Coles v. Trecothick, 55. In another case, however, Lord Eldon allowed 9 Ves. 234. of a purchase, under a trust for payment of debts, by the trustee, as agent for his father, both creditors in partnership, chiefly because the cestui que trust had full information, and the sole management of the sale; making surveys, settling the particulars, fixing the prices, &c. His Lordship said, that a cestui que trust may deal with his trustee, so that the trustee may become the purchaser of the estate. But though permitted, it was a transaction of great delicacy, and which the Court would watch with the utmost diligence; so much, that it was very hazardous for a trustee to engage in such a transaction. A trustee might buy from the cestui que trust, provided there was a distinct and clear contract, ascertained to be such, after a jealous and scrupulous examination of all the circumstances; that the cestui que trust intended the trustee should buy; and there was no fraud, no concealment, no advantage taken by the trustee, of information acquired by him in the character of trustee. Morse v. 12 Ves. 355. Ante, § 54. 13 Ves. 601. que trust, 56. In a subsequent case Lord Erskine confirmed a purchase made by a trustee from the cestui under particular circumstances, with the confirmation and acquiescence of the cestui que trust. 57. The case of Campbell v. Walker came before Lord Eldon, on an appeal from the Rolls, who affirmed the decree with costs; but said-" The principle has often been laid down, that a trustee for sale may be the purchaser in this sense; that he may contract with his cestui que trust; that with reference to the contract of purchase, they shall no longer stand in the relative situation of trustee and cestui que trust. trust. And the trustee having, through the medium of that sort of bargain, evidently, distinctly, and honestly proved that he had removed himself from the character of trustee, his purchase may be sustained." act, must re disclaim. 58. Where a trustee refuses to accept a trust, the Refusing to usual practice is to require him to release all his estate lease or and interest to the other trustees; or to execute a deed of disclaimer. Where he releases, he is consi- Tit. 32. c. 26. dered as having, in the first instance, accepted the trust; and therefore, as to that part of such trust as consists of personal confidence, he cannot transfer it to the other trustees. Crewe v. Dicken, ante, § 35. and others appointed. 59. It has been stated that the Court of Chancery Discharged, will not suffer a trust to fail, for want of a proper trustee therefore if a trustee refuses to accept of a ante, c. 1. trust, the Court will interpose, and either appoint a new trustee, or take upon itself the execution of the trust. § 91. Danvers, 60. A person devised all his lands to two trustees, Travel v. upon trust to sell and pay his debts. One of the Finch, 380. trustees desired to relinquish the trust, and the other was willing to accept it. The Court of Chancery directed that the trustee, who desired to relinquish, should release to the other. Ettrick. 61. In a subsequent case the Court of Chancery Uvedale v. removed a trustee, though he was willing to act: his 2 Cha. Ca. co-trustees having refused to join with him in the 20. execution of the trust. 62. In a late case a decree was made that a woman Lake v. Delambert, who was a trustee, but who had married a foreigner, 4 Ves. 592. should be discharged from the trust, though she denied any intention of quitting the kingdom, and desired to continue in the trust. The Court said there was great inconvenience in a married woman's being a trustee. 63. In all modern deeds of trust, there is a proviso, that in case of any of the trustees dying, or being Buchanan v. desirous of relinquishing the trust, or becoming incapable of acting; a new trustee shall be appointed, either by the cestui que trust, or the other trustees; and that the property shall be conveyed to such new trustees, jointly with the remaining trustees. Where this clause is omitted, the Court of Chancery will appoint a new trustee. 64. By a private act of parliament, estates were 5 Ves. 722. vested in three trustees, upon trust to sell, &c. Mr. Scott, one of the trustees, being appointed attorneygeneral of Upper Canada, executed a release. A bill was filed against the two remaining trustees, praying a reference to the Master to appoint a new trustee.. It was said to be a common case; and the Court referred it to a Master to appoint a new trustee. END OF THE FIRST VOLUME. Printed by A. Strahan, Law-Printer to His Majesty, |