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husbands. But in Iowa and Maine, it seems that wives may be trustees like femes sole. So any person capable of taking any con

? veyance of land, may acquire an equitable interest therein, and become a cestui que


2. It is no objection to a person being a cestui [*205] that *he is unknown or unascertained, or even not in esse,

when the trust is created in his favor. 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.4

3. Nor are corporations incapable of being either trustees or cestuis que trust within the scope of the purposes for which they were created.5

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. Thus in one class of these the trustee simply holds the legal estate, while the law construes and determines the nature of the trust. Such an one is called " a mere dry trustee.” 8 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.'


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.

* Claussen v. La Franz, 1 Iowa, 237, 239 ; Springer v. Berry, 47 Maine, 338; ante, p. *174.

8 Willis, Trust. 34 ; Hill, Trust. 52.

4 Willis, Trust. 35; Hill, Trust. 52, and note for American cases; Ashhurst v. Given, 5 Watts & $. 323; Bryant v. Russell, 23 Pick. 598, 520. Devises for chari. table 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.

6 Phillips Academy v. King, 12 Mass. 546; Sutton v. Cole, 3 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. 6 Richards v. Richards, 9 Gray, 314.

7 Lewin, Trusts, 23. 8 Hill, Trust. 278.

9 Lewin, Trusts, 2d ed. 23.

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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 encumber it during his life, and dispose of it at his death ; or, in case of his dying intestate, it would descend to his heirs. But in equity, whoever purchases or acquires the legal estate from the trustee, with the exceptions mentioned on a former page, holds it himself as trustee for the *benefit of the cestui que trust, and [*206] neither he nor his grantee can encumber it, or charge it with his own debts, or render it subject to the dower or curtesy of his or her wife or husband. The trust fastens upon the land and supersedes all these charges and encůmbrances. 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. 3

6. Thus a trustee may not only bring and maintain an action in a court at 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. 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. And, as a duty corresponding to this legal ownership of the trust estate, a trustee is bound to cause the taxes, the interest on encumbrances, assessments

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




Ante, p.



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? Ante, p. *201. * Parker v. Converse, 5 Gray, 336.

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

Leavin, Trusts, 475; 1 Cruise, Dig. 414; Mordecai v. Parker, 3 Dev. 425 ; Russell v. Lewis, 2 Pick. 508, 510; Allen v. Imlet, 1 Holt, 611; Hill, Trust. 274, and Wbarton's note for American cases. But see Kennedy v. Fury, 1 Dall. 72. Ante, Vol. I. pp. *376, *377; Fitzpatrick v. Fitzgerald, 13 Gray, 400; Peabody v. Harvard College, 10 Gray, 283.

Hepburne v. Hepburne, 2 Bradf. 74.

delegated except so far as relates to ministerial acts, where he may employ an agent who governs himself by his advice and direction, in the management of the trust, he being responsible for his agent's acts.

8. Where several are named as trustees, they constitute, together, but one trustee, and must execute the trust together in order to act at all, the act of one having no effect. A sale, therefore, by one of two trustees would be void, since trustees cannot act separately.

9. But this strictness applies only to cases of private trustees and in relation to private trusts. If the trust be of a public nature, it may

be executed by a major part of those constituting the trust.4 [*207] *10. As a general rule, moreover, if several are named

as trustees, and one or more of them die, the legal estate and trust go to the survivors, as being joint-tenants thereof. But this may be limited by restricting the execution of the trust to all, in which case the death of either prevents the others from acting, or to the survivors, in the plural number, when it may be executed so long as two survive, but a sole survivor cannot act.

11. But where a power without an interest, is given to several, they must all join in executing it, and it does not survive if one dies before the execution, unless the survivors are expressly authorized to act by the instrument appointing them.

12. The same rule applies as to joint trustees if one or more decline to act. But it seems that there is a power in courts of equity to substitute and supply trustees in all cases where it is necessary to effect the intention of the trust, unless there is a special confidence implied in the trustees named, in which case, if they refuse to act, or die, the trust may fail. And the rule is laid down as a universal one, that “ as trusts are now regulated, all persons who take through or under the trustee, shall be liable for the execution of the trust.” 2

1 Hill, Trust. 175, 540; Cole v. Wade, 16 Ves., Sumn. ed. 28 and note; Lewin, Trusts, 228 ; 1 Sugd. Pow. ed. 1856, 214.

Lewin, Trusts, 237; Hill, Trust. Whart. ed. 305, and note, for American cases ; Story, Eq. Jur. y 1280 ; Sinclair v. Jackson, 8 Cow. 543 ; 1 Cruise, Dig. 455; Latrobe v. Tiernan, 2 Md. Ch. Dec. 474.

* Ridgeley v. Johnson, 11 Barb. 527 ; Wilbur v. Almy, 12 How. 180.

* Hill v. Josselyn, 13 Smedes & M. 597 ; Chambers v. Perry, 17 Ala. 726 ; Lewin, Trusts, 37; Wilkinson v. Malin, 2 Tyrwh. 544. • Lewin, Trusts, 2d ed. 239; Co. Lit. 113 a; Hill, Trust. 303, and Wharton's note;

Beverly, 10 Pet. 564 ; Franklin v. Osgood, 14 Johns. 553 ; Cole v. Wade, 16 Ves., Sumn. ed. 28, note; Lee, Abst. 237; Zebach v. Smith, 3 Binn. 69; Bergen v. Duff, 4 Johns. Ch. 368; post.

6 Stewart v. Pettus, 10 Mo. 755; Lee, Abst. 338.; Cole v. Wade, 16 Ves. 27 ; Townsend v. Wilson, 1 B. & Ald. 608 ; Lewin, Trusts, 2d ed. 239; Co. Lit. 112 b; Osgood v. Franklin, 2 Johns. Ch. 20; Franklin v. Osgood, 14 Johns. 553; Peter v. Beverly, 10 Pet. 564; Zebach v. Smith, 3 Binn. 69; Williams v. Otey, 8 Humph. 563 ; Gruy v. Lynch, 8 Gill, 403 ; 4 Kent, Com. 325; 1 Sugd. Pow. 143.

Peter v.

13. As a general proposition, where there are two or more trustees, neither is responsible for the acts of the others nor for their defaults unless he joins with them in the act done, or unless the act complained of was done by reason of his own default or violation of duty, though to explain and illustrate the limitations and qualifications of this rule, as well as the various forms in which it is implied, would extend this inquiry beyond its proposed limits.8

*14. Though courts of law have cognizance, as has been [*208] shown, of the legal estates of trustees, courts of equity exercise control over trustees whenever it is necessary, in order to enforce the execution of trusts, or grant relief where trustees neglect or violate such trusts.

15. And whether a trustee has an equitable right or not to convey a trust estate, is a question purely within the cognizance of equity. So is the question whether a grantee in a deed of trust has undertaken the trust or not. And this jurisdiction these courts will exercise in aid of a cestui que trust, against a trustee or any

other person who derives any benefit from the trustee's acts.7

16. But it is the cestui que trust who is, in the eye of equity, the owner of the estate, so far as this ownership may be necessary to insure to him that enjoyment of the estate which the donor or devisor intended. It will not, therefore, allow the trustee the least personal advantage from the trust estate, a rule which is universal and absolute, subject to no qualifications or exceptions. This principle is extended by the courts to “ the extremest length,” in holding agents and those occupying fiduciary relations to the property, to the strictest fairness and integrity towards their principals, and to prevent them from making use of their position, to benefit themselves at the expense or disadvantage of their principals. And this applies also to one who acts as next friend of an infant in making partition of lands. Accordingly, if he buys in an incumbrance on the estate for a less sum than is actually due upon it, it enures to the benefit of the cestui que trust.4 If he lays out trust-money in buying lands, and sells the same and makes a profit thereby, the cestui que trust is entitled to it. So if he buys what he has been constituted trustee to sell, and makes an ad

1 Hill, Trust. 191, 211, and Wharton's note, for American cases, 211; Lewin, Trusts, 2d ed. 239; Barrill v. Shiel, 2 Barb. 457 ; Lee, Abst. 238.

2 Lewin, Trusts, 2d ed. 218.

8 Story, Eq. Jur. § 1280; Ward v. Lewis, 4 Pick. 518, 524; Spalding v. Shalmer, i Vern. 303; 1 Cruise, Dig. 455, note ; Kip v. Deniston, + Johns. 23; Willis, Trust. 194; Latrobe v. Tiernan, 2 Md. Ch. Dec. 474 ; Hill, Trust. 309, Wharton's note, for American cases ; Towne v. Ammidown, 20 Pick. 535.

* Co. Lit. 290 b, note 249, $ 5; Presley v. Stribling, 24 Miss. 527; Robinson v. Mauldin, 11 Ala. 977 ; Jones v. Dougherty, 10 Ga. 373 ; Tucker v. Palmer, 3 Brev. 47.

6 Den v. Trontman, 7 Ired. 155. 6 McLean v. Nelson, 1 Jones, N. C. 396. i Bush v. Bush, 1 Strob. Eq. 377.

vance by selling it again, his cestui que trust can compel him [*209] to account *for such advance. And if a trustee to sell land

buy it in himself, it is an inflexible rule that the cestui que trust may set aside the transaction at his election, within a reasonable time after it becomes known to him, upon repaying the trustee the moneys he may have paid out on account of the same. The doctrine, that no one acting for another in making the sale of land, shall directly or indirectly become the purchaser against the intelligent consent of him for whom he acts, applies to purchasers by persons acting in any fiduciary character. And among these has been included the clerk of a broker who is employed to make the sale, who

1 Davis v. Wright, 2 Hill (S. C.), 560; Arnold v. Brown, 24 Pick. 89; Green v. Winter, 1 Johns. Ch. 20; Oliver v. Piatt, 3 How. 333; Hill, Trust. 535; Lewin,

Trusts, 2d ed. 258; Conger v. Ring, 11 Barb. 356; Shelton v. Homer, 5 Met. 462; Jamison v. Glascock, 29 Mo. 191. 2 Fairman v. Bavin, 29 Ill. 76.

8 Collins v. Smith, 1 Head, 251. • Green v. Winter, 1 Johns. Ch. 20 ; Lewin, Trusts, 2d ed. 258; Wiswall v. Stewart, 32 Ala. 433.

5 Lewin, Trusts, 2d ed. 259; Moffitt v. McDonald, 11 Humph. 457. 6. Wasson v. English, 13 Mo. 176.

7 Lewin, Trusts, 2d ed. 360,366 ; Follansbe v. Kilbreth, 17 III.522; Brothers v. Broth. ers, 7 Ired. Eq. 150; Pitt v. Petway, 12 Ired. 69; Den v. Wright, 2 Halst. 175; Michoud v. Girod, 4 How. 503 ; Arnold v. Brown, 24 Pick. 89, 96; Jackson v. Walsh, 14 Johns. 407; Jennison v. Hapgood, 7 Pick. 1, 8; Jackson v. Van Dalfsen, 5 Johns. 43; Campbell v. Penn. Life Ins. Co. 2 Whart. 53 ; Pratt v. Thornton, 28 Me. 355 ; Mason v. Martin, 4 Md. 124 ; Sollee v. Croft, 7 Rich. Eq. 34 ; Obert v. Obert, 1 Beasley (N.J.), 423 ; Ricketts v. Montgomery, 15 Md. 46; Bank, &c. v. Dubuque & Pac. R. R. Co. 8 Iowa, 277 ; Fears v. Lynch, 28 Geo. 249.

Hoffman, &c. Co. v. Cumberland, &c. Co. 16 Md. 507; Michoud v. Girod, 4 How. .



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