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merged in the legal estate. Thus where one, who was a trustee for his children, made a general devise of his estate to them, and died, it was held, that whether the legal estate thereby became vested in them, or descended to them by act of law, the legal estate having become united with the equitable one, the latter was merged in the former, and the children thereby became absolute owners thereof. And the same would be the effect if the trustee buy the interest of the cestui que trust, which he may do if done with good faith. But, to have the union operate a merger, the estates must unite in

one and the same person, having a commensurate and [*203] * coextensive interest in each, with no intervening in

terest in another. A legal estate in fee in one who has only a partial equitable interest, or vice versa, would not merge. To have this effect, moreover, the trustee must not have acquired the estates by violating any duty belonging to him as trustee; as, for instance, by purchasing himself the trust-property held by him in trust to sell. If the trustee be one of the beneficiaries of the trust, he is the absolute owner of a share of the estate equal to his interest."

28. Where an estate is conveyed to a married woman, expressly to her sole and separate use, a court of equity will hold her husband as her trustee, and not allow him to claim the rents and profits thereof as his own; and if he become bankrupt, these will not pass to his assignees. So a husband, before marriage, may, by contract in writing, invest his future

1 Dev. 94; Nicholson v. Halsey, 1 Johns. Ch. 422; Brydges v. Brydges, 3 Ves. 126; 1 Spence, Eq. Jur. 508; 2 Flint, Real Prop. 774; Hill, Trust. Whart. ed. 252 and note for American cases; Lewin, Trusts, 18.

1 Hopkinson v. Dumas, 42 N. H. 306, 308; Nicholson v. Halsey, 1 Johns. Ch. Gardner v. Gardner, 3 Johns. Ch. 53.

417;

2 Cooper v. Cooper, 1 Halst. Ch. 9.

8 Lewin, Trusts, 363, 364; Downes v. Grazebrook, 3 Meriv. 208. See Ayliffe v. Murray, 2 Atk. 59.

4 Lewin, Trusts, 18; Hill, Trust. 252; Selby v. Alston, 3 Ves. 339, 342, note; Goodright v. Wells, Doug. 771; Donalds v. Plumb, 8 Conn. 458; Brydges v. Brydges, 8 Ves. 126; James v. Morey, 2 Cow. 284; Hunt v. Hunt, 14 Pick, 374, 884 1 Spence, Eq. Jur. 572; 2 Flint, Real Prop. 811.

6 Mason v. Mason, 2 Sandf. Ch. 432, 459, s. c. Mason v. Jones, 2 Barb. 229, 242; James v. Morey, 2 Cow. 284, per Woodworth, J.

7 2 Flint, Real Prop. 797; Willis, Trust. 88; Sand. Uses, 349; Bennet v Davis, 2 P. Wms. 316; Porter v. Bank of Rutland, 19 Vt. 410.

wife with the power of separate enjoyment and disposal of an estate, which power equity will support and enforce if it is distinct and unequivocal in its character. But the law does not change the legal estate into an equitable one, or affect the legal ownership of the same, by making the husband her trustee in respect to the same.2

29. But there is, after all, a principle recognized by courts of equity, which controls their decisions in all questions of merger of the equitable in the legal estate; and that is, that if it is necessary for purposes of justice, or to effect the intent of the donor, that the two estates should be kept distinct, there will be no merger by their merely coming together in one person. 3

*30. It should be borne in mind, that, in its action [*204] upon trusts, equity can only reach the thing itself through the person of the trustee, and if he have not an estate in the land commensurate to the trust declared, equity cannot enlarge his estate. "It is contrary to the principles of equity jurisprudence to make a court of equity perform the office of a court of common law."5 Moreover, because equity acts only upon the person charged with a trust, he may be held to answer as to the nature and extent of the trust, though it is one which is susceptible of being proved aliunde.

31. Trust terms long held an important place in the subject of trusts in England; but from the modification of the law in regard to them by statute 8 and 9 Vict. c. 112, and their not being in use in this country, it is not deemed advisable to add any thing upon the subject beyond what is found in a former part of this work.”

1 2 Flint, Real Prop. 798, 799.

2 Tud. Lead. Cas. 485.

8 Lewin, Trusts, 19; Brydges v. Brydges, 3 Ves. 126, 127; Donalds v. Plumb, 8 Conn. 453; James v. Morey, 2 Cow. 818; Hunt v. Hunt, 14 Pick. 874, 383; Gibson v. Crehore, 3 Pick. 475; Starr v. Ellis, 6 Johns. Ch. 393; Forbes v. Moffatt, 18 Ves. Sumn. ed. 384 and note; 3 Prest. Conv. 557; Laussat, Fonbl. Eq. 426 and notes. Earlé v. Washburn, 7 Allen, 97.

4 Co. Lit. 290 b, note 249, § 5.

• Coates v. Woodworth, 13 Ill. 654.

Sibley v. Rider, 54 Me. 467. 1 Ante, vol. 1, pp. *811-*313.

SECTION IV.

RIGHTS, POWERS, AND DUTIES OF PARTIES TO TRUSTS.

1-3. Who may be trustees, and who cestuis que trust.

4. Of dry and active trusts.

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6. Rules of law as to ownership and possession of the legal estate.

7. A trust may not be delegated by a trustee.

8. Several trustees constitute a single person.

9. In public trusts, majorities may act.

10. Trusts ordinarily survive if more than one trustee.

11. Powers must be jointly executed.

12. Of supplying places of joint-trustees.

13.

14, 15.

Trustees not responsible for each other.

Courts of equity enforce performance of trusts. 16. Trustee may not make profit to himself.

17, 18.

Of the right of cestui que trust to control the estate.
19. When trustee may hold possession of the estate.
20. Liability of purchaser of trust-estate as to the fund.
21. Of compensation to trustees.

1. Ir remains to be considered what, if a trust as to lands is established, are the respective rights, powers, and duties of the trustees and cestuis que trust in respect to such trustestates. In the first place, all persons capable of confidence and of holding real estate may be trustees, with the exception of married women, who are so far restricted that they cannot ordinarily be trustees for their husbands. But in Iowa, Massachusetts, and Maine, it seems that wives may be trustees like femes sole. So any person capable of taking any conveyance of land may acquire an equitable interest therein, and become a cestui que trust.3 An infant may be a trustee, and compellable to execute his trust.4

2. It is no objection to a person being a cestui que [*205] trust that he is unknown or unascertained, or even not in esse, when the trust is created in his favor

1 Willis, Trust. 33; Sand. Uses, 349. And this includes the king in England,

and a State in this country. Pinson v. Ivey, 1 Yerg. 325, 332.

2 Claussen v. La Franz, 1 Iowa, 237, 239; Springer v. Berry, 47 Me. 838 ante, p. 174; Mass. Stat. 1869, c. 409.

3 Willis, Trust. 84; Hill, Trust. 52.

4 Irvine v. Irvine, 9 Wall. 69.

The trust takes effect in him whenever he is ascertained or comes into being. Nor will it affect the validity of the trust that the cestui que trust is ignorant of its creation, since he can enforce it when it comes to his knowledge.1

3. Nor are corporations incapable of being either trustees or cestuis que trust within the scope of the purposes for which they were created.2

4. What the rights and duties of trustees and cestuis que trust are must of course depend very much upon the nature of the trusts in respect to which they sustain these relations. But the interest of a cestui que trust is considered an interest in real estate within the meaning of the statute of frauds, so as to require a contract in relation to the same to comply with the requirements of that statute in order to be valid. And in New Hampshire the interest of a cestui que trust in land may be levied on by a creditor as real estate. Thus, in one class of these, the trustee simply holds the legal estate, while the law construes and determines the nature of the trust.5 Such a one is called "a mere dry trustee." But, in the class denominated special trusts, the trustee is required to exert himself actively in executing the same, as where the trust is to sell lands, pay debts, &c.7

5. The subject presents itself in two points of view: one respects the manner in which they are regarded by courts of law, the other the rules by which they are governed by courts of equity. By the common law, the trustee, as owner of the legal estate, might convey or incumber it during his life, and dispose of it at his death; or, in case of his dying intestate, it would descend to his heirs.8 But in equity, whoever purchases or acquires the legal estate from the trustee, with the

1 Willis, Trust. 35; Hill, Trust. 52, and note for American cases; Ashhurst v. Given, 5 Watts & S. 323; Bryant v. Russell, 23 Pick. 508, 520. Devises for charitable and religious uses come under this rule. Vidal v. Girard, 2 How. 193, 196; Bartlet v. King, 12 Mass. 537; Going v. Emery, 16 Pick. 107, 118; Inglis v. Trustees S. S. Harbor, 3 Pet. 99; Miller v. Chittenden, 2 Iowa, 315 et seq.

2 Phillips Academy v. King, 12 Mass. 546; Sutton v. Cole, 2 Pick. 232; Willis, Trust. 33-35; 1 Cruise, Dig. 403; Amherst Academy v. Cowls, 6 Pick. 427; Vidal v. Girard, 2 How. 127; Ang. & Ames, Corp. § 168.

* Richards v. Richards, 9 Gray, 314.

Lewin, Trusts, 23.

7 Lewin, Trusts, 2d ed. 23.

4 Upham v. Varney, 15 N. H. 464.

6 Hill, Trust. 278.

8 Ante, p. *201.

*

exceptions mentioned on a former page, holds it him[206] self as trustee for the benefit of the cestui que trust; and neither he nor his grantee can incumber it, or charge it with his own debts, or render it subject to the dower or curtesy of his wife or her husband. The trust fastens upon the land, and supersedes all these charges and incumbrances. But a conveyance in which both the trustee and cestui que trust join will pass a clear title to the purchaser, if they are otherwise competent to make a deed.2

6. Thus a trustee may not only bring and maintain an action in a court of law respecting the estate held in trust, but he is the only one who can maintain such action, since a cestui que trust, though in equity the owner of the estate, is a stranger to it in the eye of the law, or at best a mere tenant at will or at sufferance. And, while holding under his trustee, he cannot be said to be so adversely possessed as to affect a conveyance made by the trustee of the legal estate. But one trustee cannot sue a co-trustee in trespass, in respect to the trust-estate, so long as he remains a trustee. The trustee may recover in ejectment in a court of law against his own cestui que trust.5 And, as a duty corresponding to this legal ownership of the trust-estate, a trustee is bound to cause the taxes, the interest on incumbrances, assessments, and expenses of repairs upon the premises, to be paid out of the income of the estate.

7. In those cases where there is a confidence in the trustee, and this is always deemed to be the case, unless the instrument creating the trusts authorizes the employment of another, and a delegation of power to such third person, the office and duty of a trustee cannot be delegated except so

1 Ante, p. *201.

Newton v. McLean, 41 Barb. 289.

4 Trustees, &c. v. Stewart, 27 Barb. 553.

2 Parker v. Converse, 5 Gray, 336.

5 Lewin, Trusts, 475; 1 Cruise, Dig. 414; Mordecai v. Parker, 3 Dev. 425; Russell v. Lewis, 2 Pick. 508, 510; Allen v. Imlet, 1 Holt, 641; Hill, Trust. 274, and Wharton's note for American cases. But see Kennedy v. Fury, 1 Dall. 72; ante, vol. 1, pp. *376, *377; Fitzpatrick v. Fitzgerald, 13 Gray, 400; Peabody v. Harvard College, 10 Gray, 283; Essex Co. v. Durant, 14 Gray, 447; Brown v. Combs, 5 Dutch. 36, 40.

• Hepburne v. Hepburne, 2 Bradf. 74.

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