where a deed was made" to a school-house and the congregation thereof," though it would pass no legal estate, because, for one reason, no person competent to take is named as grantee; yet it was held to be a good declaration of trust, leaving the title to vest where it was before. "No form of words is necessary to constitute such a declaration, it being sufficient that an intention to create a trust is clear."1

10. The same doctrine applies to the case of a cestui que trust transferring the trust from himself to another. It will be sufficient for him to declare, that his trustee shall be the trustee of the other person, to whom he wishes to make over the trust, especially if such other person gives the trustee notice of the transfer.2

11. It may be remarked that where a trust has once been created in respect to real estate, it attaches to and binds itself upon the estate, and can never be detached from it, nor extinguished, except by a union of the legal and equitable estates in one person, the equitable, in such case, being merged in the legal estate.3

12. Upon the question who may make a declaration, or creates a trust which shall thus attach to an estate, it may be stated in the first place that it must be one who has the legal estate in the same. His act is the source or origin of the two estates which flow on afterwards, independent of each other in point of ownership, until they merge by being again united in one person.1

13. No one is obliged to become a trustee by the appointment of another. To constitute one such he must accept the trust [*196] by words or by some interference *with the estate which is

put in trust. But a trustee, when he has accepted the trust, cannot surrender it or discharge himself of it without the consent of the cestui que trust or direction of the court, unless there is a power to that effect given in the instrument creating the trust. Where a gift is made by deed, will, or otherwise, the law presumes it to be, prima facie, beneficial to the donee, and that it is accepted by the

1 Morrison v. Beirer,

Watts & S. 81.

21 Spence, Eq. Jur. 507.

31 Spence, Eq. Jur. 501; 1. Cruise, Dig. 403; Sand. Uses, 35.

↑ Willis, Trust. 55; Crop v. Norton, 2 Atk. 76.

Willis, Trust. 38, 72; Baldwin v. Porter, 12 Conn. 473; Lewis v. Baird, 3 McLean, 58; Scull v. Reeves, 2 Green, Ch. 84; Goss v. Singleton, 2 Head, 67; Story, Eq. 1061.

• Shepherd v. M'Evers, 4 Johns. Ch. 136; Lewin, Trusts, 457; Cruger v. Halliday, il Paige, Ch. 319; Drane v. Gunter, 19 Ala. 731; Gilchrist v. Stevenson, 9 Barb. 9; Lalor, Real Est. 195.

donee, unless the contrary is shown. to the trustee and cestui que trust.1

And this seems to apply both

14. If the person named as trustee, refuses the trust, it is treated precisely as if he were dead or had never been named. And if he be one of several named, the estate vests in such of them as do accept the trust.2 The refusal here meant is something more than a mere oral declaration made at any time; there must be some actual disclaimer of the trust on the part of the party named, or he may, at any time, assume the trust.3 It may be by deed, by matter of record, or any written evidence, or by answer in chancery. And such refusal or disclaimer will relate back, and will be held to have been made at the time of the gift. And if the trustee should

decline or refuse to act at all, the court may appoint other trustees, necessary, to carry the trust into effect.5

if

15. Whether the power and interest of a trustee survive, when given to several and one or more of them dies, depends upon the nature of the trust, and the form of the power delegated. If the authority be committed to trustees, the presumption is that, as the power was coupled with an interest, it was meant to survive. Lord Coke states the law upon this subject thus: "If a man deviseth lands to his executors to be sold, and maketh two executors, and the one dieth, yet the survivor may sell the land because as the state (estate), so the trust shall survive, and so note the diversity between a bare trust and a trust coupled with an interest."7

16. This subject of survivorship comes more properly under the head of powers, which will be found in a subsequent part

Hill, Trustees, 214; Goss v. Singleton, 2 Head, 77, and note to p. 68; Cloud v. Calhoun, 10 Rich. Eq. 358.

2 Hill, Trust. 225; King v. Donnelly, 5 Paige, Ch. 46; unless it be devise to trustees, and they all decline the trust. Trask v. Donahue, 1 Aik. 373; Putnam Free School v. Fisher, 30 Me. 526. A devise to executors, eo nomine, in trust, vests in such of them as execute the will and their survivors, though it be a trust to sell lands. Leavens v. Butter, 8 Port. 394; Scull v. Reeves, 2 Green, Ch. 94, 95; Co. Lit. 113 a; Lewin, Trusts, 428; Jones v. Maffet, 5 Serg. & R. 523; Burrill v. Sheil, 2 Barb. 457; Conover v. Hoffman, 1 Bosw. 214; Hill, Trust. 225; Goss v. Singleton, sup. p. 68 note; Saunders v. Harris, 1 Head, 185, 206.

* Judson v. Gibbons, 5 Wend. 224; McCosker v. Brady, 1 Barb. Ch. 329; Tainter

. Clark, 13 Met. 220, 227; Lewin, Trusts, 428.

Story, Eq. § 1061.

Lewin, Trusts, 428; Story, Eq. Jur. § 1062; Peter v. Beverly, 10 Pet. 564.

Hill, Trust. 224; Goss v. Singleton, sup:

Co. Lit. 113 a.

[197] *of this work, and therefore it is only necessary now to say in general terms, that if a power be a joint one coupled with an interest, it will survive if one of the donees of the power die. But where it is a mere naked authority it will not survive. So if the authority be to two or more in an official capacity, ratione officii, it will survive if either die. But if it be to them nominatim, or they

are clothed with a special confidence of a personal nature, it will not survive. The subject is much considered in the case cited below,1 in which the distinction suggested by Coke in the passage above cited, is adopted and acted upon, namely, if the trust be to several by name, they must all join in executing it; if to several executors as executors, or trustees, ratione officii, as "my trustees," "my sons," and the like, without naming them, the authority will survive so long as the plural number of such trustees, executors, and the likes remain. And the same rule, it would seem, applies where one or more of the trustees, instead of dying, decline to act as such.3 Though in New York, if one of several trustees is suffered to resign, the others cannot go on and act as if he were dead, a new trustee must be appointed in his place. It often therefore furnishes a ready clue by which to determine whether a trust in two or more persons survives upon the death of one of them or not, to examine whether it is of the nature of a personal confidence or not, for if the act to be done requires an exercise of the judgment and discretion of the several persons named as trustees, it can only be exercised by them all.5

17. And the rule to be gathered from what is above said, may be again stated, that where there are several joint trustees and one of them dies, the survivors take and are authorized to act by [198] virtue of their survivorship, in the same way as one of *two joint tenants of a legal estate takes by survivorship, unless it is a power only and one not coupled with an interest. If it is such a power, it ceases with the death of either of the trustees. A power

1 Tainter v. Clark, 13 Met. 225.

2 Hill, Trust. 473; Co. Lit. 113 a, note 146. See American cases collected in Hill, Trust. 472, Wharton's note; 1 Sugd. Pow. ed. 1856, p. 146; Peter v. Beverly, 10 Pet. 565; Zebach v. Smith, 3 Binn. 69; Conover v. Hoffman, 1 Bosw. 214; Jackson v. Given, 16 Johns. 167; Story, Eq. Jur. § 1062.

3 Co. Lit. 113 a.

5 Hill, Trust. 226.

Van Wyck's Petition, 1 Barb. Ch. 570.

• Stewart v. Pettus, 10 Mo. 755; ante, p. 170; Peter v. Beverly, 10 Pet. 564. "I devise that my executors shall sell," is a mere power. "I devise to my executors to

1

4

is considered as coupled with an interest where the trustees have a right to the possession of the legal estate, or have a right in the subject over which the power is to be executed.1

18. It is a rule of universal application, that where there is a trust, a court of equity never wants for a trustee. And if, therefore, the one who creates the trust fails to appoint a trustee, equity follows the legal estate, and decrees that he in whom it vests shall perform the trust. If a grant be to one as trustee, and to his successor, he cannot himself appoint such successor. Upon his ceasing to be trustee, this duty and power devolve upon the court.* But a court cannot appoint a new trustee merely because the existing one fails to do his duty. The course, in such a case, is to compel him to perform it.5 And if the trust is created by a will in which an executor is named but no trustee, the executor is ordinarily deemed to be the trustee by implication. Whether, therefore, the trustee named be dead or is an improper or incapable person, or refuses to act, the trust devolves upon the court whose duty it is to supply a trustee. A trust may be valid and effectual, where a trustee is named, although the cestui que trust may not then be in esse, provided such cestui que trust subsequently come into being. Thus a devise to trustees in behalf of a church or society not yet formed or organized, will be effectual, if such church or society be formed within a reasonable time. The trustees named in such a devise, retain the legal estate so long as they live, nor could the society convey the same, or elect new trustees to hold the property,

sell," gives an interest in the land. Mosby v. Mosby, 9 Gratt. 590. See also, Jackson v. Schauber, 7 Cow. 194; Bergen v. Bennett, 1 Caines, Cas. 15, 16; Story, Eq. Jur. § 1062.

1

Gray v. Lynch, 8 Gill, 403; Mosby v. Mosby, 9 Gratt. 584-594; Bloomer v. Waldron, 3 Hill, 365.

McGirr v. Aaron, 1 Penn. 49; Harris v. Rucker, 13 B. Mon. 564; Story, Eq. Jur. 1959; 1 Cruise, Dig. 403, 460; 1 Spence, Eq. Jur. 501; 2 id. 876; Co. Lit. 290 b, note 249, § 4; Wilson v. Towle, 36 N. H. 129; Hill, Trust. 49; Cloud v. Calhoun, 10 Rich. Eq. 358; Miller v. Chittenden, 2 Iowa, 315, 370, 376; White v. Hampton, 10 Iowa, 244, s. c. 13 Iowa, 261.

3 Co. Lit. 290 b, note 249, § 4; Stone v. Griffin, 3 Vt. 400.

Wilson v. Towle, 36 N. H. 129.

5 Tainter v. Clark, 5 Allen, 66.

Nash v. Cutler, 19 Pick. 67; Hall v. Cushing, 9 Pick. 395; Saunderson v. Stearns,

6 Mass. 37; Dorr v. Wainwright, 12 Pick. 328.

Burrill v. Shiel, 2 Barb. 457; 1 Spence, Eq. Jur. 501; 1 Cruise, Dig. 460; Gibbs v. Marsh, 2. Met. 243.

* Miller v. Chittenden, 2 Iowa, 372, 376. Ante, p. *115.

although the usages of such society be to have their property held and managed by trustees of their own election. The court may appoint a new trustee as a substitute for or in addition to an existing one, or may appoint one where there is none, or may discharge an existing trustee upon his own application.2 This applies, [*199] also, where a trustee becomes a lunatic, or *leaves the country, or dies without heirs, or leaves only an infant heir. Thus it was held in Massachusetts, that the supreme court had the authority to allow a trustee to resign his trust, as incident to the general equity jurisdiction of the court, notwithstanding the statute gives an authority upon the same subject. And in this respect the law in England and this country substantially coincides, since the subject of appointing one trustee upon the resignation of another, is regulated by legislation, as well as conferred by the general rules of law which limit and define the powers of courts of equity."

19. By the late English statutes, and in this the statutes of several of the United States concur, where a new trustee has been appointed by the court in the place of a former one, it operates to pass to him the legal estate which had been in the former trustee, without any further act of conveyance or release on the part of the latter.6

20. It should, however, be borne in mind, that at common law, upon the death of a trustee, his estate descended charged with the trust to his heirs. And upon his removal and the appointment of a new one, it was necessary that a conveyance should be made in form from him to the new trustee, in order to pass the estate. All that

1 Peabody v. Eastern Methodist Society, 5 Allen, 540.

2 Wms. Real Prop. 143; Hill, Trust. 190, 191, Wharton's note for American cases; Lewin, Trusts, 592, 593. In New York, this may be done by the Supreme Court. Lalor, Real Est. 194, 196. In Massachusetts, it may be either by the Supreme Court, or Court of Probate. Gen. Stat. ch. 100.

3 Wms. Real Prop. 143; Suarez v. Pumpelly, 2 Sandf. Ch. 337.

Bowditch v. Banuelos, 1 Gray, 220.

6 Wms. Real Prop. 143; Stat. 13 and 14 Vict. ch. 60, 15 and 16 Vict. ch. 55; 4 Kent, Com. 311, note; Mass. Gen. Stat. ch. 100, § 8; The People ». Norton, 5 Seld. 176; Hill, Trust. 190. But see Van Wyck's Petition, 1 Barb. Ch. 565.

6 Wms. Real Prop. 143; Stat. 15 and 16 Vict. ch. 55, § 1; Mass. Gen. Stat. ch. 100, § 9; Parker v. Converse, 5 Gray, 336, 341. So in South Carolina, McNish v. Guerard, 4 Strobh. Eq. 66. For American statutes, as well as cases upon the appointment of new trustees, the reader is referred to Hill on Trustees, Whart. ed. 190, 191, notes; Lalor, Real Est. 194, 195.