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the court of equity could do, in making such a transfer, was to compel the holder of the legal estate to execute proper conveyances thereof.
21. It is therefore to be assumed, that in all cases except *where special provision is made to the contrary by statute, [*200] the interest and estate of a trustee can only be divested by a conveyance thereof, even though he be removed from his trust and another appointed by the court in his place. To complete the appointment of such new trustee, the court directs and requires the one in whose place he is appointed, to execute a proper conveyance of the legal estate to the new trustee. And the abandonment of a trust by one of two trustees does not vest his title in the remaining trustee.
22. When a trustee has been appointed in the place of another, and a proper conveyance has been executed to the new trustee of the estate held in trust, he ordinarily becomes as completely substituted thereby in the place of the other and with as full powers, as if he had been invested originally with the trust.4 The exception to this is, where the original trustee had been vested with a special power indicating personal confidence, which, in some cases, the new trustee may not execute.
23. While it is a settled principle that courts of equity will not enforce an illegal trust, yet if a trust is once established as valid, neither the act of the law, as distinguished from equity, nor of the trustee in dealing with the estate, can impair or affect the equitable estate of the cestui que trust, unless it be by a conveyance which, from the circumstances under which it is made, will be held valid in order to pre
| Lalor, Real Est. 194, 195 ; Berrien v. McLane, Hoffm. Ch. 420; Van Wyck's Petition, 1 Barb. Ch. 570. In New York, trust estates do not descend upon the death of the trustee, the trust vests in the court. Lalor, Real Est. 193. The law is the same as to the descent of trust estates in Michigan and Wisconsin, as in New York. Hill, Trust. 303, note.
? Hill, Trust. 186, 196 ; O'Keefe v. Calthorpe, 1 Atk. 17; Lewin, Trusts, 594; Ex parle Greenhouse, 1 Madd. 109; Lee, Abst. 252; 1 Cruise, Dig. 460.
3 Webster v. Vandeventer, 6 Gray, 428.
5 Lewin, Trusts, 596 ; Hill, Trust. 211; Doyley v. Attorney General, 2 Eq. Cas. Abr. 195 ; Hibbard v. Lamb, Ambl. 309.
* Willis, Trust. 38; Attorney General v. Pearson, 3 Meriv. 399. For what would be illegal trusts, see Willis, Trust. 38, Law Lib. ed. note.
vent injustice being done to innocent parties; as where, for instance, a trustee being in possession of the estate as the ostensible owner,
conveys the same for a valuable consideration to one who is [*201] ignorant of the trust. "And this principle extends to mort
gages. On the other hand, no conveyance by a cestui que trust can divest the trustee of his legal estate.3
24. A trustee may devise his estate by his last will, in which case his devisee becomes substituted to his place, if the trust be a several one, or if he dies intestate, his estate will descend to his heirs, who are charged with the trust for which he held it. Nor can such heir disclaim the trust, except by applying to the court to have another appointed in his place: This does not apply, of course, in the case of several trustees, where, as is usually the case, they are joint-tenants, except at the death of the last survivor, since in such a case the survivor takes the whole and the heir nothing, unless he is heir of the last survivor. Nor does it apply where the trust is a special and personal one in the original trustees.7
25. As the owner of the legal estate, a trustee may convey the same, and thereby pass the legal title to the same to his grantee. But if the conveyance be what is called a voluntary one, that is without consideration, or if though with a consideration, it be made to one cognizant of the trust, the grantee will take the estate subject to the trust, and become as to it a trustee in place of his grantor.8 It has accordingly been held, that the purchaser of an estate at a sheriff's sale, takes it discharged of all secret trusts of which he
1 Wolfe v. Bate, 9 B. Mon. 208 ; Major v. Deer, 4 J. J. Marsh. 585; Boynton v. Hoyt, 1 Denio, 53; 2 Fonbl. Eq. 167 and n.; 1 Cruise, Dig. 449 ; Pye v. Gorge, 1 P. Wms. 128; Reading of Trowbridge, 3 Mass. 577; Hill, Trust. 282; Thomson v. Gilliland, Addis. 296 ; Conner v. Tuck, 11 Ala. 794 ; Bumpus v. Platner, 1 Johns. Ch. 213; Brydges v. Brydges, 3 Ves. 127; Selby v. Alston, 3 Vés. 341, 342, note; Den v. Troutman, 7 Ired. 155.
2 2 Fonbl. Eq. 167, note; Finch v. Winchelsea, 1 P. Wms. 278. 8 i Cruise, Dig. 407.
• Lewin, Trusts, 218; Marlow v. Smith, 2 P. Wms. 198; Titley v. Wolstenholme, 7 Beav. 425; 1 Cruise, Dig. 407.
6 Hill, Trust. 303; Boone v. Chiles, 10 Pet. 213; Duffy v. Calvert, 6 Gill, 487; Willis, Trust. 53 ; 4 Kent, Com. 311, 8th ed. note ; Shortz v. Unangst, 3 W. & S. 45. • Lewin, Trusts 238; Hill, Trust, 303.
7 Hill, Trust. 303. 8 Willis, Trust. 84; Hill, Trust. 175, 282; Co. Lit. 290 b, n. 249, $ 2; Hallett o. Collins, 10 How. 174; Heth v. Richmond R. R. Co. 4 Gratt. 482; Den v. Troutman, 7 Ired. 155; Lee, Abst. 237.
had no notice. And it was further *held, that a trust in [*202] . respect to such estate could not be established by parol.2
26. The power of a trustee to convey an absolute estate to an innocent purchaser, is so well recognized, that even trustees, to preserve contingent remainders, may by joining with the tenant for life, whose estate was to support the contingent remainder, convey a good estate and defeat the remainder before it becomes vested. But if the purchaser knew of the trust, he would himself become the trustee. This, however, is stated rather by way of illustration, than as having any practical bearing, since in few, if any of the States now, can a contingent remainder be defeated by a conveyance of the particular estate that supports it, and it is, moreover, rarely possible for one to convey a trust estate without notice, where the instrument by which the estate is held contains a declaration of the trust, from the universal rule requiring deeds to be recorded.
27. If the legal and equitable estates in land become united in the same person in any way, the trust is extinguished, since no man can be a trustee for himself. 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.5 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 co*extensive interest in each, with no intervening' interest in [*203] another. A legal estate in fee in one who has only a partial equitable interest, or vice versa, would not merge. To have this
i Smith v. Painter, 5 S. & R. 223.
Leshey v. Gardner, 3 W. & S. 314. & 2 Flint. Real Prop. 787.
Healy, v. Alston, 25 Miss. 190; 3 Prest. Conv. 314, 327; Butler v. Godley, 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. .
6 Cooper v. Cooper, 1 Halst. Ch. 9.
6 Lewin, Trusts, 363, 364 ; Downes v. Grazebrook, 3 Meriv. 208. See Ayliffe v. Murray, 2 Atk. 59.
* Lewin, Trusts, 18; Hill, Trust. 252; Selby v. Alston, 3 Ves. 339, 342, note;
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.3 So a husband, before marriage, may, by contract in writing, invest his future 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.
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.“ [*204]
*30. It should be borne in mind, that in its action 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 bis estate." Moreover, because equity acts only upon the person charged with a
Goodright v. Wells, Doug. 771; Donalds v. Plumb, 8 Conn. 453 ; Brydges v. Brydges, 3 Ves. 126; James u. Morey, 2 Cow. 284; Hunt v. Hunt, 14 Pick. 374,384.
i i Spence, Eq. Jur. 572; 2 Flint. Real Prop. 811.
2 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.
8 2 Flint. Real Prop. 797 ; Willis, Trust. 33; Sand. Uses, 349; Bennet v. Davis, 2 P. Wms. 316 ; Porter v. Bank of Rutland, 19 Vt. 410. 4 2 Flint. Real Prop. 798, 799.
5 Tud. Lead. Cas. 485. Lewin, Trusts, 19; Brydges v. Brydges, 3 Ves. 126, 127 ; Donalds v. Plumb, 8 Conn. 453; James v. Morey, 2 Cow. 318; Hunt v. Hunt, 14 Pick. 374, 383; Gibson v. Crehore, 3 Pick. 475; Starr v. Ellis, 6 Johns. Ch. 393; Forbes r. Moffatt, 18 Ves. Sumn. ed. 384 and note ; 3 Prest. Conv. 557 ; Laussat, Fonbl. Eq. 426 and notes.
7 Co. Lit. 290 b, note 249, $ 5.
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. ch. 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.?
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.
13. Trustees not responsible for each other.
16. Trustee may not make profit to himself.
19. When trustee may hold possession of the estate.
Of compensation to trustees.
1. It remains to be considered what, if a trust as to lands is es-tablished, are the respective rights, powers, and duties of the trustees and cestuis que trust, in respect to such trust estates. In the first place, all persons capable of confidence and of holding real es-tate may be trustees, with the exception of married women, who are so far restricted that they cannot ordinarily be trustees for their
Ante, Vol. I. pp. *311-313.
i Coates r. Woodworth, 13 Ill. 634. VOL. II.