17. Although it is so often laid down by courts and writers that cestuis que trust have a right to compel their trustees to suffer them to occupy the trust-estates, and to require of them to make conveyances thereof as the cestuis que trust shall direct,1 and it has accordingly been held that a sale by a trustee, by consent of a cestui que trust, would pass a good title,2 it is apprehended that the general proposition can be true, to its full extent, only in respect to simple, or what are sometimes

called dry trusts, where the cestui que trust is entitled [*210] to the exclusive benefit of the land, and the trustee

is, by nature of the trust, merely passive in respect to it. The cases above referred to are those where the pernancy of the profits, and the disposition of the estate, the jus habendi and the jus disponendi, are intended to be in the cestui que trust; for, when other parties are interested in the estate, it rests in the discretion of the court whether the actual possession shall remain with the cestui que trust or the trustee ; and if possession be given to the cestui que trust, whether he shall not hold it under certain conditions and restrictions.4 But where land was conveyed to A in trust for B during her life, and then in trust for such of her children as should be living at her death, the court refused her application to have the trustee convey the estate to her as tenant in tail to enable her to bar the remainder, it being a contingent one.5

18. Where it is a simple or dry trust, courts of equity will give the cestui que trust possession, or require the trustee to convey the estate as the cestui que trust may direct. But a trustee can only be divested of his right of possession by a decree of a court of equity. If trusts are passive, the cestuis que trust have a right to control the estate; if active, then the

1 1 Cruise, Dig. 448; Lewin, Trusts, 2d ed. 470; Hill, Trust. 278.

2 Arrington v. Cherry, 10 Ga. 429.

3 Lewin, Trusts, 2d ed. 470; 1 Cruise, Dig. 449; Hill, Trust. 273, 279; Battle v. Petway, 5 Ired. 576; Vaux v. Parke, 7 W. & S. 19; Barnett's Appeal, 46 Penn. St. 399.

4 Lewin, Trusts, 2d ed. 470, 480; Hill, Trust. 278; Battle v. Petway, 5 Ired. 576; Williamson v. Wilkins, 14 Ga. 416; Shankland's Appeal, 47 Penn. St. 113. Harris ". McElroy, 45 Penn. 216.

Hill, Trust. 278; Lewin, Trusts, 2d ed. 470; Stewart ". Chadwick, 8 Iowa

Guphill v. Isbell, 1 Bail. 230; Presley v. Stribling, 24 Miss. 527.

trustees. Passive trustees cannot recover the land from the possession of the cestui que trust or his assignee, and such cestui que trust may compel the trustee to convey the estate for his benefit. The trust which arises in favor of one who pays the consideration upon the purchase of an estate is a passive one.1 In a court of law, on the contrary, a cestui que trust is a tenant at will or at sufferance of his trustee ; and the latter may recover against him in an action of ejectment for the possession of the premises, and he will not be admitted to deny his trustee's title. And if, in the case of an express trust, he enters into the premises in accordance with the terms thereof, the mere possession by him, and receiving the rents and profits, cannot be adverse.2 Nor can a cestui que trust maintain such an action in his own name against any other tenant; for, in ejectment, the legal title alone is the matter regularly put in issue. If he sues at all, it must be in the name of his trustee, even though the trust be that of a mortgage. The law in some of the States admits of an exception to this rule, so far that, if entitled to the enjoyment of the estate, a cestui que trust may maintain ejectment in his own

name.5

1 Fitzpatrick v. Fitzgerald, 13 Gray, 400; Sawyer v. Skowhegan, 57 Mo. 500508.

Ripley v. Bates, 110 Mass. 162.

3 Heard v. Baird, 40 Miss. 800.

Ante, vol. 1, p. 377; Matthews v. Ward, 10 Gill & J. 456; Jackson v. Pierce, 2 Johns. 226; Beach v. Beach, 14 Vt. 28; Gunn v. Barrow, 17 Ala. 743; Lewin, Trusts, 2d ed. 476. See Hill, Trust. 274, Wharton's note, for the American cases on the question who shall bring actions in regard to the legal estate; Jackson v. Van Slyck, 8 Johns. 487; Jackson v. Deyo, 3 Johns. 422; Goodtitle v. Jones, 7 T. R. 47; Doe v. Wroot, 5 East, 182; Roe v. Read, 8 T. R. 123; Norton v. Leonard, 12 Pick. 152; Somes v. Skinner, 16 Mass. 348. So the trustee may have waste against his cestui que trust. Woodman v. Good, 6 W. & S. 169; White v. Albertson, 3 Dev. 241; Freeman v. Cooke, 6 Ired. Eq. 373.

5 In Mississippi, where a trust has been satisfied. Brown v. Doe, 7 How. (Miss.) 181. The contrary is held in Ohio. Moore v. Burnet, 11 Ohio, 334. But in Pennsylvania the cestui que trust may sue if entitled to the enjoyment of the estate. Presbyterian Cong. v. Johnston, 1 W. & S. 9; School Directors v. Dunkleberger, 6 Penn. St. 29. Real estate or any interest therein held in trust is liable to process at law against the cestui que trust in the following States by statute in New York, 2 Rev. Stat. 4th ed. p. 616, § 35; Stat. at Large, vol. 2, p. 381, § 26; in Maryland, Stat. 1795, c. 56, and Stat. 1810, c. 160; Code, 1860, vol. 1, art. 83, p. 586; in Virginia, Code, 1849, p. 502, c. 116, § 16; 1873, c. 113, § 16; in North Carolina, Rev. Code, 1854, c. 45, § 4, p. 275; Battle's Revis. 1873, c. 44, § 4; in Kentucky, 2 Rev. Stat. 1860, Stanton's ed. c. 80, § 23, p. 230; Gen.

[*211] *19. If the trust be a special one, the trustee may exercise a proprietary power and control over the trust-estate, so far as the execution of the trust may render it necessary to invest him with these.

And where the power of a trustee ceases by the limitation contained in the trust itself, he can no longer hold possession of the estate, and may be compelled to reconvey it.2

20. There is one class of trusts where equity follows the estate into the hands of bona fide purchasers, although the sale be made in conformity with the power and duty of the trustee; and that is where devises of lands are made to trustees to sell for the payment of certain specific debts, or to apply the money to certain specific purposes. The purchaser in such cases is bound to see that the money is properly applied; otherwise the land may be charged in such purchaser's hands with the trust of paying such debts or the execution of such purpose. But this doctrine is confined to cases where the trust is of a limited and defined nature, and does not extend to one of a general character, such as the payment of a testator's debts or legacies generally, without specifying or defining them. And the reason for the distinction is, that in one case the purchaser is apprised, by the terms of the power of the trustee, of the specific purposes for which the money

is to be applied, and may protect himself by seeing [*212] that this is done; in the other he has no means of

knowing what debts, and the like, are to be paid, nor to whom. So where the trustee is to sell at his discretion at Stat. 1873, c. 63, § 21, p. 588; in Georgia, Cobb's New Dig. 1851, p. 1128, § 10, re-enacting Stat. 29 Charles II. c. 3. The trust-estate is liable for debts of cestui que trust for necessaries furnished in case the trustee does not provide them. Code, 1873, § 2336, p. 408; in Mississippi, Rev. Code, 1857, p. 308, art. 12; Rev. Code, 1871, § 2295, p. 501; in Arkansas, Dig. Stat. 1858, p. 505, c. 68, § 83; in Indiana, 2 Rev. Stat. 1852, p. 153, § 526; 2 Stat. 1862, p. 263, § 526.

1 Lewin, Trusts, 2d ed. 470; Hill, Trust. 273; McCosker v. Brady, 1 Barb. Ch. 329; Barnett's Appeal, 46 Penn. St. 399.

2 Waring v. Waring, 10 B. Mon. 831.

Story, Eq. Jur. § 1127; Duffy v. Calvert, 6 Gill, 487; Gardner v. Gardner, 8 Mason, 218; Dunch v. Kent, 1 Vern. 260; Spalding v. Shalmer, 1 Vern. 301; 1 Cruise, Dig. 450.

Story, Eq. Jur. § 1130; 1 Cruise, Dig. 451; Potter v. Gardner, 12 Wheat. 498; Andrews v. Sparhawk, 13 Pick. 393; Stall v. Cincinnati, 16 Ohio St. 169 177; Urann, Coates, 117 Mass. 44.

public or private sale, the purchaser is not bound to see to the application of the purchase-money. And when the trust is recorded, the purchaser is charged with notice of what it is. And if the sale were made for other purposes than the execution of the trust, the court may in their discretion set it aside if this was known to the purchaser. And where executors were authorized to sell, if in their judgment it should be necessary, a purchaser is not bound to see to the application of the purchase-money.2

21. Formerly it was a doctrine of universal application, that, a trust being a matter of honor and personal confidence, a trustee was not entitled to charge compensation for his services. But this has not been generally adopted in this country, and the doctrine is undergoing a change in England. In Illinois, he can only charge for necessary expenditures incurred in preserving and managing the trust-property, unless a compensation be previously stipulated for. And the same rule prevailed in New Jersey till the subject was regulated by statute.

SECTION V.

TRUSTS UNDER THE LAW OF NEW YORK.

THE law as to trusts as well as uses has been materially modified by statute in New York, which has led to several important rulings of their courts, to which it is proposed briefly to refer, rather by way of showing what departures have been made from the general system of trusts, as above explained, than of giving a complete outline of the present system prevailing there. The statute referred to is art. 2, tit. 2, c. 1,

1 Nicholls v. Peak, 1 Beasley (N. J.), 69.

2 Davis v. Christian, 15 Gratt. 11.

8 Story, Eq. Jur. § 1268; Barrell v. Joy, 16 Mass. 221; Denny v. Allen, 1 Pick. 147; Meacham v. Sternes, 9 Paige, Ch. 398; Wagstaff v. Lowerre, 23 Barb. 209.

Constant v. Matteson, 22 Ill. 546; Warbass v. Armstrong, 2 Stockt. Ch. 263. 5 For much of what follows, reference has been had to "The Law of Real Property of the State of New York," by Mr. Lalor. The law of Alabama is substantially like that of New York on this subject. 412, 413.

You v. Flinn, 34 Ala.

part 2d, of the Revised Statutes of New York of 1827. The object of the act was to abolish all trusts where, by the English statute of uses, the legal estate would be executed in the person entitled to the equitable estate, and to declare them. legal estates in the cestuis que trust,1 extending this principle to trust-terms where the cestuis que trust are to have the benefit of the possession of the estate. So where the property conveyed in a deed has been given to the grantee merely, as a trustee for others, and not for his own benefit, he will take no legal title or beneficial interest under such deed. And if the cestui que trust be not named or ascertained, the limitation

would be wholly void. Nor will the form in which [*213] *the trust is limited make any difference where the purpose and intention are to secure the enjoyment or possession of the property to another than the grantee named. Thus limitation to A to his use, to the use of or in trust for B, would give nothing to A, and the legal and equitable estates would unite in B.5 But what are known as active trusts are not affected by the statute: they remain as they were before its passage. Thus a grant to A in trust to pay the rents to B, a married woman, during her life, and after her death to convey to her children, is a good trust-estate for the life of B. In such case, the trust would cease at the death of the cestui que trust for life, and the remainder would become an executed use in the one who is to take the estate; as where the trust was for A during life, and at his death to convey the estate to B, the estate is executed in B without any further act by the trustee. A grant in trust for two purposes, one lawful and the other not, would create a valid trust

1 Lalor, Real Prop. 125; Coster v. Lorillard, 14 Wend. 365-399.

2 Rev. Stat. 1827, pt. 2, art. 2, tit. 2, c. 1, § 47; Lalor, Real Prop. 155, 157; Nicoll v. Walworth, 4 Denio, 885; Knight v. Weatherwax, 7 Paige, Ch. 182. 3 Lalor, Real Prop. 157; LaGrange v. L'Amoreux, 1 Barb. Ch. 18. So in Minnesota, Sumner v. Sawtelle, 8 Minn. 818.

4 Hotchkiss v. Elting, 36 Barb. 44.

5 Rev. Stat. 1827, and 5th ed. 1859, pt. 2, art. 2, tit. 2, c 1, § 49; Stat. at Large, vol. 1, p. 677, § 49; Lalor, Real Prop. 158; Wood v. Wood, 5 Paige, Ch. 596.

6 Rev. Stat. 1827, pt. 2, art. 2, tit. 2, c. 1, § 48; Lalor, Real Prop. 157; Cushney v. Henry, 4 Paige, Ch. 345; Judson v. Gibbons, 5 Wend. 224.

7 Wood v. Mather, 38 Barb. 477.

• Matter of Livingston, 34 N. Y. 567.