone may sue at law, 436, 569a. 
 
 cestui may sue bank at law for withholding trust funds for 
 personal debt of trustee, 2346. 
 
 cestui may recover in assumpsit on resulting trust where land 
 has been sold, 371. 
 
 Statute of Limitations may be availed of against trusts cog- 
 nisable at law, 415. 
 
 cestui may sue for disturbing his actual possession, 436. 
 
 cestui may sue for withholding monies by third person with 
 knowledge of trust, 436. 
 
 requires proof of fraud before a trustee's purchase from him- 
 self will be set aside, 459d, 6076. 
 
 is ample over bailments, 4846. 
 
 a trustee may be sued without leave of the appointing court, 
 547d. 
 
 probate jurisdiction over testamentary trusts, 35, 550. 
 
 cestui is not considered as having title, 567c. 
 
 the survivor of two assignees of an insolvent bank may sue 
 on a note given to both assignees, 664a. 
 
 cestuis may not sue on a deceased trustee's bond before time 
 for distribution, but the successor may, 669. 
 JURISDICTION OP EQUITY. Chapter IV, 
 
 over trusts generally, 30. 
 
 to construe trust instruments, 30, 547. 
 
 concurrent with law if fraud exist, 31. 
 or trust, 33, 35, 163. 
 
 not usually taken over personal property contracts, 32. 
 
 when over pledges, 33. 
 
 over vendor of land re-taking title as security, 33. 
 
 misapplication of pledges, 33a. 
 
 stale claim for patent right, 336. 
 
 assignment of part ofxdebt, 34. 
 
 estates of decedents, 35. 
 
INDEX. 483 
 
 [The numbers refer to sections.] 
 
 JURISDICTION OF EQUITY— Continued. 
 
 public trusts, 36. 
 
 religious matters not usually heard, 37, 94. 
 
 wives and children protected, 38, 140. 
 
 to reform executed conveyance, 38a. 
 
 to imply trust. 39. 
 
 to appoint trustee, 39. 
 
 of executor-trustee for negligence, 40, 173. 
 
 not to terminate active trust, 40. 
 
 or appoint a receiver of fund, 40. 
 
 cannot distribute fund in active trust, 40. 
 
 cannot vest legal title in trustee, 41,. 41a. 
 
 to decree sale to satisfy liens, 41. 
 
 where no trust exists to appoint a trustee, 41a. 
 
 to require constructive trustee to convey title, 42. 
 
 to make trustees account, 44. 
 
 to prevent waste, 45. 
 
 to decree sale of remainders, 45. 
 
 to fill vacancies in trusteeship, 46, 663. 
 
 to construe wills, 47. 
 
 to change terms of trust, 48, 133. 
 
 to order ninety-nine year lease, 51. 
 
 has none over legislature, 55. 
 
 may enforce constructive trust where husband by false prom- 
 ises got possession of notes given for wife's support, 1306. 
 
 minor cestuis may impeach decree by bill in equity, 155. 
 
 over trusts cannot be taken away by legislature, 157, 174. 
 
 will having named no executor-trustee, administrator with 
 the will annexed may go into equity for appointment 
 of one, 160a. 
 or for construction of will, 1606. 
 
 is concurrent over guardians, 174. 
 
 is exclusive over guardians if remedy at law inadequate or 
 fraud in settlement, 174. 
 
 when jurisdiction taken over guardian after ward becomes 
 of age, 175. 
 
 probate court's order on guardian to pay for legal services 
 to estate does not raise trust in equity, 175a. 
 
 may remove guardian no matter how appointed, 185. 
 
 treats partnership funds as trust for creditors, 186. 
 
 creditors may enforce in equity breaches of express trusts for 
 their benefit without becoming judgment creditors, 292. 
 
 over deeds in form absolute, but really mortgages, 360. 
 
484 INDEX. 
 
 [The numbers refer to sections.] 
 
 JURISDICTION OF EQUITY— Continued. 
 
 does not extend over bailments, 484b. 
 
 foreign courts have none, to appoint trustees over Illinois 
 lands, 542. 
 
 when wills will and will not be construed, 543. 
 
 cannot be conferred by consent of parties to have a will con- 
 strued, 543. 
 
 unless the trust instrument names a trustee only a court of 
 equity can appoint one, 547c. 
 
 to hear suit of cestui if trustee refuses to protect the estate, 
 569. 
 
 only the owner of an absolute equitable title and not a mort- 
 gagee thereof may have a decree for the conveyance of the 
 legal title to him, 592. 
 
 when trustees will be removed, although negligent as execu- 
 tors, without leaving it to probate court, 5986. 
 
 to direct trustees in making a distribution, 604a. 
 
 K. 
 
 KNOWLEDGE (see Notice). 
 
 L. 
 
 LACHES. Chapter XX, 
 
 bars resulting trusts, 367, 368, 369. 
 
 not imputed to infants, 369. 
 
 cannot bar weaker party to a fiduciary relation before he 
 
 has actual notice of truth, 3766. 
 defense is available only to one in possession against one out, 
 
 407. 
 courts are reluctant to apply doctrine, 407. 
 mere illness, not amounting to insanity, will not excuse, 407a. 
 the Statute of Limitations does not always control, 407b, 409a. 
 poverty does not excuse, 4076. 
 excuse may be allowed where the fraud of defendant would 
 
 shock court's conscience, 4076. 
 not imputable to delay due to a will contest, 407c. 
 not imputable to cestui before he has knowledge, 408. 
 cestui's delay or improper legal advice is no excuse, 408a. 
 bar of, may be asserted by trustee after repudiation of trust, 
 
 409a. 
 whether implied and resulting trusts are barred by, depends 
 
 upon facts of each case, 409a, 410, 410a. 
 not imputed to a vendee in possession, 4096. 
 
INDEX. 485 
 
 [The numbers refer to sections.] 
 LACHES — Continued. 
 
 not imputed where the relations of parties explain the delay, 
 
 411. 
 possession of cestui may excuse, 411a. 
 how pleaded, 412, 412a. 
 
 the rights to redeem from a deed absolute but really a mort- 
 gage may be lost by, 4346. 
 
 LAND ASSOCIATIONS, 
 
 when members co-partners, 23, 191. 
 
 need not specify time for termination of trust, 508. 
 
 LANDLORD AND TENANT (see Leases). 
 
 LAND SPECULATIONS, 
 
 declaration of trust, 23. 
 
 when dower does not attach, 121. 
 
 when partnership created by, 192, 264. 
 
 when partnership not created toy, 192a, 1926. 
 
 when agreement to share profits does not create partnership, 
 192c. 
 
 when parol agreement to let wife furnish part of unpaid pur- 
 chase money and share in profits is within Statute of 
 Frauds, 264a. 
 
 when Statute of Frauds not available in reference to assign- 
 ment of contract for purchase of land, 2656. 
 
 where a surviving partner in, pays all of purchase money, no 
 resulting trust arises against heirs of deceased partner but 
 only a claim against his estate, 363d. 
 
 presumptions in respect of, 192a. 449d. 
 
 LANGUAGE NECESSARY, 15 (see Precatory Words), 
 
 more latitude allowed in that of executory trusts than exe- 
 cuted, 109a. 
 
 to create spendthrift trust, 296. 
 
 no particular language is required to create trusts if inten- 
 tion appears, 316, 527, 567a. 
 
 technical terms are taken in such sense, 316. 
 
 trusts are implied from use of precatory words, 324. 
 
 but words employed by the donor may rebut presumption of 
 a precatory trust, 325. 
 
 no precatory trust arises from words expressing the motives 
 for a gift, 326. 
 
 no trust can be implied from language used, if absolute own- 
 ership be given or a clear discretion to act or not to act, 326. 
 
486 INDEX. 
 
 [The (umbers refer to sections.] 
 
 LANGUAGE NECESSARY— Continued. 
 
 a precatory trust cannot be implied inter vivos from words 
 of desire without a .promise and a consideration therefor, 
 328. 
 
 unless instruments grant title in words of the present tense 
 they must be executed as wills, 526. 
 
 use of words "trust" and "trustee" is not necessary when, 527. 
 when treated as surplusage, 527d. 
 
 in creating trusts no words of joint-tenancy are necessary as 
 to the trustees, 585. 
 
 when the word "heirs" is a word of limitation, not of pur- 
 chase, and the devisees of a settlor are entitled to a recon- 
 veyance, 5926. 
 
 construction of "then remaining," 629a. 
 
 construction of "remain invested," 629a. 
 
 construction of "if not already disposed of," 629a. 
 
 use or non-use of "heirs" does not determine whether trustee 
 took fee, 630c. 
 
 "I authorise my trustee to provide" raises an implied trust, 
 643. 
 
 LAWFUL TRUSTS, 
 what are, 11. 
 
 LEASES, 
 
 mining lease enjoined as waste, 45. 
 
 equity may order ninety-nine year lease when, 51. 
 
 when power to lease does not apply to charitable fund, 89a. 
 
 church trustees cannot make long term, 101. 
 
 when an employee may and may not obtain, as against his 
 employer, 402, 574. 
 
 when assignee for creditors may and may not be liable on in- 
 solvent's, 5496. 
 
 as to the implied powers of trustees to make, 570. 
 
 as to duty of trustees to sell leaseholds, 570. 
 
 collateral matters cannot be raised when trustees sue to col- 
 lect on, 571. 
 
 trustees may enforce statutory double rent, 571a. 
 
 when tenant is a trustee of his crop, 573. 
 
 landlord is not liable for use of estate funds on premises by 
 administrators of a deceased tenant, 575. 
 
 calling interest "rent" will not estop debtor from asserting 
 trust, 576. 
 
INDEX. 487 
 
 [The numbers refer to sections.] 
 
 LEASES — Continued. 
 
 the lessor, if a constructive trustee, will be held to have made 
 
 le~ase for cestui's benefit, 576a. 
 when trustees are liable for injuries to third person due to 
 
 defective premises, 577. 
 as to the liability of a receiver on leases made by his insol-' 
 
 vent, 579. 
 restrictions on the power of the trustees to make do not apply 
 
 to portions set apart by them to charities, 604. 
 
 LEGACY (see Wills), 
 
 sale under power to pay, must be for cash and not for claim 
 
 against estate, 167. 
 when an assignment of, by a son to his father does not raise 
 
 a constructive trust, 3816. 
 when purchaser of land bound to pay, 383. 
 when no lapse occurs, 538. 
 contingent assignable in equity, 538a. 
 a trustee to pay, takes the fee, 568. 
 mere refusal of trustees of a legacy to act does not vest legal 
 
 title in cestui, 667. 
 
 LEGAL TITLE (see Title). 
 
 LEGISLATURE, 
 
 may divert proceeds of swamp lands, 54. 
 
 cannot divest courts of chancery of jurisdiction over trusts, 
 157. 
 
 LIABILITY OF THE TRUSTEE. Chapter XXXIV (see Account- 
 ing), 
 
 every trustee is bound to account, 648. 
 
 on contracts not within authority to make, 6486. 
 
 for obtaining a lease from the cestui improperly, 648c. 
 
 for all losses due to a conversion of the fund, 649. 
 
 agents using their principal's funds, 649. 
 
 for compound interest where he has converted the fund to 
 his own use, 650. 
 
 for interest on funds held for a temporary purpose, 652. 
 
 for costs of accounting when he has not kept proper accounts, 
 653. 
 
 for litigation not for the benefit of the trust estate, 653a. 
 
 when liable as trustee for the cestui's expenses of litigation, 
 654. 
 
488 INDEX. 
 
 [The numbers refer to sections.] 
 
 LIABILITY OP THE TRUSTEE— Continued. 
 
 not liable personally for counsel employed by him to benefit 
 the estate unless more attorneys are employed than neces- 
 sary, 655a. 
 
 not liable to perform a trust if cestui has not performed a 
 condition precedent required of him, 656. 
 
 what may be charged to heirs of a deceased trustee of a re- 
 sulting trust, 657. 
 
 not liable for property taken by operation of law under prior 
 liens, 658. 
 
 an estate of a decedent withholding trust funds is liable for 
 costs of litigation and interest and not the trust estate, 659. 
 
 surety cannot compel trustee to account unless eestuis are 
 made parties, 662. 
 
 administrator depositing trust funds in bank in his own name 
 is liable for loss, 169. 
 
 when administrator is and is not required to pay interest, 
 1696. 
 
 for all profits made out of fund and for all savings effected 
 to it, 170, 603, 648. 
 
 on contracts signed "trustee," 177, 5906. 
 
 guardians and trustees are liable for any conversion with 
 compound interest, 178, 609c, 650, 651. 
 
 of co-partnership using funds of a trust estate of which one 
 partner is trustee, 197. 
 
 bank directors are liable to shareholders for ordinary negli- 
 gence and to depositors for gross negligence, 236. 
 
 of trustee of voluntary savings society, 237. 
 
 in constructive trusts and trusts ex maleficio, 390, 649, 649a. 
 
 if a mortgagee in possession, 429, 429a. 
 
 of a trustee in a mortgage for its wrongful release, 435. 
 
 for not reducing the personalty to possession, 479. 
 
 for acts of omission as well as commission, 479. 
 
 for selling real estate at inopportune time, 493. 
 
 on lease of an insolvent, 5496. 
 
 filing a bond does not exempt the trustee from accounting, 
 5516, 661. 
 
 as landlord for injuries to a third person, 577. 
 
 for breaches of trust, 603a, 609c. 
 
 for costs for refusing to convey as requested by the cestui, 
 665. 
 
 LICENSE (see Corporations, Foreign). 
 
INDEX. 489 
 
 [The numbers refer to sections.] 
 LIENS, 
 
 sale of estate to satisfy liens, 41. 
 
 when the trustee may have a lien for advancements made by 
 him to protect the trust estate, 584. 
 
 LIFE INSURANCE (see Insurance). 
 
 LIMITATION, 
 
 against aliening property when not against public policy, 66. 
 over, will not bar equity from letting cestui use corpus of 
 
 estate in urgent case, 151a. 
 when limitations over of personalty are valid, 486. 
 void as a perpetuity cannot be separated from limitations of 
 
 a general scheme, under cy pris doctrine, 518a. 
 not dependent on a void limitation does not fall with latter, 
 
 519a. 
 when "heirs" is a word of limitation and not of purchase and 
 
 devisees of a settlor may have a reconveyance, 5926. 
 for life with power to appoint by will is only a life estate, 
 
 640d. 
 
 LIMITATIONS, STATUTE OF, 
 
 does not run against statute when, 56, 416. 
 
 runs against school directors, 56d, 416. 
 
 does not run against county in favour of its former treasurer, 
 
 59, 416. 
 does not bar ward living with guardian, 183. 
 if guardian is life tenant and ward is remainderman posses- 
 sion of neither is adverse, 183a. 
 when partnership accounting barred by, 196. 
 directors of corporations, who misappropriate assets, are not 
 
 protected by, 203. 
 trustees in bankruptcy, etc., hold as naked trustees after 
 
 claims are barred, 308b. 
 does not bar, in general, express trusts, 319, 413, 417. 
 when statute may bar express trusts, 319, 4196. 
 does not bar weaker party in a fiduciary relation before actual 
 
 knowledge is acquired of wrongful transaction, 3766. 
 an investing agent is an express trustee and cannot invoke 
 
 statute before taking a stand hostile to trust, 399. 
 bars constructive trusts, in general, 413. 
 does not bar those created by law, 413. 
 what trusts are exempted from, 413a, 414b. 
 bars claim for surplus of monies left with attorneys to pay 
 
 claims and fees, 413a. 
 
490 INDEX. 
 
 [The numbers refer to sections.] 
 
 LIMITATIONS, STATUTE OF— Continued,. 
 
 does not bar where trustee has improved land at request of. 
 cestui, 413a. 
 
 bars all implied trusts, iri general, 414. 
 
 does not bar rights of insane cestui, ilia. 
 
 illness not amounting to insanity is no excuse, 414a. 
 
 bars resulting trusts, unless cestui has acquired a possessory 
 title, 4146. 
 
 when no bar to trusts existing under fiduciary relations, 414c. 
 
 is available against actions at law on all trusts cognisable 
 there, 415. 
 
 when officers of the court cannot avail themselves of, in fail- 
 ing to turn over proceeds of sales, 415a. 
 
 express trusts not barred by until trustees deny same, and 
 if denial be withdrawn, new denial is necessary, 417. 
 
 payment of taxes by trustee in his own name is not adverse 
 to cestui, 417a. 
 
 possession of a widow is not adverse to heirs, 4176. 
 
 a bill for an accounting between parties may be barred by, 
 418. 
 unless there be a continuing trust, 418a. 
 
 when directors of a corporation cannot avail themselves of, 
 4186. 
 
 a mortgagee when paid in full holds on a direct trust to re- 
 convey which is not barred by, 419. 
 
 grantee of land retaining part of purchase price to pay off 
 encumbrances cannot avail of, 419a. 
 
 when a claim for proceeds of sale from alleged mortgagee 
 may be barred, 4196. 
 
 runs for benefit of strangers against both trustee and his 
 cestui, 419c. 
 
 a mortgagee in possession may invoke statute, 429a. 
 
 LOUGHBOROUGH'S ACT, LORD, 520. 
 
 LUNATICS, 
 
 estate may be decreed converted, 50. 
 
 subscription revoked by insanity before its acceptance, 106. 
 
 conservator of an insane heir may elect to adopt wrongful act 
 
 of administrator in respect of heir's portion, 401c. 
 not guilty of laches, 407a. 
 not barred by Statute of Limitations, 414a. 
 title of trustees for, with remainders over, is a fee, 568a. 
 
INDEX. 491 
 
 [The numbers refer to sections.] 
 
 M. 
 
 MALEFIC10, EX (see Fraud; Constructive Trusts). 
 
 MANDAMUS (see Public Trusts). 
 
 MARRIAGE, 
 
 sufficient consideration for voluntary settlement, 28. 
 
 MARRIAGE SETTLEMENTS (see Wives). 
 
 MASSES, 
 
 trusts for valid, 88. 
 
 MEMORANDA (see Banks), 
 
 when good as against Statute of Frauds, 252. 
 
 MERGER, 
 
 where trustee is a cestui but there are other cestuis, no merger 
 
 occurs of legal and equitable title, 567a. 
 if the trust estate descends to the trustee's heirs who are also 
 
 the cestuis a merger occurs, 58 do. 
 when it terminates a trust, 678. 
 
 MINES, 
 
 minerals, oils and gas cannot be sold by a trustee for a life 
 tenant, 572, 634. 
 
 MINGLING OF TRUST FUNDS (see Following Trust Funds; 
 
 Banks), 
 an administrator may if always able to produce funds of es- 
 tate, 167a. 
 administrator of deceased trustee must account for trust fund 
 
 when identified, 172. 
 special depositor in bank becoming insolvent who cannot 
 
 identify fund is only a creditor, 227, 618a. 
 admission of estops trustee from denying that the investment 
 
 of same is trust property, 4726. 
 if the trust property cannot be identified the cestui becomes 
 
 only a creditor, 617. 
 the particular coin need not be identified if the fund can be, 
 
 618. 
 the presumption is that the trustee used his own money first 
 
 so that the residue belongs to the cestui, 6186. 
 when grain in a warehouse shrinks it must be distributed 
 
 pro rata, 618c. 
 
492 INDEX. 
 
 [The numbers refer to sections.] 
 MINGLING OF TRUST FUNDS— Continued. 
 the trustee must account for, 619. 
 the burden is on the trustee to identify his own property, else 
 
 the cestui may take all, unless the trustee be insolvent, 
 
 619, 619a. 
 when mandamus will lie against county commissioners for, 
 
 620. 
 where fund was held for a temporary purpose and trustee 
 
 always had sufficient funds on hand, compound interest 
 
 should not be charged, 621. 
 how the trustee may make restitution, 622. 
 
 MINORS (see Children). 
 
 MIXING OF TRUST FUNDS (see Mingling). 
 
 MORTGAGES (see Pledges). Chapter XXI, 
 
 deeds of trust given to secure debts are, at law and equity, 
 421. 
 
 condition of defeasance may be in a separate instrument, 422. 
 
 the owner of the notes secured may be the trustee, and the 
 deed is then treated as a simple mortgage, 423. 
 
 delivery of deed of trust to trustee is not necessary if made 
 to the cestui, 424. 
 
 the trustee is the agent of both parties and must so act, 425. 
 
 a trust to mortgage implies the trustee was given the fee, 568. 
 
 a trustee has no implied power to mortgage, 629a. 
 
 or to make flew mortgages when given the power to 
 extend old ones, 635. 
 
 in general a power to mortgage is not implied from a power 
 to sell or lease, 635a. 
 
 a devise to a wife to use to support herself and children gives 
 no power to mortgage, 6356. 
 
 when a mortgage made only under a power of sale may be 
 treated as a conditional sale, 645. 
 
 equitable rights subject to purchase money on common law 
 dedications enjoined, 60a. 
 
 church trustees may mortgage property when, 103. 
 
 executor should foreclose past due, 166a. 
 
 possession of railway by mortgagee's agent makes latter trus- 
 tee also of mortgagor, 215. 
 
 when mortgagor railway may redeem after decree limit, 215. 
 
 when purchase of railway foreclosed is a trustee for old bond- 
 holders, 218. 
 
INDEX. 493 
 
 [The numbers refer to sections.] 
 MORTGAGES — Continued. 
 
 agreements to allow redemption from, are not within Statute 
 of Frauds, 257a, 426a. 
 
 possession under lost deed is notice to mortgagee of record 
 owner, though original transaction was void as to creditors, 
 268a. 
 
 when judgment creditors cannot claim surplus of foreclosure 
 sale, 283. 
 
 what cestui in possession as trustee for himself and others 
 has implied power to mortgage, 321. 
 
 when a resulting trust may arise out of a redemption, 33S, 
 426a. 
 
 advancing money to purchase land and taking title as secur- 
 ity creates a resulting trust, 344a. 
 
 no resulting trust arises on foreclosure of mortgage made by 
 a husband in his lifetime to secure his wife for money lent 
 him by her, 3486. 
 
 a resulting trust arises if a guardian take title through a fore- 
 closure of a mortgage of his ward's estate, he paying noth- 
 ing, 349. 
 
 resulting trusts arise in cases of deeds absolute, but really 
 mortgages, 360, 455c. 
 
 when a resulting trust is not defeated by nominal purchaser's 
 assumption of an encumbrance, 361. 
 
 no redemption as from a mortgage is permissible where by 
 agreement purchaser of land was to sell for same price 
 paid with interest, 362. 
 
 a resulting trust arises on purchase of land with notice of a 
 mortgage not of record, 364a. 
 
 release of, obtained by false promises fastens in equity a trust 
 ex maleficio on land, 378a. 
 
 purchaser of equity in land on contract to redeem, sell and 
 divide proceeds with former owner, must make sales for 
 fair value, 393. 
 
 payee of note secured by chattel mortgage who buys at fore- 
 closure for inadequate sum cannot hold sureties of note 
 liable, 395. 
 
 when a mortgagee under an absolute conveyance is paid in' 
 full he holds under a direct trust to reconvey which is not 
 barred by the Statute of Limitations, 419. 
 
 when a claim for proceeds of sale from an alleged mortgagee 
 may be barred, 4196. 
 
494 INDEX. 
 
 [The numbers refer to sections.] 
 
 MORTGAGES — Continued. 
 
 equity could compel the trustee to exercise the power of sale 
 in deeds made before 1879, 425a. 
 
 mortgagee obtaining title to equity on agreement to pay over 
 excess proceeds of sale must not sacrifice property, 4256. 
 
 when trustee is required to insure he is not liable if insur- 
 ance companies do not remain solvent, 425c. 
 
 trustee collecting insurance money must retain until debt 
 matures unless deed provide otherwise, 425a\ 
 
 grantee in deed absolute, but really a mortgage may advance 
 money to protect the property and may foreclose for same, 
 426. 
 
 a right to redeem may be shown by parol evidence, 426a, 456. 
 
 if a grantee assume a lien but is only a trustee, not he but 
 his cestui will be liable, 426b. 
 
 trustee may have compensation if deed so provides, 427. 
 and solicitor's fees, 559a. 
 
 but trustee cannot have solicitor's fees for services performed 
 himself, until he withdraws, 427a. 
 
 when holder of mortgage taken as collateral security cannot 
 merge it in an execution title, 428a. 
 
 cestui's assignment of proceeds of sale is not a mortgage giv- 
 ing assignee a right to redeem from sale, 4286. 
 
 how far a mortgagee in possession is a trustee, 429. 
 
 what a mortgagee in possession is liable for, 429a. 
 
 a mortgagee in possession may invoke Statute of Limitations, 
 429a. 
 
 land bought with notice of an unrecorded mortgage from one 
 who had no knowledge gives good title, 430. 
 
 lender of money not bound to see to its application, 430a. 
 
 may buy prior mortgage though loan from him was to 
 pay off same, 430a. 
 
 cestui may encumber for debt of spouse, 4306. 
 
 not enforceable by mortgagee with knowledge that trustee 
 intends to use proceeds himself, 430c. 
 
 assignee of trust deed and notes takes subject to all equities 
 though assigned by mere delivery, 430d\ 
 
 unless a valid consideration passed, a mortgage is not en- 
 forceable, 430e. 
 
 powers of sale had to be followed strictly, 431. 
 
 a power of sale for cash could not be on credit, 431a. 
 
 a sale of one tract of two with a deed for both was invalid, 
 4316. 
 
INDEX. 495 
 
 [The numbers refer to sections.] 
 MORTGAGES — Continued. 
 
 mortgagee could not purchase unless mortgagor consented, 
 431c. 
 
 trustee's deed not presumed to have been delivered until bid 
 paid, 4314. 
 
 foreclosure of all mortgages, made since 1879 must be by de- 
 cree or judgment, 431e. 
 
 the trustee and eestuts as parties to foreclosures, 4Zlf. 
 
 when foreclosure is permitted for non-payment of taxes, 431gr. 
 
 as to the hour of a foreclosure sale, 431ft. 
 
 holder of notes* secured by trust deed cannot acquire the legal 
 title from the mortgagor but only the equitable, 431t. 
 
 when the trustee may be appointed receiver, 431/. 
 
 when judgment creditors have no prior lien on surplus pro- 
 ceeds of foreclosure sale, 432. 
 
 mortgagee not entitled to foreclose deed when he has obtained 
 his money by another action, 433. 
 
 oral agreements to allow redemptions violate the Statute of 
 Frauds, 434. 
 
 but contracts for redemptions before foreclosure are not within 
 Statute of Frauds, 434a. 
 
 right of redemption from deed absolute may be lost by laches, 
 4346. 
 
 when the right to redeem may be lost by estoppel, 4346. 
 
 a wrongful release by a trustee renders him or his estate lia- 
 ble to the note holder, 435. 
 
 release obtained by fraudulent promises, 435a. 
 
 a trustee by advancing money to protect the trust estate may 
 acquire a lien which he or his devisees may foreclose, 584. 
 
 when contingent remaindermen's interests will be barred by 
 their joinder in a mortgage foreclosed afterwards, 591o°. 
 
 only the absolute owner of an equitable title and not a mort- 
 gagee thereof may have a decree for the conveyance to him 
 of the legal title, 592. 
 
 no redemption is allowable from a trustee's sale by one claim- 
 ing a lien on a cestui's share, 595. 
 
 an administrator of the last partner of a firm in making re- 
 demption must permit heirs of other partners to benefit, 
 608a. 
 
 MUNICIPALITIES, 
 
 treasurers are trustees, 58. 
 public streets, 60. 
 
496 INDEX. 
 
 [The numbers refer to sections.] 
 
 N. 
 
 name:, 
 
 of cestui left blank in declaration of trust may be supplied 
 by parol, 455. 
 
 NATURE OF TRUSTS, 10. 
 
 NAKED TRUSTS (see Statute of Uses). 
 
 NEGLIGENCE, 
 
 of executor-trustee jurisdiction not confined to probate court, 
 40. 
 
 charitable trusts not liable for servant's negligence, 91. 
 
 of bank directors, degrees, 236. 
 
 trustee of voluntary savings society is held to greater respon- 
 sibility than a bank director, 237. 
 
 of trustee in not taking possession may cause Statute of Limi- 
 tations to bar himself and cestui, even if cestui is a remain- 
 derman, 419c. 
 
 the trustee is liable for, in acts of omission as well as com- 
 mission, 479. 
 
 of trustee forfeits his right to compensation, 558. 
 
 in letting premises in bad state of repair, 577. 
 
 NEGOTIABLE INSTRUMENTS (see Banks), 
 gift of, subject to annuity for donor, 29. 
 sales by school trustees, 56c. 
 
 where donor trustee of, no delivery necessary, 113. 
 promissory note not delivered is invalid as a gift, 116. 
 note of husband given for wife's benefit may be sued on at 
 
 law, 134. 
 acceptance of trustee's note by cestuis in fair settlement 
 
 changes them to mere creditors, 154. 
 when trustee cannot surrender cestui's notes, 1666. 
 railway's bonds given to pay debts of other corporation void 
 
 in hands of all having knowledge, 220. 
 when doctrine of descriptio personae will not apply to paper 
 
 endorsed as trustee, 233a. 
 burden is on the one who asserts a trust in a note, 240. 
 parol evidence is admissible to show fraud in making note 
 
 held by trustee, 240a. 
 when defence of payment of note to cestui cannot avail against 
 
 trustee's suit, 241. 
 part of chose in action is assignable only in equity, 242. 
 
INDEX. 497 
 
 [The numbers refer to sections.] 
 
 NEGOTIABLE INSTRUMENTS— Continued. 
 
 promise to make a gift of, is not enforceable, 243. 
 
 but parting with control over, makes valid gift in trust, 243. 
 
 taken as collateral renders holder trustee for all persons in- 
 terested, 244, 456a. 
 
 ■when maker of purchase money notes given to pay debts of 
 business bought may and may not set off claims bought by 
 him, 273. 
 
 a surety or endorser receiving collateral security becomes a 
 trustee for -whom, 273. 
 
 when sureties on note secured by a chattel mortgage are not 
 liable when payee buys at foreclosure, 395. 
 
 parol is admissible to show payee is only a trustee for collec- 
 tion, 456c. 
 
 the delivery by the payee to a third person to cancel and give 
 to the maker constitutes a valid trust as against the payee's 
 administrator, 4826. 
 
 the survivor of two assignees of an insolvent bank may sue 
 on a note given to both, 664a. 
 NOTES (see Negotiable Instruments). 
 
 NOTICE. Chapter XXIII, 
 
 doctrine of and kinds of, 465. 
 
 may be given by a stranger, 466. 
 
 may be given by the cestui or a contingent remainderman, 466. 
 
 a grantee may by a separate instrument give notice that he 
 holds upon trust, 467a. 
 
 reference to a trust contained in another deed is notice of 
 such trust, 4676. 
 
 of a trust is constructive notice of its terms, 468, 468e. 
 
 a purchaser with notice of a trust becomes a constructive 
 trustee, 468a. 
 
 a purchaser with notice of the violation of the trust becomes 
 a constructive trustee, 468c. 
 
 to purchaser may arise from recitals in deeds in the chain of 
 title, 468a", 607a. 
 
 purchasers without notice are protected, also if they have no- 
 tice of a void contract, 469. 
 
 unless the cestui be in possession, 469a. 
 
 a stranger without notice may be held as trustee in case of 
 a gift to him, 4696. 
 
 when a purchaser with notice of a trust may enjoy a life es- 
 tate, 470. 
 32 
 
498 INDEX. 
 
 [The numbers refer to sections.] 
 
 NOTICE — Continued. 
 
 records of deeds impute notice of a trust no matter bow badly 
 abstracted, or what an attorney's opinion may nave been, 
 470a. 
 
 a purchaser with notice that a receiver holds part of property 
 for private cestuis takes such part in trust, 4706. 
 
 the trustee before selling should give every cestui notice, 591. 
 and every person interested, 600. 
 
 bona fide, without, is protected at law and in equity, 364. 
 
 to creditor of trust from deed, though absolute in form, 135, 
 363a. 
 
 of purchaser that trustee sold to himself makes him a con- 
 structive trustee, 170. 
 
 stockholder of corporation has, of quasi trust nature of cor- 
 porate property and his purchases thereof are subject to all 
 equities, 204. 
 
 to president of railway is notice to railway, 214. 
 
 bank having, that depositor is not real owner of fund may 
 refuse to honour his cheques, 233. 
 
 bank taking paper endorsed by one as trustee cannot rely on 
 doctrine of descriptio personae, 233a. 
 
 banks may assume that trustees issue cheques properly 
 against general trust deposits, 234. 
 
 banks may disregard memoranda on cheques, 234. 
 
 banks may levy on land of a debtor, though a director knew 
 debtor held land on trust, 234a. 
 
 bank knowing that its debtor holds funds as trustee cannot 
 attach same, 2346. 
 
 banks having no knowledge that depositing trustees are em- 
 bezzling are not liable, 235. 
 
 maker of promissory note payable to cestui cannot pay same 
 to cestui when he knows latter has only life estate in fund, 
 241. 
 
 notice of assignment of part of a chose in action creates a 
 trust for assignee, 242. 
 
 of contract void under Statute of Frauds does not make pur- 
 chaser constructive trustee, 257a. 
 
 when possession is notice of oral trust sufficient as against 
 creditors and Statute of Frauds, 261, 268a. 
 
 grantees and creditors of trustee without notice that he holds 
 land under secret, oral trust are protected from it, 267a. 
 
INDEX. 499 
 
 [The numbers refer to sections.] 
 NOTICE — Continued. 
 
 possession under lost deed protects from mortgage made by 
 record owner, though original transaction was fraudulent 
 as to creditors, 268a. 
 
 purchaser from a guardian is put upon notice where guard- 
 ian has taken title in his own name by foreclosure of a 
 mortgage belonging to his ward, 349. 
 
 resulting trusts are enforceable against all purchasers with 
 notice thereof, 364a. 
 
 where fiduciary relation requires a disclosure to weaker party 
 the latter is not barred by laches or Statute of Limitations 
 before he has actual notice, 3766. 
 
 possession of land by equitable owner makes purchaser of 
 record title a constructive trustee, 392. 
 
 when notice to agent in a prior transaction is notice to his 
 principal, 400, 467. 
 
 a purchase of land with notice of an unrecorded mortgage 
 from one without notice gives good title, 430. 
 
 by a mortgagee that trustee intends to use proceeds himself 
 invalidates mortgage, 430c. 
 
 an assignee of a trust deed mortgage and notes takes subject 
 to all equities though acquired by mere delivery, 430d. 
 
 a nominal consideration in a deed is not necessarily notice of 
 a trust, 4686. 
 
 a purchaser with knowledge of a valid contract of sale holds 
 title as trustee for such vendee, 4916. 
 but not as to a void contract, 491c. 
 
 in sales by a trustee to organisations of which he is a mem- 
 ber knowledge is imputed, 610. 
 
 when a stranger is chargeable with a trustee's misappropria- 
 tion, 615. 
 
 O. 
 
 OBJECTS, 
 
 of a trust (see Certainty). 
 
 OBSTRUCTIONS, 
 
 to public streets must not be permanent, 60. 
 
 OIL (see Mines). 
 
 OPERATION OP LAW, 
 
 trusts arising by, not within Statute of Frauds, 246, 487. 
 parol partnership agreement to speculate in lands raises trust 
 not within Statute of Frauds, 264. 
 
500 INDEX. 
 
 [The numbers refer to sections.] 
 
 OPERATION OP LAW— Continued. 
 
 trusts arising by, not affected by Statute of Uses, 311, 388. 
 trusts in partnership lands are raised by, 487. 
 a trustee is not liable for property taken by, under prior liens, 
 658. 
 ORIGIN, 1. 
 
 P. 
 
 PAROL TRUSTS (see Statute of Frauds). 
 
 PARTIES, 
 
 when fraudulent declaration of trust is good as between the 
 parties, 21. 
 PARTIES IN CHANCERY. Chapter XXII (see Jurisdiction), 
 
 who are necessary, in general, 436. 
 
 when the trustee represents his cestuis, 437. 
 
 when a committee may represent a voluntary society, 437a. 
 
 when trustee represents creditors, 4376. 
 
 when description of "trustee" is insufficient, 439. 
 
 mere naked trustee can have no affirmative relief unless ces- 
 tuis are parties, 439a. 
 
 misappropriating trustees may be sued jointly or separately, 
 440. 
 
 on bill for an accounting against misappropriating trustees 
 all are necessary, 441. 
 
 when attorney general is proper party, 54, 438. 
 
 when attorney general is not necessary party, 93, 438. 
 
 church corporation necessary party in suits affecting its prop- 
 erty, 99a, 443. 
 
 when trustee's wife is necessary, 124. 
 
 in foreclosures, 431f. 
 
 when the donor or settlor and heirs are not necessary, 440a. 
 
 a trustee not accepting or discharged is not a necessary, in 
 suit against rest of trustees, 441. 
 but is necessary on bill to appoint another trustee, 441a. 
 
 who are necessary in a bill for appointment of a new trustee, 
 441a. 
 
 the administrator of a deceased trustee not a necessary party 
 to enforce trust on heirs of trustee, 441B. 
 
 as between sureties on the trustee's bond and the cestuis, 
 442, 551, 662. 
 
 suits brought by public trustees do not' abate by their death, 
 444. 
 
 when cestui should join trustee in appeal, 445. 
 
INDEX. 501 
 
 [The numbers refer to sections.] 
 PARTITION, 
 
 cannot be claimed as such unless commissioners appointed, 41. 
 when a resulting trust arises on a partition sale, 350a. 
 cannot be had of land equitably converted by a mandatory 
 power of sale, 487a. 
 
 PARTNERS AND PARTNERSHIP, 
 
 in land speculation, 23, 121, 363d. 
 
 lands of firm not subject to dower,, 120. 
 
 are quasi trustees, 156, 186. 
 
 assets are trust fund for creditors, 186. 
 
 when investment in business creates no partnership, 187. 
 
 partner having title to firm's land is trustee and on death 
 his heirs become trustees, 188. 
 
 when land is considered firm assets, 189, 264, 487. 
 
 when title conveyed "in trust for" firm is not operated on by 
 Statute of Uses, 190. 
 
 land associations and joint stock companies are partnerships, 
 191. 
 
 when land speculation creates partnership, 192. 
 when not, 192a-6. 
 
 when firm's money is invested in land a resulting trust arises, 
 whether or no partnership agreement was in writing, 
 192. 
 and Statute of Frauds has no application, 192. 
 
 presumptions in land speculation, 192a, 449tf. 
 
 burden is on one who asserts existence of partnership, 192a. 
 
 when agreement to share profits in land speculation does not 
 create partnership, 192c. 
 
 unless all partners consent to private use of firm funds by 
 one partner, such funds may be followed, 193. 
 
 creditors may either follow converted assets or hold remain- 
 ing partners liable, 193a. 
 
 partner must not purchase firm property else resulting trust 
 for firm arises, 194. 
 
 surviving partner is a quasi trustee for deceased partner's 
 representatives, 195. 
 
 when he may and may not purchase deceased partner's inter- 
 est, 195. 
 
 when Statute of Limitations runs against partnership ac- 
 counting, 196. 
 
502 INDEX. 
 
 [The numbers refer to sections.] 
 
 PARTNERS AND PARTNERSHIP— Continued. 
 
 liability of firm for use by it of funds taken from a different 
 trust, 197, 197a. 
 
 other partners of converting trustee cannot hold cestui liable 
 for firm debts, 197a. 
 
 a receiver of firm is held only to reasonable diligence, 198. 
 
 an insolvent firm cannot make preferences, 278. 
 
 Statute of Uses does not operate for partnerships unless in- 
 dividuals are named, 315. 
 
 Statute of Limitations may bar a bill for accounting between, 
 418. 
 unless there be a continuing trust, 418a. 
 
 parol is admissible to show interest of each in land taken in 
 name of one, 459e. 
 
 no compensation is allowed unless the articles so provide, 
 559. 
 
 an administrator of the last partner in redeeming from fore- 
 closure sales must give heirs of other deceased partners an 
 equal benefit, 608a. 
 
 PASSIVE TRUSTS, 14. (See Uses, Statute of). 
 
 PATENT, 
 
 vendee of stale claim for, 33b. 
 
 PAYMENT (see Taxes). 
 
 PERFORMANCE, 
 
 of charity if sufficient sum be available, 77c. 
 partial as against Statute of Frauds, 246, 254. 
 partial by trustee without compensation is binding on him, 
 269. 
 
 PERPETUITIES, RULE AGAINST. Chapter XXVI, 
 statement of, 503. 
 
 applies only to future estates, 503a, 504, 511. 
 does not limit the number of lives in being, 5036. 
 trusts are subject to the rule, 504. 
 applies to personalty as well as realty, 504a. 
 trusts for accumulation must keep within, 505. 
 in wills the time is computed from the testator's death, 506. 
 the fact that a trust might be contingently turned into a per- 
 petuity will not make it void, 507. 
 rule is a part of public policy, 66. 
 not applied, in general, to charities, 78, 5046. 
 
INDEX. 503 
 
 [The numbers refer to sections.] 
 PERPETUITIES, RULE AGAINST— Continued. 
 
 trust to keep burial lots forever in order is not a charity, 87. 
 
 when a devise is not against public policy, 506. 
 
 when a spendthrift trust for a cestui and his wife and chil- 
 dren does not offend, 507a, 515. 
 
 a provision empowering a judge to appoint successors in trust 
 "for all time to come" violates, 5076. 
 
 land associations need not fix time for termination of trust, 
 508. 
 
 when a devisee by electing to take under a will is not estopped 
 from seeking to have parts of the will held perpetuities, 
 4756. 
 
 if a trust can possibly offend the rule it is void, 509, see 507. 
 
 it is the court's duty to uphold the rule, 509. 
 
 no distinction can be made among remaindermen of the same 
 class, 509. 
 
 when bequests may be separated from invalid parts of instru- 
 ment, 509. 
 
 as to the vesting of estates "when," "upon," etc., attaining 
 a certain age, 510, 518a. 
 
 what are vested interests, 511. 
 
 when a remainder given to a class, subject to open up, may 
 violate, 511. 
 
 if a life estate vest within proper time it may continue be- 
 yond, 511a. 
 
 when a devise of income is a vested estate, 5116, 513. 
 
 when a devise to hold twenty-five years after date of probate 
 of wills offends, 512. 
 
 when not, 512, 514. 
 
 when a devise of rentals does not violate, 513a. 
 
 mere postponement of possession does not violate, 513a. 
 
 but should not continue too long, 514. 
 
 when discretionary power to act at uncertain time does not 
 offend if estate be vested, 514, 639. 
 
 when a spendthrift trust is held to terminate, 507a, 515. 
 
 when a trust for two years with entailment may violate, 516. 
 
 definite failure of issue does not offend, 517. 
 
 what is cy prds doctrine; not applied to deeds or personalty, 
 518. 
 
 void limitation cannot be separated from others in a general 
 scheme under, cy prSs, 518a. 
 
 when invalid provision for collateral heirs may be separated, 
 519. 
 
504 INDEX. 
 
 [The numbers refer to sections.] 
 
 PERPETUITIES, RULE AGAINST— Continued. 
 
 limitations not dependent upon a void limitation do not fall 
 
 -with it, 519a. 
 Thelusson or Lord Loughborough's Act, 520. 
 four periods provided, 520. 
 ACT construed according to English cases, 522. 
 various decisions relating to Act, 523, 525. 
 
 PERSONAL PROPERTY. Chapter XXIV (see Title; Pledges; 
 Gifts), 
 how trusts in, may be created, 477. 
 must not be perpetuities, 477. 
 may be created in choses in action, 477. 
 must be reduced to possession by trustee, 479. 
 what evidence must show to establish a trust in, 480. 
 equity cannot aid imperfect gift in trust, 481. 
 what constitutes a perfect gift in trust, 482. 
 equity seldom takes cognisance of contracts relating to, 32, 
 
 484, 573. 
 when pledges are trusts, 33. 
 equitable conversion of, 50. 
 
 gifts of, not to take effect until donor's death are testamen- 
 tary, 112. 
 when agent holds under valid trust, 113, 482. 
 transference of, from wife to husband creates no constructive 
 
 trust unless, 137. 
 advancement may be made of, 142. 
 is taxable at residence of executor until distribution, 171. 
 
 in equity partnership lands are, 192. 
 Statute of Frauds does not apply to, 245. 
 
 or to lands bought wrongfully with proceeds of, 245, 316, 
 4876. 
 trust in master's certificate of sale of land not within Statute 
 
 of Frauds, 263, 483. 
 Statute of Uses does not apply to trusts or uses in, 301, 478. 
 and a transference of the legal title is necessary, 310, 
 
 488, 592a. 
 and delivery has been held sufficient unless cestui be 
 an infant, 310. 
 parol is admissible to prove express trusts in, and in land 
 
 bought wrongfully with proceeds of, 316. 
 a Board of Trade, certificate of membership may be the sub- 
 ject of a resulting trust, 365, 483a. 
 
INDEX. 505 
 
 [The numbers refer to sections.] 
 PERSONAL PROPERTY— Continued. 
 
 a continuing trust in, is not barred by the Statute of Limita- 
 tions, 418a. 
 
 what is required to prove an oral trust in, 4566. 
 
 the rule in Shelly's case does not apply to trusts in, 478. 
 except by analogy, 501. 
 
 trustee must reduce to possession, 479. 
 
 the donor of, may be the trustee, 482a. 
 
 the delivery of a note by the payee to a third person to be 
 given to the maker is a valid trust, 482b. 
 
 when a trust accepted in a life insurance policy is valid al- 
 though trustee did not receive policy, 4832). 
 
 when vendor is a trustee for vendee, 484. 
 when not, 484a, 573. 
 
 bailments are not technical trusts, 4846. 
 
 is subject to Joint Rights Act, 485. r 
 
 when limitations over of, are valid, 486. 
 
 equity treats partnership lands as, 487. 
 
 a mandatory power of sale- over land converts it into per- 
 sonalty so that partition cannot be had and no freehold is 
 involved, 487a. 
 
 Statute of Limitations does not apply to active trusts in, be- 
 fore disavowal, 487b. 
 
 aff executed trust in, is irrevocable by trustee returning sub- 
 ject matter, 489, 672a. 
 
 an agreement to let a sales agent of land share in profits does 
 not let latter's wife in for dower, 492. 
 
 trustees in are subject to Rule against Perpetuities, 504a. 
 
 cy pres doctrine of perpetuities is not applied to, 518. 
 
 PLATS (see Dedications). 
 
 PLEDGES. Chapter XXI (see Mortgages), 
 when trusts, 33. 
 
 misapplication of collaterals, 33a. 
 pledgee of corporate stock should have same issued to him 
 
 in that capacity, 2085. 
 surety on promissory note taking collaterals, Is trustee for 
 all persons interested, 244, 273, 428. 
 and cannot vary his written receipt by parol showing 
 no trust was intended, 456a. 
 when a foreclosure of, is a breach of trust, 609c. 
 
506 INDEX. 
 
 [The numbers refer to sections.] 
 POSSESSION, ADVERSE (see Limitations, Statute of), 
 naked, will not aid parol trust, 255. 
 when notice of oral trust, 261. 
 under lost deed protects from mortgagee of record owner, 
 
 268a. 
 by cestui of a resulting trust puts a purchaser of record title 
 on notice, 364a. 
 and makes him a constructive trustee, 392. 
 of trustee is that of the cestui until trustee repudiates trust, 
 
 409a. 
 laches not imputed to vendee in possession, 4096. 
 of cestui may excuse his laches, 411a. 
 of widow not adverse to her husband's heirs, 4116, 4176. 
 liability of a mortgagee in possession, 429a. 
 an agent or trustee cannot claim adversely until he surren- 
 ders possession, 476. 
 the trustee must reduce the personalty to possession, 479. 
 when trustees are entitled to, 569a. 
 
 POWER OF SALE (see Mortgages). 
 
 POWERS (see Discretion), 
 
 may be given expressly or impliedly, 623. 
 
 the various kinds of powers, 623. 
 
 the execution of, must follow directions strictly, 624, 624a. 
 
 equity will not aid a defective execution, except when, 624. 
 
 when a doubtful power of sale in a will is made certain by a 
 
 codicil, 625. 
 the failure of one object or purpose will not annul a power 
 
 covering several purposes, 626. 
 may be given upon conditions precedent or subsequent, 627. 
 when a power of sale may be implied, 629. 
 when a power of sale or power to mortgage will not be im- 
 plied, 629a. 
 when and when not coupled with an interest, 630, 630a, 6306, 
 
 630c. 
 are not effective if the agent is incapable of acting, 631. 
 the only court which may be given powers is a court of chan 
 
 eery, 631. 
 if given to several persons jointly must be exercised jointly, 
 
 except when, 632. 
 as to powers to improve land and pay taxes, 633. 
 a trustee for a life tenant may not give right to remove oil 
 
 or minerals, 634. 
 
INDEX. 507 
 
 [The numbers refer to sections.] 
 POWERS— Continued. 
 
 to mortgage land or to extend old mortgages do not warrant 
 
 making new mortgages, 635a. 
 to mortgage are not generally implied from powers to sell or 
 
 demise, 635a, 645. 
 when a power of sale may permit making a mortgage as a con- 
 ditional sale, 645. 
 in emergencies trustees have power to do what the court 
 
 would have directed, 635a. 
 a devise to a wife to use for support of herself and children 
 
 gives no power to mortgage, 6356. 
 in general, a power of sale given to one having an interest in 
 the property relates only to such interest, 636. 
 and a power "to control" implies no power of sale, 637. 
 instances of powers of sale, 637, 637a, 6376, 637c, 637a", 637e, 
 
 637f, 637ff. 
 no equitable conversion of property occurs under a power of 
 
 sale unless it be mandatory and not discretionary, 638. 
 a mandatory power to partition permits a reasonable delay, 
 
 639a. 
 a power to appoint a fee includes a lesser estate, 6396. 
 the doctrine of illusory appointment does not prevail in Illi- 
 nois, 639c. 
 equity will not interfere usually with discretionary powers 
 
 of appointment, 639d. 
 when the corpus of an estate may be encroached upon, 640, 
 
 640a. 
 an execution of a power by the donee so that he may derive 
 
 all the benefit is void, 640a. 
 a power to dispose of while unmarried means a power to deed, 
 
 and not to devise by will, 6406. 
 powers of appointment receive a liberal construction, 640c. 
 a circuit judge has power to act only when it is invoked ju- 
 dicially, 640c. 
 when a power of appointment is appendant and not in gross 
 
 it may be destroyed by an alienation, 6i0d. 
 a power of appointment does not prevent a remainder from 
 
 vesting, 640e. 
 have no effect on the vesting of remainders, 640e. 
 whether a power has been executed by a deed depends upon 
 the intention so to do and which may be expressed or im- 
 plied, 640f. 
 
508 INDEX. 
 
 [The numbers refer to sections.] 
 
 POWERS — Continued. 
 
 in the construction of a power of trustees to invest in land no 
 freehold Is involved, 6400. 
 
 the donor may reserve tne right to regulate the trustee's 
 powers, 641. 
 but not after the trust is complete, 641a. 
 
 a mandatory power to an executor to sell and distribute is 
 not revoked by his discharge as executor, 6416. 
 
 delegation of trusts is not permitted in the absence of a 
 power coupled with an interest, 642. 
 
 trusts to pay income to life tenants cannot be delegated by a 
 conveyance of the principal to them for life, 642a. 
 
 no delegation occurs by employing solicitors, agents, auction- 
 eers, etc., 6426. 
 
 no delegation occurs when legislative bodies use committees, 
 etc., 642c. 
 
 discretionary powers may be express or implied, 643. 
 
 discretionary powers must not be used arbitrarily as against 
 some of the cestuis, 643. 
 
 a discretionary power to turn over trust estate to the cestui 
 for a time is not invalid, 643. 
 
 discretionary powers not usually interfered with by equity, 
 644. 
 unless the question of necessaries for a cestui be in- 
 volved, 644a. 
 
 if the proceeds of an unauthorised mortgage be used under 
 discretionary powers the mortgage may be enforced, 645. 
 
 when a power of sale in a trustee to be exercised at a life 
 tenant's request is so far discretionary that it cannot be 
 enforced, 646. 
 
 discretionary powers of sale do not work an equitable conver- 
 sion of the estate, 646a. 
 
 discretionary powers do not pass to successors in trust in ab- 
 sence of a provision therefor in the trust instrument, 647. 
 
 surviving trustees take all powers, including discretionary, 
 which the original number had, 664, 664a. 
 
 deed under discretionary powers not set aside except for 
 fraud, 43. 
 
 when power to lease ends of trusteesof fund partly charitable, 
 89a. 
 
 church trustees cannot erect commercial buildings, 101. 
 or make long term leases, 101. 
 
 ■ when church trustees may remove pastor, 101a. 
 
INDEX. 509 
 
 [The numbers refer to sections.] 
 POWERS — Continued. 
 
 when church trustees may mortgage property, 103. 
 
 when church trustees may sell property, 104. 
 
 wife cannot compel execution of discretionary, contained in 
 marriage settlement, 136. 
 
 to sell to pay legacies requires sales for cash and not for claim 
 against estate, 167. 
 
 administrator with the will annexed cannot be decreed to 
 have a trustee's powers, 168. 
 
 when a creditor of the donee of a power cannot compel latter 
 to act so that qreditor might levy, 285. 
 
 where the grantee or executor is given such powers and du- 
 ties that legal title is necessary, he will take it by implica- 
 tion, 318. 
 
 authorising trustees "to provide" raises an implied trust and 
 not only a discretionary power, 320. 
 
 what cestui in possession as trustee for himself and others 
 has implied power to mortgage, 321. 
 
 of sale in mortgages (see Mortgages). 
 
 the doctrine of ancient deeds does not aid deeds purporting 
 to have been made under a power, proof of the power is 
 necessary, 455a, 628. 
 
 a purchaser with knowledge of the violation of a power of sale 
 becomes a constructive trustee, 468c. 
 
 a mandatory power of sale converts land into personalty, 487a. 
 
 a discretionary, to act at an uncertain time does not offend 
 as a perpetuity if estate be vested, 514, 639. 
 
 discretionary, to use fund for cestuis does not permit trustee 
 to give all to any one, 540. 
 
 when a sub-trustee cannot object to the execution of a power 
 of sale by the general trustee, 541. 
 
 the question whether trustees can invest in land does not in- 
 volve a freehold, 546. 
 
 when an executor may and may not execute a power of sale 
 without additional bond, 550. 
 
 when a power to appoint by will is extinguished by a convey- 
 ance, 569d. 
 
 as to the implied powers of trustees to make leases, 570, 635a. 
 
 PRECATORY WORDS. Chapter XVII, 324. 
 enforced as to charities, 77. 
 use of, raises trust by implication, 324. 
 
510 INDEX. 
 
 [The numbers refer to sections.] 
 
 PRECATORY WORDS— Continued. 
 
 but words used must be sufficiently imperative, and subjects 
 and objects sufficiently certain, 324. 
 
 instances of uncertainty, 324a. 
 
 doctrine of, applies to gifts inter vivos as well as to wills, 321b. 
 
 when claims that precatory trusts exist are rebutted, 325. 
 
 words indicating donor's motives for making gifts do not raise 
 a precatory trust, 326. 
 
 no precatory trust can arise if donee be given absolute owner- 
 ship or a clear discretion to act or not to act, 326. 
 
 precatory trusts are rebutted where the subject matter is "what 
 remains," 327. 
 
 if no precatory trust exist at testator's death none can attach 
 to "what remains," 327. 
 
 precatory trust cannot be raised by words of desire inter vivos 
 without a promise and a consideration therefor, 328. 
 
 a devise upon condition that testator's children be supported 
 does not create a precatory trust, 329. 
 
 precatory trusts cannot be raised against an expressed con- 
 trary intention or where repugnant to other parts of instru- 
 ment, 330. 
 
 PREFERENCES (see Creditors). 
 
 PRESERVATION OF CONTINGENT REMAINDERS (see Remain- 
 ders). 
 
 PRESERVATION OF FUND (see Waste). 
 
 PRESUMPTIONS. Chapter XXII (see Evidence), 
 
 trusts are not presumed if against public policy, 451. 
 when church presumed dissolved, 107. 
 of undue influence from fiduciary relation, 114. 
 that gifts to wife or child are advancements, 115. 
 when rebutted, 115, 127, 140, 2686, 3576, 448. 
 in cases of grandchildren, 143. 
 
 none arise when wife buys land in husband's name, 1276, 448a. 
 none arise that either husband or wife is the dominant party, 
 
 449c. 
 use of wife's money in husband's business implies a gift to 
 
 him, 127e. 
 no constructive trust presumed when wife transfers personalty 
 to husband, 137. 
 or from father to child, 145, 449. 
 
INDEX. 511 
 
 [The numbers refer to sections.] 
 PRESUMPTIONS— Continued. 
 
 of advancement rebutted if parent had no other prop- 
 erty, Ilia. 
 partnership in land purchase not presumed but only tenancy 
 
 in common, 192a, 449d. 
 are that a trustee has not violated his trust, 227. 
 when the creation of a spendthrift trust may be presumed, 296. 
 of a precatory trust rebutted, 325, 326, 327. 
 of a resulting trust may be rebutted as to all or a part of the 
 
 land, 345. 
 the presumption of an advancement is the same whether the 
 
 parent be the father or mother and no trust can result until 
 
 the presumption is overcome, 357. 
 of fraud and constructive trusts are raised on less evidence 
 
 in equity than at law, 389. 
 that trusts are created lawfully, 446. 
 that trusts have been assented to by the cestuis, 446a. 
 of validity of appointment of trustees as against collateral 
 
 attack, 446b. 
 what estate a trustee is presumed to take, 446c. 
 are against resulting trusts, 447. 
 
 when presumption of resulting trust may be rebutted, 447a. 
 in resulting trusts where two paid the money, are that each 
 
 paid half, 4476. 
 undue influence is presumed in gifts from child to parent, 449a. 
 when presumption of gift or sale of bill of exchange to child 
 
 is rebutted, 449 b. 
 none that either husband or wife is a dominant party, 449c. 
 against validity of purchases by attorney from client, 449e. 
 are that trustees act honestly, 450. 
 in respect of mingled funds, 450a. 
 in respect of an ejectment suit brought by heirs of a deceased 
 
 trustee, 450b. 
 when a conveyance is presumed to have been made by the 
 
 trustee, 452, 677a. 
 none that deed purporting to have been made under a power 
 
 was so made, 452a. 
 that a deed was delivered on its date, except when, 452b. 
 of power of church to mortgage its property, 452c. 
 of termination of trust, 453. 
 that trustees have the fee, 568. 
 are resolved against trustees who fail to keep proper books of 
 
 account, 602. 
 
512 INDEX. 
 
 [The numbers refer to sections.] 
 
 PRESUMPTIVE TRUSTS (see Resulting Trusts), 
 evidence to raise must be clear, 380, 459c. 
 
 PRINCIPAL OF FUND (see Capital). 
 
 PRINCIPAL AND AGENT, 
 
 when agent becomes trustee, 32, 113, 396, 608. 
 
 agent cannot use knowledge at principal's expense, 67a, 396. 
 
 cannot make profit out of trust fund, 404, 649. 
 
 agent collecting monies of decedent is a trustee and not a 
 mere debtor, 161. 
 
 mere confidence reposed in an agent will not permit allow- 
 ance of claim against deceased agent's estate as of sixth 
 class, 163. 
 
 agents of corporation may not make contracts when their pri- 
 vate interests might conflict with corporation's, 2006. 
 
 a resulting trust arises if agent lend his principal's money 
 on a mortgage and forecloses the same, taking title in his 
 own name, 348, 4016. 
 
 an agent of a trustee may, by using trust funds, become liable 
 to account to cestui, 377, 405. 
 
 an investing agent is liable as an express trustee and cannot 
 invoke Statute of Limitations before denial of trust, 399. 
 
 when notice to an agent in a prior transaction is notice to his 
 principal, 400, 467. 
 
 agents to purchase cannot charge principals more than they 
 paid even if they bought for less than authorised to pay, 401. 
 
 when agent to purchase takes title in his own name, the prin- 
 cipal may choose to act how, 401a, 608. 
 
 when an employee may and may not obtain a leasehold estate 
 as against his employer, 402. 
 
 agents cannot acquire execution or tax titles as against their 
 principals, 403. 
 
 a resulting trust arises in a Board of Trade membership taken 
 by agent in his own name, 403. 
 
 an agent of a trustee must look to the trustee alone for com- 
 pensation unless the court has ordered his employment, 
 405a, 561. 
 
 knowledge of a loan agent that proceeds of a mortgage are to 
 pay off a prior mortgage does not affect the lender, 430a. 
 
 on proving claim against deceased investing agent's estate 
 only proof necessary is that the money came to the agent's 
 hands, 4596. 
 
INDEX. 513 
 
 [The numbers refer to sections.] 
 
 PRINCIPAL AND AGENT— Continued. 
 
 agent in possession cannot claim adversely until he surrend- 
 ers possession, 476b. 
 
 in gifts of personalty in trust by handing to an agent, the 
 agent must be the donee's, 482. 
 
 when the wife of a sales agent of land sharing in profits can- 
 not have dower, 492. 
 
 PRIVATE TRUSTS, 11. 
 
 PROCEEDS OF SALE, 
 
 trustee cannot force on cestui having specific interest in land 
 speculation, 23. 
 
 PROFITS, 
 
 in land speculation, 23. 
 
 dower does not attach to, 121. 
 
 when taking part of, does not create a partnership, 187. 
 
 trustees must account for all profits made by them out of 
 
 estate and savings effected, 170. 
 cestui in resulting trust takes all profits as well as original 
 
 amount if a sale has been made, 342. 
 agents to purchase cannot make, 401. 
 agents must account for all, made out of principal's funds, 
 
 404. 
 
 PROMISE (see Fraud; Consideration), 
 
 when a son's promise as sole devisee to pay a certain sum to 
 
 his sister is enforceable, 527c. 
 when a devisee's promise to pay testator's promissory note 
 
 is not enforceable as a trust, 527e. 
 
 PROMISSORY NOTES (see Negotiable Instruments). 
 
 PROOF (see Evidence). 
 
 PUBLIC POLICY. Chapter V, 63, 
 of State, where sought, 64. 
 trusts not raised against, 65, 323, 451. 
 when limitations against aliening property are not against, 
 
 66. 
 forbids trustee purchasing at own sale, 67. 
 forbids agent to use knowledge at principal's expense, 67a. 
 railway's contracts must accord with, 67c. 
 not against for trustee to be one of the cestuis, 68. 
 transactions between fiduciaries are prima facie voidable, 69. 
 
 33 
 
514 INDEX. 
 
 [The numbers refer to sections.] 
 
 PUBLIC POLICY — Continued. 
 
 does not forbid unincorporated religious societies from own- 
 ing any number of acres, 71. 
 
 forbids agents of corporation from making contracts where 
 their interests might conflict with corporation's, 2006. 
 
 forbids railway directors from contracting not to place sta- 
 tions at given places, 216. 
 
 when a devise tying up land is not against, 506. 
 
 PUBLIC TRUSTS, 11, 53. 
 
 jurisdiction of equity over, 36. 
 
 what are, 53. 
 
 attorney general proper party to suits involving, 54. 
 
 legislature may divert proceeds of swamp lands, 55. 
 
 public lands are held by State in trust, 56. 
 
 school directors, 56a, 56d. 
 
 sales of land, 566. 
 
 sales of notes, 56c. 
 
 collection of taxes, 57. 
 
 treasurers of municipalities, 58, 618. 
 
 public streets are, 60. 
 
 warden of prison is a trustee, 61, 551c. 
 
 cemetery trustees, 62. 
 
 railway directors are quasi trustees of public, 67c. 
 
 suits respecting, do not abate by death of trustee, 444. 
 
 when mandamus will lie against county commissioners for 
 
 mixing special funds with general, 620. 
 legislative bodies cannot delegate their functions but may 
 
 use sub-agents, etc., 642c. 
 
 PURCHASE-MONEY (see Application of). 
 
 PURCHASER (see Vendor and Vendee; Sales; Application of Pur- 
 chase Money), 
 bona fide, without notice protected, 31, 364. 
 trustee must not purchase at own^sale either directly or in- 
 directly, 67, 170, 205, 224, 244, 394, 395, 607, 609c. 
 until trust terminates, 406, 609a. 
 at law fraud must be shown, 459<Z, 6076. 
 at trustee's sale is held to greater care than at a judicial 
 
 sale, 384. 
 with express or implied notice that trustee sold to himself, 
 becomes a constructive trustee, 107, 349: 
 or for grossly inadequate consideration, 384, 396c. 
 
INDEX. 515 
 
 [The numbers refer to sections.] 
 
 PURCHASER— Continued. 
 
 stockholder purchasing corporate property takes subject to all 
 equities, 204. 
 
 all having notice of a resulting trust become constructive 
 trustees, 364a. 
 
 when wife of administrator with the will annexed may ac 
 quire title, 385. 
 
 making false statements to stifle competition at a judicial 
 sale is held as a constructive trustee, 393. 
 
 of equity in land on a contract to redeem, sell and divide pro- 
 ceeds with former owner, must sell at fair price, else sales 
 may be rescinded against all having notice, 394. 
 
 agents, etc., must not purchase in their own name, 401a, 401b. 
 401c, 609c. 
 
 agents cannot purchase execution or tax titles as against their 
 principals, 403. 
 
 is freed of constructive fraud in buying with notice of an un- 
 recorded mortgage if his vendor had no knowledge of it, 
 430. 
 
 parol is admissible to show that nominal purchaser took title 
 as security for a loan, 455c. 
 
 may be put on notice by the cestui or by a stranger, 466. 
 
 -with notice of a trust becomes a constructive trustee, 468a. 
 
 with notice of the violation of a power of sale becomes a 
 constructive trustee, 468c. 
 
 may be put on notice of a trust from recital in deeds in the 
 chain of title, 468d. 
 
 -without notice of a secret trust is protected, 469, 607a. 
 
 -with notice of contract void under Statute of Frauds is pro- 
 tected, 469. 
 
 unless the cestui be in possession, 469a. 
 
 when he may take a trustee's life estate, 470. 
 
 has knowledge of a deed in trust imputed to him no matter 
 how badly abstracted or what legal advice may have been, 
 470a. 
 
 -with notice of a valid contract of sale holds as trustee for 
 such vendee, 4916. 
 
 when protected though court required no bond of trustee, 550a. 
 
 Telying upon faulty abstracts or faulty legal opinions as to 
 title cannot deprive remainderman, 581. 
 
 may recover his money from the trust estate if title fails, 594. 
 
 -when required and when not to see to the application of the 
 purchase money, 596. 
 
516 INDEX. 
 
 [The numbers refer to sections.] 
 
 PURCHASER— Continued. 
 
 a constructive trustee by reason of an improper purchase 
 must see to the application of. the purchase-money, 598c. 
 
 PURCHASES BY TRUSTEE (see The Trustee). 
 
 PURSUING TRUST FUNDS (see Following Trust Funds; Min- 
 gling). 
 
 Q. 
 
 QUABI TRUSTS. Chapters XI and XII, 
 involve more than mere agency, 156. 
 administrators and executors represent creditors and others 
 
 as well as estate, 158. (See Estates of Decedents.) 
 must keep correct accounts, 158. 
 executor sometimes held to higher degree of responsibility 
 
 than ordinary trustee, 159. 
 a guardian is a quasi trustee, 156. (See Guardian and Ward.) 
 partners are quasi trustees, 186. 
 a surviving partner is a quasi trustee for representatives 
 
 of deceased partner, 195. (see Partners.) 
 no trustee may have compensation in absence of a contract, 
 
 or pay for services of a professional nature, 5566. 
 
 R. 
 RAILWAYS, 
 
 contracts of must accord with public policy, 67c. 
 
 cannot contract not to place station at given point, 67c, 215. 
 
 directors are quasi trustees, 213. 
 
 directors cannot be also members of construction company 
 building railway, 213. 
 
 president's knowledge of trust is chargeable to company, 214. 
 
 possession of, by one for mortgagee makes him also trustee 
 for mortgagor, 215. 
 
 when mortgagor may redeem after time limited by decree, 215. 
 
 when voting trust enforced in equity, 216. 
 
 when purchaser at foreclosure is a trustee for old bondhold- 
 ers, 218. 
 
 when trustees of bondholders take possession, suits should be 
 against railway and not trustees, 219. 
 
 when trustees taking possession are liable in suits against 
 railway, 219a. 
 
 cannot use own bonds to pay debts of other corporations, 220. 
 
INDEX. 517 
 
 [The numbers refer to sections.] 
 
 RAILWAYS — Continued. 
 
 directors may not be compensated in absence of by-law, 221. 
 a president as trustee of bonds occupies a position distinct 
 from that of his office, 608. 
 
 RATIFICATION, 
 
 of church debt when, 102b. 
 
 when cestui is not estopped by ratifying a breach of trust, 475. 
 all the cestuis must join in a ratification, 475. 
 when the election of a devisee to take under the will does 
 not ratify will in toto, 544. 
 
 REAL ESTATE (see Title; Equitable Conversion; Vendor and 
 Vendee; Rule in Shelly's Case). Chapter XXV, 
 
 equitable conversion of, 50. 
 
 has no higher position than personalty, 126. 
 
 when considered partnership assets, 189. 
 
 when corporations may hold as trustees, 212. 
 
 express trusts in, may not be proven by parol unless pro- 
 ceeds of trust in personalty were diverted into land, 316. 
 
 a continuing trust in, is not barred by the Statute of Limita- 
 tions, 418a. 
 
 when real owner may assert title, although receipts for pay- 
 ment of interest termed same as "rent," 4766. 
 
 is not subject to the Joint Rights Act, although personalty 
 is, 485. 
 
 trusts in, are construed according to law of the situs, 490. 
 
 liability of trustee for forcing on market at inadequate price, 
 493. 
 
 when a trustee to sell cannot have specific performance from 
 his vendee, 494. 
 
 specific performance is denied unless vendor shows title good 
 beyond a reasonable doubt, 496. 
 
 when a devise of income from, does not make a rent charge, 
 but only an annuity, 533. 
 
 foreign courts cannot appoint trustees over Illinois land, 542. 
 
 the question whether trustees have power to invest in land 
 does not involve a freehold, 546. 
 
 after acquired title enures as a trust, 567f. 
 
 calling interest "rent" will not bar a trust, 576. 
 
 purchasers relying upon faulty legal opinions or faulty ab- 
 stracts cannot deprive remaindermen, 581. 
 
 when the devisees and not the heirs of a settlor are entitled 
 to a reconveyance, 5926. 
 
518 INDEX. 
 
 [The numbers refer to sections.] 
 
 REAL ESTATE — Continued. 
 
 under the Torrens System trusts, etc., must be noted on the 
 certificate, 597. 
 
 when there is no breach of trust in the purchase of, by an 
 office associate of the one who had bargained for same, 6096. 
 
 when the heirs of a life tenant and trustee may take the in- 
 crease in value of investments made by him, 614a. 
 
 severing fixtures or buildings subject to a lien is a breach 
 of trust, 616. 
 
 a constructive trustee is liable for rentals but not for earnest 
 money on contracts made by him, 649a. 
 
 RECEIVERS, 
 
 are quasi trustees, 586. 
 
 hold for benefit of those who may establish right to the es- 
 tate, 586. 
 
 equity cannot appoint in active trust, 40. 
 
 of co-partnerships are held only to reasonable diligence, 198. 
 
 of corporations not barred by Statute of Limitations when 
 suing directors for misappropriating corporate property, 
 203. 
 
 title of, to real estate and personal property, 222, 586. 
 
 may sell property under decree without having title, 222. 
 
 take no better title than insolvent had, 223. 
 
 take title to trust funds subject to identification by cestuis, 
 223. 
 
 cannot deal in property of estate to their own advantage, 224. 
 
 not appointed in strict trusts where waste is committed by 
 trustee, 225. 
 s appointed for complainants only, hold for whom, 279. 
 
 grantees of receiver of an insolvent bank whose deceased pres- 
 ident held title may have conveyance from heirs of presi- 
 dent, 309a. 
 
 when a trustee in a mortgage trust deed may be appointed 
 as a receiver, 4317. 
 
 where part of title held by a receiver did not belong to his 
 insolvent, a purchaser will hold such part in trust, 4706. 
 
 how their compensation is fixed, 562. 
 
 as to liability on leases of insolvents, 579. 
 
 REDEMPTION (see Mortgages). 
 
 REFERENCE, 
 
 to other instrument does not imply a trust when, 90. 
 
INDEX. 519 
 
 [The numbers refer to sections.] 
 REFORMATION, 
 
 equity refuses, to voluntary, executory trusts, 13. 
 when deed for child reformed, 38a. 
 
 REFUSAL, ~~ 
 
 of trustee to act (See Vacancies.) 
 
 RELATIVES (see Fiduciary Relations), 382. 
 when laches not imputed to, 411. 
 
 RELIEF (see Jurisdiction of Equity). 
 
 RELIGIOUS MATTERS (see Churches). 
 
 REMAINDERS, EQUITABLE, 
 
 technically, do not exist except for purposes of discussion, 
 499, 528. 
 
 equity protects from waste, 45. 
 
 when equity may order sold, 45. 
 
 in corporate stock, carry also stock dividends and subscrip- 
 tion rights to increases, 209. 
 
 remainder not disposed of by settlor of spendthrift trust does 
 not avoid latter and remainder will pass to heirs of settlor, 
 297. 
 
 when one of two spendthrift cestuis will not take a cross- 
 remainder in fee, 298. 
 
 trusts to preserve contingent remainders, 301, 528a'. 
 
 save them from extinction where precedent estate fails, 528d. 
 
 are barred by the Statute of Limitations if the trustee is 
 barred, the remedy of the cestuis being against the trustee, 
 419c. 
 
 contingent remaindermen always proper and usually neces- 
 sary parties in chancery, 4406. 
 
 a remainderman is not estopped by a life tenant's ratification 
 of a breach of trust, 475. 
 
 where the Rule in Shelly"s Case applies there is no contingent 
 remainder which can be lost by the failure of the particu- 
 lar estate, 502. 
 
 a forfeiture of a precedent estate accelerates, 504a. 
 
 courts cannot make any distinction between remaindermen 
 of the same class if a trust be a perpetuity, 509. 
 
 when remainder given to a class, subject to open up, may vio- 
 late Rule against Perpetuities, 511. 
 
 when held to vest at a testator's death and not at distribu- 
 tion, 528a. 
 
520 INDEX. 
 
 [The numbers refer to sections.] 
 
 REMAINDERS, EQUITABLE— Continued. 
 
 If beneficiaries take only net income the remainder is in- 
 testate estate, 528b. 
 
 where a will directed any undisposed of residue to be given 
 legatees, neither they nor the remaindermen took title to 
 same, 528c. 
 
 may be vested, though enjoyment is postponed, 529. 
 or though a power of appointment exists, 640e. 
 
 when contingent remaindermen under a general scheme in a 
 trust may or may not have invalid portions separated from 
 valid, 534b. 
 
 remaindermen cannot be deprived by encroachments on the 
 corpus not authorised by the trust instrument, 540, 629a, 
 640a. 
 
 when remaindermen may require life tenant to give bond, 
 553. 
 
 when remaindermen may sue on trustees' bond though life 
 tenant is alive, 554. 
 
 no trust is raised by directions to a life tenant to control and 
 manage, 568b. 
 
 remaindermen may enjoin sale by trustee of life tenant of 
 minerals, oil or gas, 572. 
 
 cannot be deprived by a purchaser relying upon faulty ab- 
 stracts or attorneys' opinions, 581. 
 
 a cestui may alien a vested, if no restraint against was pro- 
 vided and trustees should concur in, 583. 
 
 when the mortgage of contingent remaindermen will by fore- 
 closure thereof bar all their interest, 59 1<Z. 
 
 after remaindermen have been foreclosed a life tenant may 
 acquire title, 607d. • 
 
 if a life tenant of personalty change it into realty, the re- 
 maindermen may have remainders decreed to them with- 
 out having a trustee, 607e. 
 
 when remaindermen may not have enhanced value of real 
 estate bought by the life tenant with trust funds, 614a. 
 
 when remaindermen may have partition without a sale by 
 executors, 629a. 
 
 when a life tenant may appoint a fee to himself and destroy 
 remainders, 640a. 
 
 where distribution is to be made at a future time there is no 
 vesting except when, 640e. 
 
 when a life tenant cannot destroy by an election to convert 
 the fund, 646. 
 
INDEX. 521 
 
 [The numbers, refer to sections.] 
 
 REMAINDERS, EQUITABLE— Continued. 
 
 when a fraudulent deed cannot be revoked as against remain- 
 dermen, 672. 
 
 REMOVAL OF TRUSTEE, 
 
 an executor-trustee having distinct duties, equity cannot re- 
 move him as executor but only as trustee, 173. 
 
 a court of equity may remove guardian without regard to how 
 appointed, 185. 
 
 when equity will remove trustees, 5986. 
 
 trustees will be removed if they fail to keep proper books of 
 account, 602. 
 
 REMUNERATION (see Compensation). 
 RENT (see Leases). 
 
 REPUDIATION OP TRUST (see Denial). 
 REPUGNANCY (see Trusts; Wills). 
 
 REQUEST, 
 
 of cestui that trustee convey is sufficiently made if cestui has 
 made a deed of the equitable title, 665. 
 
 RESIDUE, 
 
 of trust funds undisposed of by the settlor reverts to his heirs 
 or representatives, 366. 
 
 RESIGNATION OP TRUSTEE, 
 
 a guardian's right to resign is not absolute, 184. 
 
 RESTITUTION OR RESTORATION, 622. 
 
 RESULTING TRUSTS, 15. Chapter XVIII, 
 what are, 331. 
 kinds of, 332. 
 cannot arise from voluntary conveyance on oral trust, 117a, 
 
 332, 352. 
 may arise in purchases by husband with wife's money, unless 
 money was lent, 127c. 
 or unless she gave him a release on separation, 359. 
 but wife's evidence must be convincing, 127c. 
 wife cannot have, in land bought in husband's name with 
 
 money left with her merely for safe-keeping, 130. 
 occurs when one partner takes title to firm's land, 192, 194, 
 355. 
 
522 INDEX. 
 
 [Tl*e numbers refer to sections.] 
 
 RESULTING TRUSTS— Continued. 
 
 interest of each partner of firm in, may be shown by parol, 
 194, 355. 
 
 do not arise where directors of corporation owning all of 
 stock permit one of them to buy land with corporate funds, 
 204b, 356. 
 
 presumptions are against, 447. 
 
 when presumptions of, may be rebutted, 447a. 
 
 the presumption is that each cestui paid an equal share, 4476. 
 
 not within Statute of Frauds, 246. 
 
 when not repelled by parol agreement, 256a, 333c, 334. 
 
 are not created by agreement, 333, 362. 
 
 do not arise on contract to reconvey to grantor on demand, 
 333a. 
 
 claiming cestui must have paid all or a portion of purchase- 
 money, 3336. 
 
 cannot arise out of agreement to convey when reimbursed, 
 333b. 
 
 must arise at time of conveyance, unless installments of pur- 
 chase-money be paid later, 335, 337. 
 
 cannot arise for benefit of lender of money if he speculate 
 on an option to take an interest in land, 336. 
 
 when an advancement rebuts, 337. 
 
 when they arise out of redemptions, 338, 360a. 
 
 when they arise in aliquot part of tract, 339. 
 
 when aliquot part not necessary as against encumbrance, 361. 
 
 if the trustee has used some of his own money, burden is on 
 him to show amount, 340. 
 
 money or its equivalent must have been paid and not agree- 
 ments to render services, 341. 
 
 cestui is also entitled to profits as well as proceeds of any 
 sale made, 342. 
 
 cestui must have furnished some aliquot part of purchase- 
 money, 343. 
 
 cestui must have paid a specific sum for a specific interest, 
 343. 
 
 parol is admissible to show the ownership of the money in- 
 vested, 344. 
 
 requisites of parol evidence, 344a, 346, 454d, 460. 
 
 how admissions are received, 344a. 
 
 effect of death of nominal purchaser, 344a, 657. 
 
INDEX. 523 
 
 [The numbers refer to sections.] 
 
 RESULTING TRUSTS— Continued. 
 
 parol is admissible to show what intention owner of money 
 had as to the interest which the nominal purchaser should 
 have, 345. 
 presumptions of, may be rebutted as to all or a part of the 
 
 land, 345. 
 do not arise unless owner of money intended to get title to 
 
 all or a specific portion of land, 345. 
 arise by one man lending money to buy land but taking title 
 
 himself as security, 344a, 455c, 476b. 
 when taking promissory notes from alleged trustee rebuts 
 
 claim of, 345a, 462a. 
 cannot arise if there be doubt whether money was a loan to 
 
 alleged trustee, 3456. 
 cannot arise only on proof that husband had enough of his 
 
 wife's money to have bought with it, 345c. 
 what may be proved by declarations of alleged trustee in his 
 
 lifetime, 345c?, 461. 
 when the grantor bars himself from claiming a resulting 
 trust for his own benefit, 347. 
 when not, 347a. 
 arise when agents lend principals' money on mortgages, fore- 
 close and take title in their own names, 348. 
 arise if a widow take possession of her husband's estate and 
 buy land with same, although her award might be larger, 
 348a. 
 do not arise on foreclosure of mortgage by a widow for money 
 
 lent by her to her deceased husband, 3486. 
 arise if a guardian without paying his own money take title 
 
 by foreclosure of a mortgage belonging to the estate, 349. 
 widow of deceased guardian held not entitled to credit for 
 
 legacies paid by her after bill filed to establish, 349a. 
 where joint family funds paid for land, father may have in- 
 terest paid for by minor children, 350. 
 when a trust will result for children on a partition sale, one 
 
 only taking title, 350a. 
 when father's acquirement of title on son's contract of pur- 
 chase raises trust for son, 350b. 
 brothers and sisters are treated as strangers, 351. 
 do not arise on allegation of heirs that they conveyed so that 
 
 ancestor's estate might be settled, 352. 
 when they do not arise on land speculations, 353. 
 
524 INDEX. 
 
 [The numbers refer to sections.] 
 
 RESULTING TRUSTS— Continued. 
 
 when a wife may be decreed a resulting trust as against her 
 husband's judgment creditor, 354. 
 
 parents must overcome presumption of an advancement be- 
 fore a trust will result as against children, 357. 
 
 taking title in the name of an idiot son creates an irrevoca- 
 ble advancement and parent is an incompetent witness, 
 357a. 
 
 when an advancement is rebutted as unreasonable and a trust 
 may result to parent, 3576. 
 
 as affected by the Married Woman's Act, 358. 
 
 widow may establish as against husband's estate where he 
 became insane before he could convey to her, 359a. 
 and she would not be estopped by having inventoried 
 the land in his estate, 359a. 
 
 woman living with man as his wife may establish a resulting 
 trust against him as against a stranger, 359b. 
 
 a resulting trust for the grantor's heirs is defeated by gran- 
 tee's testimony that he took for the survivor of the grantor 
 and his wife, and the wife survived, 359c. 
 
 arise, where deeds are really mortgages, 360. 
 
 arise if widow pay debt secured by her husband's absolute 
 form deed and take reconveyance in her own name, 360a. 
 
 when not defeated by nominal purchaser's assumption of en- 
 cumbrance, 361. 
 
 creditors cannot claim, where debtor has abandoned a con- 
 tract for purchase by him, 363. 
 
 or where creditors know that debtor is not real owner, 363a. 
 
 where a widow invests heir's funds in land in her own name 
 creditors of heirs may attach, 3636. 
 
 arise where trustees of judgment creditors take execution 
 titles and cestuis may have partition, 363c. 
 
 where surviving partner in land speculation pays all of pur- 
 chase-money he is only a creditor of partner's estate, 363d. 
 
 may be enforced by cestui or his grantee against all having 
 notice of, 364a. 
 
 a Board of Trade certificate of membership may be the sub- 
 ject of, 365. 
 
 arise in respect of the undisposed residue of trust estates, 366. 
 ' are barred by laches, 367, 368, 369. 
 
 when assignor of certificate of sale has no interest in land. 
 368. 
 
INDEX. 525 
 
 [The numbers refer to sections.] 
 RESULTING TRUSTS— Continued. 
 
 probate court may determine whether decedent held under a 
 resulting trust, 370. 
 
 cestui may recover in assumpsit if land has been sold, 371. 
 
 what error not reversible in decree, 372. 
 
 when defendant cannot have an accounting, 372. 
 
 when a freehold is involved, 373. 
 
 whether barred by laches, depends upon particular case, 409a, 
 410a. 
 
 are barred by Statute of Limitations unless cestui has ac- 
 quired a possessory title, 4146. 
 
 parol is admissible to show poverty of the nominal purchaser, 
 462. 
 
 REVERSIONS, EQUITABLE, 
 
 do not exist technically, 499. 
 
 when church property does and does not revert, 100, 107. 
 
 "what remains" after termination of a gift for life reverts to 
 donor's heirs as intestate estate, 327. 
 
 residue of undisposed trust estate goes to heirs or representa- 
 tives as a resulting trust, 366. 
 
 REVOCATION. Chapter XXXVI, 
 of subscription when, 106. 
 of executed trust, though voluntary, not permissible, llOe, 
 
 489. 
 permissible of incomplete gifts, llOe. 
 gift revoked in part by retaining part, 114a. 
 of trust in connexion with special deposit in a bank, 230a. 
 the settlor may reserve the right of, 641. 
 but not after the trust is complete, '641a. 
 a mandatory power to an executor to sell and distribute is 
 
 not revoked by his discharge as executor, 6416. 
 absence of power of, not ground for setting aside a voluntary 
 
 conveyance, 671. 
 when a fraudulent deed cannot be revoked as against re- 
 maindermen, 672. 
 of executed trust of personalty is not effected by return of 
 
 property to the donor, 672a. 
 the donor cannot revoke without the consent of all interested 
 
 unless he reserve the right, 673. 
 when a codicil revoking the appointment of an executor will 
 
 also revoke his power to act as trustee, 674. 
 
526 INDEX. 
 
 [The numbers refer to sections.] 
 
 REVOCATION — Continued. 
 
 a trust created for a contingency which does not happen is 
 
 revocable, 675. 
 trusts should not be revoked because the trustee fails in his 
 
 duties, 676. 
 
 RULE AGAINST PERPETUITIES (see Perpetuities). 
 
 RULE IN SHELLY'S CASE, 
 
 does not apply to trusts in personalty, 478, 499. 
 
 except by analogy, 501. 
 
 applies to equitable and legal estates in land, 497. 
 
 is an inflexible rule of property, 497. 
 
 what four things must concur, 498. 
 
 has no application to executory trusts, 498a. 
 
 depends upon estate given to heir and not upon quantity of 
 ancestor's, 4986. 
 
 both estates must be either legal or equitable, 499, 500. 
 
 where the rule is applied to personalty by analogy the inten- 
 tion of the settlor governs, 501. 
 
 where the rule applies there is no contingent remainder which 
 can be lost by the failure of the particular estate, 502. 
 
 SALES (see The Trustee's Conveyances; Vendors and Vendee; Pur- 
 chasers; Powers), 
 
 to satisfy liens, 41. 
 
 not set aside under discretionary powers, 43. 
 
 of remainders decreed when, 45. 
 
 by trustee to self forbidden, either directly or indirectly; 
 sales to self are voidable, 67, 170, 607. 
 
 trustee may buy when trust has terminated, 406, 609a. 
 
 power of sale to pay legacies must be exercised for cash and 
 not for claim against estate, 167. 
 
 when administrator's sale fraudulent as to purchasers, 169c. 
 
 when trustee's sale is not to himself, 170a. 
 
 when wife of administrator with the will annexed may ac- 
 quire title, 385. 
 
 as to fraud in obtaining a stock of goods on credit, 387. 
 
 purchaser at judicial sale making false statements to stifle 
 competition becomes a constructive trustee, 393. 
 
 must be made at fair valuation by a purchaser of equity on 
 contract to redeem, sell and divide proceeds, 394. 
 
INDEX. 527 
 
 [The numbers refer to sections.] 
 
 SALES — Continued. 
 
 agents cannot buy at execution or tax sales as against their 
 principals, 403. 
 
 when officers of the court cannot avail themselves of the Stat- 
 ute of Limitations in failing to distribute properly, 415a. 
 
 an assignment by the cestui of the proceeds of a sale does 
 not give the assignee a right of redemption, 4286. 
 
 confirmation of judicial sales is evidence that the purchasers 
 have the legal title, 456d. 
 
 a voidable sale may affect a later purchaser where the chain 
 of title indicates, 468e. 
 
 purchasers with notice of trust are bound to know the terms, 
 468. 
 
 trusts for, imply that trustee took the fee, 568. 
 
 before the trustee makes a sale he should give every cestui 
 notice thereof, 591, 600. 
 
 the trustee must comply with the directions of the trust in- 
 strument, 593. 
 
 the trustee in making, must act impartially as between the 
 cestvis, 601. 
 
 may be made publicly or privately by the trustee unless pro- 
 vided otherwise by the trust instrument, 637^. 
 
 may be made by agents and auctioneers but the trustee should 
 be present, 642b. 
 
 SCHOOLS, 
 
 directors' title, 56a. 
 
 gifts of land to, 566. 
 
 sales of notes, 56c. 
 
 Statute of Limitations runs against when, 56a\ 
 
 collection of tax in wrong district, 56e. 
 
 charities for, are valid, 81. 
 
 devise to village school does not vest title in directors or 
 
 trustees, 84a. 
 trustees of, cannot sell bonds to themselves, 607c. 
 
 SECRET TRUSTS. Chapter XV, 
 
 wife of trustee necessary party to suits, 124. 
 void as to creditors, 258, 266. 
 secrecy does not depend upon what, 258. 
 when valid trust may be created out of secret trust, 258. 
 may be express or implied and proved by parol, 266. 
 grantees and creditors of trustee without notice that he holds 
 under secret, oral trust are protected from trust, 267a. 
 
528 index. 
 
 [The numbers refer to sections.] 
 
 SETTLEMENTS WITH CESTUIS (see Accounting), 
 
 acceptance of trustee's note, remits them to position of cred- 
 itors,. 154. 
 
 guardian has burden of proving fairness, 182. 
 
 trustee has burden of proving fairness, 459, 648c. 
 
 trustee has burden of proving fairness of those made with 
 debtors of the trust estate, 605. 
 
 SETTLEMENTS ON WIVES (see Wives), 
 
 courts direct settlements to be made for benefit of. children 
 as -well as wife, 138. 
 
 SETTLOR, THE, 16. (See Donor), 
 may also be trustee, 16. 
 may also be a cestui, 16. 
 cannot change trust afterwards, 48. 
 when trust ends residue not disposed of by settlor goes by 
 
 way of resulting trust to his heirs, etc., 366. 
 when not a necessary party in chancery, 440a. 
 may provide for filling vacancies in the trusteeship. (See 
 
 Vacancies.) 
 
 SHAREHOLDERS (see Corporations). 
 
 SHELLY'S CASE (see Rule in). 
 
 SHERIFF, 
 
 a public trustee, 36. 
 
 SIMPLE TRUSTS (see Statute of Uses). 
 
 SPECIAL DEPOSITS (see Banks). 
 
 SPECIAL TRUSTS, 14. 
 
 SPECIFIC PERFORMANCE (see Real Estate; Vendor and Vendee). 
 
 SPENDTHRIFT TRUSTS. Chapter XV, 294, 
 
 are in accord with public policy, 70, 294. 
 
 what are, 294. 
 
 requisites of, 294. 
 
 net income cannot be attached or garnished, 295. 
 
 when implied from language and circumstances, 296. 
 
 must be executed as directed whether cestui is or is not a 
 spendthrift, 297. 
 
 failure of donor to dispose of remainder does not avoid, 297. 
 
 when one of two spendthrift cestuis will not take a cross re- 
 mainder in fee, 298. 
 
INDEX. 529 
 
 [The numbers refer to sections.] 
 SPENDTHRIFT TRUSTS— Continued. 
 
 when trust will terminate If wife and children of cestui have 
 
 interest in income, 299, 507a. 
 are subject to rules of devise and alienation, 300. 
 when not subject to Rule in Shelly*s Case, 501. 
 terminate "at death of spendthrifts unless provided otherwise, 
 
 507a, 515. 
 when spendthrift's children take an implied devise under the 
 
 general scheme of a will, 534a. 
 discretion of the trustees to turn over part of the fund to the 
 
 spendthrift gives them the fee, 568a. 
 after the death of the spendthrift, the trustees being in doubt 
 
 as to the proper distributees should seek court's aid, 604a. 
 
 STATE, THE, 
 
 holds public lands in trust, 56. 
 Statute of Uses does not operate against, 56. 
 Statute of Limitations does not run against, 56. 
 its public policy, 63. 
 
 STATUTE OP 43RD ELIZABETH, 73a. 
 
 exempts charities from Rule against Perpetuities, 78. 
 
 STATUTE OP FRAUDS (see Frauds, Statute of). 
 
 STATUTE OF LIMITATIONS (see Limitations). 
 
 STATUTE OF USES (see Uses). 
 
 STOCKHOLDERS (see Corporations). 
 
 STRANGER, 
 
 Interference with cestui's possession, 10. 
 
 when chargeable with the trustee's misappropriation of funds, 
 615. 
 STREETS (see Municipalities). 
 
 SUBSCRIPTIONS. 
 
 when revocable, 106. 
 
 when directors of corporation cannot release, 201. 
 
 form a trust fund for creditors, and other subscribers, 207. 
 
 liability on, arises when capital stock subscribed in full, 207. 
 
 cannot be avoided by collateral attack on acts of directors, 
 
 207a. • 
 
 by "trustee" makes him personally liable, except when, 207d. 
 rights to increase of corporate shares go to remainderman 
 
 and not to life tenant of shares, 209. 
 
 34 
 
530 INDEX. 
 
 [The numbers refer to sections.] 
 
 SUCCESSORS IN TRUST (see Vacancies), 
 
 to executor-trustee should be commissioned as executor and 
 
 not as administrator de bonis non, with will annexed, 160c. 
 trustees are joint tenants, the survivor taking entire estate 
 
 unless other provision be made, 585, 664. 
 if none named, estate of the trustee descends to his heirs, 
 
 585a. 
 should disregard improper settlements made by the original 
 
 trustee with debtors, 605. 
 do not take discretionary powers of predecessors unless so 
 
 provided, 647, 668. 
 the settlor may empower the trustee to appoint a successor, 
 
 666a. 
 
 SURETY (see Bonds of Trustee; Negotiable Instruments). 
 
 SURVIVOR (see Successor in Trust), 
 of partnership, 195. 
 
 SWAMP LANDS (see Public Trusts). 
 
 T. 
 TAXES, 
 
 school, collected in wrong district, 56e, 
 collected for special purposes, 57. 
 when hospital liable for, 82a. 
 
 executor must pay personal property tax for non-resident ces- 
 tui, 171. 
 agents cannot buy at tax sales as against their principals, 403. 
 payment of, by trustee in his own name is not adverse to 
 
 cestui, 417a. 
 foreclosure for non-payment of, 431g. 
 when a trustee has power to pay special assessments, 633, 655. 
 
 TENANCY IN COMMON (see Estates). 
 
 TERMINATION (see Statute of Uses; Revocation). Chapter 
 
 XXXVI, 
 equity cannot end active trust, 40. 
 trust for benefit of creditors is not ended by discharge in 
 
 bankruptcy of debtor, 292. 
 when spendthrift trust terminates if wife and children of 
 
 spendthrift may have income, 299, 507a. 
 if no express time for, may be implied when objects of trust 
 
 have been accomplished, 307, 453. 
 
INDEX. 531 
 
 [The numbers refer to sections.] 
 TERMINATION— Continued. 
 
 residue of estate not disposed of by settlor reverts to his heirs 
 or representatives, 366. 
 
 of spendthrift trusts, 507a, 515. 
 
 a trust to last while a daughter was married ends at her di- 
 vorce, though she might remarry same husband, 532. 
 
 trusts terminate when their purposes are fully accomplished, 
 677. ' 
 
 conveyances to terminate trusts will be presumed after a 
 long time to have been made, 677a. 
 
 when a court of chancery may terminate trusts, 6776. 
 
 may occur by merger of legal estate with the equitable, 678. 
 
 but not against a plain intention that the trust continue, 678a. 
 
 TERMS OF TRUST VARIED, 48. 
 TESTAMENTARY TRUSTS (see Wills). 
 THELLUSON ACT, 520. 
 
 TITLE (see Real Estate; Personal Property), 
 
 equity cannot vest in trustee, 41a. 
 
 in cases of constructive trusts equity requires trustee to con- 
 vey, 42, 378. 
 
 of school directors and trustees, 56a, 56(2, 84a. 
 
 conveyance from mother church cannot be forced by mission 
 incorporating, 95a. 
 
 devise to church vests title in it, 99c. 
 
 when church property belongs to particular congregation and 
 not to the church at large, 99e. 
 
 when church property cannot revert to donor, 100. 
 when it will, 107. 
 
 must vest in trustee before trust executed, 110a. 
 
 when title to gift presumed to have passed, 110a. 
 
 when husband may acquire paramount title, 128. 
 
 land held for wife "and her heirs" until happening of con- 
 tingency passes fee to her when contingency occurs, 132. 
 
 vests in executor-trustee as of date of testator's death, 160, 
 5676. 
 
 of deceased partner descends to his heirs as trustees, 188. 
 
 Statute of Uses operates only on legal, 190. 
 
 of stockholders purchasing corporate property is subject to 
 all equities, 204. 
 
 when corporations may hold real estate as trustees, 212. 
 
 of receivers to real and personal estate, 222, 586. 
 
532 INDEX. 
 
 [The numbers refer to sections,] 
 
 TITLE! — Continued. 
 
 acquired by purchaser with knowledge of a contract void un- 
 der Statute of Frauds does not raise constructive trust, 257a. 
 when declarations of a decedent that he held title for another 
 
 are admissible, 289. 
 when active trusts become passive court may compel convey- 
 ance in undivided interests, 306. 
 cestuis may demand legal title at any time after trust becomes 
 
 passive, 309. 
 grantees of the receiver of an insolvent bank whose president 
 held title may have a conveyance from the heirs of the de- 
 ceased president, 309a. 
 conveyed to grantees, "trustees of church," does not vest le- 
 gal title in the church nor create an express trust, 311. 
 an absolute conveyance on a parol trust for the grantor's wife 
 is not operated on by the Statute of Uses because there is 
 no usee to whom the leg'al title can be passed, 313. 
 devise of legal title may be implied if duties and powers im- 
 posed on trustee would require him to have it, 318, 630, 
 630a, 6302), 630c. 
 taken by guardian in his own name to land bought with ward's, 
 funds raises an implied trust regardless of his motives, 322. 
 advancing money to buy land and taking title as security 
 
 creates a resulting trust, 344a. 
 execution creditor acquires none if he knows that debtor held 
 
 by way of a resulting trust, 363a. 
 purchaser of record title is put on notice by possession of 
 
 cestui of a resulting trust, 364a, 392. 
 obtaining title by false promises to convey as directed raises. 
 
 a constructive trust, 378, 607f. 
 relationship of the parties as affecting conveyances of, 382. 
 cannot be restored, though obtained by fraud, if intent was 
 
 to hinder creditors, 386. 
 when equitable title may be directed by mere renunciation,. 
 
 401a. 
 possessory, gained by cestui of a resulting trust prevents 
 Statute of Limitations from barring the resulting trust, 4146.. 
 a mortgagee under an absolute conveyance, when paid in full, 
 holds under a direct trust to reconvey which is not barred 
 by the Statute of Limitations, 419. 
 purchase with notice of a mortgage not of record from one: 
 who had no knowledge gives good title, 430. 
 
INDEX. 533 
 
 [The numbers refer to sections.] 
 
 TITLE — Continued. 
 
 the holder of notes secured by a trust deed who takes a deed 
 
 from the mortgagor does not acquire the legal title, 431i. 
 confirmation of judicial sales is evidence that the purchasers 
 
 have the legal title, but not of any trust, 456d. 
 purchaser is put on notice by recitals in deeds in the chain 
 
 of title, 468d. 
 may be asserted by real owner, though receipts for interest 
 
 called same "rent," 4766. 
 the vendee may acquire an outstanding title, 491a. 
 a purchaser with notice of a valid contract of sale holds as 
 
 trustee for the vendee, 4916. 
 must be shown good beyond a reasonable doubt before vendor 
 
 may have specific performance, 496. 
 unless instruments grant title in wards of the present tense 
 
 they must be executed as wills, 526. 
 if the legal and equitable titles are in the same person the 
 
 words "in trust" are surplusage, 527<Z. 
 when neither legatees nor remaindermen take legal title to 
 
 undisposed residue under a will, 528c. 
 foreign courts cannot appoint trustees over Illinois lands and 
 
 give them the fee, 542. 
 none vests in the trustee until he accepts expressly or im- 
 pliedly, 548. 
 when the acceptance of a trustee relates back title vests as of 
 
 the earlier date, 549a. 
 in passive trusts, never active, no title passes to the grantee, 
 
 566. 
 descends to heirs of settlor until trustee accepts, 567. 
 heirs should convey, to a trustee appointed in chancery, 567. 
 when the word "trustee" will be rejected as descriptio per- 
 
 sonae, 567a. 
 where the trustee is also a cestui but there are other cestuis 
 
 the legal and equitable title do not merge, 567a. 
 cestui has no title in a court of law, 567c. 
 cestui need not be named if he can be ascertained outside 
 
 of deed, 567d. 
 when delivery of a deed to a third person will pass title, 567e. 
 after acquired, enures as a trust, 567/. 
 what estate vests in the trustee, 568, 568a, 5686, 568c, 568(2. 
 the granting clause in a deed controls the habendum as to 
 
 title passed, 568c. 
 
534 INDEX. 
 
 [The numbers refer to sections.] 
 
 TITLE — Continued. 
 
 when the right to convey refers not to the fee but only to a 
 
 life estate, 568(2. 
 the trustee is the only one considered to have title at law, 
 
 569a. 
 only legal titles are considered in ejectment, 5696. 
 even though trust is violated by conveyance, 5696. 
 a church has no legal, on deed to A, B, C. "trustees" of the 
 
 church, 569c. 
 when a conveyance by a donee of a power to appoint by will 
 
 extinguishes the power, 569<2. 
 of trustees is a joint tenancy, 580. 
 no matter how badly abstracted, remaindermen cannot be 
 
 divested because the trustee appeared by the abstract as 
 
 equitable owner, 581. 
 to property placed in trust by a misappropriating trustee by 
 
 way of restitution, will be deemed held upon original trusts^ 
 
 582. 
 receivers hold for whoever may establish his right to the prop- 
 erty, 586. 
 new trustee filling a vacancy should have conveyance made to 
 
 him unless he be a statutory trustee, 587, 667a. 
 remains in trustee until cestui que use be put in possession, 
 
 588. 
 when a trustee's legal title may be conveyed by a master in 
 
 chancery, 591e. 
 if a purchaser from a trustee loses title by ejectment he may 
 
 recover from trust fund, 594. 
 when agents to purchase take title in their own names, 608. 
 none passes when deeds made under a power are not executed 
 
 as directed, 624, 624a. 
 a trustee who obtained title by misrepresentations is liable 
 
 for rentals received but not for earnest money on contracts 
 
 of sale made by him, 649a. 
 those trustees who qualify take all of the legal title, 663. 
 
 TORRENS SYSTEM, 597. 
 
 TREASURERS, 
 
 of municipalities are public trustees, 58. 
 
 TRUSTEE, THE, Chapter XXVIII, 
 
 what persons are eligible to act as, 547, 547a. 
 as to the number, 5476. 
 
INDEX. 535 
 
 [The numbers refer to sections.] 
 
 TRUSTEE, THE — Continued. 
 
 unless the trust instrument names one, only a court of equity 
 may appoint, 547c. 
 
 is the only one recognised in suits at law, 569a. 
 
 as a landlord and as a tenant, 576, 578. 
 
 trustees hold title as joint tenants, 580, 585. 
 
 trustees must exercise reasonable skill and diligence, 5986. 
 
 cannot make admissions prejudicial to the estate or to the 
 cestui, 606. 
 
 must account for all funds mingled with his own, 619. 
 
 cannot delegate powers, except when, 642, 642a, 642b. 
 
 may also be 'executor, 16. 
 
 may also be one of cestuis, 16, 68. 
 
 may also be the settlor, 16. 
 
 when relation of trustee and cestui cannot arise out of imper- 
 fect instrument, 22. 
 
 probate jurisdiction over testamentary, 35. 
 
 chancery alone could appoint, 39. 
 
 chancery cannot vest legal title in, 41. 
 
 appointed sometimes though no trust, 41a. 
 
 must convey title in constructive trusts, 42. 
 
 his deeds made under discretionary powers not set aside ex- 
 cept for fraud, 43. 
 
 must account in equity, 44. 
 
 must not waste corpus, 45. 
 
 cannot change terms of trust, 48. 
 
 school directors, etc., 56a, 56(2. 
 
 school directors not, by collecting tax in wrong district, 56e. 
 
 must not purchase at own sale, 67, 170, 194, 224. 
 
 after termination of trust, may purchase, 406. 
 
 charities will not fail for want of, 80. 
 
 when duties of trustees for purposes both charitable and non- 
 charitable cease, 89a. 
 
 when church trustees may remove pastor, 101a. 
 
 when church trustees may mortgage property, 103. 
 
 when church trustees may sell property, 104. 
 
 the donor may also be the trustee, 113. 
 
 wife of, has no dower, 124. 
 
 cannot use principal of fund except on decree of court in 
 urgent case, 151a. 
 
 administrators and executors are quasi trustees, 156. 
 
 guardians, partners, corporate officers and receivers are quasi 
 trustees, 156. 
 
536 INDEX. 
 
 [The numbers refer to sections.] 
 
 TRUSTEE, THE — Continued. 
 
 executor-trustee is vested with title as of day of testator's 
 death, 160. 
 
 where will fails to nominate, administrator with will annexed 
 may obtain appointment of a trustee in equity, 160a. 
 
 successor in trust to executor-trustee in will should be com- 
 missioned as executor and not as administrator de bonis 
 non, with will annexed, 160c. 
 
 executor-trustee has distinct duties, 166, 173. 
 
 executor-trustee should close estate in probate though trust 
 duties not completed, 166. 
 
 when he cannot surrender cestui's notes, 166b. 
 
 when annuity should be provided for by executor and not 
 trustee, 166c. 
 
 executor-trustee to sell to pay legacies, must sell for cash and 
 not for claim against estate, 167. 
 
 administrator with will annexed cannot be given powers of a 
 trustee, 168. 
 
 administrator depositing trust funds in bank in own name is 
 liable for loss, 169. 
 
 when administrator liable and when not for interest, 1696. 
 
 when administrator's sale fraudulent as against purchasers 
 thereof, 169c. 
 
 administrator of deceased trustee must account for trust fund 
 when identified, 172. 
 
 executor-trustee cannot be removed in equity as executor, but 
 only as trustee, 173. 
 
 when trustees of minors cannot be compelled to pay funds to 
 guardians of minors, 176. ' 
 
 is personally liable- on contracts signed "trustee" unless fund 
 is clearly liable, 177. 
 
 a guardian is liable for any conversion with compound inter- 
 est, 178. 
 
 guardian's right to resign is not absolute, he must show what, 
 184. 
 
 guardian may be removed in chancery without regard to how 
 appointed, 185. 
 
 partners are quasi trustees, 186. 
 
 corporations are quasi trustees, 199. 
 
 directors of solvent corporations are quasi trustees of share- 
 holders, 200a. 
 
 directors of insolvent corporations are quasi trustees of cred- 
 itors, 200a. 
 
INDEX. 537 
 
 [The numbers refer ±o sections.] 
 TRUSTEE, THE— Continued. 
 
 when corporations may be trustees of real estate, 212. 
 
 railway directors are quasi trustees, 213. 
 
 receivers are quasi trustees, 224. 
 
 banks receiving special deposits become trustees thereof, 227. 
 
 is presumed not to have violated his trust, 227. 
 
 duties of bank in remitting funds, 231. 
 
 bank acting as both a collecting and transmitting agent is a 
 
 trustee, 232. 
 bank directors are quasi trustees, 236. 
 of voluntary savings society has greater responsibility than a 
 
 bank director, 237. 
 may recover on promissory note against defence of payment to 
 
 cestui, when, 241. 
 grantees and creditors of trustee holding title under secret, 
 
 oral trust are protected from trust, 267a. 
 in bankruptcy and voluntary assignments after claims are 
 
 barred holds under a naked trust, 308b. 
 takes legal title by implied devise if will imposes duties and 
 
 powers requiring that he have it, 318. 
 a purchaser with notice of a resulting trust becomes construc- 
 tive trustee, 364a. 
 when a bailor becomes a constructive trustee, 376e. 
 when abstract makers are, 376/\ 
 agent of a trustee may become a constructive trustee when, 
 
 377. 
 obtaining title by false promises to convey makes one a con- 
 structive trustee, 378. 
 liabilities of, in constructive trusts, 390. 
 possession of land by the equitable owner makes a purchaser 
 
 of record title a constructive, 392. 
 administrators, executors, attorneys, agents and partners who 
 
 secure any advantage from office are liable as constructive 
 
 trustees, 397. 
 possession of, is that of cestui until trustee repudiates trust 
 
 409a. 
 in a mortgage deed of trust is the agent of both parties and 
 
 must act impartially, 425. 
 how far a mortgagee in possession is a trustee, 429. 
 must disclose his true status in chancery pleadings, 439. 
 is presumed to take what quality of estate, 446c. 
 is presumed to have acted with honesty, 450. 
 
538 
 
 INDEX. 
 
 [The numbers refer to sections.] 
 TRUSTEE, THE— Continued. 
 
 has the burden in settlements with the cestui to show no con- 
 cealment, 459. 
 
 as to the competency of witnesses for or against the trustee, 
 464. 
 
 in possession cannot claim adversely until he surrenders pos- 
 session, 476. 
 
 when executors are estopped to deny they hold as trustees, 
 though original trust was void, 476a. 
 
 must reduce to possession the personalty, 479. 
 
 the law does not recognise a passive trustee, 479. 
 
 a trustee is appointed under a will if the executor be given 
 trust duties, 535. 
 
 cannot be trustee for himself alone, 537. 
 
 separate trustees for distinct shares may be appointed by the 
 trust instrument, 541. 
 
 foreign courts cannot appoint trustees over Illinois land, 542. 
 
 may be sued without leave of the appointing court, 547c. 
 
 no title vests in, until an express or implied acceptance has 
 been made, 548. 
 
 how he may accept, 549. 
 
 when acceptance relates back, 549a. 
 
 an assignee in insolvency is not liable on covenants of insol- 
 vent's lease unless he accept same, 5496. 
 
 probate jurisdiction over testamentary trustees, 550. 
 
 when a bond may be required of, 550. 
 
 failure of, to file a bond cannot be attacked collaterally, 551a. 
 
 was not entitled to compensation at common law, without a 
 contract, 555. s 
 
 statute now gives testamentary trustees of non-charities com- 
 pensation though appointed before act, 555. 
 
 the reason for non-compensation is that the trustee is not 
 compelled to accept the trust, 556. 
 
 may have his reasonable expenses paid in caring for the trust 
 property, 556a. 
 and solicitor's fees, 559a. 
 
 quasi trustees may not have compensation without contract, 
 556b. 
 
 no trustee may have pay for rendering services in his distinct 
 professional capacity, 5566, 560a. 
 
 having accepted is held in equity to a faithful performance, 
 even though he receives no pay, 556c. 
 
INDEX. 539 
 
 [The numbers refer to sections.] 
 TRUSTEE, THE— Continued. 
 
 when a contract for pay of trustees may be implied and how 
 same may be shared by co-trustees, 557. 
 
 misconduct of, may forfeit his right of contract to compensa- 
 tion, 558. 
 
 has the burden in seeking compensation of showing a contract 
 therefor and the performance of his duties, 563. 
 
 must claim his compensation in nisi prius court when account- 
 ing there, 565. 
 
 what estate the trustee takes, 568. 
 
 to pay debts or legacies takes the fee, 568. 
 
 to convey takes the fee, 568a. 
 
 may make advancements to protect the estate and he may pur- 
 chase his lien for same, 584. 
 
 a new trustee appointed to fill a vacancy takes no title, in 
 general, before a conveyance has been made to him unless 
 he be a statutory trustee, 587. 
 
 joint trustees must act as a body in making deeds, 589. 
 
 must give every cestui notice of a sale, 591. 
 
 must comply with conditions for making sales imposed by the 
 trust instrument, 593. 
 
 in making sales of cestuis' interests must act impartially, 601. 
 
 must keep proper books of account, 602. 
 
 how he may make restitution where he has mingled trust 
 funds with his own so that identification is impossible, 622. 
 
 has no implied power to mortgage, 629a. 
 
 as to the liability of the trustee in general see chapter XXXIV. 
 
 even a trustee de son tort may recover proper advancements 
 made by him to protect the estate, 655. 
 
 may be given power by the settlor to appoint a successor, 666a. 
 
 TRUSTEE'S CONVEYANCES, THE (see Deeds). Chapter XXX, 
 
 when active trust ends, trustee must convey to cestui, 132, 488. 
 
 when presumed to have been made, 452. 
 
 when the heirs of the cestui are estopped from attacking, 475a. 
 
 joint trustees must act as a body, 589. 
 
 as to the form of the conveyance, 590. 
 
 the doctrine of ancient deeds does not apply to, 590a. 
 
 the trustee is personally liable on contracts made by him, ex- 
 cept when, 5906. 
 
 the trustee must give every cestui notice of a sale, 591. 
 
 the trustee may show that the cestui consented" to a sale either 
 orally or in writing, 591a. 
 
■540 INDEX. 
 
 [The numbers refer to sections.] 
 
 TRUSTEE'S CONVEYANCES— Continued. 
 
 if a conveyance depend upon the request of a majority of the 
 cestuis, and the trustee and the grantee be cestuis they can- 
 not be counted, 5916. 
 
 when a conveyance joined in by the cestui will permit a new 
 trust to be created for the benefit of the original trustee, 
 591c. 
 
 when a mortgage made by the trustee and contingent remain- 
 dermen will bar all their interest after a foreclosure, 591d. 
 
 when they may be made by a master in chancery, 591e. 
 
 only the absolute owner of the equitable title and not a mort- 
 gagee thereof may have a decree that the legal title be con- 
 veyed to him, 592. 
 
 when the word "heirs" is a word of limitation, not of pur- 
 chase, and the devisees of a settlor are entitled to a recon- 
 veyance, 5926. 
 
 will be set aside unless he has complied with the conditions 
 imposed by the trust instrument, 593. 
 
 the purchaser may recover his money if ejected, 594. 
 
 no redemption is allowed from, when made under a decree, 
 595. 
 
 when a purchaser is and is not required to see to the applica- 
 tion of the purchase money, 596. 
 
 how made when land is registered under the Torrens System, 
 597. 
 
 where the trustee was to convey on the written request of the 
 cestui, the latter's deed of the equitable estate is such a re- 
 quest, 665. 
 
 TRUSTEE'S LEGAL ESTATE, THE (see Title). 
 
 TRUSTS, 
 
 origin, history and development, Chapter I. 
 
 usually no action at law lies on, 10. 
 
 lawful and unlawful, 11. 
 
 when presumed lawful, 446. 
 
 public and private, 12. 
 
 executed and executory, 13. 
 
 active or special, 14. 
 
 passive, simple, dry or naked, 14. 
 
 express or implied, 15. 
 
 resulting, 15. 
 
 constructive, 15, 374. 
 
 what certainty required in, 17, 527, 567a. 
 
INDEX. 541 
 
 [The numbers refer to sections.] 
 TRUSTS — Continued. 
 
 of personalty, but not bailments cognisable In equity, 32. 
 
 mere confidence reposed not a trust, 32. 
 
 testamentary trusts, probate jurisdiction, 35, 550. 
 
 spendthrift trusts are in accord with public policy, 70. 
 
 cannot be asserted by those haying no interest or expectation 
 of interest in the subject matter, 179a. 
 
 at termination of, any residue of estate not disposed of by 
 settlor reverts to his heirs, etc., 366. 
 
 ex malefido are fastened on property obtained by false prom- 
 ises, 378a. 
 
 ex maleficio arise only in cases of positive fraud or deceit, 379, 
 458a\ 
 
 constructive, are raised in equity on less evidence of fraud 
 than at law, 389. 
 
 express, not barred by delay of cestui until after trustee re- 
 pudiates trust, 409a. 
 
 when parol evidence is admissible to prove but not to vary, 
 454. 
 
 notice of, is constructive notice of their terms, 468. 
 
 executory, are not subject to Rule in Shelly's Case, 498a. 
 
 for accumulation must not violate Rule against Perpetuities, 
 505, 520, 525. 
 
 will not be held void because some future contingency might 
 make them uncertain, 507. 
 
 which can possibly violate the Rule against Perpetuities are 
 void, 509. 
 
 valid cannot be separated from invalid, if general scheme 
 would be defeated, 518a. 
 
 none arise because a testator gives his wife most of his prop- 
 erty, 5276. 
 
 when use of words "in trust" may be treated as surplusage, 
 527a\ 
 
 when devises may or may not be repugnant to, 537. 
 
 how accepted, 549. 
 
 none created on devise to wife to use for herself and family, 
 567a. 
 
 arise in after-acquired title, 567f. 
 
 to sell or mortgage imply that the trustee was given the fee, 
 568. 
 
 when none is raised by directions to a life-tenant to manage 
 and control, 5686. 
 
542 INDEX. 
 
 [The numbers refer to sections.] 
 
 TRUSTS — Continued. 
 
 where a misappropriating trustee creates a new trust for his 
 defrauded cestuis the property will be deemed held upon 
 the original trusts, 582. 
 
 when a new trust may be created for the benefit of the origi- 
 nal trustee, 591c. 
 
 under the Torrens System trusts must be noted on certificate, 
 597. ** 
 
 when they are complete the settlor has no power to revoke, 
 641a. 
 
 cannot be delegated in the absence of a power coupled with 
 an interest, 642. 
 
 trusts to pay income to a life-tenant do not empower the trus- 
 tees to convey the corpus to the life-tenant for life, 642a. 
 
 are not defeated by giving the trustee large discretionary 
 powers, 643. 
 
 should not be revoked because the trustee fails in his duties, 
 676. 
 
 terminate when their purposes are fully accomplished, 677. 
 
 when a court of chancery may terminate, 6776. 
 
 when not, as against a plain intention that the trust continue, 
 678a. 
 
 U. 
 UNCERTAINTY, 
 
 does not occur in charity if someone is to point out cestui, 75. 
 "what remains," etc., is uncertain, 77. 
 when deed to church not void for, 100a. 
 does not occur because of some future contingency which 
 might make the trust uncertain, 507. 
 
 UNDUE INFLUENCE (see Fiduciary Relations). 
 
 USES, 
 
 doctrine of superstitious, not in force, 88. 
 feoffees to, could also convey the land after cestuis -que usent 
 had conveyed the uses, 301. 
 
 USES, X STATUTE OF (see Termination). Chapter XVI, 
 does not operate against State, 56. 
 operates only on legal titles, 190. 
 
 when does not operate to vest church with title held by in- 
 dividuals, 99d. 
 dower exists in cases 'of passive trusts, 1216. 
 before 1861 trusts for wives were not affected by, 126. 
 
INDEX. 543 
 
 [The numbers refer to sections.] 
 
 USES, STATUTE OF— Continued. 
 
 when conveyance of land "in trust for" co-partnership is not 
 
 operated on by, 190, 315. 
 origin of, 301. 
 
 does not apply to uses upon uses, 301. 
 not to trusts in personalty, 301, 310, 592a. 
 nor to active trusts, 301. 
 
 statute transfers the actual seisin and possession if trust was 
 never active, 302, 308. 
 
 certain forms of uses and trusts have been exempted by the 
 courts for convenience, 303. 
 
 test for determining whether the trust is active or passive, 
 304. 
 
 trusts to control, pay taxes, repair, etc., are active, 304a. 
 
 a duty to convey if a contingency happen is an active trust, 
 304a. 
 
 when creator cannot claim trust was passive after he had title 
 conveyed to his wife and she divorced him, 305. 
 
 when trust becomes passive court may compel conveyance in 
 undivided interests, 306. 
 
 trust terminates at time set, or if none, then when objects are 
 accomplished, 307. 
 
 but if trust also require a conveyance, it is not ended until 
 conveyance is made, 307a. 
 
 a passive devise in trust acts as a devise of the land itself, 
 308a. 
 
 trustees in bankruptcy and assignees of insolvents hold under 
 naked trust when claims are barred, 3086. 
 
 a trust for a daughter while married and corpus to be con- 
 veyed to her if she survived her husband, becomes passive 
 on her divorce, 308c, 532. 
 
 when trust becomes passive, cestuis may demand legal title at 
 any time, 309. 
 
 grantees of the receiver of an insolvent bank whose deceased 
 president held title may have a conveyance from the presi- 
 dent's heirs, 309a. 
 
 does not operate on all implied trusts, 311, 388. 
 
 conveyance to grantees, "trustees" of a church, does not vest 
 title in the church and is not an express trust, 311, 388. 
 
 before 1861 statute did not operate on passive trusts for mar- 
 ried women, 312. 
 
544 
 
 INDEX. 
 
 [The numbers refer to sections.] 
 
 USES, STATUTE OF— Continued. 
 
 a conveyance to a third person on a parol trust for the grant- 
 or's wife is not operated on by statute where no use or usee 
 is named, 313. 
 
 cestuis cannot maintain ejectment on passive trust once active, 
 except when, 314. 
 
 what three things must concur before statute operates, 315. 
 
 cestui que use must be a person or a corporation and not a 
 partnership, 315. 
 
 when an active trust becomes passive the title remains in the 
 trustee until he puts the cestui que use in possession, 5S8. 
 
 V. 
 VACANCIES IN THE TRUSTEESHIP (see Successors in Trust). 
 
 Chapter XXXV, 
 in trusteeship filled in equity, 46. 
 
 those trustees who qualify take all of the legal title, 663. 
 trustees named also as executors need not qualify as execu- 
 tors before they may accept the trusteeship, 663a. 
 surviving trustees take as joint tenants and vacancies need 
 
 not be filled unless so directed in the trust instrument, 664. 
 surviving trustees take all the powers conferred upon the 
 
 original number, 664. 
 equity will compel trustees who have.accepted to act, 665. 
 where the settlor has provided the manner of filling vacancies, 
 
 that way is exclusive, 666. 
 the settlor may empower the trustee to appoint a successor 
 
 in trust, 666a. 
 where the settlor has made no provision for filling,, only a 
 
 court of chancery may do so upon proper notice, 6666, 666c. 
 statutes of foreign states providing for filling, have no effect 
 
 on Illinois lands, 666b. 
 mere absence from the state of trustees does not create, 6666. 
 a court of chancery may be properly authorised by the settlor 
 
 to appoint a successor, 666c. 
 the county court could not be so authorised as a tribunal, 
 
 666(2. 
 if the trustee of a legacy refuse to act the cestui does not take 
 
 the legal title unless the trust be passive, 667. 
 as to the necessity for conveyances to new trustees, 667a. 
 cestuis cannot sue on a deceased trustee's bond before the 
 
 time for distribution has arrived, as only the successor may 
 
 do so, 669. 
 
INDEX. 545 
 
 [The numbers refer to sections.] 
 
 VACANCIES IN TRUSTEESHIP— Continued. 
 filling, does not involve a freehold, 670. 
 
 VAGUENESS (see Certainty). 
 
 VALIDITY, 
 
 of trust, how created, 1106. 
 
 of trust to raise funds to defend criminal prosecution, 260. 
 
 VENDOR AND VENDEE, 
 
 vendors declaration of trust made after sale, 26. 
 
 vendor retaking title as security, 33. 
 
 vendee of patent, 33b. 
 
 vendee of land assuming vendor's debts becomes only debtor 
 of creditors and not their trustee, 2706. 
 
 implied trust arises from relation of, in sales of land, 317. 
 
 when vendee of land is not bound by fraudulent representa- 
 tions of a stranger, 391. 
 
 laches not imputed to vendee in possession, 4096. 
 
 vendee retaining a part of purchase price to pay off liens is 
 a trustee for vendor' and cannot set up Statute of Limita- 
 tions, 419a. 
 
 vendee having knowledge _of an unrecorded mortgage of which 
 his vendor did not know, takes free of lien, 430. 
 
 when vendor of personalty is a trustee for the vendee, 484. 
 'when not, 484a. 
 
 vendor and vendee treated as trustees for each other, 491. 
 
 vendee may acquire outstanding title, 491a. 
 
 purchaser acquiring title with notice of a valid contract holds 
 as a trustee for the vendee, 4916. 
 but not as to a void contract, 491c. 
 
 contract to share profits with a sales agent does not let in 
 tetter's wife for dower, 492. 
 
 when a trustee to sell cannot have specific performance of his 
 vendee, 494. 
 
 relation of, is not constituted by an executory agreement to 
 create a trust for will contestants, 495. 
 
 specific performance not awarded unless title is shown good 
 
 ■ beyond a reasonable doubt, 496, 582. 
 
 VESTING OF ESTATES (see Estates; Wills; Remainders; Perpetu- 
 ities). 
 
 VOLUNTARY TRUSTS (see Gifts), 
 
 equity refuses aid to executory trusts, 13, 495. 
 
 35 
 
546 
 
 INDEX. 
 
 [The numbers refer to sections.] 
 VOLUNTARY TRUSTS— Continued. 
 
 conveyance of land on oral trust cannot raise resulting trust, 
 
 117a. 
 a voluntary conveyance cannot give rise to a resulting trust 
 
 for the grantor, 352. 
 the mere absence of a power of revocation is not ground for 
 setting aside a voluntary deed, 671. 
 
 VOLUNTARY SAVINGS SOCIETY, 
 trustee's responsibility, 237. 
 
 VOLUNTARY SOCIETY, 
 
 when a committee may act for in chancery, 437a. 
 
 VOLUNTEER, 
 
 when equity will not aid, 22, 110, 495. 
 
 W. 
 
 WARD (see Guardian and Ward). 
 
 WARDEN OF "PRISON, 
 
 is a public trustee, 61. 
 
 sureties are liable for loss of funds in a bank failure, 551c. 
 
 WAREHOUSEMAN (see Bailments). 
 
 WASTE, 
 * of corpus enjoined in equity, 45. 
 improper gifts to charity, 89. 
 
 when remaindermen may require life tenant to give bond, 553. 
 a trustee for a' life tenant cannot sell minerals, oil or gas, 572. 
 
 WILLS (see Legacy; Perpetuities; Powers; Remainders; Estates). 
 Chapter XXVII, 
 when instruments need not be executed as, 526. 
 as to the certainty necessary in creating trusts, 527. 
 when the purpose is sufficiently certain, 527a. 
 no trust is created because the wife is given most of the prop- 
 erty, 5276. 
 when the oral promise of a devisee to pay a sum as testator 
 desired is enforceable, 527c. 
 when not, 527e. 
 when use of words "in trust" may be treated as surplusage, 
 
 527d. 
 technically an equitable remainder does not exist, 499, 528. 
 
INDEX. 547 
 
 tThe numbers refer to sections.] 
 WILLS — Continued. 
 
 when remainders held vested at testator's death and not at 
 distribution, 628a. 
 
 when beneficiaries take only net income the remainder is in- 
 testate estate, 5286. 
 
 when a direction that any undisposed of residue be given 
 legatees does not vest title to it in either the legatee or 
 remaindermen, 528c. 
 
 contingent remainders must vest before expiration of prece- 
 dent estate, unless legal title is held in trust, 52Sd. 
 
 remainders may be vested though enjoyment is postponed, 529. 
 
 unless the testator provides for contingencies the courts will 
 not as against plain provisions, 529. 
 
 if testator give remainders to his heirs, the time of such heir- 
 ship may be the testator's death or not as may appear, 530. 
 
 a trust to hold until beneficiaries become of age gives them 
 vested executory devises, 531. 
 
 a trust to last while a cestui was married ends upon her di- 
 vorce, even though she might re-marry same husband, 532. 
 
 when a devise of income is not a rent charge but only an an- 
 nuity, 533. 
 
 invalid parts under a general scheme for a class cannot be 
 separated from valid, unless, etc., 5346. 
 
 doctrine of equitable conversion is not applied when, 536a. 
 
 when a devise may or may not be repugnant to a trust, 537. 
 
 when a legacy may not lapse, 538. 
 
 a contingent legacy is assignable in equity, 538a. 
 
 a devise of residuary estate creates no trust for creditors, 
 538c. 
 
 distinction exists between a devise to pay debts or legacies 
 and a devise subject to same, 538c. 
 
 a devise to pay legacies requires a sale for cash, 538(2. 
 
 when construed, 47, 543. 
 
 cannot alter prior executed trust, 110<2. 
 
 deeds not to take effect before death are testamentary, 112, 
 526. 
 
 dower is barred by accepting equitable devise, 122. 
 
 where no executor-trustee nominated, administrator with will 
 annexed may go into equity and have one appointed, 
 160a. 
 or have will construed, 1606. 
 
548 
 
 INDEX. 
 
 [The numbers refer to sections.] 
 
 WILLS — Continued. 
 
 successor in trust to executor-trustee should be commissioned 
 
 as executor and not as administrator de bonis non, with 
 
 will annexed, 160c. 
 when revoked wills may or may not establish trusts as against 
 
 Statute of Frauds, 251. 
 a passive devise in trust becomes under the Statute of Uses 
 
 a devise of the land itself, 308a. 
 implied trust arises when a devise is charged with payment 
 ( of legacies, 317, 5386. 
 
 when not, 538b. 
 an implied devise of legal title occurs if duties and powers 
 
 imposed are such that he must needs have legal title, 318. 
 if no precatory trust exist at testator's death none can attach 
 
 to "what remains" at life-tenant's death, 327. 
 i when a devise to a wife upon condition that children be sup- 
 
 ported does not raise a precatory trust, 329. 
 a contest of, may excuse cestuis for laches in attacking acts 
 
 of trustee, 407. 
 oral instructions referred to in a will may be shown by parol, 
 
 455a. 
 when a purchaser from a trustee will be held a constructive 
 
 trustee to pay legacies, 468c. 
 when a devisee or legatee by electing to take is not estopped 
 
 to seek to have portions of the will held perpetuities, 475b, 
 
 544. 
 when executors are estopped to deny holding in trust although 
 
 original trust was void, 476a. 
 a contest of a will relieves a vendee of the trustee from lia- 
 bility for specific performance, 494. 
 when contestants can enforce an agreement to create a trust 
 
 for them, 495. 
 in questions of perpetuities time is computed from the testa- 
 tor's death, 506. 
 when bequests may be separated from portions offending the 
 
 Rule against Perpetuities, 509. 
 as to the vesting of estates "when," "upon," etc., attaining 
 
 a certain age, 510. 
 when a remainder given to a class, subject to open up, may 
 
 violate Rule against Perpetuities, 511. 
 when a devise to hold 25 years after probate is a perpetuity, 
 512. 
 -when not, 512. » 
 
INDEX. 549 
 
 [The numbers refer to sections.] 
 
 WILLS — Continued. 
 
 when a devise of income vests an estate and does not create 
 a perpetuity, 511b, 513. 
 
 a devise of rentals is a devise of the land, 513a. 
 
 when a failure of issue is definite, 517. 
 
 the construction of, is not affected by the Rule against Per- 
 petuities, 518. 
 
 what is Cy Pres Doctrine, 518. 
 
 if general scheme would be defeated valid trusts cannot be 
 separated from invalid, 518a. 
 
 when an invalid provision for collateral heirs may be sep- 
 arated, 519. 
 
 a limitation not dependent on a void limitation does not fall, 
 519a. 
 
 if the will contain a general trust scheme a codicil may raise 
 an implied trust, 534. 
 
 when children of a spendthrift take an implied devise under 
 the general scheme, 534a. 
 
 a trustee is appointed if the executor be given trust duties to 
 ♦ perform, 585. 
 
 when trusts are and are not implied from recitals and refer- 
 ences to other instruments', 539. 
 
 trustees having discretion as to amounts to be given to each 
 cestui must not act arbitrarily, 540. 
 
 as to encroachments on the principal authorised by the will, 
 540. 
 
 separate trustees for distinct shares may be appointed, 541. 
 
 foreign courts cannot appoint trustees over Illinois land, 542. 
 
 trustees of a charity are not incompetent witnesses to a will 
 aiding the charity, 545. 
 
 no freehold is involved in question whether trustees have 
 power to invest, 546. 
 
 as to probate jurisdiction over testamentary trusts, 550. 
 
 a trustee to pay legacies takes the fee, 568. 
 
 when a power to appoint by will is extinguished by a convey- 
 ance, 569d\ 
 
 when a new trust created by a misappropriating testamentary 
 trustee should be held as being upon the original trust, 582. 
 
 when the- word "heirs" is a word of limitation, not of pur- 
 chase, and the devisees of a settlor are entitled to a recon- 
 veyance, 5926. 
 
550 INDEX. 
 
 [The numbers refer to sections.] 
 
 WILLS — Continued. 
 
 an answer in chancery that title to land had been conveyed 
 
 to respondent to change devisees is not an admission of any 
 
 trust, 606a. 
 when remaindermen may not have the increase in value of 
 
 real estate bought by the trustee who was the life tenant, 
 
 614a. 
 when a doubtful power of sale is made certain by a codicil, 
 
 625. 
 a devise to a wife to use for support of herself and children 
 
 gives her no power to mortgage, 6356. 
 when a devise to an alien will be good as an equitable convex 
 
 sion 638. 
 doctrine of illusory appointment does not prevail in Illinois, 
 
 639c. 
 a power to dispose of while unmarried means by deed and 
 
 not by will, 6406. 
 gifts with directions to distribute do not vest until time for 
 
 distribution, except, etc., 640e. 
 when the revocation in a codicil of an appointment of an ex- 
 ecutor will also revoke his appointment as trustee, 674. 
 
 WITNESS (see Evidence). 
 
 WIVES, TRUSTS FOR. Chapter IX, 
 
 when husband's declarations admissible, 25. 
 
 protected in equity, 38, 125. 
 
 consideration for voluntary settlement on, implied when, 111. 
 
 when husband not constructive trustee of gift from wife, 115a, 
 137. 
 
 when endowable in equitable estates, 120. 
 
 of trustees have no dower, 124. 
 
 trustee's wife a necessary party, when, 124. 
 
 before 1861 Statute of Uses did not affect, 126, 131a, 312. 
 
 husband's purchases for, presumed advancements, but may 
 be rebutted, 127. 
 
 when wife buys land in husband's name, no presumption of 
 advancement arises, 1276. 
 
 but trust may result if she did not lend him the money, 127c 
 or gives him a release on separation, 359. 
 
 lending of money to husband makes her mere creditor, 127d. 
 
 gift to husband implied from use of wife's money in his busi- 
 ness, 127e. 
 
INDEX. 551 
 
 [The numbers refer to sections.] 
 "WIVES, TRUSTS FOR— Continued. 
 
 no presumption exists that either the hushand or wife is the 
 
 dominant party, 449c. 
 when husband may acquire paramount title, 128. 
 wife cannot violate her declaration of trust, 129. 
 wife cannot have resulting trust in land bought with money 
 
 which husband left with her merely for safe-keeping, 130. 
 land bought with joint earnings, 130a, 380. 
 constructive trust arises when husband gets possession of 
 
 wife's property by false promises, 1306. 
 land purchased by wife during abandonment by husband and 
 
 partially paid for by him on return, belongs to wife, 131. 
 land held on contingency for wife "and her heirs" passes in 
 "fee to her on happening of contingency, 132. 
 when equity may change provisions of, 133. 
 husband's note given for wife's benefit may be sued on at law, 
 
 134. 
 creditor of husband has notice that wife's money paid for 
 
 land though trustee hold under deed absolute, 135. 
 wife cannot compel trustee to exercise discretionary power, 
 
 136. 
 and children, include all children born subsequently, 138. 
 
 but not of a later marriage, 150. 
 when parol agreement to let wife furnish part of purchase 
 
 money of land is within Statute of Frauds, 264a. 
 all life insurance taken in wife's name to hinder creditors 
 
 enures to them, 2676. 
 what must be proven by them to establish a preference over 
 
 other creditors, 275. 
 conveyances by, for benefit of husband's creditors are binding, 
 
 etc., 287. 
 when husband's land not liable to wife's creditors though he 
 
 let her use the income in her business, 287a. 
 when a spendthrift trust will end if wife and children of 
 
 spendthrift, have an interest in income, 299. 
 when creator of trust cannot claim it was passive after he 
 
 had had title conveyed to his wife and she divorced him, 305. 
 a trust for a daughter so long as she was married becomes 
 
 passive on her divorce, 308c, 532. 
 even though she might re-marry divorced husband, 308c. 
 an absolute conveyance to a third person on a parol trust for 
 
 the grantor's wife is not within the Statute of Uses as there 
 
 is no use or usee, 313. 
 
552 INDEX. 
 
 [The numbers refer to sections.] 
 
 WIVES, TRUSTS FOR— Continued. 
 
 cannot be decreed to have resulting trusts on mere proof that 
 their husbands had sufficient of their money to have paid 
 for land bought by husbands, 345c. 
 a resulting trust arises if a widow take possession of her 
 husband's estate and buy land with same, though her award 
 might be larger, 348a. 
 
 no resulting trust arises where a widow foreclosed a mortgage 
 for money lent by her to her deceased husband, 348b. 
 
 widow may have resulting trust where husband admitted it 
 but became insane and died, even though she. inventoried 
 the land in his estate, 359a. 
 
 a woman living with a man as his wife, may assert a result- 
 ing trust against him as against a stranger, 359b. 
 
 grantee of land having testified that he took an interest for 
 the grantor and his wife and the survivor of them, and 
 wife survived, defeats claims of resulting trust for grantor's 
 heirs, 359c. 
 
 if widow pay debt secured by her deceased husband's deed in 
 form absolute and take a reconveyance in her own name 
 a trust results for her husband's heirs, 360a. 
 
 fiduciary relations between husband and wife, 380. 
 
 a conveyance with intent to deprive a wife of her rights pre- 
 vents grantor from recovering title, 386. 
 
 possession of widow not adverse to heirs, 4116, 4176. 
 
 no trust arises because a testator gives his wife most of the 
 property, 5276. 
 
 no trust arises on a devise to a wife for life for her use and 
 the family's, 567a. 
 
 WOMAN SUFFRAGE, 
 
 trusts for, upheld as charities, 77a. 
 
 WORDS USED (see Language Necessary).