the conveyance of portions of the property to purchasers by vesting the legal title fully in the tenant transacting the business, must be treated as between the parties as a conveyance in trust only. Beadle v. Beadle, 2 McC., 586.

§ 66. The acts and declarations of the parties subsequent to the execution of a quitclaim deed, as well as their contemporaneous correspondence, are admissible to show that the deed, absolute on its face, merely establishes a trust, as between the parties, in the grantee. Ibid. § 67. Where a testator sells his land without making a conveyance, but receives a part of the purchase money, and allows the purchaser to take possession, he holds at his death only the naked legal title in trust for the purchaser upon his complying with the terms of the sale, and the devisees take that title clothed with the same trust. Bissell v. Heyward, 6 Otto, 580. § 68. Where lands inherited by the wife were by fraud or mistake, and without her kuowledge, conveyed to the husband, the latter takes no beneficial title at all, but holds merely as trustee for his wife; and none of the property so held in trust by him passes to his assignee in bankruptcy, or is subject to the lien of his creditors. Ex parte Anderson, 2 Hughes, 378. § 69. Where a person named as executor in a will refuses to qualify, but becomes the de facto executor and actually manages the entire estate, he is liable for assets received, both as executor or as agent or attorney, and on bill brought by a legatee against such person for an account and satisfaction the six years' statute of limitations is no defense. Nor, being an express trustee, can he denounce the trust and hold adversely unless notice be given to the cestui que trust. Pullam v. Pullam, 11 Fed. R., 53.

§ 70. S. and P. entered into an agreement by which it was agreed that S. should furnish a certain sum of money, which should be invested by P. in lands in S.'s name, that the lands should be sold in five years, and that as a compensation for his time and his expenses in making the investment he should have half the profits on such sale after deducting interest and taxes. Held, that the transaction created an express trust in the lauds in favor of P., which a court of equity would enforce, notwithstanding the fact that the trustee might have maintained an action at law for damages. Seymour v. Freer,* 8 Wall., 202.

§ 71. Where a husband made a deed of trust as a settlement upon his wife; signed and sealed the deed with her; with her acknowledged it before the proper officers, and himself caused it to be recorded in the appropriate office; retained it in his own possession, but where it was equally under her dominion; declared repeatedly to her and her friends that she was protected by it; and the evidence showed that he intended what he had done to be binding upon him, held, that, by using the name of the trustee named in the deed in placing the deed upon record and keeping the same under the control of his wife as well as himself he either made thereby a delivery to the trustee for the account of all concerned, or he intended to make himself a trustee by actions final and binding upon himself. Adams v. Adams, 7 Ch. Leg. N., 113; 21 Wall., 185.

§ 72. The treaty of 1830 between the United States and the Choctaw Indians stipulated that each Choctaw head of a family desirous to remain and become a citizen of the states be entitled to one section of land, and in like manner shall be entitled to one-half that quantity for each unmarried child which is living with him, over ten years of age, and a quarter section to such child as may be under ten years of age, to adjoin the location of the parent." Held, that no trust, constructive or otherwise, was created in favor of the children by the terms of the above treaty. Wilson v. Wall, 6 Wall., 83.

§ 73. In general a husband becomes entitled to the personal property belonging to the wife at the time of her marriage, unless his marital right be excluded by some express or implied trust. Such a trust may be expressly created, or it may be implied from the nature of the gift, or from other attendant and conclusive circumstances. In re Grant, 2 Story, 312. 74. When within the statute of frauds. The creation of trusts in lands is within the prohibitions of the statute of frauds. Tufts v. Tufts, 3 Woodb. & M., 456.

§ 75. Acceptance of trust, how far necessary. On bill by a wife to establish a trust deed, made as a settlement upon her, and to remove the trustee therein named and have some suitable person appointed trustee in his place, the fact that such trustee refused to accept the deed or act as trustee is not a controlling circumstance, as such disclaimer on the part of the trustee cannot defeat the conveyance as a transfer of the equitable interest to a third person. A trust cannot fail for want of a trustee or by the refusal of all the trustees to accept the Adams v. Adams, 7 Ch. Leg. N., 113; 21 Wall., 185.

trust.

$76. Although a trustee may never have heard of the trust deed, the title vests in him, subject to a disclaimer on his part. Ibid.

77. Where the evidence shows that a trust deed in favor of the wife was executed, acknowledged and recorded by the husband with the intent to make provision for his wife and children; that he took the deed into his own possession with the understanding and upon the belief on his part that he had accomplished the purpose by acknowledging and procuring the record of the deed by showing the same to his wife, informing her of its contents and placing

the same in the house therein conveyed in a place equally accessible to her and to himself, held, that there was created a trust which the beneficiaries were entitled to have established by a court of chancery, notwithstanding the fact that no actual delivery had ever been made to the trustee named in the deed.

Ibid.

§ 78. The mere making of a trust deed, without any acceptance, express or implied, by the trustee, is not sufficient to vest in the trustee the title to the land mentioned in the deed; and parol proof is admissible to show that the trust was never accepted. Armstrong v. Morrill, 14 Wall., 120.

§ 79. Duration — Survivorship.- Whatever the language may be by which a trust estate is vested in a trustee, the nature and duration of the trustee's title are governed by the requirements of the trust. So where all the trusts on which property was devised had been performed, superseded or terminated by the death of beneficiaries, and title had vested in those who were to take ultimately under the will, it was held that the trustee's title had terminated, and that a conveyance by him conferred no title. Young v. Bradley,* 11 Otto, 782.

§ 80. In that case, also, held, that as the sale was a transaction between the ex-trustee and the purchaser alone, the real owners of the land could procure the cancellation of the deed without repaying the purchase money, especially where it appeared that they had no benefit from it. Ibid.

§ 81. Trustees of a trust estate created by devise take only a chattel interest if the trust does not require a higher estate, notwithstanding words of inheritance. Accordingly, where the specified duties of the trustees were, first, to permit A. to enjoy the premises and receive the rents, issues and profits during his life; second, if A. should die leaving issue, and his wife B. should survive him, then to permit her during her life to enjoy the possession and profits of the property, held, that, as the duties of the trustees were restricted to objects terminating with lives in being, as the trust was dry, and the duties of the trustees wholly passive, the trustees took an estate per autre vie only, notwithstanding the devise to them and their heirs. Poor v. Considine, 6 Wall., 458.

§ 82. The quantity of estate taken by trustees depends upon the purposes of the trust. Ward v. Amory, 1 Curt., 419.

§ 83. Where no intention to the contrary appears, the language used in creating the estate will be limited and restrained to the purposes of its creation. When the objects of the trust are accomplished, the trustee's care ceases, and the estate which goes over and beyond the trust goes as a necessary completion of the objects of the grantor or devisor. Testator devised property to his executor, his heirs, executors, administrators and assigns, in trust for his two grandchildren during their minority, one-half of such property to be turned over to the elder upon his coming of age and the other half to the younger upon his coming of age, and if either should die before reaching his majority his share to go to the survivor. The elder grandchild died, and the survivor having attained the age of twenty-one, married, occupied the property, asserting ownership over the same until his death. He died intestate leaving a widow. Held, that no conveyance from the executor was necessary; that the survivor having taken possession became seized in deed and fact and acquired the full legal title. Haw v. Brown,* 1 MacArth., 189.

84. Where a power coupled with a trust is vested in two persons, the power survives if one of the trustees should die. Accordingly property having been devised to two trustees in trust to manage, invest and re-invest the same according to their best discretion," and pay over the income to the children of testatrix during their lives, and on their decease the said trustees, or their successors as trustees, to appoint three persons, etc., the trust fund to be disposed of thereupon in accordance with the determination of the said persons, held, that it was competent for the survivor of the trustees to appoint the persons to designate the charities under the trust. Lorings v. Marsh, 6 Wall., 337.

III. INTERPRETATION AND VALIDITY.

SUMMARY - Power of sale; no power to mortgage, § 85.—Trust taken as a unit, § 86.- Liability of adminis'rator of trustee, § 87.- Contingencies which cannot arise; reconveyance presumed, § 88.

§ 85. Land was conveyed in trust with right to sell with the consent of certain persons, and directions to invest the property on the same trusts. Held, that this gave the trustee no authority to mortgage the trust estate. Held, also, that under section 2327 of the code of Georgia a court of equity had no authority to permit such lands to be mortgaged, and that the note secured by such a mortgage did not bind the trust estate. The Patapsco Guano Co. v. Morrison, §§ 89-92.

§ 86. An unexecuted trust for the use and benefit of H., and, in event of his death during minority, then to the heirs of N., is a unit, and cannot be separated into distinct and several trusts, nor can its administration be divided. The trustee must take the property incumbered with the whole trust, and is liable to the heir's of N. as well as to H. The rights of H. cannot be abridged by the trustee, nor can he lavish the fund on H. to the damage of the heirs of N. Curtis v. Smith, §§ 93-99.

$87. The administrator of a deceased trustee is not liable to a suit at law brought to recover the trust fund. Ibid.

§ 88. Where land is conveyed to a person in trust to convey in a certain manner upon certain contingencies and within a certain time, and the contingencies do not and cannot arise, and the time limited expires, a reconveyance by the trustee to the grantor will be presumed; and it is not necessary that the presumption should rest on a basis of proof or a conviction that a conveyance was in fact made. French v. Edwards, § 100. [NOTES.-See §§ 101-126.]

THE PATAPSCO GUANO COMPANY v. MORRISON.

(Circuit Court for Georgia: 2 Woods, 395-406. 1876.)

STATEMENT OF FACTS.-In 1843 a marriage settlement was executed in view of the marriage of G. A. Dowse and Sarah A. Morrison, in which the estate of the latter was vested in the trustee, R. G. Morrison, for the benefit of Mrs. Dowse and her children. Among other provisions the settlement authorized a sale for re-investment by the trustee, but conferred upon him no further powers over the trust fund. In 1871 the husband, wife and all the living children, some of them infants, with the trustee, applied to the superior court of Burke county, Georgia, for leave to mortgage the trust fund to raise money to carry on the plantation of Mrs. Dowse, relying on section 2327 of the Georgia code for authority for such a step. The court granted the prayer of the petition, and the trustee executed, as such, a note for $2,000 and a mortgage securing it. This note came into the hands of the complainant, who filed this bill to enforce the mortgage.

Opinion by ERSKINE, J.

Two distinct views of this cause were presented by counsel for plaintiffs; and it was argued that the maintenance of either would warrant a decree for the plaintiff. First, that the power in the marriage articles to sell or exchange any portion of the trust estate and re-invest the proceeds in other property upon the same limitations and trusts conferred authority to execute a mortgage. Or, secondly, the authority to mortgage was valid under the decretal order of the chancellor by virtue of section 2327 of the code. In support of the first view Allan v. Backhouse, 2 V. & B., 65, was relied on. There the testatrix, after devising leasehold estates, held upon bishops' leases for lives, and all her other real estate to certain uses, directed the renewal of her leaseholds, and that the expenses should be raised out of the rents and profits of the leaseholds or any part of the freehold estates, to the end that they might be enjoyed there with as long as might be. The vice-chancellor said that the word "profits," ex vi termini, includes the whole interest, as a devise of the profits would pass the land itself. And he held that as the purpose for which the money was to be raised out of the rents and profits might require it suddenly, for the lessors could not be expected to wait for the gradual payment out of the rents, and as there was nothing in the will to give these words the abridged sense of annual profits, except the purpose to preserve the estate entire, he warranted the sacrifice of part for the preservation of the remainder, and decreed that the gross sum for fines on renewal of leases, as well as to

raise portions, might be raised by sale or mortgage, and thereby effect the purposes of the testatrix.

89. A power vested in the trustees in a marriage settlement to sell the property and re-invest the proceeds in other property subject to the same trust does not include nor imply a power to mortgage. Cases cited.

On perusing that case it will there be found admitted that the natural signification of the words " issues and profits" is annual "rents and profits." Yet the vice-chancellor extended their meaning "when applied," as he said, “to the object of raising a gross sum at a fixed time, when it must be raised and paid without delay, to a power to raise by sale or mortgage unless restrained by other words." In Bloomer v. Waldron, 3 Hill, 361, Cowen, J., speaking of Allan v. Backhouse, called it "an extraordinary case." And in the late case of Earl of Shaftesbury v. Duke of Marlborough, 2 M. & K., 111, which was a trust to renew out of the "rents, issues and profits," it was held by Sir John Leach, M. R., to be confined to annual rents, issues and profits on the authority of Stone v. Theed, 2 Bro. C. C., 243, in opposition to Allan v. Backhouse.

They likewise relied on the case of Wayne v. Myddleton, 2 Ga., 383. There four slaves were conveyed in trust for the sole use of Mrs. P., and after her death to her children; the deed gave her the power, with the consent of the trustee, to sell and dispose of the trust property whenever she should deem it proper to do so, the proceeds to be re-invested upon like trusts. She purchased land and the growing crop thereon from one M., and hired his slaves to assist in the crop, and, to secure the purchase money and the hire of the hands, she, with the consent of the trustee, made a mortgage on the trust property to M. The court held the power well executed, remarking, inter alia, that it was a power without limitation, except that the property substituted for the slaves shall be covered with the same trusts." The decision was based upon the fact that the mortgage was given "for the purpose of acquiring, by purchase, other trust property to stand in the place of, and be substituted for, the property mortgaged." Counsel also cited 4 Kent, 147-8, where the author, in speaking of powers of sale inserted in mortgages, says that "the better opinion would seem to be that a power of sale for the purpose of raising money will imply a power to mortgage, which is a conditional sale." It is too evident to need citations that the chancellor referred solely to mortgages at the common law, where the title passed to the mortgagee immediately on delivery of the conveyance in mortgage, the law investing the mortgagee with authority to sue out a writ of right or ejectment against the mortgagor in possession, even before condition broken. But in this state a mortgage is not a conditional sale; it does not clothe the mortgagee with a power coupled with an interest, nor pass any estate; it creates a lien only, and the title remains in the mortgagor until foreclosure and sale. Code, sec. 1954; Davis v. Anderson, 1 Kelly, 176; United States v. Athens Armory, 35 Ga., 344; Lockett v. Hill and another, 1 Woods, 552.

And here let

But the chancellor in his Lecture on Powers (4 Kent, 331) says: "As a general rule a power to sell and convey does not confer a power to mortgage," and he cites 1 Sug. on Powers, 528; 2 Chance on Powers, 388. it be inquired whether the power conferred by the marriage contract is an exception to the rule. The language is: "That should a sale or exchange of any portion of said property be desired, it may take place by the written consent of the parties in interest; and the proceeds from said sale to be vested in other property to be held in trust and upon the same limitations as are herein

stated." Some cases will now be referred to as illustrative of the rule: In Haldenby v. Spofforth, 1 Beav., 390, the power was "to make sale and dispose of the testator's lands by private sale or at auction," and it was held by the master of the rolls, Lord Langdale, not to authorize a mortgage. He said: "I think that the clear and manifest intention of the testator was to have a sale out and out, to have a complete conversion of his real estate. think that the terms of this will do not authorize a mortgage, and therefore the mortgagee has not got a valid title."

. I

In Stroughil v. Anstey, 1 DeG., M. & G., a devise was to trustees charged with debts, etc., with direction for, or trusts which require further, an out and out conversion, and the lord chancellor held that a mortgage was not a proper mode of raising the charges.

In Bloomer v. Waldron, supra, the testator gave to his wife "full power to sell and convey all or any part of the real estate, provided A. B. shall consent to such sale, etc.; the moneys from such sales to be vested and secured in such manner as the said A. B. shall direct for the purposes of this my will." She executed a mortgage in fee to H. R., with the consent of A. B.; but the court decided that this was not a proper execution of the power and declared the mortgage to be a nullity.

In Coutant v. Servoss, 3 Barb., 133, the deed conveyed lands to the grantee, in fee, in trust for the benefit of others, and conferred upon the grantee the power to grant, bargain, sell and convey the same, and to make and execute the necessary conveyances for the benefit of the cestuis que trust. The court held that these terms did not confer a power to mortgage. And citing Bloomer v. Waldron, and other authorities, the court said: "These cases are explicit that the power to sell, when, as in this case, it is general and unqualified, does not include the right to mortgage, and this is in accordance with the well known rule that powers should be construed strictly."

In The Albany Insurance Company v. Bay, 4 Comst. (N. Y. Court of Ap.), 9, S. had devised lands in trust to trustees, with power to "sell and dispose of such parts, in fee-simple or otherwise, as Mrs. T., the cestui que trust, by writing under her hand, should from time to time request and desire." The court (two of the eight judges dissenting and apparently laying stress upon the word "otherwise ") decided that the power did not include authority to execute a mortgage. See Cummings v. Williamson, 1 Sandf., 17; Wood v. Goodridge, 6 Cush., 117; Hubbard v. German Cath. Cong., 34 Ia., 31; Head v. Temple, 4 Heisk., 34; Page v. Cooper, 16 Beav., 400; Devaynes v. Robinson, 24 id., 86.

Viewed in the light of those principles which govern the interpretation of powers inserted in marriage settlements and other instruments, and applying the cases just cited to the power under consideration, and looking to the natural and obvious import of the words employed in creating the power to sell or exchange any portion of the property and re-invest the proceeds arising from the sale in other property upon the same limitations, trusts, etc., it is, to my mind, manifest and put beyond question or doubt that it was not the intention of the settler to confer authority to mortgage the whole or any portion of the estate for any purpose. And I think the authorities well warrant the conclusion that "a trust for sale, with nothing to negative the settler's intention to convert the estate absolutely, will not authorize the trustees to execute a mortgage." Perry on Trusts, sec. 768, 1st ed.