This is a reproduction of a library book that was digitized

by Google as part of an ongoing effort to preserve the

information in books and make it universally accessible.

https://books.google.com
 Author and Title
Lewin , Thomas
A practical treatise on the law of
trusts .

Call Number KF Vol . Copy

730
L48
v.2
THIS BOOK DOES NOT CIRCULATE
OUTSIDE THE BUILDING

Name Location

Lewin , Thomas
A practical treatise on the law of

trusts .

KF
730
148
v.2
 PRACTICAL TREATISE

ON

THE LAW OF TRUSTS .

BY

(THE LATE)

THOMAS LEWIN, ESQ.

"

Eighth Edition

BY

FREDERICK A. LEWIN.

FIRST AMERICAN, FROM THE EIGHTH ENGLISH, EDITION

BY

JAMES H. FLINT.

VOLUME II .

BOSTON :

CHARLES H. EDSON & CO. , PUBLISHERS.

1888 .
NC

KF
730
248
V. 2

Copyright, 1888,

BY CHARLES H. EDSON & Co.

TYPOGRAPHY BY J. S. CUSHING & Co.

PRESSWORK BY BERWICK & SMITH, BOSTON.
 * CHAPTER XXIV . [* 627 ]

OF ALLOWANCES TO TRUSTEES .

Now that we have discussed the duties of trustees, and the

extent of their powers, we may next enter upon subjects very
closely interwoven with the execution of the office, viz .:
First, Allowances to trustees for their time and trouble ; and,
Secondly, Allowances to trustees for actual expenses.

SECTION I. 1

ALLOWANCES FOR TIME AND TROUBLE .

1. General rule. - It is an established rule in general , that

a trustee shall have no allowance for his trouble and loss of
time. One reason given is, that on these pretences , if ad
mitted, the trust estate might be loaded and rendered of
little value ; besides the great difficulty there would be in set
tling and adjusting the quantum of such allowance, espe
cially as one man's time may be more valuable than that of
another ; and there can be no hardship in this respect upon
the trustee, for it lies in his own option whether he will
accept the trust or not (a ) . The true ground, however, is,

(a) Robinson v. Pett, 3 P. W. 251, ray, 2 Atk. 58 ; Re Ormsby, 1 B. & B.

per Lord Talbot ; Gould v. Fleetwood, 189, per Lord Manners ; Charity Cor
cited Ib. note ( A) ; How v. Godfrey, poration v. Sutton, 2 Atk. 406, per
Rep. t . Finch, 361 ; Brocksopp v. Lord Hardwicke ; Bonithon v. Hock
Barnes, 5 Mad. 90 ; Ayliffe v. Mur more, 1 Vern. 316, &c.

1 Allowance to trustees . Nearly all the states have statutory provisions

regulating the allowances and compensation to which one holding a fiduciary
relation may be entitled, to which reference should be had . See also note on
compensation of trustees, ante page 386.
If a trustee is negligent, dishonest, or otherwise unfaithful, nothing will be
allowed him ; Hermstead's App . 60 Pa . St. 423 ; Blauvelt v. Ackerman , 23
N. J. Eq . 495 ; Gordon v. Matthews, 30 Md . 235 ; as where he neglects to in
vest trust funds ; McKnight v. Walsh, 24 N. J. Eq . 498 ; Lathrop v. Smalley, 23
N. J. Eq. 192 ; or uses trust funds himself ; Norris's App . 71 Pa. St. 106 ; but
see Parker's Est., 64 Pa. St. 307 ; or where he fails to keep proper accounts ;
847
*628 ALLOWANCES FOR TROUBLE . [CH. XXIV. S. 1 .

that if the trustee were allowed to perform the duties of the

office, and to claim compensation for his services , his interest
would be opposed to his duty ; and, as a matter of prudence,
the Court would not allow a trustee or executor to place
himself in such a false position (b) .
[* 628] * 2 . Executors, mortgagees, receivers, committees of
lunatics . - And the rule applies not only to trustees
in the strict and proper sense of the word, but to all who
are virtually invested with a fiduciary character, as executors
and administrators (a) , mortgagees (b) , receivers (e), com
mittees of lunatics' estates (d) , a surviving partner (e ) , & c.

(b) New v. Jones, Exch. Aug. 9, son v. Clarke , 3 Drew. 3 ; Barrett v.

1833, cited 9th Jarm. Prec. 338, per Hartley, 12 Jur. N. S. 426. Mort
Lord Lyndhurst ; and see Burton v. gages were also disabled formerly by
Wookey, 6 Mad . 368. the effect of the usury laws from claim
(a) Scattergood v. Harrison, Mos. ing anything beyond their principal
128 ; How v. Godfrey, Rep. t . Finch, and legal interest.
361 ; Sheriff v. Axe, 4 Russ . 33. (c) Re Ormsby, 1 B. & B. 189.
(b) Bonithon v . Hockmore, 1 Vern. (d) Anon. case, 10 Ves. 103 ; Re
316 ; Langstaffe v. Fenwick, 10 Ves. Walker, 2 Ph. 630 ; Re Westbrooke,
405 ; French v. Baron, Atk. 120 ; Ib. 631.
Carew v. Johnston, 2 Sch. & Lef. 301 ; (e) Burden v. Burden, 1 V. & B.
Arnold v. Garner, 2 Ph. 231 ; Matthi 170 ; Stocken v. Dawson, 6 Beav. 371 .

Marcy's Ac'ct, 24 N. J. Eq. 451 ; Kenan v. Hall, 8 Ga. 417 ; but see Finch v.
Ragland, 2 Dev. Eq. 137 ; Gee v. Hicks, Rich. Eq . Cas. 5 ; mistake of judg
ment by trustee will not cut off his compensation ; Myers' App . 62 Pa. St. 104.
A trustee may waive all compensation and allowance ; Vestry v. Barksdale, 1
Strob. Eq. 197 ; Haglar v. McCombs, 66 N. C. 345 ; if the allowance is fixed in
the declaration of trust the trustee is bound by it ; College v . Willingham , 13
Rich. Eq. 195 ; or if it is mutually agreed upon ; Jackson v. Jackson, 3 N. J.
Eq. 113. A trustee cannot receive a double allowance ; Blake v. Pegram, 101
Mass. 592.
A trustee will always be allowed his expenses and he will have a lien on
the trust estate until he has been reimbursed ; and this is true whether it is
mentioned in the instrument declaring the trust or not ; Morton v. Barrett, 22
Me. 257 ; R. & S. R. R. Co. v. Miller, 47 Vt. 146 ; Jones v. Dawson, 19 Ala.
672 ; Lowe v. Morris, 13 Ga. 165. A trustee will be allowed his travelling
expenses ; Towle v. Mack, 2 Vt. 19 ; Burr v. M'Ewen, Bald. C. C. 154 ; also
for all legal advice which it may be necessary for him to have ; Brady v . Dil
ley, 27 Md . 570 ; Wilson's App. 41 Pa. St. 94 ; Beatty v. Clark, 20 Cal. 11 ;
and the subsequent avoidance of the trust is immaterial ; Hawley v. James, 16
Wend. 61 ; Stewart v. M'Minn, 5 W. & S. 100. Unless a trustee keeps an
accurate account of his disbursements the smallest possible sum will be
allowed him ; Green v. Winter, 1 Johns . Ch . 27 ; M'Dowell v. Caldwell, 2
M'Cord, Ch. 43 ; or none at all ; Wistar's App . 54 Pa . St. 60 ; Miller v . Whittier,
36 Me. 577. A trustee may be allowed the expense of necessary assistance,
such as clerks, agents, and the like ; Kennedy's App. 4 Barr. 150 ; Wade v.
848
CH. XXIV . S. 1.] ALLOWANCES FOR TROUBLE . *628

3. Trustees of West India estates. ―――― But trustees for ab

sentees of estates in the West Indies are allowed a commis
sion for their personal care in the management and improve
ment of the property. However, if, instead of remaining
upon the island they commit the management to the hands
of agents, the Court will reject the claim ; for it would be a
strange construction that one allowed a commission on ac
count of the proprietor's absence should insist upon his
reward when he had been absent himself (f) . But a mana
ger, though he forfeits his commission during the period of
his absence, will be repaid the sums actually disbursed by
him for the care of the estate by others, provided the pay
ments he has made be in themselves reasonable and proper (g) .
Rate of commission in Jamaica. - The rate of commis
sion in Jamaica has been regulated by several Acts of As
sembly ; it was originally 107. per cent. upon the receipts,
then 87. per cent. , and since 67. per cent. (h) . But the inten
tion of the Legislature was only that the rate should not
exceed 67. per cent. not that under particular circumstances
it might not be a great deal less (i) .
Mortgagees in possession of West India estates. ―― Mortgagees
in possession of estates in Jamaica are, by the Act referred
to, expressly prohibited from charging any commission , ex
cept what they may have themselves paid by way of com
mission to a factor ( ) ; and without regard to statutory
prohibition, mortgagees in possession of West Indian prop

(ƒ) Chambers v. Goldwin, 9 Ves. (i) See S. C. Id . 257.

273. (j) See S. C. 5 Ves. 837 ; 9 Ves.
(g) Forrest v. Elwes, 2 Mer. 68. 268.
(h) Chambers v. Goldwin, 9 Ves.
267.

Pope , 44 Ala. 690. Expenses incurred where contrary to the wishes of the cestui
que trust may be refused ; Berryhill's App. 35 Pa. St. 245. If while a trustee is
in the exercise of due care, any portion of the trust estate is lost or stolen, the
loss will fall upon the estate ; Campbell v . Miller, 38 Ga . 304 ; Neff's App. 57
Pa. St. 91 ; Bryant v . Russell, 23 Pick. 546 ; and the same is true of invest
ments ; Neilson v. Cook, 40 Ala. 498. Trustees may pay any disbursements
which a Court, upon application, would surely order ; King v . Cushman, 41
Ill. 31 ; Murray v. De Rottenham , 6 Johns. Ch . 62. A trustee may pay any
necessary additional expense from the estate, if any is required because of the
insanity, infancy &c. of the cestui que trust ; Leonard v. Powell, 41 Ga. 598.
849
*629 ALLOWANCES FOR TROUBLE. [CH. XXIV. S. 1.

erty are under the same disability of charging commission as

if the property were situate in this country (k) .
4. Executor in the East Indies. ――――― An executor appointed
in the East Indies and administering in that country, and
then returning to England, is , if called upon in a Court of
equity to render an account, allowed a commission
[ * 629 ] * of 5 per cent. upon the receipts or payments,
[where according to the practice of the Indian
Courts a similar allowance would be made in India. ] The
appointment of an executor in the East Indies is considered
the appointment of an agent for the management of the
estate. Without such an allowance, where a person dies in
India deprived of the presence of his relations, the effects of
the testator might often not be collected at all . Besides ,
the executors in England could scarcely procure a person to
undertake the office at any cheaper rate ( a ) . If an Indian
executor, after collecting part of the assets, comes over to
this country, he is allowed a commission on those assets only
that were collected by himself in India, and not on the
(k) Leith v. Irvine, 1 M. & K. 277 ; [ By Act No. II., of 1874, sect. 56.
see Chambers v. Davidson, 1 L.R.P.C. No person other than the Administra
296. tor-General acting officially is to re
(a) Chetham v. Lord Audley, 4 ceive or retain any commission or
Ves. 72 ; Matthews v. Bagshaw, 14 agency charges, for anything done by
Beav. 123. To the latter case is ap the executor or administrator under
pended the following note : --- any probate or letters of administra
"The custom of allowing a com tion or letters ad colligenda bona which
mission to executors and administra have been granted by the Supreme
tors in the presidency of Bengal has Court, or High Court at Fort Wil
been abolished by Act No. VII ., of liam in Bengal, since the passing of
1849, of the Governor-General in the Act No. VII. of 1849, or by either
Council . By that Act an Adminis of the Supreme or High Courts at
trator-General has been appointed in Madras and Bombay, since the pass
place of the Ecclesiastical Registrar, ing of the Act No. II . of 1850, or
with a reduced commission of 3 per which have been or shall be granted
cent. on monies distributed or in by any Court of competent jurisdic
vested in manner therein provided. tion within the meaning of sections
"By Act No. II., of 1850, the pro 187 and 190 of The Indian Succession
visions of the above Act, with cer Act, 1865. But this enactment is not
tain restrictions, are extended to the to prevent any executor or other per
presidencies of Madras and Bombay, son from having the benefit of any
but the rate of commission to the legacy bequeathed to him in his char
public administrator is there to re acter of executor or by way of com
main 5 per cent. until altered to 3 mission or otherwise. ]
per cent. by the Governor and Coun
cil in each of these presidencies ."
850
CH. XXIV . S. 1. ] ALLOWANCES FOR TROUBLE. * 630

assets subsequently collected by his agents and transmitted

to this country, for the Courts here allow the commission
because the Indian Courts allow it, and the Indian Courts
allow it on the ground of residence in India (b) .
Where he has a legacy for his trouble. - An executor in
India is only allowed the commission where the testator him
self has not left him a legacy for his trouble ( c) ; but if the
amount of the legacy be an inadequate compensation for the
duties of the office, it seems the executor, so as he signify
his resolution in proper time, may renounce the intended
legacy, and take advantage of the commission (d) .
5. Constructive trustees. - A person who has carried on a
business with another man's money under circum
stances which make him liable to account for * profits, [ * 630]
will be allowed a compensation for his skill and exer
tions in the management of the concern (a) .
6. Express trustee has no allowance for management of a
-
trade. But a person will not be permitted, except under
very special circumstances (b) , to charge anything for his
management of a trade or business, where he has been
clothed in express terms with the character of a trustee or
executor (c).
7. Solicitors. ――――――――- A solicitor who sustains the character of
trustee will not be permitted to charge for his time, trouble,
or attendance, but only for his actual disbursements (d) .
Lord Lyndhurst observed, " It would be placing his INTEREST
at variance with the duties he has to discharge. It is said, the
bill may be taxed, but that would not be a sufficient check :
the estate has a right not only to the protection of the taxing

(b) Campbell v. Campbell, 13 Sim. (b) Forster v. Ridley, 4 N. R. 417 ;

168 ; and see 2 Y. & C. C. C. 607. S. C. 4 De G. J. & S. 452.
(c) Freeman v. Fairlie, 3 Mer. 24. (c) Stocken v. Dawson, 6 Beav.
(d) See Id . 28 . 371 ; Burden v. Burden, 1 V. & B.
(a) Brown v. De Tastet, Jac. 284 ; 170; Brocksopp v. Barnes, 5 Mad.
and see Sir Samuel Romilly's argu 90. See Marshall v. Holloway, 2 Sw.
ment in Crawshay v. Collins, 15 Ves. 432.
225 ; and Wedderburn v. Wedder (d) New v. Jones, Excheq. Aug. 9,
burn, 22 Beav. 84. To this principle 1833, 9 Jarm. Prec . 338. See the re
must also be referred the decision in sult of the various decisions stated at
Brown v. Litton, 1 P. W. 140 ; 10 p. 281, supra.
Mod. 20.
851
* 631 ALLOWANCES FOR TROUBLE. [CH. XXIV. S. 1.

officer, but also to the vigilance and guardianship of the

executor or trustee : a trustee placed in the situation of a
solicitor might, if allowed to perform the duties of a solicitor
and to be paid for them, find it very often proper to institute
and carry on legal proceedings, which he would not do, if
he were to derive no emolument from them himself, and if he
were to employ another person " (e) .
8. Settled accounts. ―- If a cestui que trust settle accounts
with a trustee, who is a solicitor, and execute a general
release, and the accounts contain items of charges for pro
fessional services, the cestui que trust, if he had no legal
advice, and was not expressly informed, that professional
services might have been disallowed, may open the accounts
as regards the objectionable items (ƒ) ; but if the cestui que
trust had independent legal assistance, he is bound by the
release (g).
9. Purchaser. - The doctrine against professional charges
by a trustee, who is a solicitor, is so rigidly applied, that
where a security has been given for payment of such profes
sional charges, it may be set aside, even as against a pur
chaser for valuable consideration, if he had notice (h) .
10. Allowance directed by the settlor. - The rule
[ * 631 ] against allowances to trustees is merely a general * one
in the absence of express directions to the contrary ;
for there is no objection to the settlor himself directing com
pensation to the trustee for his services, either by the gift of
a sum in gross, or by the allowance of a salary (a) .
11. Allowance does not cease on institution of a suit. And
if a testator give an executor a salary for his trouble the
allowance will not cease on the institution of a suit ; for
though the management be thenceforward under the direc
tion of the Court, the executor is still called upon to assist the
Court in the administration with his care and vigilance (b) .

(e) New v. Jones, 9 Jarm. Prec. (a) Webb v. Earl of Shaftesbury,

338. 7 Ves. 480 ; Robinson v. Pett, 3 P.
(f) Todd v. Wilson, 9 Beav. 486. W. 250, per Sir J. Jekyll ; Willis v.
(g) Stanes v. Parker, 9 Beav. 385 ; Kibble, 1 Beav. 559.
Re Wyche, 11 Beav. 209. (b) Baker v. Martin, 8 Sim. 25 ;
(h) Gomley v. Wood, 3 Jon . & Lat. see ante, p. 598.
678.
852
CH. XXIV . S. 1.] ALLOWANCES FOR TROUBLE. *632

If the executor be wholly incapacitated, even by the act

of God, from discharging the duties of executor (c) , and
à fortiori if the executor, being capable, do not act when
there was nothing to prevent his acting (d) he cannot claim
a legacy given to him for his trouble in the executorship (e) ,
and an annuity, limited to a trustee during the continuance
of his office, cannot be claimed when the duties of the office
have ceased by the absolute vesting of the property (ƒ) .
12. Amount of allowance not expressed . - Where the set
tlor has directed a remuneration to the trustee, but has not
declared the amount, a reference will be directed to settle
the quantum meruit, according to the circumstances of the
case (g) .
13. Contract for an allowance with the cestui que trust. --
The trustee may also, at the time of accepting the trust, con
tract for an allowance or remuneration for his services (h) ;
but bargains of this kind are watched by the Court
with exceeding jealousy (i) , and must be freely made and
not submitted to from pressure (j) ; and where the person
about to become trustee and bargaining for remuneration is
a solicitor, who is acting as such in the preparation of the
instrument of trust which purports to confer the right of remu
neration, there would seem to be considerable difficulty in
upholding the contract unless the client had independent
professional advice, or unless, at all events, the solicitor can
show that the precise nature of the arrangement was dis
tinctly explained to the client (k).
14. Terms of the contract must be fulfilled to the letter. ――
Where the contract is valid originally, the conditions of it
must be fulfilled to the letter, or the trustee is not
entitled to his * reward. An executor, who had no [ * 632 ]

(c) Re Hawkins' Trusts, 33 Beav. (g) Ellison v. Airey, 1 Ves . 111 ,

570 ; Hanbury v. Spooner, 5 Beav. see 115 ; and see Willis v. Kibble, 1
630. Beav . 559.
(d) Slaney v. Witney, 2 L. R. Eq. (h) Re Sherwood, 3 Beav. 338 ;
418. Douglas v. Archbutt, 2 De G. & J.
(e) Re Hawkins' Trusts, 33 Beav. 148.
570 ; Hanbury v. Spooner, 5 Beav. (i) Ayliffe v. Murray, 2 Atk. 58 .
630. (j) Barrett v. Hartley, 12 Jur. N.
(f) Hull v. Christian, 17 L. R. S. 426.
Eq. 546. (k) Moore v. Frowd, 3 M. & Cr. 48.
853
* 632 ALLOWANCES FOR TROUBLE. [ CH. XXIV. S. 1.

legacy, and where the execution of the trust was likely

to be attended with trouble, agreed with the residuary
legatees, in consideration of 100 guineas , to act in the execu
torship. He died before the execution of the trust was
completed, and his executors brought a bill to be allowed
those 100 guineas out of the trust money in their hands ;
but the Court said all bargains of this kind ought to be dis
couraged, as tending to eat up the trust, and here the execu
tor had died before he had finished the affairs of the trust ;
and so the plaintiff's demand was disallowed (a) .
15. Contract for an allowance with the Court. - - A trustee
dealing with the Court, is at liberty, before accepting the
trust, to stipulate for any remuneration which the Court may
choose to give him (b) . But if he omit to contract with the
Court before entering upon his duties, he will have great
difficulty in obtaining compensation afterwards, and we may
add that in no case will the Court remunerate a trustee for
his trouble by permitting him to make professional charges
where the settlor has not so directed, but will compensate
him for his trouble, if at all, by a regular and fixed salary (c).
16. Mortgagee. - During the continuance of the usury
laws a mortgagee could not, as a general rule, have bargained
for a compensation exceeding together with the actual inter
est the legal rate, for an agreement of this kind would have
tended to usury (d) . But after a long struggle certain
special exceptions were established in favour of mortgagees
not in possession of West Indian estates (e) .
17. Employment of agents. ―――――――-As a trustee will not be, per
mitted to charge for his personal care and loss of time, it is
but just he should be allowed on proper occasions to call in
the assistance of agents at the expense of the estate.

(a) Gould v. Fleetwood, cited Rob (d) See Chambers v. Goldwin, 9

inson v. Pett, 3 P. W. 251, note (A) . Ves. 271 .
(b) Marshall v. Holloway, 3 Sw. (e) See the history of the struggle
452, 453 ; Newport v. Bury, 23 Beav. detailed in Lord Brougham's judg
30 ; Brocksopp v. Barnes, 5 Mad. 90, ment in Leith v. Irvine, 2 M. & K.
per Sir J. Leach ; and see Morison v. 277.
Morison, 4 M. & Cr. 215. (f) Nicholson v. Tutin, 3 K. & J.
(c) Bainbrigge v. Blair, 8 Beav. 159..
588. See the observations of Lord
Langdale, pp. 595, 596.
854
CH. XXIV . S. 1. ] ALLOWANCES FOR TROUBLE . * 633

18. Collector of rents. __ Thus a trustee, though he may

not act as a collector himself with a commission (f), may, if
the case require it, appoint a collector of rents (g) , [ or of
book debts (h) , ] at a commission .
19. Bailiff . - As a man is not bound to be his own
bailiff, if a trustee * employ a skilful person in that [ *633 ]
capacity, the salary must be allowed (a) ; at least the
Court will grant that indulgence where the estate is at such
a distance that the trustee must have appointed a bailiff had
the estate been his own (b) .
20. Attorney. - An executor employed a person who had
been his clerk to transact some business for him relative to
the testator's affairs, and the Master insisted it was the ex
ecutor's own duty, and refused to allow the expense . But
Lord Hardwicke said, " it was clear that if an executor paid
an attorney for his trouble and attendance in the manage
ment of the estate, he ought to be repaid the sums he had so
disbursed," and ordered a reference to the Master to tax the
items of the bill (c).
21. Accountant. - — If the accounts be complicated, and the
executor or trustee take upon himself to adjust and settle
them, although it may occupy a great deal of his time and
attention, the principle of equity is that he cannot claim a
compensation ; but if he choose to save his own trouble by
the employment of an accountant, he is entitled to charge
the trust estate with it under the head of expenses (d) .
22. In Weiss v. Dill ( e ) the executor of a trader had em
ployed an agent to collect debts, which were numerous and
only paid after repeated applications, at a commission of 5
per cent. The Master had reduced the commission to 2 per

(g) Davis v. Dendy (the case of mortgage), 3 Atk. 518, per Lord
a mortgagee) , 3 Mad . 170 ; Stewart Hardwicke.
v. Hoare, 2 B. C. C. 633 ; and see (c) Macnamara v. Jones, 2 Dick.
Wilkinson v. Wilkinson , 2 S. & S. 587.
237 ; Re Westbrooke, 2 Ph. 631. (d) New v. Jones, Exch., Aug. 9,
[ (h) Re Brier, 26 Ch. D. 238. ] 1833 , cited 9 Jarm. Prec. 338 ; Hen
(a) Bonithon v. Hockmore, 1 Vern. derson v. M'Iver, 3 Mad. 275.
316 ; Chambers v. Goldwin, 9 Ves. (e) 3 M. & K. 26 ; and see Giles v.
272, per Lord Eldon. Dyson, 1 Stark. N. P. C. 32 ; Hop
(b) Godfrey v. Watson (as to a kinson v. Roe, 1 Beav. 180 ; Day v.
Croft, 2 Beav . 488.
855
* 634 EXPENSES OF TRUSTEES [CH. XXIV. S. 2.

cent.; and, the executor upon that ground taking an excep

tion to the report, Sir J. Leach said, " Executors, generally
speaking, are not allowed to employ an agent to perform
those duties which, by accepting the office of executors, they
have taken upon themselves ; but there may be very special
circumstances in which it may be thought fit to allow them
the expenses they have incurred in the employment of agents ;
I have some doubt whether in this case the Master ought to
have made any allowance, but with the allowance of 24 per
cent. the executor must be content." The observations of
Sir J. Leach might seem at first either to cast doubt upon
the general right of a trustee to employ salaried agents in
fitting cases, or to establish a distinction between the collec
tion of debts and the collection of rents, but it cannot be
supposed that his Honour intended to reverse his
[* 634 ] * previously expressed views on the general princi
ple (a ) , and there seems no ground for any such dis
tinction as that adverted to . The decision in substance was,
that the Court declined to over-rule the Master's opinion on
the question of quantum .

SECTION II.

ALLOWANCES TO TRUSTEES FOR EXPENSES .

1. General rule. - Though a trustee is allowed nothing for

his trouble, he is allowed everything for his expenses out of
pocket (b). "It flows," said Lord Eldon , " from the nature
of the office, whether expressed in the instrument or not,
that the trust property shall reimburse him all the charges.
and expenses incurred in the execution of the trust " (c).
Even where trustees had been wrongfully appointed but acted

(a) See Wilkinson v. Wilkinson, wicke ; Feoffees of Heriot's Hospital

2 S. & S. 237 ; [ Re Brier, 26 Ch. D. v. Ross, 12 Cl. & Fin. 512, 515 , per
238.] Lord Cottenham .
(b) How v. Godfrey, Rep. t . Finch, (c) Worrall v. Harford, 8 Ves. 8 ;
361 ; Re Ormsby, 1 B. & B. 190, per and see Dawson v. Clarke, 18 Ves.
Lord Manners ; Hide v. Haywood, 2 254 ; Attorney-General v. Mayor of
Atk. 126 ; Caffrey v. Darby, 6 Ves. Norwich, 2 M. & Cr. 424 ; Morison v.
497, per Sir W. Grant ; Godfrey v. Morison, 7 De G. M. & G. 214.
Watson, 3 Atk. 518, per Lord Hard
856
CH. XXIV . S. 2. ] EXPENSES OF TRUSTEES . *635

bona fide, and believed themselves to have been duly ap

pointed, they were allowed their costs , charges, and expenses ,
notwithstanding the defect of title ( d) .
2. Travelling expenses. - A trustee will be entitled to be
reimbursed his travelling expenses (e) , provided they be
properly incurred (ƒ) .
3. Employment of solicitor. - Trustees are justified in em
ploying a solicitor for the better conduct of the trust (g) .
And a trustee is entitled to be paid all costs properly incurred
for which he is liable to the solicitor so employed ; as where
two executors, defendants in an administration suit, gave a
joint retainer to a firm of solicitors , and one of the executors
became bankrupt and was a debtor to the estate, it was held
that the other executor, being liable for the whole
costs under the joint retainer, was entitled to the [* 635 ]
whole costs as against the estate (a) . [ But this case
has been dissented from by the late M. R., who held, in a
similar case, that the solvent executor should be allowed only
his own proportion of the costs up to the bankruptcy out of
the estate, the defaulter's proportion being set off against the
debt due from him, but that the costs incurred by both sub
sequently to the bankruptcy should be allowed in full (b) .
And this view has since been approved ( c) . The proportion
of the common costs which should be allowed to the solvent
trustee is a matter for the Taxing Master (d) . ] And the
sums paid will, at the instance of the cestuis que trust,
though not liable to taxation , be looked over and moder
(d) Travis v. Illingsworth, W. N. (a) Watson v. Row, 18 L. R. Eq.
1868, p . 206 . 680.
(e) Ex parte Lovegrove, 3 D. & C. [ (b) Smith v. Dale, 18 Ch . D. 516 ;
763 ; and see Ex parte Elsee, 1 Mont. this case probably referred to a bank
1; Ex parte Bray, 1 Rose, 144. These ruptcy under the law as it existed
were cases of assignees who, by 6 G. prior to the Act of 1869, as under
4. c. 16, s. 106 (the Bankrupt Act that Act the bankrupt trustee would
then in force) , were to have " all just not have been entitled to his costs
allowances," but trustees are equally after the bankruptcy until he had
entitled to all just allowances virtute made good his default. See post,
officii; see Blackford v. Davis, 4 L. Chap. xxxii, s . 5. ]
R. Ch. App. 305. [ (c ) McEwan v. Crombie, 25 Ch.
(f) Malcolm v. O'Callaghan, 3 M. D. 175. ]
& Cr. 62 ; and see Bridge v. Brown, [ (d) Smith v. Dale, McEwan v.
2 Y. & C. C. C. 181. Crombie, ubi supra. ]
(9) Macnamara v. Jones, Dick. 587.
857
* 635 EXPENSES OF TRUSTEES . [CH. XXIV . S. 2.

ated (e) . And trustees, if they employ one of themselves as

solicitor, instead of engaging a third person , will be answer
able for all the consequences, if they be misled by the pro
fessional advice of such trustee solicitor (ƒ) .

(e) Johnson v. Telford , 3 Russ. ploy one of themselves as solicitor

477 ; Langford v. Mahoney , 2 Conn. to the trust (though no professional
& Laws 317. profits could be allowed), and that
(f) Alton v. Harrison (a legatee's Harrison was entitled to the same
suit) , and Poyser v. Harrison (a resid protection from the legal advice
uary legatee's suit) , both which were given by Ingle, as if the trustees
consolidated and heard before V. C. had employed a third person as so
Sir J. Stuart on 6th and 8th June, licitor, who had approved the title
1868. The testatrix, who died in on their behalf. However, the Vice
1851 , devised her real and personal Chancellor ruled that two trustees,
estate to two trustees, Ingle and Har one of whom was a solicitor, were
rison (the former a solicitor, the latter liable to all the consequences if they
a manufacturer) , upon the usual employed one of themselves as such
trust for sale and conversion. And solicitor, instead of calling in a third
as to the residue after payment of person ; and his Honour put the case
legacies and annuities to invest upon of a single trustee, a solicitor, and
sufficient securities in trust for a asked whether it could be contended
class of persons. The trustees lent that such trustee was not liable for
5007. upon mortgage to one Thorn the consequences if he acted without
ley, and another 500l. to one Walker, other professional advice, and his
and in 1853 Ingle died insolvent. It Honour decided that Harrison was
afterwards turned out that both made liable for both the sums lent.
Thornley's security and Walker's This point seems to have arisen for
security were second mortgages, and the first time, and the judgment of the
the whole money was lost. Ingle V. C. may be supported on principle ;
had been solicitor of the testatrix, for if two persons be appointed trus
and had made her will and acted as tees, they ought in matters of title
solicitor to the trust. The plaintiffs to take professional advice, and for
sought to make Harrison liable for that purpose to employ a competent
the two sums of 500l. each as lent solicitor ; but the selection of a proper
upon insufficient security. Harrison legal adviser must be the joint act of
declared on oath that the value of the two, and as a man cannot be
the mortgaged property, free from judge in his own case, they cannot
incumbrances, was personally known appoint one of themselves to the
to him, and was far in excess of the office. A fortiori if there be a single
loan, and that the loss had arisen not trustee, a solicitor, he cannot act
from the inadequacy of value, but himself as solicitor and claim the
from the defect of title, viz., in the same protection as if he had ap
two mortgages being second mort pointed another. When a settlor
gages ; that when the advances were appoints a person a trustee, who is
made he fully believed that in each also a solicitor, he does not in the
case the security was a first mort absence of any special direction ,
gage, and that he had relied as to the mean him also to act as solicitor ;
title upon the legal advice of Ingle, for a person may be a very good
who had fraudulently represented trustee and yet a very bad solicitor.
the security as a fit and proper one ; The settlor selects his trustee, not
that the trustees had a right to em because he is a solicitor or valuer, or
858
CH. XXIV . S. 2.] EXPENSES OF TRUSTEES. *636

*4. Fees to counsel. -- So a trustee may give fees [ * 636 ]

to counsel and shall have allowance thereof (a) .
5. [Costs of opposing Bill in Parliament. — And a trustee
will be allowed the costs of opposing a bill in Parliament
which affects the trust estate (b) .
Of protecting the estate. - And the Court will sanction the
payment by the trustees of settled estates of costs which
have been properly incurred by the tenant for life for the
protection of the estates, whether as plaintiff or as defend
ant (c) .
The Settled Land Act, 1882, expressly authorizes trustees
of a settlement to reimburse themselves or pay and discharge
out of the trust property all expenses properly incurred by
them (d) . ]
6. Extra costs. And if a trustee be sued by a stranger
concerning the trust, and have his costs paid him as between
party and party, and the cestui que trust afterwards institute
proceedings for an account, the trustee will be allowed his
necessary costs in the former suit, and will not be concluded
by the amount of the taxation (e) ; and if a trustee as de
fendant be ordered to pay the plaintiff's costs, he will, unless
he has forfeited his right by some misconduct, be entitled as
between him and his cestui que trust to be reimbursed the
costs which he has paid, and also those which he has himself
incurred (f) . The fact of a trustee having been unsuccess
ful in litigation , either as plaintiff or defendant , will not in
the absence of misconduct disentitle him to be reimbursed
his costs (g) , but a trustee will have no claim to reimburse
ment out of the trust fund, where the legal proceedings

fills any other scientific capacity, but Ch. D. 588 , n. And see 45 & 46
because he is a person to be trusted Vict. c. 38 , s. 36. ]
with the property and capable of [ (d) S. 43. ]
managing it with the aid of profes (e ) Amand v. Bradburne, 2 Ch.
sional advice. Ca. 138 ; Ramsden v. Langley, 2
(a ) Cary, 14 ; Poole v. Pass, 1 Vern. 536 ; and see Fearns v. Young,
Beav. 600. 10 Ves. 184.
[ (b) Re Nicoll's Estates, W. N. (f) Lovat v. Fraser, 1 L. R. H.
1878, p. 154. ] L. Sc. 37, per Lord Kingsdown.
[ (c) Re Earl de la Warr's Es (g) Courtney v. Rumley, 6 I. R.
tates, 16 Ch. D. 587 ; 51 L. J. N. S. Eq. 99.
Ch. 407 ; Re Lord Rivers' Estate, 16
859
* 637 EXPENSES OF TRUSTEES. [CH. XXIV. S. 2.

were occasioned by his own negligence in the first

[ * 637 ] * instance ( a ) ; or were improperly instituted by him
self (b) ; and a trustee will not be allowed, without
question, whatever sums by way of costs he may have paid
his solicitor ; for the bill, as between trustee and cestui que
trust, though not submitted to a regular taxation (which is
between solicitor and client ) , will be moderated by the
Court by a deduction of such charges as may appear irregu
lar and excessive (e).
Interest not allowed. And the trustee will not be allowed
interest on the costs, though at the time he paid them he
had no trust monies in his hands (d).
[7. Costs of trustee defending his conduct in the trust.
Where a bill was filed to set aside a decree for a compro
mise on the ground of personal fraud in one of the trustees
in obtaining the decree, but the charge of fraud was dis
proved, and the bill dismissed with costs to be paid by the
next friend of the plaintiff, who, however, was unable to
pay them, it was held that the trustee was entitled to have
his costs discharged out of the trust estate, for the defence
was by him not on his own behalf but for the benefit of the
trust estate, and that his right was not affected by the fact
that his character was incidentally cleared in the suit (e) . ]
8. Allowance for expenses besides remuneration for trouble.
- Even a specific remuneration given by the testator to his
trustees for their services in the trust is no reason for ex
cluding them from the usual allowance for expenses. A tes

(a) Caffrey v. Darby, 6 Ves . 497 ; but that if not proper, having regard
Courtney v. Rumley, 6 Ir. Eq . 99. to the nature of the trust, they can
(b) Peers v. Ceeley, 15 Beav. 209 ; only be recovered from the trustee
Leedham v. Chawner, 4 K. & J. 458. personally, and are not chargeable
(c) Johnson v. Telford, 3 Russ. as between the solicitor and the cestui
477 ; Allen v. Jarvis, 4 L. R. Ch . App. que trust.
616. As to the right of the cestui que (d) Gordon v. Trail, 8 Price, 416.
trust to obtain a taxation as against But if he pays off a debt carrying
the solicitor , see Re Drake, 22 Beav. interest, he stands in the place of the
438 ; Re Dickson, 3 Jur. N. S. 29, and creditor in respect of interest ; Re
cases there cited ; Re Dawson, 28 Beulah Park Estate, 15 L. R. Eq . 43 ;
Beav. 605 ; Re Press, 35 Beav. 34 ; Finch v. Pescott, 17 L. R. Eq. 554.
Re Brown, 4 L. R. Eq . 464, in which [ (e) Walters v. Woodbridge, 7 Ch .
it was held, that the costs are to be D. 504. ]
taxed as between solicitor and client ;
860
 CH . XXIV. S. 2. ] EXPENSES OF TRUSTEES . * 638

tator bequeathed to his acting trustees for the time being

the yearly sum of five guineas apiece for the care and trouble
they might have in the execution of the trust . The testa
tor's estates consisted in part of about fifty houses in Lon
don, thirty-four of which were let to weekly tenants . The
trustees employed a person to collect the rents, and Sir John
Leach said, " The annuity was given to them as a recompense
for the care and trouble which would attend the due execution
of the office ; and if it was consistent with the due execution
of the office to employ a collector, they were entitled to the
annuity. A provident owner might well employ a
collector in * such a case , and the labour of such a [ * 638 ]
collection could not be imposed on the trustee " (a) .
9. Amount of expenses . - A regular account of the ex
penses should invariably be kept ; but where this has not
been done the Court has ordered a reasonable allowance to be
made in the gross , at the same time taking care that the
remissness and negligence of the trustee in not having kept.
any account should not meet with any encouragement . Thus
in Hethersell v. Hales (b) the trustee put in a general claim
for 25007., apparently an average estimate of the expenses he
had incurred in the trust. "The Court," says the reporter,
"took some time to deliberate what was fit to be allowed in
a matter of this nature ; and having considered that the
trustee was a friend to the family, and undertook the trust
at their great importunity, and that he had incurred the
charge of surveying the whole estate , selling and letting the
same, looking after tenants , adjusting their accounts , calling
in their rents , returning monies to creditors , and treating
with them and stating their debts, and procuring and agree
ing with purchasers , and for law charges , and for keeping
servants and horses, and employing others in journeys to
London and elsewhere , and his care there lying from home .
a long time, the Court was of opinion that the trustee might
well deserve the whole 25007. , yet would not allow but 20007. ,
which the trustee was to have ."

(a ) Wilkinson v. Wilkinson, 2 S. Shaftesbury, 7 Ves. 480 ; Fountaine

& S. 237 ; and see Webb v. Earl of v. Pellett, 1 Ves. jun. 337.
(b) 2 Ch. Rep. 158.
861
* 639 EXPENSES OF TRUSTEES. [CH. XXIV. S. 2.

10. Extraordinary outlay . ――― - As it is a rule that the cestui

que trust ought to save the trustee harmless from all damages
relating to the trust, so within the reason of the rule, where
the trustee has honestly and fairly, without any possibility
of being a gainer, laid down money by which the cestui que
trust is discharged from a loss, or from a plain and great
hazard of it, the trustee ought to be repaid (c) . So where a
trustee employed a bailiff to fell some trees, and the wood
cutter allowed a bough to fall on a passer by, who was in
jured, and recovered damages from the trustee, it was held
that as the trustee had meant well, had acted with due dili
gence, and had employed a proper agent to do an act which
was within the sphere of the trustee's duty, and the agent
made a mistake , the trustee was entitled to charge the dam
ages on the trust estate (d) .
[11. Expenses of carrying on a business. — If a trus
[ * 639 ] tee is authorised to carry on a business and to * em
ploy certain specific property for that purpose, the
creditors of the business have a right to the benefit of indem
nity and lien which the trustee has against the property
devoted to the business ; but this right is subject to any
equities subsisting between the trustee and the cestui que
trust of the specific property ; and where the trustee is in
default and is not entitled to indemnity except upon the
terms of making good the default, the creditors will have no
right to indemnity except upon the same terms ( a ) . But

(c) Balsh v. Hyham, 2 P. W. 455, trust estate is specifically dedicated

per Lord King ; and see Attorney to a particular purpose which involves
General v. Mayor of Norwich, 2 M. & trade debts and liabilities, it is a trust
Cr. 424 ; Attorney-General v. Pear to use it for that particular purpose,
son, 2 Coll. 581 ; Quarrell v. Beckford, and the trustee, though personally
1 Mad. 282 ; Sandon v. Hooper, 6 liable for the debts which he con
Beav. 246 ; Bright v. North , 2 Ph. tracts in the course of the business,
216 ; James v. May, 6 L. R. H. L. 328. has a right to be paid out of the spe
(d) Benett v. Wyndham, 4 De G. cific assets appropriated for that pur
F. & J. 259. pose, and the trade creditors are not
[ (a ) Re Johnson, 15 Ch. D. 548 ; to be disappointed of payment so far
Ex parte Garland, 10 Ves. 110 ; Re as the assets so appropriated are con
Sumner, W. N. 1884, p . 121 ; Galla cerned, per Selborne, L. C., Strickland
gher v. Ferris, 7 L. R. Ir. 489. These v. Symons, 26 Ch. D. 248 ; and see
authorities proceed on this principle, Boylan v. Fay, 8 L. R. Ir. 374. ]
that where a particular part of a
862
CH. XXIV . S. 2.] EXPENSES OF TRUSTEES . *639

where the trustee for sale of a business carries on the busi

ness without authority for the benefit of the cestuis que trust,
and incurs liabilities to tradesmen in so doing, there is no
right in the creditors to come against the trust estate, but
they must look to the trustee personally (b) . ]
12. Expenses a lien on the trust estate. - The expenses in
curred by a trustee in the execution of his office are treated
by the Court as a first charge or lien upon the estate, and the
cestui que trust or his assign cannot compel a conveyance in
equity without a previous satisfaction of the trustee's just
demands (c) and in a suit for the administration of the

[ (b) Strickland v. Symons, 22 Ch . lina had been conveyed in 1684 to

D. 666 ; affirmed, 26 Ch. D. 245. ] Amy in trust for four persons. The
(c) See Ex parte James, 1 D. & C. whole equitable interest had become
272 ; Hill v. Magan, 2 Moll. 460 ; Nor subsequently vested in John Arch
wich Yarn Company, 22 Beav. 143 ; dale, who settled it upon Dawson and
Ex parte Chippendale, 4 De G. M. & his wife. Dawson filed a bill against
G. 19 ; Re Exhall Coal Company, 35 the co-heirs of Amy for a conveyance ;
Beav. 449 ; Oliver v. Osborn, W. N. and the question between the parties
1867, p. 245 ; Re Layton's Policy, was , whether the expenses incurred
W. N. 1873, p. 49. by Amy ought or not to be first paid
In Trott v. Dawson, 1 P. W. 780, and satisfied. On a reference to the
Lord Macclesfield said, " Dawson, the Master it was found that Amy had
assignee of Archdale, cannot be in a been active in the trust from 1684 to
better case than Archdale under 1697, and during that time had ex
whom he claims. Wherefore, as pended various sums of money ; that
Archdale, would not have had the the proprietors of the province had
assistance of a Court of equity with ordered Amy one grant of 12,000
out paying for the charge and trouble acres ; had created him Landgrave,
which Trott had been at in relation with a further grant of 48,000 acres ;
to the trust, so, by parity of reason, and had also presented him with one
the defendant Dawson, as claiming of the eight proprietorships, which
under Archdale, must do the same had fallen in by the death of a pro
thing which it was incumbent upon prietor without heirs. It was entered
Archdale to have done." on the books of the proprietors in
But the decision in this case was 1698, that the grants had been made
reversed in the House of Lords ; and to Amy for his services generally,
hence the inference has been drawn and particularly for his faithful dis
that a trustee gives credit for the ex charge of the trust ; that Amy had
penses, not to the estate, but to the agreed to convey the estate on request
person of the cestui que trust, and that to W. J., who was to succeed him in
the assignee is not liable for the trus the office, and by whom subsequently
tee's expenses incurred in the time of the trust was exclusively managed.
the assignor. The case is reported It did not appear that the first two
much more at length in Brown, 7 B. grants had ever been perfected, or
P. C. 266, and the circumstances were had become beneficial ; but the grant
briefly these — An eighth of the pro of the proprietorship had been ac
prietorship of the province of Caro cepted and acted upon. It was under
863
*640 EXPENSES OF TRUSTEES. [CH. XXIV . S. 2.

[* 640 ] fund * in respect of which the expenses have been

incurred, the lien of the trustee will be paid even
before the costs of suit (a ) . [ And the expenses are a first
charge as well upon the income as upon the corpus of the
estate, and the trustees have therefore the right to retain
their expenses out of the income until provision can be made
for raising them out of the corpus (b) . ] But the trustee of
a void trust deed cannot charge his expenses as against per
sons who establish the invalidity of the deed (c) ; though he
will be allowed for improvements (d). There will be no lien
for expenses incurred by trustees in respect of an act done
in excess of their powers, and therefore in breach of their
duty (e) . And the Court has refused to give effect to a
trustee's lien by a foreclosure decree, or a sale, which would
be the destruction of the trust itself ; but the Court has gone
as far as it could by delivering the deeds into his custody
and prohibiting any disposition of the property without pre
vious discharge of the trustee's lien (f) .
[13. Enforcing right to indemnity. ――― Where a trustee has a
right of indemnity out of the trust estate, he may at any time
come to the Court to enforce it, and is under no obligation to
wait until the trust estate has been turned into money under
the trust (g) . ]
14. Advance by cestui que trust. ― If trustees have to raise
a certain sum which is properly chargeable on the corpus,
and a cestui que trust, at the request of the trustees, ad
vances money for the purpose, the cestui que trust stands

these circumstances that Lord Mac [ (b) Stott v. Milne, 25 Ch. D. 710. ]
clesfield directed a conveyance of (c ) Smith v. Dresser, 1 L. R. Eq.
the estate, subject to the payment 651 ; 35 Beav. 378.
of Amy's expenses ; but on appeal (d) Woods v. Axton, W. N. 1866,
to the House of Lords the decree p. 207.
below was reversed. The question (e) Leedham v. Chawner, 4 K. &
appears to have been, not whether J. 458 ; in which case the Court held
Amy's expenses, due from the as that there was no lien even as against
signor, were a lien upon the estate, a cestui que trust who knew and ap
but whether the grants made to Amy proved of the proceedings , but other
had not been accepted by him as a wise remained passive.
full compensation . (f) Darke v. Williamson , 25 Beav.
(a) See Morison v. Morison, 7 De 622.
G. M. & G. 226 ; Re Exhall Coal [(g) Re Pumfrey, 22 Ch. D. 255,
Company, 36 Beav. 449. 262.]
864
 CH. XXIV. S. 2.] EXPENSES OF TRUSTEES . *641

* in the place of the trustees and has a lien on [ * 641 ]

the corpus for the amount (a) .
15. Lien does not extend to the trustees' agents. Although
the trustees themselves are creditors upon the trust fund
for the amount of their expenses, the persons who are em
ployed by them as solicitors, surveyors, & c., have no such
lien. And the law is so settled , notwithstanding an express
declaration by the settlor that the trustees shall in the first
place pay the expenses of the trust, and though the trustees
themselves be charged to be insolvent. In every deed is
implied a direction to pay the costs and expenses, and ex
pressio eorum quæ tacite insunt nihil operatur. It would be
a mischievous principle to hold, that every person with whom
the trustees had incurred a just and fair demand might sue
the trustees, and come for an account of the whole adminis
tration (b).

16. Secus if there be a positive direction to employ a partic

ular agent. -
But a solicitor in accounting for his receipts to
the trustees may set off his costs (c) . And a positive direction
to the trustees to employ a particular person as auditor or
receiver, and allow him a proper salary, will constitute a
trust in his favour, and, of course, give him claim against
the trust fund (d) . But if a testator merely recommend or
express a desire that his trustees should employ him as re
ceiver, the question is, whether the words used amount to a
trust, or only to an expression of opinion and advice : and
to discover the meaning, the Court examines the provisions
of the will, and if it finds that, to consider the words as a
trust would be inconsistent with the general character of
the will , which assumes that the administration of the estate
is to be unfettered by such a trust, the Court comes to the
conclusion that the words were meant only by way of

(a) Todd v. Moorhouse, 19 L. R. 12 Cl. & Fin. 507 ; Francis v. Francis,

Eq. 69; Re Layton's Policy , W. N. 5 De G. M. & G. 108.
1873, p. 49 ; and see Clack v. Holland , (c) Re Sadd, 34 Beav. 650.
19 Beav . 262.
(d) Williams v. Corbet, 8 Sim .
(b) Worrall v. Harford , 8 Ves. 4, 349 ; Hibbert v. Hibbert, 3 Mer. 681 ;
see 8 ; Hall v. Laver, 1 Hare, 571 ; Consett v. Bell, 1 Y. & C. C. C. 569.
Feoffees of Heriot's Hospital v. Ross,
865
* 642 EXPENSES OF TRUSTEES . [CH. XXIV . S. 2.

suggestion (e). [And where a will contained a direction

that "the testator's solicitor should be the solicitor to his
estate and to his trustees in the management and carrying
out the provisions of his will," it was held that no trust or
duty was imposed on the trustees to continue the testator's
solicitor as their solicitor (f) . ]
17. Trustee's agents not accountable to the cestuis que trust.
Vice versa, the agent of a trustee is accountable to the
· employer only, the trustee, and not to the cestui que
[ * 642] trust (g) ; and * an action by cestui que trust against
the trustee and his solicitor, alleging improper pay
ments out of the trust fund by the trustee to the solicitor,
[cannot be maintained as against ] the solicitor ( a) . But
under the special provisions of the Solicitors ' Act (b) , cestuis
que trust may, at the discretion of the Court, obtain an order
to tax the bill of the solicitor employed by the trustee (c) ,
and generally cestuis que trust may proceed against an agent
where he has not confined himself to the duties of an agent,
but by accepting a delegation of the whole trust (d) , or by
fraudulently mixing himself up with a breach of trust (e) ,
has himself become a trustee by construction of law.
18. Monies in hands of Secretaries of State . ____ Monies
voted by Act of Parliament for the public service, are not
trust funds in the hands of the Secretaries of State for any
(e ) Shaw v . Lawless, 1 Ll. & G. t. Court will direct taxation at the in
Sugd. 154 ; reversed 1 Dr. & Walsh, stance of a cestui que trust, see Re
512 ; 5 Cl. & Fin . 129 ; Ll. & G. t. Drake, 22 Beav. 438 ; Re Dickson, 3
Plunk. 559 ; Finden v. Stephens, 2 Jur. N. S. 29 , and cases there referred
Ph. 142 ; Knott v. Cottee, 2 Ph. 192 . to ; and Re Dawson, 28 Beav. 605.
[(f) Foster v. Elsley, 19 Ch. D. (d) Myler v. Fitzpatrick, 6 Mad.
518. ] 360 ; and see Pollard v. Downes, 1
(g) Myler v. Fitzpatrick, 6 Mad. Eq . Ca. Ab. 6 ; Lee v. Sankey, 15 L.
360 , per Sir J. Leach ; Attorney-Gen R. Eq. 204.
eral v. Earl of Chesterfield , 18 Beav. (e) See Fyler v. Fyler, 3 Beav.
596 ; and see Langford v. Mahony, 2 550 ; Alleyne v. Darcy, 4 Ir. Ch . Rep.
Conn. & Laws. 317 ; Lockwood v . 199 ; Portlock v . Gardner, 1 Hare,
Abdy, 14 Sim. 441 ; Keane v. Rob 606 ; Ex parte Woodin, 3 Mont. D. &
arts, 4 Mad . 350 ; Archer v. Laven De G. 399 ; Attorney-General v. Cor
der, 9 I. R. Eq. 225, per Cur. poration of Leicester, 7 Beav. 176 ;
(a) Maw v. Pearson, 28 Beav. 196 ; Pannell v. Hurley, 2 Coll . 241 ; Bo
[ Re Spencer, 51 L. J. N. S. Ch . 271.] denham v. Hoskyns, 2 De G. M. & G.
(b) 6 & 7 Vict. c . 73, s. 39. 903 ; Morgan v. Stephens , 3 Giff. 226 ;
[ (c) Re Spencer, ubi supra .] As Hardy v. Caley, 33 Beav. 365.
to the circumstances under which the
866
CH . XXIV . S. 2.] EXPENSES OF TRUSTEES. * 643

particular individual, but for the general purposes of the

office . The persons employed by them, therefore, have no
lien which they can enforce in equity (ƒ) .
19. Trust of two estates. If a person be trustee of dif
ferent estates for the same cestuis que trust under the same
instrument, and he incurs expenses on account of one estate
in respect of which he has no funds, it is presumed that he
may apply to their discharge any money which has come to
his hands from any other of the estates ; but he would not be
justified in mixing up claims under one instrument of trust
with those under another (g) . [ But where different estates
are held under the same instrument for different cestuis que
trust, the trustee cannot reimburse himself from one estate
losses incurred in bona fide administration of the other
estate (h) .]
20. How expenses recoverable where no trust estate . ―――――――― If
the trust estate fail, the trustee may then institute proceed
ings against the cestui que trust on whose behalf and at whose
request he acted, to recover from him personally the
*
amount of the money expended (a) ; and the rule [ * 643 ]
applies to the case of a cestui que trust under cover
ture, to the extent of any property settled to her separate
use, and where her anticipation is not restrained (b) ; and,
generally, trustees acting with the sanction of their cestuis
que trust, and not exceeding their powers, may call upon
their cestuis que trust personally to reimburse them any nec
essary outlay (c) ; and in a late case it was held that a trustee
who, in that character, had incurred a legal liability, might
call upon the cestui que trust in equity to give an indem

(f) Grenville-Murray v. Earl of Eq. 18 ; [ and see Fraser v. Murdoch,

Clarendon, 9 L. R. Eq . 11. 6 App. Cas. 855, 872.]
(9) Price v. Loaden, 21 Beav. (b) Butler v. Cumpston, 7 L. R.
508. Eq . 16.
[ (h) Fraser v. Murdock, 6 App. (c) Ex parte Chippendale, 4 De G.
Cas. 855 ; and cf. Re Johnson, 15 Ch. M. & G. 19, see 54 ; Re Exhall Coal
D. 548. ] Company, W. N. 1867 , p. 244 ; Ex
(a ) Balsh v. Hyham, 2 P. W. 453 ; parte Challis, 16 W. R. 451 ; 17 L. T.
Ex parte Watts, 3 De G. J. & S. 394 ; N. S. 637 ; James v. May, 6 L. R. H.
Re Southampton Imperial Hotel Com L. 328 ; and see Hemming v . Mad
pany, 26 L. T. N. S. 384, 20 W. R. dock, 9 L. R. Eq. 175.
435 ; Jervis v. Wolferstan, 18 L. R.
867
*644 EXPENSES OF TRUSTEES . [CH. XXIV. S. 2.

nity against the liability before any actual loss had ac

crued (d) .
[Indemnity against liability . — In a more recent case, how
ever, Fry, J., was of opinion that a person who has under
taken a position of responsibility for another which entitles
him to an indemnity cannot sue before the damage has ac
crued, which gives rise to the right to idemnity, and he
refused relief to a plaintiff who was holding, as a trustee
for the defendant, shares not fully paid up in a company in
liquidation , but on which no call had been actually made (e) .
And where the trustee acts at the instance of the maker of
the trust, at any rate where the maker of the trust is not
also beneficially interested under the trust instrument, the
trustee has no right to personal indemnity from the settlor,
but must look exclusively to the trust funds to make good
his expenses or losses (f) . ]
21. Claim of expenses against a cestui que trust person
ally. But the trustee can establish no claim to reim
bursement either against the cestuis que trust personally,
or against the trust estate, where he has incurred the
outlay not in the strict line of his duty, and without
either the request or the implied assent of the cestuis que
trust (g).
22. Funds out of which expenses payable. - Questions oc
casionally arise respecting the proper fund for payment of
expenses. In one case (h) , Sir John Leach decided that a
provision made in a will for payment of debts and
[ * 644 ] funeral and * testamentary expenses out of a particu
lar fund, did not make that fund primarily liable for
costs of administration. In a subsequent case, Lord Langdale

(d) Phené v. Gillan , 5 Hare, 1 , see (g) Leedham v. Chawner, 4 K. & J.

pp. 9, 13 ; and see Re Southampton 458. In Collinson v. Lister, 20 Beav.
Imperial Hotel Company, 26 L. T. N. 368, where the advances were not
S. 384 ; 20 W. R. 435 . proper, the M. R. said, " No assets
[(e) Hughes Hallett V. Indian exist out of which the executor could
Mammoth Gold Mines Company, 22 seek for payment, and of course, it
Ch . D. 561 ; but see Lord Ranelaugh could not be contended that the plain
v. Hayes, 1 Vern . 189 ; Phené v. tiffs (who were the cestuis que trust)
Gillan, ubi supra.] were liable to repay the advances . "
[ (f) Fraser v. Murdoch, 6 App. (h) Brown v. Groombridge, 4 Mad.
Cas. 855, 872. ] 495.
868
CH. XXIV. S. 2. ] EXPENSES OF TRUSTEES. *644

arrived at a different conclusion ( a ) ; [ and after considerable

variation of judicial opinion, the later cases seem to have
established the rule that the words testamentary expenses
include the costs of administration (b) . So ] where the trust
was for " payment of debts, funeral expenses , and the costs
and charges of proving and attending the execution of the will,
and the several trusts therein contained ” (c) , [ and where the
trust was " to pay debts and executorship expenses and pro
bate duty " (d) , ] it was held that the words included costs of
administration.
23. Exoneration of personalty. Where a testator be
66
queathed " a leasehold house and all other his personal prop
erty " to his wife, and then devised his real estate to be sold,
the proceeds to be applied in " payment of funeral and
testamentary expenses and debts," and the " residue " to be
invested, it was held that the funeral and testamentary
expenses and debts were thrown upon the real estate in
exoneration of the personal estate, but that the costs of the
special case for taking the opinion of the Court were not
"testamentary expenses," and therefore fell upon the person
alty (e) ; [but having regard to the present rule, it is con
ceived that this case would not now be followed on the
question of costs . ]
24. Trust to pay costs of trust. - A trust in a will of real and
personal estate to pay out of the personal estate the expenses
of probate and " the execution of the trusts of the will," does
not authorize the trustee to apply the fund in payment of
any other expenses than what would be payable by the execu

(a) Wilson v. Heaton, 11 Beav. 492. Eq. 577. [In Webb v. De Beauvoisin,
[ (b) Miles v. Harrison, 9 L. R. Ch. where the trust was for " payment of
App. 316 ; Harloe v . Harloe, 20 L. R. debts, testamentary and other expenses
Eq . 471 ; Sharp v. Lush, 10 Ch. D. and legacies under the will ," and in
468 ; Penny v. Penny, 11 Ch . D. 440 ; Coventry v. Coventry, 2 Dr. & Sm.
Morrell v. Fisher, 4 De G. & Sm. 422, 470, where the trust was "to pay fu
but see contra, ] Stringer v. Harper, neral and testamentary and legal ex
26 Beav. 585 ; Linley v. Taylor, 1 Giff. penses," it was held that the words
67 ; Webb v. De Beauvoisin, 31 Beav. included costs of administration. ]
573 ; Gilbertson v. Gilbertson, 34 (c) Alsop v. Bell, 24 Beav. 451,
Beav. 354 ; Hill v. Challinor, W. N. see p. 469.
1867, p. 139 ; Lees v. Lees, 6 I. R. [(d) Sharp v. Lush, 10 Ch . D. 468. ]
Eq. 259 ; M'Cormick v. Patten, 5 I. R. (e) Gilbertson v. Gilbertson, 34
Eq. 295 ; Re Biel's Estate, 16 L. R. Beav. 354.
869
*644 EXPENSES OF TRUSTEES. [CH. XXIV. S. 2.

tors in that character, and therefore does not authorize the

application of the personal estate in payment of the expenses
incurred in the execution of trusts declared of the testator's
real estate (f) .

(f) Lord Brougham v . Lord Poulett, 19 Beav. 119 ; and see Sanders v.
Miller, 25 Beav. 154.
870
 * CHAPTER XXV . [* 645 ]

HOW A TRUSTEE MAY OBTAIN HIS DISCHARGE FROM THE

OFFICE.

WE shall conclude the subject of the Office of Trustee by

considering in what manner he may divest himself of that
character.¹
How the trust may be relinquished . - The only modes by
which he can accomplish this object are the following : First,
He may have the universal consent of all the parties inter

1 Discharge ofthe trustee. If the time during which a trust was to continue
has elapsed, or all the duties required of the trustee have been performed, the
trustee, upon proper accounting, will be discharged ; Cook v. Gardner, 130
Mass. 313 ; How v. Waldron , 98 Mass. 281 ; Manice v. Manice, 43 N. Y. 303.
Otherwise, a trustee can be discharged only by one of the three ways men
tioned in the text ; Webster v. Vandeventer, 6 Gray, 428 ; Craig v. Craig, 3
Barb. Ch . 76 ; Cruger v. Halliday, 11 Paige, 319 ; Drane v. Gunter, 19 Ala.
731. A trustee cannot abandon the trust and his responsibilities under it at
any time which suits his convenience ; Thatcher v. Candee, 3 Keyes, 157 ;
Webster v. Vandeventer, 6 Gray, 428 ; Henderson v. Sherman, 47 Mich. 267.
Nor can a trustee be discharged by consent unless all parties in interest unite
in consenting, and all cestuis que trust are sui juris ; Cruger v. Halliday, 11
Paige, 314. If the declaration of trust provides for the removal of a trustee,
the removal may take place in accordance with its terms, which must, how
ever, be strictly followed, as is the case with statutory enactments ; Tavenner
v. Robinson, 2 Rob . (Va . ) 280. If a trustee sues without compensation and
the trust is to continue for an unspecified time, he may obtain a decree of
court granting a discharge, when his duties become inconvenient or onerous
to him ; Bogle v. Bogle, 3 Allen, 158. Equity courts have power to remove
trustees, or to allow them to resign ; In re Eastern R. R. Co., 120 Mass . 412 ;
Bowditch v . Banaelos, 1 Gray, 220 ; Field v. Arrowsmith, 3 Humph. 442 ; De
Peyster v. Clendining, 8 Paige, 295. Trustees may, if a trust is divisible,
be allowed to resign a part, and continue as trustees of the remainder ; Craig
v. Craig, 3 Barb. Ch . 76 ; Curtis v. Smith, 6 Blatchf. 537 ; but they will not be
involuntarily removed from the control of a part ; Sturges v. Knapp, 31 Vt.
1. The usual method on application to the courts for the removal or appoint
ment of trustees is by a bill in equity ; Bowditch v. Banaelos , 1 Gray, 220 ;
Mitchell v . Pitner, 15 Ga . 319 ; Re Livingston, 34 N. Y. 567 ; Williamson v.
Suydam, 6 Wall. 723. Any of the parties interested, upon notice to all the
others, may seek the removal or appointment of a trustee ; Bradstreet v. But
terfield, 129 Mass . 339 ; Abbott, Pet'r, 55 Me. 580 ; Guion v. Melvin, 69 N. C.
242 ; but see Hartman's App. 90 Pa. St. 206.
871
*646 APPOINTMENT OF NEW TRUSTEES . [CH. XXV.

ested ; Secondly, He may retire by virtue of a special power

contained in the instrument creating the trust, [ or a statu
tory power applicable to the trust ; ] or, Thirdly, He may
obtain his release by application to the Court.

First. By consent.
1. Trustee may retire with consent of cestuis que trust.
As no cestui que trust who concurs in a breach of trust by
the trustee can afterwards call him to account for the mis
chievous consequences of the act, it follows, that where all
the cestuis que trust, being sui juris, lend their joint sanction
to the trustee's dismissal, they are precluded from ever
holding him responsible on the ground of delegation of his
office (a).
2. All must concur. But the trustee must first satisfy
himself that all the cestuis que trust are parties , for even in
the case of a numerous body of creditors the consent of the
majority is no estoppel as against the rest (b) .
3. Cestuis que trust not sui juris. - And the cestuis que trust •
who join must be sui juris, not femes covert or infants, who
have no legal capacity to consent. But a feme covert is con
sidered to be sui juris as to her separate estate where there is
no restraint against anticipation (e) ; and as to real estate she
can, with the consent of her husband , bind her interest by an
assurance under the Fines and Recoveries Act.
4. Not in existence. If the parties interested in the trust
fund be not all in existence, as where the limitation of the
property is to children unborn, it is clear, that as the
[ * 646 ] trustee cannot have the sanction of all the parties
interested, he cannot with safety be discharged from
the trust .

Secondly. A trustee may retire by virtue of a special

power contained in the original instrument, [ or a statutory
power applicable to the trust. ]
1. Trustee may retire under a power. ―― The person who
creates the trust may mould it in whatever form he pleases,

(a) Wilkinson v. Parry, 4 Russ. (b) See supra, p. 498, note (e) .
276, per Sir J. Leach. (c) See infra, chap . xxvii . s . 6.
872
CH. XXV. ] APPOINTMENT OF NEW TRUSTEES. * 646

and may therefore provide , that on the occurrence of certain

events and the fulfilment of certain conditions, the original
trustee may retire, and a new trustee be substituted (1) .
2. Usual form of the power . - The form of power (a) most
commonly in use is, that in case the trustees appointed by
the instrument of trust, or to be appointed under the power,
or any of them, shall " die or be abroad for twelve cal
endar months , or be desirous of being discharged from, or re
fuse, decline, or become incapable ( b ) to act in the trusts," it
shall be lawful for the cestui que trust to whom the power
may be given, or (as the proviso is frequently worded) for
the surviving or continuing trustee (c) , or the executors (d)
or administrators of the survivor, by deed or writing,

(a ) The best modern forms did to be a continuing trustee. As to the

contain the additional words, " or by object of this addition, see p. 664 in
the Court of Chancery or other compe fra. But it is attended with this in
tent authority," in order to obviate ' convenience, that if the refusing or
the break in the chain of trusteeship retiring trustee do not join , evidence
which would otherwise have been may be called for that he was not
occasioned by a resort to the court, willing. Sometimes the power is given
but the addition is now unnecessary to the surviving , continuing, or other
[for that purpose ; see 44 & 45 Vict. trustee, an addition which has been
c. 41, s. 33 ; but see Cecil v. Langdon, found useful in practice. See Lord
28 Ch. D. 1 , where the court was of Camoys v. Best, 19 Beav. 414.
66
opinion that where the power author (d) Better to say acting execu
ized the appointment of new trustees tors or executor or administrators or
in the place of those originally ap administrator," as otherwise if several
pointed or to be appointed under the executors be appointed, and one only
power, an appointment could not be proves, it may be objected (though
made under the power in the place of the objection may be untenable) that
a trustee who had been appointed by the other executors must actually
the court.] renounce before the acting executor
(b) " Unfit " may be usefully can exercise the power, see White v.
added ; see p. 658 infra. M'Dermott, 7 I. R. C. L. 1 ; Worth
(c) The best forms provide that a ington v. Evans, 1 S. & S. 165 ; Clarke
refusing or retiring trustee shall, if v. Parker. 19 Ves . 1 ; see post, p. 656,
willing to execute the power, be deemed note (e).

(1) Every instrument where there is a continuing trust of an active character,

should, of course, until the modern acts, have contained a power of appoint
ment of new trustees, but, singularly enough, Lord Thurlow omitted to insert
one in his own will, of which Lord Eldon and two others were named trustees.
The defect was supplied by a private act of Parliament, 15th June, 1809 (49
G. 3, cap. clxxv. ) , by which power was given to the Court of Chancery, in case
any of the three trustees " should die, or be desirous of being discharged from,
or should refuse, or decline, or become incapable to act in the trusts," to
appoint a new trustee in a summary way upon petition.
873
* 647 APPOINTMENT OF NEW TRUSTEES . [CH. XXV.

[ * 647 ] to nominate some other person to be a trustee ; * and

the power then proceeds to declare that the trust es
tate shall forthwith be vested jointly in the persons who are
in future to compose the body of trustees ; and that the new
or substituted trustee shall, either before or after the trust
estate shall have been so vested, be capable of exercising all
the same powers as if he had been originally named in the
settlement.
3. Several sets of trustees. - It often happens that in a
settlement there are several sets of trustees-a term of 99
years for instance is vested in A. and B., and a term of 500
years in C. and D., and there is a limitation to E. and F. for
the life of a person , with powers of sale and exchange, &c.,
and then a power of appointment of new trustees is given to
"the surviving or continuing trustee or trustees . " If A. die
who can appoint in his place ? Is the power in B. as the
survivor in that particular trust, or in B. , C. , D. , E. and F.
jointly as the survivors of the trustees en masse ? This doubt
has occasionally in practice led to expense, which might
easily have been avoided by a few words in the power de
claratory of the intention, as by limiting the power to " the
surviving or continuing trustees or trustee of the class in
which any such vacancy or disqualification shall occur."
4. Lord Cranworth's Act. - Lord Cranworth's Act, provided
against the omission of a power of appointment of new trus
tees in any instrument of trust, and also against defects in
the power, by enacting generally, by the 27th section, that
"whenever any trustee, either original or substituted, and
whether appointed by the Court of Chancery or otherwise,
should die or desire to be discharged from, or refuse or be
come unfit or incapable to act," it should be lawful for the
person nominated for that purpose by the instrument creating
the trust, or if there should be no such person, or he should
be unable or unwilling to act, then " for the surviving or
continuing trustees or trustee for the time being, or the acting
executor or administrator of the last surviving and continu
ing trustee, or for the last retiring trustee, by writing, to
appoint any other person or persons to be a trustee or trus
tees," and the Act gave the usual directions for vesting the
874
CH. XXV.] APPOINTMENT OF NEW TRUSTEES. *648

trust estate (a) ; and the following section made the Act
apply to the case of a trustee dying in the testator's lifetime.
But it will be observed that the Act did not provide for the
case of a trustee going abroad, and it cannot be safely as
sumed, until a decision, that the word " refuse " was meant
to include a disclaimer (for a disclaiming trustee never was a
trustee (b) ) ; and its operation was, by the 34th
* section of the Act, restricted to instruments inter [ * 648 ]
vivos executed after the passing of the Act ( 28th Aug
ust, 1860) , and to wills and codicils made, confirmed, or re
vived after that date.
Two trustees in place of one. - It has been held that the
donee of the power under this Act could appoint two trus
tees in the place of an only trustee appointed by the settlor's
will (a) .
[5. 44 & 45 Vict. c. 41, s . 31. - The above provisions of
Lord Cranworth's Act have, however, been repealed by the
Conveyancing and Law of Property Act, 1881 (b) , and their
place supplied by sect. 31, which enacts, that " where a trus
tee, either original or substituted , and whether appointed by
a Court or otherwise, is dead, or remains out of the United
Kingdom for more than twelve months, or desires to be dis
charged from the trusts or powers reposed in or conferred
on him, or refuses, or is unfit to act therein, or is incapable
of acting therein, then the person or persons nominated for
that purpose by the instrument, if any, creating the trust, or
if there is no such person, or no such person able and willing
to act, then the surviving or continuing trustees or trustee
for the time being, or the personal representatives of the last
surviving or continuing trustee, may, by writing, appoint
another person or other persons to be a trustee or trustees."
And the Act authorises an increase or reduction in the num
ber of trustees, so that " except where only one trustee was
(a) 23 & 24 Vict. c. 145, s. 27. diction of the court to appoint in
(b) In Viscountess D'Adhemar v. proper cases an additional trustee ;
Bertrand , 35 Beav. 19, it was as and see Re Jackson's Trusts, 16 W.
sumed that a disclaiming trustee was R. 572 ; 18 L. T. N. S. 80 ; and post, p.
within the act, and it was held that 656.
an appointment of a new trustee by (a ) Re Breary, W. N. 1873, p. 48.
the continuing trustee under the act [ (b) 44 & 45 Vict. c. 41. ]
did not take away the general juris
875
* 649 APPOINTMENT OF NEW TRUSTEES. [CH. XXV.

originally appointed a trustee shall not be discharged under

the section from his trust, unless there will be at least two
trustees to perform the trust ; " and provides for the vesting
of the trust property ; and makes the provisions of the sec
tion relative to a trustee who is dead include the case of a
person nominated trustee of a will but dying in the testator's
lifetime, and those relative to a continuing trustee include a
refusing or retiring trustee ; and the section applies to trusts
created either before or after the commencement of the Act.
The section applies only so far as a contrary intention is
not expressed in the instrument, if any, creating the trust ;
but where a power of appointing new trustees had been
given by a settlement, made in 1849, to "the surviving or
continuing trustees or trustee," which they or he were re
quired to exercise with the consent of the tenant or tenants
for life or in tail for the time being entitled in possession, it
was held that the fetter imposed by the settlement did not
apply to an appointment under the powers of the
[ *649 ] Act, and * that the continuing trustee could appoint
new trustees under the Act ; the power in the settle
ment having in the events which had happened ceased to be
exercisable (a) . It would seem that an appointment under
this section may be made by the personal representative of a
sole trustee.¹
6. The representatives of a deceased trustee do not, by
declining to exercise the statutory power of appointment,
render themselves liable to the costs of an application to the
Court to appoint new trustees (b) .
7. A settlement made in 1878 contained a declaration that
the husband and wife during their joint lives should have
power to appoint new trustees of the settlement. After the
Conveyancing and Law of Property Act, 1881 , came into
operation, the husband and wife executed a deed appointing
a new trustee in the place of one of the trustees who had
remained out of the United Kingdom for more than twelve
months, and it was held that the appointment was valid

[(a) Cecil v. Langdon, 28 Ch. D. [ (b) Re Sarah Knight's Will, 26

1.] Ch. D. 82. ]
1 Re Shafto's Trusts, 29 Ch. D. 247.
876
CH. XXV. ] APPOINTMENT OF NEW TRUSTEES . *650

under sect. 31 of the Act ; and North, J., observed, " the
intention of sect. 31 is that, whenever a person has been
nominated by the instrument creating the power as the person
to appoint new trustees, he has the power of filling up any
vacancy occurring under the provisions of the section " ( c) .
It will be observed, however, that the husband and wife
were in this case nominated to fill up vacancies in the trus
teeship generally, and not only in certain specified events ,
and the observations of the learned judge must be read by
the light of the existing circumstances, and the case is no
authority that where the settlement has given the power of
appointing new trustees in certain special events to A., he is
by the Act empowered to appoint new trustees in any other
event not mentioned in the settlement, but falling within
sect. 31. The proper construction of the Act would seem to
be that in such a case the power of appointing new trustees
is in the surviving or continuing trustees or trustee, or the
personal representatives of the last surviving or continuing
trustee .]
8. Whether a new trustee is actually such until transfer of
the estate to him . - The words contained in the ordinary
form which expressly confer all powers on the new trustee
before the estate has been conveyed, show that a doubt has
been felt by the profession, whether in the absence of these
words the powers could be exercised until after conveyance,
and the late Vice Chancellor of England, in a case where
the words referred to did not occur, but there was simply a
power of nomination and no direction for a conveyance,
expressed his opinion to be that the person to be appointed
was not invested with the character of trustee until
he had both been nominated to the office by the [* 650 ]
donee of the power, and the trust property had also
been duly conveyed or assigned (a ) . But in a more recent
case before Sir John Romilly, M. R. ( b) , where A. and B.
were appointed trustees of a settlement, and after a lapse of
18 years A. disclaimed , and B. was desirous of retiring, and

[(c) Re Walker and Hughes' Con (a) Warburton v. Sandys, 14 Sim .

tract, 24 Ch. D. 698.] 622.
(b) Noble v. Meymott, 14 Beav. 471 .
877
* 650 APPOINTMENT OF NEW TRUSTEES . [CH. XXV.

the donee of the power nominated C. in the place of A. , and

D. in the place of B. , and B. professed to assign the trust
fund (consisting of a share of 3,000l. in the hands of trustees
of another settlement) to C. and D. , who filed their bill with
out their cestuis que trust to have the trust fund paid to
them, it was objected against the validity of the appointment
that A. had acted , and that consequently B. could not alone
pass the trust fund, and that therefore the appointment of
trustees was incomplete ; but the Master of the Rolls held
that, whether A. had acted or not, his disclaimer was a wish
to retire, and that C. and D. were duly appointed , and were
entitled to call for payment of the trust fund : that the
appointment of new trustees, and the conveyance of the trust
property to them were two distinct and separate matters, and
that the transfer could only take place when the appoint
ment was complete ; and that various difficulties would
arise from holding that the transfer of the trust fund was
necessary to perfect the appointment. And in a subsequent
case before the same judge, where there was the usual power
of appointment of new trustees, with a direction for the con
veyance of the trust estate, and the donee of the power
appointed a new trustee in the place of a deceased trustee,
but the trust estate was not conveyed, and the surviving
trustee and new trustee then sold the estate and signed a
receipt for the purchase-money, it was held that the pur
chaser acquired a good title (c) . It would appear, therefore,
that at the present day an actual conveyance of the legal
estate, unless the power be specially worded, is not essential
to the valid appointment of new trustees.¹
(c) Welstead v. Colvile, 28 Beav. 537.
1 It is only necessary in some states for a new trustee to qualify, in order
to vest the trust estate at once in him, special statutory provisions applying
thereto. In such cases no conveyance is necessary to transfer the title ;
Gibbs v. Marsh, 2 Met. 243 ; Parker v . Converse, 5 Gray, 341 ; Burdick v .
Goddard, 11 R. I. 516 ; the same is true if the trust instrument contains such
a provision ; Webster Bank v. Eldridge, 115 Mass. 424 ; Ellis v. Railroad Co.
107 Mass. 13. New trustees can only be appointed by the Court, unless special
provision has been made ; Wilson v. Towle, 36 N. H. 129. For the exercise
of the power of appointment, see Davoue v . Fanning, 2 Johns . Ch. 252 ;
McKim v. Handy, 4 Md. Ch . 230. Where trustees have the power to appoint
new trustees, care should be taken that the selection be satisfactory to the
cestui que trust ; Naglee's Est . 52 Pa. St. 154.
878
CH. XXV. ] APPOINTMENT OF NEW TRUSTEES . * 651

9. Mode of vesting trust estate. - Should the trust estate

consist of Bank Annuities, or other property transferable in
the books of any company, then by one and the same deed
the donee of the power may nominate the new trustee, and
the old and new trustee may execute a declaration of trust
of the stock or other property intended to be transferred,
and after the execution of the deed the stock may be trans
ferred into their joint names accordingly. If the trust estate
consist of chattels real, or other personal estate legally assigna
ble, two deeds , until a modern Act, were necessary .
By the first, the old trustee assigned * the chattel¸ [ * 651 ]
interest to A., and then A. by indorsement re-as
signed it to the old and new trustees as joint tenants . But
now, by Lord St. Leonards' Act, 22 & 23 Vict. c . 35, s . 21, a
person may assign chattels real and other personal property
assignable at law to himself and another, so that in such
cases for the future one deed will be sufficient (1) ; [and the
power has by the Conveyancing and Law of Property Act,
1881 (a) , been extended to things in action . ] If the trust
estate be of a freehold nature, and by the terms of the instru
ment of trust the whole legal estate is to be vested in the
trustees, there needs, in general, no other machinery than a
simple conveyance under the Statute of Uses ; for the old
trustee may convey the lands to the joint use of himself and
the new trustee, and the statute will operate to transfer the
possession . But in settlements which invest the trustees with
powers, the established form of the proviso has been thought
to occasion the necessity of resorting to the use of two deeds .
The language of the clause is, that " the trust estate shall be
conveyed in such manner that the same may be vested in

[(a) 44 & 45 Vict. c. 44, s . 50. ]

(1 ) The Act does not authorise an assignment by a person to himself (as

by an executor to himself as legatee) , nor by himself and another or others to
himself, as by two co-executors to one of them as trustee, for in the first case
he has the legal estate already and a declaration will shift the equitable
interest, and in the second case so far as he has not the legal estate in him
self the other or others can assign it or release it independently of the Act.
The operation of the Act is limited to property assignable at law, for mere
equitable interests shift according to the intention, and no legislative inter
ference was required as to them.
879
*652 APPOINTMENT OF NEW TRUSTEES . [CH . XXV.

the old and new trustees to the uses, trusts, intents, and pur
poses of the settlement." Now the meaning obviously is,
that, as by the settlement an estate to preserve contingent
remainders, or, it may be, some other interest, was limited to
the trustees who are armed with the powers, should either of
the trustees die, &c., and a new trustee be appointed, such
estate pur autre vie, or other interest, should be transferred
to the old and new trustees jointly. But the practitioner ex
majori cautelâ, attached to the words, the possible , however
improbable construction, that on the appointment of a new
trustee the whole settlement should be re-opened, and that
the fee-simple should ab integro be conveyed to the old and
new trustees to all the same uses, &c., as were declared by
the original deed . For accomplishing this object it was nec
essary that two instruments should be prepared . By the
first, the new trustee was nominated by the donee of the
power, the old uses of the settlement were absolutely
[ * 652 ] revoked (the proviso, it was said, implying an * au
thority for that purpose) , and the use was appointed
to A. and his heirs, and the estate and interest vested in
the old trustees was assured unto and to the use of A.
and his heirs, by way of conveyance. When this had
been effected by one deed, and A. had become seised, or
was supposed to have become seised, of the inheritance
in fee-simple, he then, by conveyance, which was indorsed
on the former deed , reconveyed the premises to the old
and new trustees to the uses, trusts, & c., of the settlement,
in the same manner as if the new trustee had been origi
nally appointed. Thus, if the real intention was, that, on
the appointment of a new trustee a seisin to serve the uses
should be vested in the old and new trustees jointly, then
a power of revocation was implied, and the direction was
complied with. If the settlor had no such intention, then
there was no implied power of revocation, and the affected
exercise of it was a nullity, and the conveyance by the
old trustee, and the reconveyance to the old and new
trustees served only to pass the actual and vested interest.
These notions are now treated as old fashioned, and the
prevalent and better opinion is, that a simple conveyance
880
CH. XXV. ] APPOINTMENT OF NEW TRUSTEES . * 653

from the old trustee to the use of the old and new trustees
will be sufficient (a).
[ 10. New mode of vesting the trust property in new or con
tinuing trustees. By the Conveyancing and Law of Prop
erty Act, 1881 , sect. 34 , a new and simple method of trans
ferring trust property without conveyance or assignment has
been introduced, which is now generally adopted where ap
plicable . That section provides that, where a deed by which
a new trustee is appointed to perform any trust contains a
declaration by the appointor to the effect that any estate or
interest in any land subject to the trust, or in any chattel so
subject, or the right to recover and receive any debt or other
thing in action so subject, shall vest in the persons who by
virtue of the deed become and are the trustees for perform
ing the trust, that declaration shall, without any conveyance
or assignment, operate to vest in those persons, as joint ten
ants, and for the purposes of the trust, that estate, interest,
or right.
But the section does not extend to any legal estate or in
terest in copyhold or customary land, or to land conveyed
by way of mortgage for securing money subject to the trust,
or to any such share, stock, annuity, or property as is only
transferable in books kept by a company or other body, or in
manner prescribed by or under Act of Parliament.
It is to be observed that the declaration of vest
ing can only be made by the deed by which a new [ * 653 ]
trustee is appointed, and the section will not apply in
cases where the appointment is made otherwise than by deed.
The expression " the persons who by virtue of the deed be
come and are the trustees for performing the trust," is not
happily worded, but the intention of the legislature doubtless
was to vest the trust property in the persons who immedi
ately upon the execution of the deed of appointment are the
trustees for performing the trust, and it is conceived that
this intention is sufficiently expressed . ]
11. Stamps on appointment of new trustees. - By 33 & 34
Vict. c. 97, the appointment of a new trustee requires a 108.

(a) See Sugd. Powers, 884, note ( 1 ) , 8th ed.; Davidson's Preced. vol. 3,
p. 521, and vol. 4, 609, 2d ed.
881
* 654 APPOINTMEN OF NEW TRUSTEES . [CH. XXV .
T

stamp, and by s. 78 " every instrument and every decree or

order of any Court, or of any commissioners , whereby any
property on any occasion, except a sale or mortgage, is trans
ferred to or vested in any person , is chargeable with duty as
a conveyance or transfer of property. Provided that a con
veyance or transfer made for effectuating the appointment
of a new trustee, is not to be charged with any higher duty
than 10s." [ But by sect. 8 " An instrument containing or
relating to several distinct matters is to be separately and
distinctly charged, as if it were a separate instrument, with
duty in respect of each matter " ; and accordingly where by
an order of the Charity Commissioners new trustees were
appointed of a charity, and a vesting order was also made ,
it was held that two duties of 108. each were payable, one
in respect of the appointment, and the other in respect of
that part of the order which vested the trust estate in the
new trustees (a) . And on the same principle it would seem
that a double duty is payable in the ordinary case of an ap
pointment of new trustees by deed with a consequent trans
fer of the estate .
12. Trustee retiring under recent Act without appointing a
—
new trustee. Prior to the Conveyancing and Law of Prop
erty Act, 1881 , a trustee could not retire from the trust .
without seeing that a new trustee was appointed in his
place, unless the settlement contained a special power
authorising him to do so, a circumstance which seldom
occurred ; but by sect. 32 of that Act it is enacted that
(1 ) Where there are more than two trustees , if one of
them by deed declares that he is desirous of being discharged
from the trust, and if his co-trustees, and such other person,
if any, as is empowered to appoint trustees, by deed consent
to the discharge of the trustee, and to the vesting in the co
trustees alone of the trust property, then the trustee desir
ous of being discharged shall be deemed to have
[ * 654 ] retired from the trust, and shall, by the deed, * be
discharged therefrom under this Act, without any
new trustee being appointed in his place.

[(a) Hadgett v. The Commissioners of Inland Revenue, 3 Ex. D. 46. ]

882
CH. XXV. ] APPOINTMENT OF NEW TRUSTEES . * 654

(2) Any assurance or thing requisite for vesting the trust

property in the continuing trustees alone shall be executed
or done.
The section applies only if and as far as a contrary inten
tion is not expressed in the instrument, if any, creating the
trust ; but it applies to trusts created either before or after
the commencement of the Act.
By sect. 34, Where a deed by which a retiring trustee is
discharged contains a declaration by the retiring and con
tinuing trustees, and by the other person, if any, empowered
to appoint trustees , to the effect that any estate or interest
in any land subject to the trust, or in any chattel so subject,
or the right to recover and receive any debt or other thing
in action so subject, shall vest in the persons who by virtue
of the deed become and are the trustees for performing the
trust, that declaration shall , without any conveyance or as
signment, operate to vest in the continuing trustees alone,
as joint tenants, and for the purposes of the trust, the estate,
interest, or right to which the declaration relates . But the
section does not extend to any legal estate or interest in
copyhold or customary land, or to land conveyed by way of
mortgage for securing money subject to the trust, or to any
such share, stock, annuity, or property as is only transfer
able in books kept by a company or other body, or in manner
prescribed by or under Act of Parliament. ]
13. Trustee must see that the power contemplated the pre
cise case. — It must be carefully ascertained by the trustee
that the circumstances under which he retires from the trust
are precisely those which are contemplated in the terms of
the proviso ; for if the case be not warranted by the power,
the trustee who resigns will be made responsible for all the
mischievous consequences, just as if he had delegated the
office.
14. Retiring trustee must see to completion of the appoint
ment. - And a trustee on retiring must [ if a new trustee is

to be substituted in his place ] be careful not to part with

the control of the fund before the new trustee has been
actually appointed, for if he transfer it into the name of the
intended new trustee and by some accident the appointment
883
* 655 APPOINTMENT OF NEW TRUSTEES . [CH. XXV ..

fails to be completed , he still remains a trustee, and will be

answerable for the trust fund (a) .
If the old trustee obstinately and perversely, without any
sufficient reason, refuse to transfer the fund to new
[* 655 ] trustees duly * appointed, he will be visited with the
costs occasioned by his wilfulness (a) .
15. It is somewhat surprising, considering the frequency
of this power, how few questions until lately arose upon its
construction .
In Sharp v. Sharp ( b) , heard in the Court of Queen's
Bench, the terms in which the power was expressed were as
follows : - " In case either of the trustees , the said A. and
B., shall happen to die, or desire to be discharged from, or
neglect, or refuse, or become incapable to act in the trusts ,
it shall be lawful for the survivors or survivor of the trustees
so acting in the trusts, or the executors or administrators of
the last surviving trustee, by any writing, &c ., to nominate a
new trustee." Neither of the trustees being willing to act
in the trust, they executed a conveyance to two other persons
intended to be new trustees ; and the question was raised,
whether the power of appointment had, under the circum
stances, been effectually exercised, and it was determined in
the negative. Lord Tenterden said that by the word " sur
vivor " he understood merely the trustee " continuing to
act " ; for it was throughout the intention of the testator,
that, in case of the death, or incapacity, or refusal of some
one of the trustees, the remaining trustee who had been
named by him and was the object of his confidence , should
have the power of associating with himself some other per
son : but it would be giving a much larger construction to
the words than they fairly imported, if the trustees, in the
event of the whole class declining to act, were to nominate
such other persons as they might think fit. Mr. Justice Bay
ley observed, that the word " either " was not uselessly intro
duced : that it was in effect a proviso that if either of the
trustees named in the will should refuse to act, still that the

(a) Pearce v. Pearce, 22 Beav. (a ) Re Wise's Trust, 3 I. R. Eq

248. 599.
(b) 2 B. & Ald. 405 .
884
CH. XXV .] APPOINTMENT OF NEW TRUSTEES . *656

testator should have the benefit of the judgment of the other :

that the testator might have had good reason for confining
the power to the care of one trustee, for he might have had
special confidence in the trustees named by himself, and so
long as either of those persons acted in the trust he might
think his property safe. But if the words were to be read
as if they were " both or either," the case would be different ;
for if both the persons should decline to act, the testator
might naturally object to their delegating their trust to other
persons, and might then have thought it better that his prop
erty should be left to the care of a Court of equity : that
under the words of the power the testator meant by the
word " acting " to designate those who had taken
upon themselves to perform some of the trusts [ * 656 ]
mentioned in the will, and that he did not contem
plate one who in limine refused to act ; that the word " sur
vivor" must therefore mean the " continuing " trustee, as
contradistinguished both from those who might refuse
to act, and those who might be desirous to discontinue
acting .
46
16. " Refusing or declining " includes disclaiming.” — If one
trustee disclaims, may the continuing trustee appoint another,
or do the words of the power, " if any trustee shall refuse or
decline " apply, not to the case of a disclaimer, but only to a
refusal after having acted ? Although the point decided in
Sharp v . Sharp was as stated above, yet from the language of
the judges it appears that, had only one trustee disclaimed,
the other might have exercised the power ; and such, it is
presumed, is clearly the rule where there is nothing to nar
row the meaning of the words " refusing or declining."
There generally follows in the power a direction that the
estate " vested in the trustee so refusing or declining " shall
be transferred to the new trustee ; and hence it has been
argued, that as no estate vests in a disclaiming trustee, the
power did not contemplate such a case. However, there
seems to be but little weight in the argument ; for when it is
said that the words " if any trustee shall refuse or decline "
apply to disclaimer, it is not meant that they do not also
apply to a subsequent refusal . At all events, therefore,
885
 * 657 APPOINTMENT OF NEW TRUSTEES. [CH. XXV.

the direction for the transfer of the estate is not nuga

tory (a) .
17. 44' Refusing " or " declining " means also after having acted.
- On the other hand, it has been doubted whether the words

" refusing " or " declining " may not refer exclusively to dis
claimer, and have no application to the case of a trustee who,
after having accepted the trust, refuses to act any longer in
it. This proposition is also thought to be untenable (b) ,
though some recent cases have an opposite tendency (e) .
18. Payment into Court is " declining." --- It has been held
that a payment of the trust money into Court, under the Trus
tee Relief Act, stamps the trustee with the character of a
"refusing or declining trustee " (d) .
19. Power to executors and administrators. - If a power of
appointing new trustees be given to a person, his executors
and administrators, and the donee of the power dies , having
appointed three executors , one of whom renounces, the acting
executors can exercise the power ( e ) .
[* 657 ] * [ 20. Limited administration for purpose of appoint
ing new trustees . ――――― In a case in Ireland, where the
power of appointing new trustees was given to the acting
executors or administrators of the last surviving trustee, and
the last surviving trustee was dead, but there was no legal
personal representative of his estate, and the persons entitled
to take out letters would not do so, the Court of Probate
granted administration to the guardian of the infant cestuis
que trust, limited to the purpose of appointing himself and
A. B. new trustees of the settlement, and to the purpose of

(a) Re Roche, 1 Conn. & Laws. (e) Earl Granville v. McNeile, 7

306 ; Walsh v. Gladstone, 14 Sim. 2 ; Hare, 156. The Reporter speaks of
Mitchell v. Nixon, 1 Ir. Eq. Rep. 155 ; the third executor as 66 declining,"
Crook v. Ingoldsby, 2 Ir. Eq. Rep. but renunciation is meant, as assumed
375 ; Viscountess D'Adhemar v. Ber by the judgment, and expressly
trand, 35 Beav. 19. stated ; 13 Jur. 252. It would seem,
(b) Travis v. Illingworth, 2 Dr. & from the principle laid down by the
Sm . 344. Court, that, had the third executor
(c) See Re Woodgate's Settlement, declined only to act as executor with
and Re Armstrong's Settlement, 5 W. out actual renunciation, the judge
R. 448. would have arrived at the same con
(d) Re Williams's Settlement, 4 K. clusion and see ante, p. 202.
& J. 87.
886

i
CH. XXV . ] APPOINTMENT OF NEW TRUSTEES . *658

transferring to, and vesting in, such new trustees the trust
funds (a). ]
21. Death of the trustee in the testator's lifetime. — Suppose
a testator to appoint two trustees with the usual power of
appointment of new trustees, and a trustee dies in the testa
tor's lifetime, can the surviving trustee appoint a new trus
tee ? The late Vice Chancellor of England in one case
expressed a doubt upon it (b ) , and in a subsequent case
decided in the negative (c) ; but this was a narrow construc
tion of the power, and it has since been ruled that a trustee
who has survived the testator may appoint a new trustee in
the place of one who predeceased the testator (d) .
22. In Morris v . Preston (e) , the proviso was, that “ in
case of the death of any or either of the two trustees during
the lives of the husband and wife or the life of the survivor,
the husband and wife or the survivor should, with the consent
of the surviving co-trustee or co-trustees, nominate and appoint
a new trustee or trustees, and that upon such nomination or
appointment the surviving co-trustee should convey and assign
the trust estates in such manner as that the surviving trustee
and trustees, and such person or persons so to be nominated
and appointed, should be jointly interested in the said trusts.
in the same manner as such surviving trustee and the person
so dying would have been in case he were living. " Both
the trustees died, and the wife, who survived her husband,
executed an appointment of two new trustees in the place of
the deceased trustees . A purchaser took the objection, that,
as the proviso clearly contemplated the case of one
trustee surviving, an appointment of new trustees [ * 658 ]
after the decease of both the original trustees was
not warranted by the power. The purchaser abandoned the
objection at the hearing without argument - a circumstance

[ (a) Re Jackson , 7 L. R. Ir. 318. the statutory power conferred by 23

(b) Walsh v. Gladstone, 14 Sim. 2. & 24 Vict. c. 145, s . 27 , the doubt was
(c) Winter v. Rudge, 15 Sim. 596. guarded against by express enact
(d) Re Hadley, 5 De G. & Sm. ment ; see sect. 28 ; [ as is also the
67 ; Nicholson v. Wright, 26 L. J. N. case as regards the statutory power
S. Ch. 312. ( S. C. ) nomine Nicholson conferred by 44 & 45 Vict . c. 41 , s.
v . Smith, 3 Jur. N. S. 313 ; Noble v . 31.]
Meymott, 14 Beav. 477. As regards (e) 7 Ves. 547.
887
* 658 APPOINTMENT OF NEW TRUSTEES . [CH. XXV.

much to be regretted, as a judgment from Lord Eldon would

have thrown great light upon the subject . However, the
case as it stands has been said by the Lord Chancellor of
Ireland to be of great authority - viz . in favour of the
validity of the appointment ( a).
23. Power to tenant for life with the surviving or continuing
trustee . - - In another case, where two trustees had been
appointed by the settlement, and the power was, " that if
either of the trustees should die, or reside beyond seas, or
become incapable or unfit to act in the trusts , it should be
lawful for the tenants for life, together with the surviving or
continuing or acting trustee for the time being, to nominate a
new trustee, and that the trust estate should thereupon be
vested in the newly appointed trustee, jointly with the surviving
or continuing trustee," upon the trusts of the settlement ; and
one trustee died and the other became bankrupt ; on the sug
gestion by counsel that there was no surviving or continuing
trustee, and therefore the power was gone, the Lord Chancel
lor of Ireland observed, " That happens in many cases with
out the power being affected. The construction is not so
straitlaced as all that " (b).
24. Bankrupt trustee is " unfit.” - It was ruled in the same
case, that a trustee who became bankrupt was " unfit " within
the words of the power. But if the power be worded " in
case the trustee shall become incapable to act," without the
addition of the words " or unfit, " a bankrupt trustee is not
within the description, for by " incapable " is meant personal
incapacity and not pecuniary embarrassment (c). And a
bankrupt, who has obtained a first-class certificate, [and has
since the bankruptcy made a fresh start in life and has
ceased to be impecunious, ] cannot be regarded as unfit to be
a trustee (d). [ But the mere fact that the bankruptcy arose
from misfortune, and not from any fault on the part of the
bankrupt, does not remove his unfitness unless it can also be

(a ) Re Roche , 1 Conn. & Laws. 106 ; Turner v. Maule, 15 Jur. 761 ;

308. Re East, 8 L. R. Ch. App. 735.
(b) Re Roche, 1 Conn. & Laws. (d) Re Bridgman, 1 Dr. & Sm.
306 ; 2 Dru. & War. 287. 164.
(c) Re Watt's Settlement, 9 Hare,
888
CH. XXV.] APPOINTMENT OF NEW TRUSTEES . *659

shown that since his bankruptcy he has become a person of

means (e ) . ]
25. Trustee resident abroad. - The court held in one case
that a trustee who went to reside permanently abroad,
came within the description of a trustee " incapable to
act " (f) , but this seems scarcely in harmony with
* correct principle (residence abroad being rather a [ * 659 ]
question of unfitness than incapacity) , and cannot
be reconciled with other authorities (a) . And the Court has
since intimated an opinion that incapacity means personal in
capacity (b) .
26. " Unable " to act. - If the power provide that if any
one of three trustees become " unable " to act, " The trustees
or trustee for the time being, whether continuing or declining
to act," may appoint a new trustee, the two trustees who
remain capable can appoint a new trustee in the place of a
lunatic trustee (c) .
27. Temporary absence. ――――- If the settlement provide that a
trustee shall cease to be such " on departing the United King
dom from whatever cause or motive or under whatever cir
cumstances," the clause nevertheless does not apply to a
mere temporary absence with the intention of returning (d).
28. Two trustees retiring, and appointing a single successor.
-If there be two trustees of a settlement, and both be anx
ious to retire from the trust at one and the same time, they
would not be justified in putting the property under the con
trol of a single trustee appointed in their joint places (e) .¹
[(e) Re Adams' Trust, 12 Ch . D. L. J. N. S. Ch . 69 ; and see Re Watt's
634 ; and see Re Barker's Trust, 1 Settlement, 9 Hare, 106 ; O'Reilly v.
Ch. D. 43 ; Re Hopkins, 19 Ch . D. Alderson , 8 Hare, 104.
61.] (b) Re Bignold's Settlement Trusts,
(f) Mennard v. Welford , 1 Sm . & 7 L. R. Ch . App . 223.
G. 426 ; S. C. 1 Eq. Rep. 237 ; and see (c) Re East, 8 L. R. Ch. App . 735.
Re Bignold's Settlement Trusts, 7 L. (d) Re Moravian Society, 26 Beav.
R. Ch. App . 223. 101.
(a) Withington v. Withington , 16 (e) Hulme v. Hulme, 2 M. & K.
Sim. 104 ; Re Harrison's Trusts, 22 682.
1 Where two or more trustees have power to appoint their successors, they
should appoint as many as retire, and not one only ; Mass. Hospital v. Amory,
12 Pick. 445 ; yet this will depend largely upon the nature of, and the lati
tude given in, the power. A different member may be chosen when all in
terested parties assent to it ; Greene v. Borland, 4 Met. 330 ; see also Ham
mond v. Granger, 128 Mass . 272 ; Att'y Gen. v. Barbour, 121 Mass . 568.
889
* 660 APPOINTMENT OF NEW TRUSTEES . [CH. XXV.

29. Single trustee retiring and appointing two to succeed .

And, vice versa, [until the recent Act, a single trustee, had he
wished to retire, could not have appointed ] more than a
single trustee in his place ; for though, in the substitution of
more trustees than one, he would be chargeable rather with
too much than too little caution, yet he ought not to clog the
estate with unnecessary machinery. The idea of the settlor
may have been, that by increasing the number of the trustees
the vigilance of each, individually, would be diminished . " A
great number," observed Lord Mansfield, " may not do busi
ness better than a smaller, and it would be attended with
more expense " (ƒ) . [ But now by the Conveyancing and
Law of Property Act, 1881 , unless a contrary intention is
expressed in the instrument creating the trust, the number
of trustees may, on the appointment of a new trustee, be
increased, and the section applies to trusts created either
before or after the commencement of the Act (g) .
30. Independently of the recent Act ] the power may be
so specially worded as to authorise the substitution
[ * 660] of several trustees * in the place of one or of one in
the place of several. Thus, where a testator appointed
two trustees, and directed " that if the trustees thereby ap
pointed, or to be appointed as thereinafter mentioned, should
die, &c ., it should be lawful for the surviving or continuing
trustee or trustees for the time being, or the executors or ad
ministrators of the last surviving or continuing trustee, to
appoint one or more person or persons to be a trustee or trus
tees in the room of the trustee or trustees so dying, &c ., and
thereupon the trust estates should be vested in the new trus
tee or trustees, jointly with the surviving or continuing trus
tee or trustees, or solely, as occasion should require," and the
surviving trustee appointed two trustees in the room of the
deceased trustee, the late Vice Chancellor of England held
that such a case was immediately contemplated by the pro
viso (a).

(f) Rex v. Lexdale, 1 Burr. 448 ; (a) D'Almaine v. Anderson, V. C.,

Ex parte Davis, 2 Y. & C. C. C. 468 ; 3 Feb. 1, 1841 , MS .; and in Meinertz
Mont. D. & De G. 304 ; and see Re hagen v. Davis, 1 Coll. 335 , the special
Breary, W. N. 1873, p. 48. form ofthe power was held to authorise
[ (g) 44 & 45 Vict. c. 41, s. 31. ] the appointment of three trustees in
890
CH. XXV. ] APPOINTMENT OF NEW TRUSTEES . *661

[* 31. Reduction in number of trustees authorised . - [*661 ]

So where a testator appointed four trustees and de
clared that "as often as his first or future trustees or any of

the place of two ; and in Emmet v. conveyed, and assured so that the
Clarke, 3 Giff. 32 , three trustees were same should become vested in such
held to have been well appointed in surviving and continuing and such
the place of four ; and in Hillman v. new trustees, or such new trustees or
Westwood, 3 Eq . Rep. 142 , the Court trustee only as the case might require,
thought that two trustees could be and his or their heirs, executorɛ, ad
appointed in the place of one. In ministrators, and assigns, in the same
another case, not reported , the pro manner, and with the same powers,
viso was that " In case any of the authorities, and directions as if he or
several trustees therein named, or they had been originally appointed
any new trustee or trustees to be ap under that his will." There were five
pointed as thereinafter mentioned, trustees, Elizabeth Byrom, Ashton
should depart this life, or be desirous Johnson Byrom, Valentine Byrom,
to be discharged from the execution William Corrie, and George Orred.
of the aforesaid trusts, or should V. Byrom, A. J. Byrom, and G. Orred
reside abroad or become incapable, died, and in March, 1831 , Elizabeth
or neglect or refuse to act in the Byrom and W. Corrie appointed
trusts of the testator's will before the Henry Byrom in the place of V.
same should be fully performed, it Byrom, A. J. Byrom and G. Orred .
should be lawful for the remaining In July, 1831 , William Corrie died,
surviving or only acting trustee or and in May, 1833, Elizabeth Byrom
trustees, and he the said testator did died, and on June 4, 1833, Henry
thereby authorise him or them, by Byrom appointed Emma Byrom in
any instrument or instruments under the place of Elizabeth Byrom . On
his or their hand and seal, to be June 6, 1833, Emma Byrom , as the
attested by two or more credible remaining trustee, appointed Peter
witnesses , to nominate and appoint Ainsworth, Thomas Shaw Brandreth,
any other fit person to supply the and Edgar Corrie, in the place of
place of the one so dying or desiring Henry Byrom (then retiring ) , and of
to be discharged , residing abroad, or the said A. J. Byrom, V. Byrom, and
neglecting or refusing to act there George Orred , deceased. In an
under ; and thereupon on the happen amicable suit between cestuis que
ing of any of those events he or they trust and trustees for trying the
should immediately cease to be such validity of the appointments, it was
trustee as aforesaid, and be immedi declared by V. C. Wigram, " that the
ately released and discharged from appointment of the defendants Emma
such office ; and when and as soon as Byrom, Peter Ainsworth, Thomas
any such new trustee or trustees should Shaw Brandreth, and Edgar Corrie
be so nominated, substituted and ap respectively to be trustees under the
pointed as aforesaid, all and singular will of Ashton Byrom, deceased, in
the trust monies, stocks, funds, and the pleadings named, was valid and
securities, messuages, lands , tene proper, and duly authorised by the
ments, and hereditaments in or upon power of appointing new trustees
which the same or any part thereof contained in the said will." Corrie
should or might for the time being be v. Byrom, V. C. Wigram, 26 April,
invested, should immediately vest in 1845, M. S .; and see Re Breary, W.
him or them, or the same should with N. 1873, p . 48.
all convenient speed be assigned ,
891
* 661 APPOINTMENT OF NEW TRUSTEES . [CH. XXV.

them should die, &c . , he empowered the surviving or con

tinuing trustees or trustee, or if there should be no such
trustee, then the retiring or renouncing trustees or trustee ,
and if there should be no such last mentioned trustees then
the executors or administrators of the last deceased trustee ;
by any deed to appoint any other person or persons to be a
trustee or trustees in the place of the trustee or trustees so
dying, &c .; and upon the appointment of every such new
trustee all the trust estates, monies and premises should be
thereupon vested in such new trustee or trustees either solely
or jointly with the surviving or continuing trustee or trus
tees, as occasion should require ; " and two of the trustees
died and one renounced, and the surviving trustee ap
pointed a single co-trustee, the M. R. said " he was not
aware of any rule making it compulsory on the donees of a
power appointing new trustees to keep up the full number
of trustees except in the case of a charity. If the testator
wished the number to be kept up, he must expressly say so .
In that case it was clear from the words of the will that the
testator contemplated the possibility of a single trustee act
ing alone." And he held that the appointment was valid(a) .
So where one trustee disclaimed, and the other retired, the
appointment of a single trustee under the power in Lord
Cranworth's Act was supported (b) . ]
32. Court does not limit itself to original number. - And
where the Court itself is appointing new trustees, it does
not at the present day, though doubts appear to have been
formerly felt on the point (e), consider itself bound to fill
up the precise number only mentioned in the instrument of
trusts. It has added two new trustees to the two original
trustees (d) , appointed four where the testator originally
appointed three (e ) , three where the testator originally
appointed two (ƒ) , and two where the testator originally

[ (a ) Cunningham and Bradley's Wales District Bank v. Murch, 23

Contract for sale to Wilson, W. N. Ch . D. 138.]
1877 , p. 258 ; West of England and (c) Devey v. Peace, Taml . 78.
South Wales District Bank v. Murch, (d) Re Boycott, 5 W. R. 15.
23 Ch. D. 138. ] (e) Plenty v. West, 16 Beav. 356.
[ (b) West of England and South (f) Birch v. Cropper, 2 De G. &
Sm. 255.
892
CH. XXV .] APPOINTMENT OF NEW TRUSTEES . *662

appointed one (g) . In these cases the number * has [ * 662]

been increased, but if the original number was ex
cessive the Court may also reduce it. If, however, two were
originally appointed, the Court for security will not, at least
where money is concerned, substitute one only (a) .
33. Trustee should be within the jurisdiction . ― In general
the new trustees appointed under a power should be persons
amenable to the jurisdiction of the Court, but where the per
sonal property of a lady was settled on her marriage with a
foreigner, whose domicile was in America at the time of the
marriage, the subsequent appointment of three Americans to
be trustees was decided to be justifiable ( b ) . But though the
parties who have a power of appointment may exercise it in
this way, the Court in substituting trustees by its own juris
diction has refused to appoint new trustees who are out of
the jurisdiction (c) . [ However, in a recent case where all
the parties interested were of age, and they were all resident
either in Australia or New Zealand, the Court appointed two
persons resident in Australia new trustees of a settlement (d) ,
and the same course has been adopted in other cases where
some of the cestuis que trust have been infants (e) . ]
34. One of two trustees retiring and appointment of the co
trustee. ―――― Should one of two trustees be desirous of retiring ,
of course he cannot do so without the substitution of another
in his place (ƒ ) , and the power of appointment of new trus
tees would not authorize the appointment of the continuing
trustee as sole administrator of the trust (g) ; for this would,
in effect, amount to a relinquishment of the trust without
the appointment of any successor (h) .

(g) Plenty v. West, 16 Beav. 356 ; 218 ; Re Austen's Settlement, 38 L.

Re Tunstall's Will, 4 De G. & Sm. T. N. S. 601. ]
421. (c) Guibert's Trust, 16 Jur. 852.
(a) Re Ellison's Trusts, 2 Jur. N. [ (d) Re Drewe's Settlement Trusts,
S. 62 ; Porter's Trust, 2 Jur. N. S. W. N. 1876, p. 168. ]
349 ; and see Re Roberts, 9 W. R. 758. [ (e ) Re Liddiard , 14 Ch . D. 310 ;
(b) Meinertzhagen v. Davis, 1 Coll. and see the cases cited in note (b) . ]
335; [ and see Re Smith's Trusts, 20 (f) Adams v. Paynter, 1 Coll . 532 .
W. R. 695 ; Re Cunard's Trusts, 48 (g) Wilkinson v. Parry, 4 Russ .
L. J. N. S. Ch. 192 ; 27 W. R. 52 ; but 272 ; see post, p. 671 .
see Re Long's Settlement, 17 W. R. (h) Attorney-General v. Pearson,
3 Mer. 412, per Lord Eldon.
893
*663 APPOINTMENT OF NEW TRUSTEES . [CH. XXV.

35. Appointment of one trustee in the place of several.

[Independently of the power conferred by the recent
Act (i) , ] a surviving trustee cannot be advised (though it
has been sometimes done ) , to vest the trust estate in himself,
and a new trustee appointed in the place of one of several
deceased trustees, but should refuse to part with the property
unless the original number of trustees be restored . Still less
could the representative of the last surviving trustee be ad
vised to vest the property in a single new trustee nominated
in the place of one only of the several deceased trustees. And
where a settlement constitutes three trustees with a power of
appointment of new trustees in the usual form,
[*663 ] * and two die, the survivor should refuse to retire
in favour of a single new trustee appointed in his.
place, for, as the original settlement provided three trustees
to execute the trust, the donee of the power should not exe
cute the power partially, but should restore the original
number (a) . In a trust for sale, if this precaution were not
observed, a purchaser on a sale by the new trustee might
give trouble by objecting to the title (b) . The strongest
ground for supporting the sale would be, that probably many
titles depend on the validity of such an execution of the
power, and in recent cases, the appointment has been sup
ported (c) . Fieri non debuit, factum valet. Where the power
in the will was " to appoint one or more new trustee or trus
tees in the room of the trustee or trustees so dying," and both
trustees died, and the donee of the power appointed a single
trustee in the place of both, the appointment was estab
lished (d).
[36. 44 & 45 Vict. c. 41.- Now, by the Conveyancing and
Law of Property Act, 1881 (e) , sect. 31, sub-sect. (3 ) , on an
appointment of a new trustee, it shall not be obligatory to
appoint more than one new trustee, where only one trustee

[(i) 44 & 45 Vict. c . 41 , s . 31. ] (c) Re Pool Bathurst's Estate, 2

(a) See Barnes v. Addy, 9 L. R. Sm. & G. 169 ; Reid v . Reid, 30 Beav.
Ch . App. 244 ; but see Forster v. 388 ; and see Re Fagg's Trust, 19 L.
Abraham, 17 L. R. Eq . 351 . J. N. S. Ch . 175.
(b) See Earl of Lonsdale v. Bec (d) Wood v. Ord, M. R. 1st July,
kett, 4 De G. & Sm. 73 ; Meinertz 1793, MS.
hagen v. Davis, 1 Coll. 344. [(e) 44 & 45 Vict. c. 41. ]
894
CH. XXV .] APPOINTMENT OF NEW TRUSTEES . *664

was originally appointed, or to fill up the original number of

trustees, where more than two trustees were originally ap
pointed ; but, except where only one trustee was originally
appointed, a trustee shall not be discharged under this sec
tion from his trust unless there will be at least two trustees
to perform the trust. ]
37. Rectification of bad appointment . - If A. and B. be
trustees, with a power of appointment of new trustees limited
to " the acting trustees or trustee, or the executors or admin
istrators of the surviving trustee ," and then A. dies , and B.
retires and appoints C. a trustee in his own place , and after
wards dies and appoints an executor, who as the donee of
the power for the time being appoints C. and D. in the place
of A. and B., the two new trustees are properly appointed,
and can sign receipts ; for either the original appointment
of C. was good, and the subsequent appointment of D. [ hav
ing been made with the concurrence of C. ] filled up the
number, or the original appointment of C. was invalid, and
then the appointment of both C. and D. by the donee of the
power was effectual (ƒ) .
- Where
[38. Concurrence of retiring trustee not necessary.
the power of appointing new trustees is given to the surviv
ing or continuing trustees or trustee, and a trustee
retires , * his concurrence is not necessary in the ap- [ * 664]
pointment of a new trustee in his place, but such
appointment rests with the other trustees or trustee who do
not retire (a) .]
.39. A surviving trustee appointing two trustees in the place
of himself and the deceased trustee. -- It sometimes happens
where the power of appointment of new trustees is limited to
the " surviving or continuing trustee," that one trustee dies,
and then the other wishing to retire proposes to appoint two
new trustees at the same time in the place of himself and the
deceased trustee. A doubt has, however, been suggested
whether the word surviving must not be read as applicable
only to an appointment in the room of a deceased trustee ;

(f) Miller v. Priddon, 1 De G. M. Travis v. Illingworth, 2 Dr. & Sm. 344 ;

& G. 335. but see Re Glenny and Hartley, 25
[(a) Re Norris, 27 Ch. D. 333 ; Ch. D. 611. ]
895
*665 APPOINTMENT OF NEW TRUSTEES. [CH . XXV .

and, as the word continuing cannot include retiring, the safer

course is for the surviving trustee first to appoint a person in
the room of the deceased trustee, and then the person so sub
stituted may, as the continuing trustee, appoint a new trustee
in the place of the trustee desirous of retiring (b) .
40. Case of both trustees wishing to retire. ――― And if there
be two trustees, and a power of appointing new trustees be
given to " the surviving or continuing trustees or trustee,” it
has been held that they cannot both retire at the same time ,
but that there must be two successive appointments, as in the
case last mentioned (c) ; and if there be three trustees with
the like power and two die, and the surviving trustee wishes
to retire, then he is not a continuing trustee, and therefore he
cannot retire and appoint two others in the place of himself
and a deceased trustee (d) .
[ But under the Conveyancing and Law of Property Act,
1881, the provisions of the Act relative to the appointment of
new trustees by a continuing trustee include a refusing or
retiring trustee, if willing to act in the execution of those
provisions (e) ; and a retiring trustee can, accordingly, under
the Act appoint new trustees in the place of himself and a
deceased trustee, or in the place of himself alone if he was
originally the sole trustee . ]
[ * 665] * 41 . Power to " other trustee." Where four trus
tees were appointed originally, and the power was to
the surviving or continuing or other trustee to appoint, it
was held that the survivor of the four trustees who desired
himself to be discharged, could, by force of the words " other

(b) See Nicholson v. Wright, 26 L. power. It is, however, to be observed

J. N. S. Ch . 312 ; S. C. nom. Nicholson that the power in that case contained
v. Smith, 3 Jur. N. S. 313. But see special words , showing that the words
Pell v. De Winton, 2 De G. & J. 17. "continuing trustees "" were not used
(c) Stones v. Rowton, 17 Beav. in their strict sense, but as including
308 ; S. C. 1 Eq . Rep. 427. trustees who were being discharged,
(d) Travis v. Illingworth, 2 Dr. & and on the general question the argu
Sm. 344 ; [ Re Norris, 27 Ch. D. 333. ment of the V. C. does not seem to
Travis v. Illingworth, has been di be so well founded as that of V. C.
rectly called in question by V. C. Kindersley in Travis v. Illingworth,
Bacon in the recent case of Re Glenny and has since been disproved of, Re
and Hartley, 25 Ch . D. 611 , in which Norris, ubi supra . ]
the V. C. expressed his opinion that [ (e) 44 & 45 Vict. c. 41 , s . 31 ,
the retiring trustees could execute the sub-s. (6 ). ]
896
 CH. XXV.] APPOINTMENT OF NEW TRUSTEES . * 665

trustee," appoint four new trustees in the place of himself

and three other (a).
42. Power to " acting trustees ." - Where persons are nomi
nated trustees in a will, and a power of appointing new
trustees is given to the " acting " trustees, should all the
trustees disclaim, the power of appointment is gone, and the
hiatus in the trust can only be filled up by the Court. It
has, occasionally, been suggested that the trustees, instead of
disclaiming, should accept the trust to the extent of exercis
ing the power only, and should, by virtue of it, appoint new
trustees (b) ; but it is conceived that trustees who availed
themselves of the office for the purpose only of introducing
other parties into the trust would be rather " refusing " than
"acting " trustees, and that the exercise of the power, under
such circumstances, would be nugatory, and might involve
the outgoing trustees in serious liabilities .
43. Power to the " said trustees." The power of appoint
ment is sometimes given " to the said trustees," and then the
question arises whether a sole survivor can appoint. It is
conceived that " the said trustees " means the persons or
person representing the trust for the time being under the
settlement, and that the survivor can therefore exercise the
power.
44. Appointment of a cestui que trust or near relative of
cestui que trust as trustee . ――― On a change of trustees it is not
uncommonly proposed to appoint one of the cestuis que trust
to that office , but such an arrangement is evidently irregular,
as each cestui que trust has a right to insist that the adminis
tration of the property should be confided to the care of some
third person whose interest would not tend to bias him from
the line of his duty. Should proceedings be instituted for
the removal of the cestui que trust, and the substitution of
some indifferent person as trustee, the costs might be thrown
upon the parties who had improperly filled up the trust (c) .
But it is presumed that this rule affects the parties to the

(a) Lord Camoys v . Best, 19 Beav. 67, where power was expressly given
414.
to a declining trustee.
(b) See Sharp v. Sharp, 2 B. & Ald. (c) See Passingham v. Sherborn, 9
415; and Re Hadley, 5 De G. & Sm. Beav. 424.
897
*666 APPOINTMENT OF NEW TRUSTEES . [CH. XXV.

trust only, and that if a cestui que trust who has been ap
pointed a trustee sell real estate under a power of sale , he
may sign a receipt, and that the purchaser is not bound to
look to the proper exercise of the discretion in such a
case (d). Cestuis que trust are not absolutely incapacitated
from being trustees, as the Court itself under special
[ * 666 ] * circumstances appoints a cestui que trust a trus
tee (a) . The question is merely one of relative fit
ness. A fortiori, the circumstance of near relationship to the
cestui que trust creates no absolute disqualification for the
office of trustee, though Sir John Romilly, M. R. , objected,
where it could be avoided, to appoint relatives as trus
tees (b) .
[45. Appointment of tenant for life. ― The Court will not
appoint the tenant for life (c) , or the solicitor of the tenant
for life (d) , to be a trustee for the purposes of the Settled
Land Act, 1882 ; and has even refused to appoint two
brothers trustees, and required two independent persons to be
appointed (e) .]
46. Whether donee of power can appoint himself trustee.
The question is often asked, whether the donee of the power
can appoint himself a trustee, and, as no one can be judge in
his own case, such an appointment would be open to objec
tion (f) . Should the execution of the trust have been com
mitted to trustees and the survivor of them, his executors and
administrators, and the trustees die, and the power of ap
pointment is in the executor of the survivor, here it may be
said that as by the terms of the trust the executor was de
clared to be a proper person to execute the trust, the execu
tor has the settlor's warrant for the appointment of himself
and another. It may still, however, be observed, that the ex
ercise of every power should be regulated by the circum
(d) See Reid v. Reid , 30 Beav. [(c) Re Harrop's Trusts, 24 Ch. D.
388 ; Forster v. Abraham, 17 L. R. 717.]
Eq . 351 . [ (d) Re Kemp's Settled Estates,
(a) Ex parte Clutton, 17 Jur. 988 ; 24 Ch. D. 485. ]
Ex parte Conybeare's Settlement, 1 [ (e ) Re Knowles' Settled Estates,
W. R. 458 ; Forster v. Abraham, 17 27 Ch. D. 707. ]
L. R. Eq. 351 . (f) See ante, p. 316.
(b) Wilding v. Bolder, 21 Beav.
222 ; and see ante, p. 41.
898
CH. XXV. ] APPOINTMENT OF NEW TRUSTEES . *667

stances as they stand at the time, and that the limitation to

executors à priori cannot dispense with the discretion to be
applied afterwards.
47. Of severing a trusteeship . --Where estates of a different
description, or held under a different title, or limited upon
different trusts, have been vested in the same trustees by the
settlor, and there is a single power of appointment of new
trustees in the usual form, it [ was at one time thought] that
there was no authority for afterwards dividing the trust by
the appointment of one set of new trustees to execute the
trusts of the one estate, and a distinct set of new trustees to
execute the trusts of the other (g) ; and it [ was even held
in one case ] upon a petition under the Trustee Acts, that
the Court had no jurisdiction to make such an
order (h) . [ But where there was no opposition to [ * 667]
the order, the Court in several subsequent cases ap
pointed new trustees under the Trustee Acts of one of sev
eral trusts held under the same instrument without dealing
with the other funds (a) ; and in an administration action it
was held by Fry, J., that the Court had jurisdiction to
appoint separate sets of trustees (b) . Now, by the Convey
ancing Act, 1882 ( c) , it is enacted, that on an appointment
of new trustees, a separate set of trustees may be appointed
for any part of the trust property held on trusts distinct
from those relating to any other part or parts of the trust
property ; or, if only one trustee was originally appointed,
then one separate trustee may be so appointed for the first
mentioned part ; and this section applies to trusts created
either before or after the commencement of the Act.
It is conceived that if a trustee desire to retire from the
trusteeship so far as it relates to a particular part of the trust
property, and to continue a trustee as to the other parts held
on distinct trusts, the intention may be effected under this
section by the appointment of a new trustee or new trustees

(g) See Cole v. Wade, 16 Ves. 27 ; L. J. N. S. Ch. 192 ; 27 W. R. 52, and

Re Anderson, Ll . & G. t . Sugd. 29. the cases there cited .]
(h) Re Dennis's Trusts, 12 W. R. [(b) Re Grange , 29 W. R. 502 ; 44
575 ; 3 N. R. 636. L. T. N. S. 469. ]
[(a) Re Cottrell's Trusts, W. N. [(c) 45 & 46 Vict . 39, s. 5.]
1869, p. 183 ; Re Cunard's Trusts, 48
899
*668 APPOINTMENT OF NEW TRUSTEES . [CH. XXV.

of the particular part, and constituting a separate trusteeship

for that part. So if the continuing trustee desire to remain
a trustee as to the whole trust property, but to appoint new
trustees to act with himself so far only as relates to a par
ticular part held on separate trusts, the object may be effected
under this section (d) . ]
48. Directory powers. ― The proviso is sometimes of such
a directory character as to authorise the appointment of new
trustees upon one event, without the intention of confining
the exercise of the power to the occurrence of that event
exclusively. Thus, where six trustees were empowered, when
reduced to three, to fill up the number, and all died but one,
it was held competent to the survivor to execute the appoint
ment (e) . So, where the original number of trustees was
twenty-five, and they were directed, when reduced to fifteen,
to proceed to nominate others, it was determined that , when
seventeen remained, the survivors might elect, but when
reduced to only fifteen they were compellable to elect (ƒ) .
It should be observed that these were cases of charitable
trusts, in which a greater latitude of construction is allowed
than in ordinary trusts (g) .
[* 668] * 49. Tenant for life disposing of his life estate. - - If
a tenant for life has a power of appointing new trus
tees and sells his life interest, the power [ is not thereby
destroyed, but is still exercisable with the consent of the
person to whom the beneficial interest has been aliened (a).
So if the tenant for life ] has only mortgaged his life interest,
he may not be able to appoint a trustee behind the back of the
mortgagee, but there can be no objection to such an exercise
of the power, if it be done with the consent of the mortgagee.
[It has recently been held (b ) that the power is exercisable

[(d) Re Paine's Trust, 28 Ch. D App. 124. See Holdsworth v. Goose,

725. ] 29 Beav. 111, and cases cited Ib.;
(e) Attorney-General v. Floyer, 2 Nelson v. Seaman, 1 De G. F. & J.
Vern. 748 ; and see Attorney- General 368 ; Lord Leigh v. Ashburton, 11
v. Bishop of Lichfield, 5 Ves. 825 ; Beav. 470 ; Eisdell v . Hammersley, 31
but see Foley v. Wontner, 2 J. & W. Beav. 255 ; Walmesly v. Butterworth,
245. Coote on Mortgages, App. 3d Ed . p.
(f) Doe v. Roe, 1 Anst . 86 . 572 ; Warburton v. Farn, 16 Sim. 625.
(g) See ante, p. 601. [ ( b) Hardaker v. Moorhouse, 26 Ch.
(a) Alexander v. Mills, 6 L. R. Ch. D. 417. ]
900
CH. XXV.] APPOINTMENT OF NEW TRUSTEES . * 669

by the tenant for life, even without the consent of the alienee,
but it is submitted that this must be subject to the implied
condition that there is nothing in the appointment preju
dicial to the interest of the alienee. This condition has been
expressly recognised in several of the earlier cases (e) , and is
in accordance with sound principle ; and it is conceived that,
notwithstanding the recent case of Hardaker v . Moorhouse ,
it will be the wiser course to procure the consent of the
alienee to the appointment . ]
50. Trustee cannot retire in consideration of a premium, or in
favour of another who intends to commit a breach of trust . ―――
Advantage cannot be taken of the power for the purposes of
profit ; and therefore if the donee of the power appoint a
person a trustee in consideration of a sum of money paid by
him for the office, the appointment cannot stand (d) . And
if a trustee refuse, when solicited, to commit a breach of
trust himself, but declares his willingness to resign in favour
of some other person less scrupulous, the Court, acting upon
the principle of qui facit per alium facit per se, will hold the
trustee who retires responsible for the misbehaviour of the
trustee he has substituted (e) . And upon principle it would
seem that a bond of indemnity given to the retiring trustee
would be a very doubtful security against the consequences
of the act, for the bond itself if found to be infected with
fraud could afford no just ground for action (f) . However,
in a recent case, it was held by the Court of Exchequer that
the common law Courts have no such cognisance of
breaches of trust as to treat a bond of indemnity [ * 669 ]
against an act amounting in equity to a breach of
trust as necessarily containing anything illegal (a).
51. Improper appointment by donee of power. ➖➖➖ If a tenant
for life, with the power of appointment of new trustees ,
[(c) Alexander v. Mills, 6 L. Ch. B. 1844 , 771 ; Le Hunt v . Webster, 8
App. 124 ; Holdsworth v. Goose, 29 W. R. 434 ; reversed 9 W. R. 918 ;
Beav. 111 ; Eisdell v. Hammersley, 31 Clark v . Hoskins, 36 L. J. N. S. Ch.
Beav. 255 ; and see Re Cooper, 27 Ch. 689 ; Palairet v. Carew, 32 Beav. 567.
D. 565 ; and cf. 45 & 46 Vict. c. 38, (f) See Shep. Touch. 132, 371.
8. 50.] (a ) Warwick v. Richardson, 10 M.
(d) Sugden v. Crossland , 3 Sm. & & W. 284 ; and see Lord Newborough
G. 192. v. Schröder, 7 C. B. 342 ; Dugdale v.
(e) Norton v. Pritchard, Reg. Lib. Lovering, 10 L. R. C. P. 196.
901
*669 APPOINTMENT OF NEW TRUSTEES . [CH. XXV.

appoint improper persons to the trust, he will be personally

liable for the costs of a suit for removing the objectionable
trustees (b) .
52. Result where a new trustee is ineffectually appointed. —If
a new trustee be ineffectually appointed, the old trustees may
exercise the powers given to them by the instrument of trust ,
notwithstanding the ineffectual attempt ( e) . But if a trus
tee retire upon the appointment of a new trustee, and from
want of the proper formalities being observed the appoint
ment is not legal, the old trustee cannot lie by for a long
interval and then exercise a power by mere concurrence in
the deed, without bona fide exercising his own judgment and
discretion (d).
――――
53. Lis pendens . If the administration of the trust be in
the hands of the Court, the donee of the power cannot exer
cise it without having first obtained the Court's approbation
of the person proposed (e) . However, if the old trustees
do appoint without the leave of the Court, the act is not to
be considered as altogether void in itself, but it puts the
burthen upon them of proving, and that by the strictest evi
dence, that what was done was perfectly right ; and also
saddles them with the costs of that proof. If the act was
not proper, of course the appointment will be cancelled (ƒ) .
54. How the costs are to be borne. - On the appointment
of a new trustee under a power, the costs fall on the corpus
of the trust estate . In strictness the costs of appointing
new trustees should be governed by the same principles as
the payment of fines on admission to copyholds (g) .. But
on the appointment of new trustees by the Court the costs
are always thrown upon the estate, and the practice in Court
regulates the practice out of Court (h) . Where there is no

(b) Raikes v. Raikes, 32 Beav . 403. 106 ; Kennedy v. Turnley, 6 Ir. Eq.
(c) Warburton v. Sandys, 14 Sim. Rep. 399 ; [ Re Gadd, 23 Ch . D. 134 ;
622 ; Miller v. Priddon, 1 De G. M. & and see ante, p. 617. ]
G. 335. (f) Attorney-General v. Clack, 1
(d) Lancashire v . Lancashire, 2 Beav. 473, per Lord Langdale ; and
Ph. 657 ; 1 De G. & Sm. 288. see Cafe v. Bent, 3 Hare , 249.
(e) Webb . Earl of Shaftesbury, 7 (g) See ante, p. 379.
Ves . 480 ; Attorney- General v. Clack, (h) Palmer's Settlement, V. C. Kin
1 Beav. 467 ; Peatfield v. Benn, 17 dersley, 18 April, 1857 ; Carter v.
Beav. 552 ; Middleton v. Reay, 7 Hare, Sebright, 26 Beav. 376 ; see post, p. 672.
902
CH. XXV .] APPOINTMENT OF NEW TRUSTEES . * 670

fund readily available the costs are often paid by the tenant
for life.
55. Inrolment in case of charity. On the appoint
ment of new trustees of a charity, the * conveyance [ * 670]

of real estate which is already in mortmain need not

be inrolled (a).
56. Powers of new trustees. - Where new trustees are
appointed under a power, it is presumed that they can exer
cise all the powers given to the original trustees in that char
acter ; but in penning a power of appointment of new
trustees, all questions should be obviated by an express direc
tion that the new trustees shall have the same powers as if
originally appointed (b) .
57. Attested Copies. A trustee upon transferring the
trust estate to a newly appointed trustee is not allowed to
charge it with the expense of an attested copy of the settle
ment where he has already an ordinary copy, or `with the
expense of a duplicate of the deed of new appointment,
though he is entitled to an examined copy of it. The extra
evidence is considered as incurred for the satisfaction of the
trustee from an excess of caution , and , if required , must be
paid for by himself (c) .
58. Inquiries to be made by incoming trustee. If newly
appointed trustees omit to inquire of a retiring trustee
whether he has notice of any charge, and then having no
notice, they distribute the fund to the prejudice of the in
cumbrancer, they will not be liable to him on the ground
that it was their duty to have made inquiry of the retiring
trustee, in which case they would have known of the incum
brance (d).
[59. Under sect. 5 of 22 & 23 Vict. c. 61 , the Court has
jurisdiction where a final decree of nullity of marriage or
dissolution of marriage has been made to extinguish or vary

(a) Ashton v. Jones, 28 Beav. 460 ; (c) Warter ". Anderson, 11 Hare,
and see Shelf. Mortm. 130. 301 ; S. C. 1 Eq. Rep. 266.
[(b) In appointments under the (d) Phipps v. Lovegrove, 16 L. R.
statutory powers this is expressly pro Eq. 80.
vided for ; 23 & 24 Vict. c. 145, s. 27 ;
44 & 45 Vict. c. 41 , s. 31. ]
903
*671 APPOINTMENT OF NEW TRUSTEES . [CH. XXV.

the power of appointing new trustees of the settlements

made by the parties to the marriage (e) . ]

Thirdly. Of the discharge of the trustee by the authority

of the Court.
1. Suit to be discharged from the trust. - The trustee may,
in every proper case, although the contrary appears to have
been at one time supposed (f) , get himself discharged from
the office on application to the Court. A power of appoint
ment of new trustees is very frequently omitted in settle
ments, or the donee of the power either cannot or will not
exercise it, and were there no means by which a
[ * 671 ] trustee could ever denude * himself of that char
acter, it would operate as a great discouragement to
mankind to undertake so arduous a task.
2. Where no new trustee can be found. Where no new
trustee can be found willing to act, the trustee's right to be
discharged must depend upon the circumstances of the case .
" It is a mistake," observed Lord St. Leonards, " to suppose
that a trustee who is entitled to be discharged is bound to
show to the Court that another person is ready to accept
the office ; the Court will at once refer it to the Master to
appoint a new trustee . But if no one can be found who will
accept the trust, the Court may find itself obliged to keep
the old trustee before the Court, but will take care to pro
tect him in the meantime " (a ) . This was said in a case
where the trustee, from the conduct of the cestui que trust,
could claim to be discharged ; but if a trustee wish to retire
from mere caprice, it is not clear that the Court can or will
discharge him, unless another trustee can be found in sub
stitution (b) . It is certain that the Court cannot divest
him of the estate before some one can be found to take it,
and even as to the office it is not unreasonable, that if a man
once engages to undertake it, he shall not retire from it
without any reason, and so leave the estate without a trus

[ (e) Oppenheim . Oppenheim, 9 P. & Lat. 533 ; and see Forshaw v. Hig
D. 60 ; Maudslay v. Maudslay, 2 P. D. ginson, 20 Beav. 487.
256.] (b) Ardill v. Savage, 1 Ir. Eq. Rep.
(f) Hamilton v . Fry, 2 Moll . 458 . 79.
(a) Courtenay v. Courtenay, 3 Jon.
904
CH. XXV. ] APPOINTMENT OF NEW TRUSTEES. *672

tee. But every trustee may relieve himself from the liabili
ties of the office by submitting the administration of the
trusts to the jurisdiction of the Court (c) . In a case where
there was a power of appointing new trustees, with a direc
tion that the number might be augmented or reduced, and
one of the three trustees wished to retire, but no new trus
tee could be found, the Court, under the Trustee Acts, ap
pointed the two continuing trustees to be the sole trus
tees (d) ; [but in similar cases the Court now refuses to
make the order, and requires a new trustee to be appointed,
unless the whole of the fund is immediately divisible (e) . ]
3. How application to be discharged from the trust should be
made. ―――――――― Formerly the application to the Court to be dis
charged from the trust was in general made by bill,
*
in order to give the Court an opportunity of exam- [ * 672]
ining into the merits of the case (a) ; but if a suit
were already pending, the trustee might then solicit his dis
missal by petition or motion (b) . It was formerly not the
custom of the Court to look through the proceedings, but a
reference was ordered to the Master (c) . Under the present
practice the Court, except in cases of special difficulty ,
usually appoints a trustee without a reference to chambers,
and without a suit, under the provisions of the Trustee
Acts .
4. Part of the trust estate lost. _______ If part of the original
trust estate is supposed to be lost, or is not forthcoming, the
Court will not appoint new trustees of the residue, so as to
make them partial trustees only, but will appoint them trus

(c) See Forshaw v. Higginson, 20 Northrop, W. N. 1880, p. 184 ; but

Beav. 485 ; Gardiner v. Downes , 22 since the contrary decisions in Re
Beav. 397. Colyer, 50 L. J. N. S. Ch . 79 ; and Re
(d) Re Stokes' Trusts, 13 L. R. Eq . Aston, 23 Ch. D. 217, a similar order
333. [The order in this case was is not likely to be made ; Re Lamb's
prefaced thus, " A. and B. by their Trusts, 28 Ch. D. 77. ]
counsel desiring to retire, &c . , in order [(e) See cases in last note, and Re
that A. and B. may be appointed to Martyn, 26 Ch. D. 745. ]
act alone as trustees, &c." See Seton (a) See Ex parte Anderson, 5 Ves.
on Decrees, 4th ed . p. 540 ; and this 243 ; Re Fitzgerald , Ll. & G. 1. Sugd.
case was followed in Re Tatham's 22 ; Re Anderson, Ib. 29.
Trust, W. N. 1877, p. 259 ; Re Har (b) v. Osborne, 6 Ves. 455 ;
ford's Trusts, 13 Ch . D. 135 ; Re Ship v. Robarts, 1 J. & W. 251.
perdson, W. N. 1880 , p . 155 ; Re (c) - v. Osborne, 6 Ves. 455.
905
*673 APPOINTMENT OF NEW TRUSTEES . [CH . XXV.

tees generally ; and, if required, will at the same time, for

the protection of the trustees, direct an inquiry whether any
part of the trust fund has been lost, and what steps should
be taken for its recovery (d) .
5. Costs. ――――――― The costs where the trustee retires from ca
price or without sufficient reason must be borne by himself ( e ) ;
but where he retires from necessity, or on good and sufficient,
ground, they will be thrown upon the trust estate (ƒ) .
Where the trust was originally a simple one, but has become
embarrassing from its complications , the trustee may com
mence an action to be relieved , and will be allowed his costs ,
for although he might have paid the trust fund into Court
under the Trustee Relief Act, this would not have saved
him from being sued, except as to the particular sum paid
into Court (g).
6. Application by representative of deceased trustee . A
distinction was taken by Lord Langdale between the case
where the same person who accepted the trust comes to be
relieved from it, in whom it would be caprice to relinquish
the trust without any sufficient reason, and the case where
on that person's death, the trust devolves on his representa
tive by operation of law, and the representative applies to the
Court (h) . And where the executor of a trustee declined
to act as a trustee, and a bill was filed against him to have
new trustees appointed , and that the executor might
[ * 673 ] pay the costs, the Court said the executor had * a
perfect right to decline acting in the trusts, and al
lowed him his costs (a).
7. Complication of the trust by the acts of the tenant for life.
Where the settlement contained a power of appointment
of new trustees, and the tenant for life having incumbered
his life-estate with annuities and other charges, the original

(d) Bennett v. Burgis, 5 Hare, 295. 3Jon. & Lat. 529 ; Gardiner v. Downes,
(e) Howard o. Rhodes, 1 Keen, 581 ; 22 Beav. 395 ; see ante, p. 669.
Porter v. Watts, 16 Jur. 757 ; Hamil (g) Barker v. Peile, 2 Dr. & Sm.
ton v. Fry, 2 Moll . 458. 340.
(f) Greenwood v. Wakeford, 1 (h) 1 Beav. 582 ; and see Aldridge
Beav. 581 ; Forshaw v. Higginson, 20 v. Westbrooke, 4 Beav. 212.
Beav. 486 ; Courtenay v. Courtenay, (a) Legg v. Mackrell, 1 Giff. 165 ;
2 De G. F. & J. 551.
906
CH. XXV.] APPOINTMENT OF NEW TRUSTEES. * 673

trustees were desirous of relieving themselves from the diffi

culties of their situation by retiring from the trust, and the
tenant for life who was the donee of the power could not
find any person to undertake the trust, the costs of the suit
which the trustees had instituted for their discharge were
thrown exclusively upon the fund of the tenant for life (b) .
8. Executor cannot be discharged. - An executor is regarded
in some sense as a trustee , but he cannot, like a trustee, be
discharged, even by the Court, from his executorship. When
the funeral and testamentary expenses, debts, and legacies
have been satisfied , and the surplus has been invested upon
the trusts of the will , the executor then drops that character
and becomes a trustee in the proper sense, and may then be
discharged from the office like any other trustee .

(b) Coventry v. Coventry, 1 Keen, 758.

907
[*674] * PART III.

THE CESTUI QUE TRUST.

CHAPTER XXVI.

IN WHAT THE ESTATE OF THE CESTUI QUE TRUST

PRIMARILY CONSISTS .

HAVING Concluded the subject of the estate and office of

the trustee, it follows next that we investigate the nature
and properties of the Estate of the cestui que trust ; and in
the present chapter we shall inquire in what the estate of
the cestui que trust primarily consists . First, In the simple
trust ; and Secondly, In the special trust.

SECTION I.

OF THE CESTUI QUE TRUST'S ESTATE IN THE SIMPLE TRUST.

In the simple trust the equitable ownership is compounded

of the Pernancy of the profits and the Disposition of the es
tate ― the jus habendi and jus disponendi (a).

First. The equitable owner is entitled to the pernancy of

the profits.
1. Cestui que trust entitled to possession of lands. - In a
trust of lands the cestui que trust may compel the trustee to
put him in possession of the estate (b) ; and if the cestui que
trust be ejected from the possession by the trustee , the cestui
que trust may compel the trustee to account not only for

(a ) Smith v. Wheeler, 1 Mod . 17, torney-General v. Lord Gore, Id. 150,

per Pemberton, J. per Lord Hardwicke.
(b) Brown v. How, Barn. 354 ; At
908
CH. XXVI. S. 1.] CESTUI QUE TRUST'S POSSESSION. * 675

the rents actually received, but for the whole rents legally
demandable from the tenants (e).¹
―
* 2. Exceptions to the rule. The rule which gives [ * 675 ]
the cestui que trust the possession is applicable only
to the simple trust in the strict sense, for where the cestui
que trust is not exclusively interested , but other parties have
also a claim, 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 (a).
Thus a testator devised all his real estate to trustees in
fee, upon trust to convey the same for a term of 500 years
(the trusts of which were to raise certain annuities and sums
(c) Kaye v. Powel, 1 Ves. jun. 388 ; Pugh v. Vaughan, 12 Beav. 517 ;
408. Hoskins v. Campbell, W. N. 1869, p.
(a) Jenkins v. Milford, 1 J. & W. 59 ; Etchells v. Williamson, W. N.
629 ; Baylies v. Baylies, 1 Coll. 537 ; 1869, p. 61 .
and see Denton v. Denton, 7 Beav.
1 All benefits and profits of the estate go to the cestui que trust. Whether
the trustee or cestui que trust is entitled to the possession of the trust property
depends upon the character of the trust, the duties of the trustee and the
rights and privileges of the cestui que trust. If the care and management of
the trust estate requires the trustee to remain in possession he will do so ;
Matthews v. McPherson, 65 N. C. 189 ; Moseley v. Marshall , 22 N. Y. 200 ;
Young v. Miles, 10 B. Mon. 290. The trustee may cultivate the land ; May
field v. Kilgour, 31 Md . 240. If the cestui que trust is a female, it is all the
more probable that the trustee will be kept in possession ; Wickham v .
Berry, 55 Pa. St. 70. If it is plain that the settlor intended the cestui que trust
to have possession , as in the occupation of a residence as a home, the settlor's
intention must be carried out ; Campbell v. Prestons, 22 Gratt. 396. If the
trust property be personal in its nature, such as stocks, bonds, mortgages
and other personal securities, the trustee is ordinarily entitled to possession,
even if he has to obtain it from the cestui que trust ; Western R. R. Co. v.
Nolan, 48 N. Y. 513 ; Pace v . Pierce, 49 Mo. 393 ; Beach v. Beach, 14 Vt . 28 ;
Ryan . Bibb, 46 Ala. 323. The cestui que trust cannot legally question the
possession of the trustee ; White v. Albertson, 3 Dev. 241 ; Porter . Ray
mond, 53 N. H. 519. Any suit to obtain possession of chattels to be held in
trust, must be brought in the trustee's name ; Thompson v . Ford, 7 Ired . 418 ;
Parsons v. Boyd, 20 Ala. 112 ; Schley v. Lyon, 6 Ga. 530 ; Murphy v. Moore,
4 Ired . Eq . 118. The trustee must protect the rights of the cestui que trust in
every way ; Roden v. Murphy, 10 Ala . 804 ; Wood v . Burnham, 6 Paige, 513 ;
Blin v . Pierce, 20 Vt. 25 ; Welch v. Mandeville, 1 Wheat. 233. The trustee
being liable for all funds and personal property should control them, have a
vote on stocks held in trust, a right to foreclose a mortgage, and the like ;
In re Barker, 6 Wend . 509 ; and so may his executor or administrator ; Bunn
v. Vaughan, 3 Keyes, 345 ; North Shore Ferry Co. 63 Barb. 556.
909
* 676 CESTUI QUE TRUST'S POSSESSION. [ CH. XXVI. S. 1.

in gross) , and subject thereto to the use of A. for life with

remainders over. A. filed a bill, praying to be let into pos
session. At the hearing of the cause a general account was
directed of the testator's estates and of the charges upon
them, and the plaintiff further desired that he might be let
into immediate possession ; but Lord Thurlow said, " It is
impossible for me to let him into possession till I have the
accounts before me, and even till the trusts are executed,
unless, as he now offers, he pays into Court a sum sufficient
to answer all the purposes of the trust. The Court, perhaps,
has let a tenant for life into possession, where it has seen
that the best way of performing the trusts would be by letting
him into possession, as where an annuity of 1007. a year is
charged upon an estate of 5000l. a year ; but till the account
is taken I do not know but the purposes of the trust may
take up the whole, and if I was to do it now, perhaps I should
only have to resume the estate " (b) . The accounts were
afterwards taken, and the plaintiff was let into possession on
giving security to the amount of 10,000l. to abide the order
of the Court as to the annuities and other incumbrances (e).
In another case (d) , a testator devised and bequeathed all
his real and personal estate to trustees upon trust to pay his
funeral expenses and debts, to keep the buildings upon the
estate insured against fire, to satisfy the premiums upon two
policies of insurance on the lives of his two sons, to allow
his said sons an annuity of sixty guineas each, and subject
thereto upon trust for his daughter for life with remainders
over ; and the personal estate having sufficed to discharge
the funeral expenses, debts and annuities, the daughter, who
was then a feme covert, filed a bill praying to be
[ * 676 ] * let into possession upon securing the amount of the
premiums of the policies : but Sir J. Leach said that
if a testator, who gave in the first instance a beneficial inter
est for life only, thought fit to place the direction of the
property in other hands, which was an obvious means of
securing the provident management of that property for the

(b) Blake v. Bunbury, 1 Ves . jun. (c) S. C. 1 Ves. jun. 514, 4 B. C. C.

194. See the case more fully stated , 28.
Ib. 514 ; 4 B. C. C. 21. (d) Tidd v . Lister, 5 Mad . 429.
910
CH. XXVI. S. 1. ] CESTUI QUE TRUST'S POSSESSION. *676

advantage of those who were to take in succession , a Court

of equity ought not to disappoint that intention by delivering
over the estate to the cestui que trust for life, unprotected
against that bias which he must naturally have to prefer his
own interest to the fair right of those who were to take in
remainder. There might be cases in which it was plain from
the expressions in the will, that the testator did not intend
the property should remain under the personal management
of the trustees : there might be cases in which it was plain
from the nature of the property, that the testator could not
mean to exclude the cestui que trust for life from the personal
possession of the property, as in the case of a family resi
dence. There might be very special cases in which the Court
would deliver the possession of the property to the cestui que
trust for life, although the testator's intention appeared to be
that it should remain with the trustees ; as, where the personal
occupation of the trust property was beneficial to the cestui
que trust ; in which case the Court, by taking means to secure
the due protection of the property for the benefit of those in
remainder, would in substance be performing the trust ac
cording to the intention of the testator. And his Honour,
considering that there was no such ground of exception in
the case before him, refused the application.¹
3. Cestui que trust for her separate use. ―- In one case a feme
covert was entitled to her separate use for her life, and it was
not thought incompatible with the nature of such an estate
that she should be put into possession, though the claim was
opposed by the trustees (a) . A tenant for life cannot claim
possession as a right, but only at the discretion and by the
sufferance of the Court ; and therefore , where trustees were
directed as managers of the estate to pay insurances and
repairs and other necessary outlays , and apply the net annual
income to the separate use of a person for life , it was held
that such tenant for life was not a person " entitled to pos
session or receipt of the rents and profits " for life within
the meaning of the Leases and Sales of Settled Estates
(a) Horner v. Wheelwright, 2 Jur. bell, W. N. 1869, p . 59 ; Taylor v.
N. S. 367 ; and see Hoskins v . Camp Taylor, 20 L. R. Eq. 297.
1 And see Wade v. Wilson, 33 W. R. 610.
911
*677 CESTUI QUE TRUST'S POSSESSION. [CH. XXVI. S. 1 .

Act, and could not therefore grant leases under the

[ * 677 ] * Act. Such a power would in fact pro tanto neu
tralise the powers of management vested in the
trustees (a) .
4. Cestui que trust cannot recover the possession at law.
Until a recent Act, to be noticed presently, the cestui que
trust's right to the possession was recognised, we must re
member, in a Court of equity only ; for in a Court of law the
cestui que trust was merely tenant at will (b) , and this ten
ancy was determinable at any time on demand of possession
by the trustee, though not before such demand (c) . The
doctrines advanced by Lord Mansfield in the last century
were long ago over-ruled. It was maintained in his day,
that a cestui que trust, a plaintiff in ejectment, could not be
nonsuited by a term outstanding in his trustee (d) ; and that
a trustee, a plaintiff in ejectment, could not recover against
his own cestui que trust (e) . It was even decided that, where
a term had been created for securing an annuity, and subject
thereto upon trust to attend the inheritance, the tenant of
the freehold was entitled to recover the possession (provided
he claimed subject to the charge) , notwithstanding the legal
term was outstanding in a trustee upon trusts that were still
unsatisfied (f) . Such at least were the doctrines in cases of
(a ) Taylor v. Taylor, 20 L. R. Eq pointing to a beneficial ownership) is
297. [ But see observations of L. J. authorised to grant leases for twenty
James in Taylor v. Taylor, 3 Ch. D. one years . And see Wade v. Wilson ,
147 ; and see Vine v. Raleigh, 24 Ch. 33 W. R. 610. ]
D. 238 ; where it was held that if an (b) Garrard v. Tuck, 8 C. B. 231 ;
estate is vested in trustees, and there Melling v. Leak, 1 Jur. N. S. 759 ;
is not for the time being any person Parker v. Carter, 4 Hare, 400 ; Perry
beneficially entitled to the rents and v. Shipway, 1 Giff. 1 ; and see Geary
profits, the trustees are the persons v. Bearcroft, O. Bridgm. 486-490 ;
who may under the 23d section of the Bac. Us. 5 ; Doe v. Jones, 10 B. & Cr.
Settled Estates Act, 1877, (40 & 41 718 ; Doe v. M'Kaeg, 10 B. & Cr. 721 ;
Vict. c. 18) apply to the Court to post, Chap. xxx. s. 1.
exercise the powers conferred by the (c ) Doe v. Phillips, 10 Q. B. 130 .
Act ; and a distinction was drawn be (d) Lade v. Holford , B. N. P. 110.
tween the language of that section The doctrine is said to have origi
and that of the 46th section, under nated with Mr. Justice Grundy.
which the person entitled to the pos (e) Armstrong v. Peirse, 3 Burr.
session or to the receipt of the rents 1901.
and profits of the settled estates for (f) Bristow v. Pegge, 1 T. R. 758,
an estate for life, &c ., either in his own note (a) ; overruled by Doe v. Staple,
right or in right of his wife (words 2 T. R. 684.
912
CH. XXVI. S. 1.] CESTUI QUE TRUST'S POSSESSION. *678

clear trusts : for where the equity was at all doubtful, the
rights of the parties were even then referred to the proper
tribunal (9) . " Lord Mansfield," as Lord Redesdale observed ,
"had on his mind prejudices derived from his familiarity with
the Scotch law, where law and equity are administered in
the same Courts " (h) . From the time of Lord Mansfield ,
and until the recent Act, it was established : ―――― First,
that a cestui que trust could * not recover in eject- [ * 678 ]
ment (a) , unless a surrender to him of the legal estate
could be reasonably presumed (b) , (which, of course, could
not be where the circumstance of the outstanding legal estate
appeared on the declaration or special case (e) , ) and the
cestui que trust had no alternative but to bring his action in
the name of the trustee, who was to be indemnified against
the costs (d) Secondly, that the trustee, as the tenant of the
legal estate, might recover in ejectment from his own cestui
que trust (e) ; and the cestui que trust had no defence to the
action at law, but must have had recourse to an injunction
in equity (ƒ) , and the clause in the Common Law Procedure
Act, 1854, which authorised an equitable defence at law did
not apply to ejectment (g) .However, a lessee under a feme
covert entitled to her separate use might protect himself by
equitable plea against trespass by the husband, in whom the
legal estate was vested (h) .
-
5. 36 & 37 Vict. c. 66. Now, generally, by 36 & 37 Vict.
c. 66, s. 24, equitable defences are to be recognised in all
the Courts, so that for the time to come the full merits,

(g) Doe v. Pott, Doug: 695, per see Doe v. Staple, 2 T. R. 696 ; Roe v.
Lord Mansfield ; Goodright v. Wells, Reade, 8 T. R. 122.
Id. 747, per eundem. (d) Annesley v. Simeon, 4 Mad.
(h) Shannon v. Bradstreet, 1 Sch. 390 ; and see Reade . Sparkes , 1
& Lef. 66. Moll . 11 ; Jenkins v. Milford , 1 J. &
(a) Doe v. Staple, 2 T. R. 684 ; see W. 635; Ex parte Little, 3 Moll . 67.
Barnes v. Crow, 4 B. C. C. 10 & 11 ; (e) See Roe v. Reade, 8 T. R. 122,
Doe v. Sybourn , 7 T. R. 3 ; Goodtitle 123.
v. Jones, 7 T. R. 45, and following (f) Shine v. Gough, 1 B. & B. 445.
pages ; Doe v. Wroot, 5 East, 138. (g) Neave v. Avery, 16 C. B. 328 ,
(b) Doe v. Sybourn, 7 T. R. 2 ; see and see Smith v. Hayes, 1 I. R. C. L.
Doe v. Staple, 2 T. R. 696 ; Goodtitle 333 ; Clarke v. Reilly, 2 I. R. C. L.
v. Jones, 7 T. R. 45, and following 422.
pages ; Roe v. Reade, 8 T. R. 122. (h) Allen v. Walker, 5 L. R. Ex.
(c) Goodtitle v. Jones, 7 T. R. 43 ; 187.
913
*679 CESTUI QUE TRUST'S POSSESSION. [CH. XXVI. S. 1.

both at law and in equity, will be administered in the same

action.
6. Leases by a cestui que trust. - As a tenant is not allowed
to dispute his landlord's title, if a cestui que trust, having
only an equitable estate, grant a lease, then, as between
lessor and lessee, the lessor may distrain and exercise the
other rights of a landlord in the same way as if at the date
of the demise he had been the legal owner (i) . The title of
the lessor might be such, that on his death the person claim
ing under him could not prove the devolution of the estate
without showing upon the pleadings that at the date of
the lease the lessor's interest was equitable, and in such a
case it is presumed the estoppel would not apply, and the
remedy would be in equity (j) . But if there be no difficulty
upon the pleadings, the persons claiming under the
[ * 679] * lessor, as, for instance, his trustee in bankruptcy,
had always the same benefit of the rule as the lessor
had (a).
7. Notice to quit. ――― If the trustees put the cestui que trust
in possession , and the cestui que trust grants a lease and
afterwards serves a notice on the lessee to quit, the cestui que
trust is the agent of the trustees for the purposes of the
notice, and an ejectment by the trustees can be sustained as
if the notice had been given by themselves (b) .
8. Injunction between tenants in common. ― If there be two
cestuis que trust tenants in common, and one of them be put
into possession, and cuts timber, and becomes insolvent, the
other cestui que trust can obtain an injunction (c) .
9. Possession of the title deeds. - The title deeds of an
estate form no part of the usufructuary enjoyment ; and
therefore if a person vests an estate in trustees upon particu
lar trusts, one of which is to receive the rents and pay them
over to the settlor for life, and the deeds are delivered into
their possession, they have a right to the custody of them for

(i) Alchorne v. Gomme, 2 Bing. (a) Parker v. Manning, 7 T. R. 537.

54; Blake v. Foster, 8 T. R. 487 ; (b) Jones v. Phipps, 3 L. R. Q. B.
Parker v. Manning, 7 T. R. 537 . 567.
(j) See Noke v. Awder, Co. Eliz. (c) Smallman v. Onions, 3 B. C. C.
373, 436. See 2 Lord Raymond , 1553. 621.
914
CH. XXVI. S. 1.] CESTUI QUE TRUST'S POSSESSION. *680

the benefit of all parties interested (d) , and should the settlor
obtain them from the trustees, and thereby be enabled to
deal with the estate as absolute owner, the trustees, if it
appeared they had acted fraudulently, or under such gross
negligence as amounted to constructive fraud, would be held
personally responsible for the consequences (e ) . However,
a tenant for life, if the estate be legal, is entitled to the
custody of the deeds (ƒ) , and may bring an action of
detinue (g) , or, unless he has shown that he cannot be safely
trusted with the deeds (h) , may take proceedings in equity
for the recovery of them (i) ; and as equity follows law, the
Court, in the absence of special trusts requiring the posses
sion of the deeds by the trustees, will not take the deeds
from the tenant for life who has got possession of them (j) ;
and where the tenant for life in equity is not the settlor, and
therefore cannot by suppressing the settlement make a title
to the fee simple, has ordered the deeds to be de
livered to the tenant for life * in equity (a) , subject [ * 680 ]
of course to the remainderman's right to production
and inspection to a reasonable extent (b) . Where the legal
estate , whether of freeholds , copyholds, or leaseholds, is

(d) See Garner v. Hannyngton , 9 Jur. N. S. 1226 ; and see Denton v.

22 Bear. 630 ; Stanford v. Roberts, Denton, 7 Beav. 388.
6 L. R. Ch. App. 307. (a) Langdale v. Briggs, 8 De G.
(e) See Evans v. Bicknell, 6 Ves. M. & G. 391. In one case where deeds
174. had been deposited in Court, and the
(f) In Foster v. Crabb, 12 C. B. tenant for life (whether legal or equi
136, the court seems to have approved table is not clear) asked that the deeds
the rule laid down in early times, might be delivered out to him, the
that whoever first gets possession of Court refused, observing that " The
the deeds, whether tenant for life or Court never interfered as to the pos
in remainder, keeps them. But see session of deeds between a father,
Garner v. Hannyngton , 22 Beav. 627 ; tenant for life, and a son entitled in
Webb v. Webb, 1 Eden, 8 ; Duncombe remainder, but that in the case of a
v. Mayer, 8 Ves. 320 ; [ Leathes v. stranger tenant for life, the Court
Leathes, 5 Ch . D. 221 ; ] and Sugd. would interfere ; " Warren v. Rudall,
Vend. and P. 14th edit. p. 445, note (1) . 1 J. & H. 1. But this, as observed by
(g) Allwood v. Heywood, 1 N. R. V. C. Stuart, was a mere obiter dictum ;
289. Taylor v. Sparrow, 9 Jur. N. S. 1227 ;
(h) See Jenner v. Morris, 1 L. R. [and has since been expressly disap
Ch. App. 603. proved of, Leathes v. Leathes, 5 Ch .
(i) Garner v. Hannyngton, 22 Beav. D. 221.]
627. (b) Davis v. Dysart, 20 Beav. 405 ;
(j) Taylor v. Sparrow, 4 Giff. 703, Pennell v. Dysart, 25 Beav. 542.
915
*680 CESTUI QUE TRUST'S [CH. XXVI. S. 1.

vested in a trustee or executor in trust, not for certain per

sons entitled in succession, but for cestuis que trust entitled
absolutely in possession, the cestuis que trust, or if they are
infants, their guardians, may institute proceedings to have
the deeds delivered up to them. But as to leaseholds, an
executor may hold the deeds until all debts have been paid
and the personal estate cleared (c) .
[ The trustee in bankruptcy of the husband of a legal
tenant for life (not entitled to the property as separate
estate), has not an absolute right to the custody of the title
deeds during the coverture ; but where the circumstances
require it, they will be ordered to be brought into Court for
safe custody (d) .]
10. Cestuis que trust entitled to inspect documents. - Cestuis
que trust have a right at all seasonable times to inspect the
documents relating to the trust, and at their own expense
to be furnished with copies of them, and the rule extends to
cases submitted and opinions of counsel taken by the trustees
for their guidance in the discharge of their duty, for as the
expense falls upon the trust estate, it stands to reason that
the cestuis que trust may see the opinions and cases for which
they pay. But the right does not arise until the relation of
trustee and cestui que trust has been established to the satis
faction of the Court (e) .
11. Custody of deeds may be committed to one of the
trustees. ― As the deeds and documents relating to the

(c) Smith v. Pavier, V. C. Wood, them during the life of Joel Smith .
18 July, 1852. In this case J. Smith On his death the infant children by
devised freeholds and leaseholds for their next friend, with two other
long terms to Wade and Pavier and persons as co-plaintiffs (being their
their heirs to the use of Joel Smith guardians appointed by the court )
for life with remainder to Wade and filed their bill against Pavier the
Pavier to preserve contingent remain surviving executor for delivery of
ders, with remainder to the children the deeds, and there being no allega
of Joel Smith (who were infants at tion of unpaid debts, the delivery of
the filing of the bill) and the heirs of the deeds to the two guardians was
their bodies, with remainders over, ordered.
including limitations to Wade and [(d) Ex parte Rogers, 26 Ch. D.
Pavier to preserve contingent remain 31.]
ders, who were also executors . Wade (e) Wynne v . Humberston, 27
and Pavier took possession of the title Beav. 421 .
deeds on the testator's death , and held
916
CH. XXVI. S. 1.] STATUTORY POWERS . *681

trust cannot be held by all the trustees (unless they [ * 681 ]

be deposited with bankers with a direction not to part
with them except on the authority of the whole number) ,
co-trustees have been held to be justified in committing the
custody of the deeds to one of themselves ; and where the
deeds are a security for money, the possession by the one is
no implied authority from the co-trustee to him who holds
them to receive the principal money secured (a) .
12. Privileges of cestui que trust. - Upon the principle that
the cestui que trust is foro conscientiæ entitled to the per
nancy of the profits, he has been invested by the express
language of some statutes, and by the equitable construction
of others, with the various privileges conferred by the legis
lature upon the legal tenants of real estate.
13. Qualification of cestui que trust to be a juror. — By 6th
Geo. 4, c. 50, s. 1, Every man between the ages of 21 and 60,
residing in any county in England, who shall have in his
own name or in trust for him within the same county 107. by
the year, above reprises, in real estate, &c., & c . , is qualified
to serve as a juror (b) .
14. As to right of cestui que trust to vote for a coroner.
The election of coroner is a right vested in the freeholders of
the county ; and the privilege of voting must, it is conceived,
have belonged originally to the legal freeholder. However,
by 58th Geo. 3, c . 95, s. 2, it was enacted that no person
should be allowed to have any vote for or by reason of any
trust estate or mortgage unless such trustee or mortgagee
should be in actual possession or receipt of the rents and
profits, but that the cestui que trust or mortgagor in posses
sion should vote for the same estate . Upon the repeal of
58 Geo. 3, c. 95, by the late Coroner's Act ( c) , the provision
referred to was not re-enacted, and the consequence is that
an equitable owner has now no right to vote (d).
15. Right of cestui que trust to sport under the old law.
By the Game Act, 22 & 23 Car. 2, c . 25, s . 3, persons were

(a) Cottam v. Eastern Counties (c) 7 & 8 Vict. c. 92.

Railway Company, 1 J. & H. 243 ; (d) Regina v. Day, 3 Ell. & Bl.
Goldney v. Bower, cited Ib. 247. 859.
(b) And see Co. Litt. 272 a, 272 b.
917
* 682 CESTUI QUE TRUST'S [CH. XXVI . S. 1 .

•
disqualified from sporting unless they had lands and tene
ments, & c., of the clear value of 100l. per annum ; and it was
decided that a cestui que trust of lands to that amount was
within the intention of the Act. Lord Mansfield observing,
that " the privilege was given to property, and the cestui que
trust was substantially the owner and the trustee only nomi
nally " (e). By the provisions of the late Game Act no
qualification is now necessary (ƒ) .
16. Right of cestui que trust to vote at elections for members
of Parliament. ―――― By 6th Vict. c. 18, s . 74, “ no trustee of
lands or tenements shall in any case have a right to
[* 682 ] vote in any such election, * (i.e. for a Member of Par
liament) for or by reason of any trust estate there
in, but the cestui que trust in actual possession, or in the
receipt of the rents and profits thereof, though he may
receive the same through the hands of the trustee, shall and
may vote for the same notwithstanding such trust " (a) .
[ 17. Protector of the settlement. -- The person entitled
to the beneficial enjoyment of the rents and profits of the
settled property, under a settlement made since the Fines
and Recoveries Act, is the protector of the settlement under
section 22 of the Act, as owner of the prior estate, and not
the trustees in whom the legal estate is vested ; and in a set
tlement made before the Act, if the estates are equitable the
beneficial owner is also protector (b) . ]

18. Income and corpus distinguished. - The question fre

quently arises both in construing Acts of Parliament which
speak of a limited amount of income and also in determining
the relative rights of tenants for life and remaindermen , what
is income and what is corpus, and it has been held that the
tenant for life of a manor is entitled to the fines payable on
all customary grants (e), or on admissions (d) , and where
leaseholds are annually renewable, the tenant for life of the

(e) Wetherell v. Hall, Cald . 230. D. 628 ; Re Ainslie, 51 L. T. N. S.

(f) 1 & 2 W. 4, c. 32. 780 ; and see ante, p . 382. ]
(a) See Wallis v. Birks, 5 L. R. (c) Earl Cowley v. Wellesley, 35
C. P. 222 ; and see ante, p. 235. Beav. 640.
[ (b) Re Dudson's Contract, 8 Ch. (d) S. C. 35 Beav. 641.
918
CH. XXVI. S. 1. ] STATUTORY POWERS. *683

reversion is entitled to the annual fines for renewal (e) ;

[and where leaseholds for lives are perpetually renewable on
the dropping of the lives, the tenant for life of the reversion
is entitled to the heriots and fines for renewal, as they are of
the nature of casual profits accruing during his tenancy for
life (f). ] So a tenant for life is entitled to underwood and
thinnings of plantations in ordinary course (g) , and to rents
and royalties payable under the lease of an open mine (h) ,
or of a brickfield , whether the lease was granted by the tes
tator or by the trustee of his will under a power in the
will (i) , and to the produce of gravel, loam, peat, or bog
earth got annually according to the usual custom (j) . But
a tenant for life is not entitled to trees in woodlands not cut
periodically according to custom, though cut for the sake of
improving the growth of the rest (k) .
[ 19. Mines and timber. ― - Under the Settled Land
Act, 1882, a tenant for life whether impeachable [ * 683 ]
for waste or not, can now grant mining leases of
mines either opened or unopened and is entitled if impeach
able for waste to one-fourth part of the rents, and if not
impeachable for waste to three-fourth parts of the rents (a) .
And as a tenant for life although impeachable for waste , has
a right to continue the working of open mines, he will be
entitled, if a lease is granted of such mines under the powers
of the Act, to three-fourths of the rents. Under the same
Act a tenant for life impeachable for waste, may on obtaining
the consent of the trustees of the settlement or an order of
the Court cut and sell timber, ripe and fit for cutting, and is
entitled to one-fourth part of the net proceeds but the re
maining three-fourths are to go as capital (b) .
20. Loss on business held in trust for persons successively .
- If a business be held in trust for successive tenants for

life, and remaindermen , and be carried on at a loss during

the life of the first tenant for life , the loss must be made

(e ) Milles v. Milles, 6 Ves . 761. (i) S. C. 35 Beav. 638.

[(f) Brigstocke v. Brigstocke, 8 (j) S. C. 35 Beav. 639.
Ch. D. 357. ] (k) S. C. 35 Beav. 635.
(g) Earl Cowley v. Wellesley, 35 [ (a) Sects. 6 , 11. ]
Beav. 635. [ (b) Sect. 35. ]
(h) S. C. 35 Beav. 639.
919
*684 TRUST CHATTELS. [CH. XXVI. S. 1.

good out of the profits earned during the life of the next
tenant for life and not out of the corpus (c) , unless a con
trary intention appears in the instrument creating the trust.¹]
21. Succession duty. ― The tenant for life of an estate
must bear the expense of accounts necessary to be taken for
the discharge of the succession duty payable by the tenant
for life as successor (d) , and must discharge the rates and
taxes payable during his life (e) .
――
22. Fencing. The expense of fencing newly acquired
enclosures will fall upon the corpus (ƒ) .

23. Cestui que trust's possession of chattels. - Hitherto we

have spoken of the cestui que trust's right to the pernancy of
the profits in respect of lands. In trusts of chattels personal,
as where heirlooms are vested in a trustee upon trust for the
persons successively entitled under the limitations of a strict
settlement, the cestui que trust for the time being is equally
entitled to the use and possession of the goods during the
continuance of his interest ; and upon the ground of this
right the goods are not forfeited on the bankruptcy of the
tenant for life, though left in the possession of the bankrupt
by permission of the legal owner, for they are left with him
according to the title (g) .
24. Household goods . In a bequest to a person of the
use of household goods, it seems the legatee may use them in
his own or in any other person's house, and either
[ * 684 ] alone or promiscuously with other goods , or, it is * said ,
may let them out to hire (a) ; but, where the chattels
are heirlooms annexed to a house, and their continuance in
the mansion is evidently a constituent part of the trust, they
cannot be let to hire except together with the house itself (b) .

[(c) Upton v. Brown, 26 Ch . D. (e) Fountaine v. Pellet, 1 Ves. jun .

588 ; but see Gow v. Forster, 26 Ch. 337, see 342.
D. 672, the decision in which seems (f) Earl Cowley v. Wellesley, 35
to have turned on the wording of the Beav. 641.
will and not on any general principle. ] (g) See supra, p. 243.
(d) Earl Cowley v. Wellesley, 35 (a) Marshall v. Blew, 2 Atk . 217.
Beav. 642. (b) Cadogan v. Kennet, Cowp . 432 ;

¹ Re Millichamp, 52 L. T. N. S. 758.
920
CH. XXVI. S. 1. ] JUS DISPONENDI. * 684

Of course the use of the chattels by the tenant for life does
not enable him to pawn them beyond the extent of his own
interest (c) .
―
[ 25. Heirlooms . By the Settled Land Act, 1882, s . 37, a
tenant for life may sell personal chattels settled as heirlooms ,
and the money arising by the sale is to be capital money
under the Act, and to be dealt with accordingly, or it may
be invested in the purchase of other chattels to be settled
and held on the same trusts . But no sale or purchase of
chattels under the section is to be made without an order of
the Court (d) . ]
26. Stock in the funds. - Where the trust fund consists
of stock, the cestui que trust is usually put in possession of
the dividends by a power of attorney from the trustee to the
cestui que trust's bankers, with a written authority from the
trustee to the bankers to credit the cestui que trust with the
dividends as and when received, by which arrangement the
trustee is spared the trouble of repeated personal attendances
at the Bank of England, and the entries in the books of the
private bankers are sufficient evidence of the receipt. In
cases where the cestui que trust is tenant for life, this course
seems free from objection ; but where his interest is one
which may determine in his lifetime, some risk is incurred of
the power of attorney and authority being acted upon by the
bankers after the determination of the cestui que trust's estate ;
and it is conceived that the trustee would be liable to the
other cestui que trust for any misappropriation thus taking
place . The trustee must be careful to see that the power of
attorney extends only to the receipt of the dividends, and
not to the sale of the stock itself ; otherwise, if the bankers
sell out the stock and the proceeds are misapplied, the
trustee will be answerable (e) .

Secondly. Of the jus disponendi.

1. Cestui que trust's right of disposition of the legal estate.
The cestui que trust may call upon the trustee to execute

[ and see Re Brown's Will, 27 Ch. D. [ (d) As to this section see ante, p .
179.] 566.]
(c) Hoare v. Parker, 2 T. R. 376. (e) See Sadler v. Lea, 6 Beav. 324.
921
*685 JUS DISPONENDI. [CH. XXVI. S. 1.

conveyances of the legal estate as the cestui que trust

directs (f) . If the trustee refuse to comply, and the cestui
que trust institutes proceedings to compel him, the
[ * 685 ] trustee will be visited with the costs (a) , unless
there was some reasonable ground for his refusal (b) ,
or he acted bona fide under the advice of counsel (c) ; and
the trustee has been made to pay costs, though the cestui que
trust, instead of filing a bill, might have enforced a convey
ance by the summary process of a petition (d) . But a trustee.
has a right to be satisfied by the fullest evidence that the
party requiring the conveyance is the exclusive cestui que
trust (e) ; and a cestui que trust cannot call for the convey
ance of a larger legal estate than he has equitable : an equi
table tenant in tail, for instance, cannot call for a conveyance
of the legal fee-simple (f) . And Lord Eldon was of opinion
that a cestui que trust could not require the trustee to divest
himself from time to time of different parcels of the trust
estate ; for the trustee has a right to say, " If you mean to
divest me of my trust, divest me of it altogether, and then
make your conveyances as you think proper " (g) . And a
trustee, like a mortgagee, cannot be called upon to convey
the estate by any other words or description than that by

(f) Payne v. Barker, Sir G. Bridgm . (f) Saunders v. Neville, 2 Vern.

Rep . 24. 428. But though this point may have
(a) Jones v. Lewis, 1 Cox, 199 ; been mooted in the case and ruled as
Willis v. Hiscox, 4 M. & Cr. 137 ; reported, yet the principal question
Thorby v. Yeats, 1 Y. & C. C. C. in the cause was a different one, viz.,
438 ; Penfold v. Bouch, 4 Hare, 271 ; whether under the circumstances the
Firmin v. Pulham, 2 De G. & Sm. 99 ; plaintiff was entitled to call for a
Palairet v. Carew, 32 Beav . 565 ; and conveyance of the legal estate even
see Campbell v. Home, 1 Y. & C. C. to him, and " the heirs of his body."
C. 664. See note by Raithby, correcting the
(b) Goodson v. Ellisson, 3 Russ. text from the Reg. Book.
583 ; Poole v. Pass, 1 Beav. 600. (g) Goodson v . Ellisson, 3 Russ.
(c) Angier v. Stannard, 3 M. & K. 594. But if the cestuis que trust of a
556 ; and see Devey v. Thornton, 9 fund , as tenant for life and re
Hare, 232 ; Field v. Donoughmore, 1 mainderman, assign part of the fund,
Dru. & War. 234 ; [ Stott v. Milne, 25 it is conceived that the trustee can
Ch. D. 710. ] not refuse to transfer that part to
(d) Watts v. Turner, 1 R. & M. the assignee. The owner of an ali
634. quot share has a separate claim in
(e) Holford v. Phipps, 3 Beav. 434, respect of it: Smith v. Snow, 3 Mad .
and see Etchells v. Williamson, W. 10.
N. 1869, p. 61.
922
CH. XXVI. S. 1.] JUS DISPONENDI . * 686

which the conveyance was made to himself (h). And a

trustee cannot be compelled to execute a conveyance con
taining inaccurate recitals ; but where all the cestuis que trust
are parties, he cannot insist on the insertion of recitals
against the wishes of his cestuis que trust (i) .
Succession duty . - And a trustee in whom any property
is vested which is liable to succession duty, must see that the
duty is satisfied or he becomes personally liable (j) .
[ 2. Under the Settled Land Act. -Where property is dis
posed of by the beneficial owner under the provisions of the
Settled Land Act, 1882, as by the 20th section he is em
powered to convey the property for the estate, or interest
the subject of the settlement, and can therefore pass
the legal estate, if comprised in the settlement, [ * 686 ]
without the concurrence of the trustees, it is con
ceived that the trustees would not be compelled to join in
the assurance . ]
3. Trustee for separate use. - A trustee for the separate use
of a married woman with restraint of anticipation, holds upon
a special trust during the coverture ; but if the husband die,
the trust for the separate use is suspended and the feme has
an absolute power of disposition, though on a future cover
ture the separate use and non-anticipation clause, if not pre
vented by previous disposition , would revive . The trustee,
therefore, after the death of the husband, holds upon a simple
trust for the feme, and is bound at her direction to convey
the legal estate to her (a) .
—
4. Fraudulent appointments . It not unfrequently happens
that when property is held upon trust for a tenant for life,
with a power of appointment among his children, and in

(h) Goodson v. Ellisson , ubi supra. (j) 16 & 17 Vict. c. 51 , s . 44.

() Hartley v. Burton , 3 L. R. Ch . (a ) Buttanshaw v. Martin, Johns.
App. 365. 89.

1 A married woman may be restrained from alienating or anticipating the

trust income ; Snyder's App. 92 Pa. St. 504 ; Ash v. Bowen, 10 Phila. 96.
Power of appointment and payment can have no validity or value until the
returns are actually due ; Kent . Plumb, 57 Ga. 207 ; Loring v. Salisbury
Mills,125 Mass. 138. Restraints against alienation or anticipation apply to es
tates for life or in fee, to real or personal property ; Freeman v. Flood, 16 Ga .
528 ; but not to unmarried women or widows ; Parker v. Converse , 5 Gray, 336 .
923
*687 JUS DISPONENDI. [CH. XXVI. S. 1.

default of appointment for the children, the trustee is called

upon to make a conveyance by the joint direction of the
parent and such of the children as are the appointees, and
the trustee has a shrewd suspicion that undue influence has
been used, or that there is an underhand bargain in deroga
tion of the rights of the other children, who take nothing by
the appointment. In these cases, if the nature of the trans
action be such as to show on the face of it that there is good
ground for suspicion , the trustee will, on refusing to convey,
be protected by the Court, and be entitled to his costs (b) .
But, although it may be the duty of the trustee to make
inquiry as to the bona fides of the transaction, yet, if he
cannot prove any mala fides, the mere possibility of fraud
or undue influence will not be sufficient, and if a trustee
decline to convey without any better reason, he will have to
bear the costs of a suit for compelling him, though he will
still be entitled to his charges and expenses properly incurred
not being costs in the cause (c) .
5. Inquiry into a collateral trust. -Trustees who are bound

to make a conveyance of their trust estate, cannot justify

their refusal to convey by alleging a duty to inquire into
another trust recited in their trust deed, but which is wholly
distinct from the trust in question (d) .
6. Delivery of possession to remainderman. Where the
legal estate is vested in trustees for A. for life, with remain
der to B., and on the death of A. application for a conveyance
is made by B., the trustees sometimes object that they cannot
convey until they have recovered all the arrears of rent that
accrued in the lifetime of A. (e) . In such a case the
[*687 ] trustees are, * at all events, bound to use due diligence,
and must not from their laches postpone the rights of
the remainderman . But the better course would be to give

. (b) Hannah v. Hodgson, 30 Beav. tress." This claim was made by the
19 ; King v. King, 1 De G. & J. 663. trustees in Hogg v. Jones , reported
(c) Firmin v. Pulham, 2 De G. & upon another point, 32 Beav. 45, and
Sm. 99 ; Campbell v. Home, 1 Y. & M. R. ordered delivery of possession
C. C. C. 664. to the remainderman , on his under
(d) Palairet v. Carew, 32 Beav. taking in effect to use due diligence
564. in receiving the arrears and handing
(e) See Bacon's Abridg. " Dis them over.
924
CH. XXVI . S. 1.] CONVEYANCE BY TRUSTEES . *687

the trustees an indemnity on delivery of possession, or an

undertaking to receive the arrears and account for them to
the tenant for life's estate .
7. Trustee's conveyance . — The 4th section of 8 & 9 Vict.
c. 106, enacts that the word " grant " shall not imply any
covenant in law except so far as the same may, by force of
any Act of Parliament, imply a covenant ; and therefore ,
whatever may have been the case formerly, a conveying
trustee cannot now draw any liability upon himself by the
use of the word grant alone. But, as to lands in Yorkshire,
it must be remembered that the Yorkshire Registry Acts (a)
gave the force of covenants for title to the combined words
"grant, bargain, and sell." And by the Lands Clauses Con
solidation Act, the word " grant " in conveyances by com
panies within the provision of the Act is made to carry with
it the ordinary covenants for title (b) .
[By the Conveyancing and Law of Property Act, 1881 , the
use of the word " grant " is rendered unnecessary for the con
veyance of hereditaments, corporeal or incorporeal, whether
in instruments before or after the commencement of the
Act (c) . ]
8. Trustee to bar dower. ― Before the abolition of tortious
conveyances, a trustee to bar dower was or was not called
upon to join in a conveyance, according to the circumstances
of the case . Where a power of appointment was exercised
besides the ordinary conveyance, his joining was dispensed
with ; but where, no power being exercised, the whole fee
could not be passed without his concurrence , he was made a
party (d). In a recent case, it was held by V. C. Stuart that
a purchaser was still entitled to call for the concurrence of
the trustee to bar dower, where the deed creating the uses to
bar dower was dated before 8 & 9 Vict. c . 106 , s . 4, so that
a forfeiture might by possibility have occurred . The Vice
Chancellor, however, considered that the objection taken by
the purchaser to the title, which was founded on the non

(a) 6 Anne, c. 35, ss . 30, 34 ; 8 G. (b) 8 & 9 Vict. c. 18, s . 132.

2, c. 6, s. 35. [ Repealed as from the [ (c) 44 & 45 Vict. c. 41. s. 49. ]
1st January, 1885, by 47 & 48 Vict. (d) See Sug. Pow. 8th Ed. p. 193,
c. 54. ] et seq .
925
*688 CONVEYANCE BY TRUSTEES . [CH. XXVI . S. 1 .

concurrence of the dower trustee , who was absent in Aus

tralia, was frivolous and vexatious, and had an extremely
slight foundation, and on that account refused to give the
purchaser any costs (e) . On appeal, the Lord Chan
[* 688 ] cellor * and L. J. Knight Bruce seem to have consid
ered the objection altogether untenable, though they
did not distinctly decide the point (a) . The practical result
is, that for the future a purchaser cannot be advised to require
the concurrence of the trustee to bar dower.
9. A series of equitable interests . - In general there are
no intermediate steps of the equitable interest, so that if A. be
trustee for B. who is trustee for C., A. holds in trust for C.,
and must convey the estate as C. directs (b) . But if any
special confidence or discretionary power be reposed in B. ,
which requires him to have the legal estate, he may then
call upon the original trustee to execute a transfer to him
self (c ) .
And if a fund be vested in trustees in trust for a
feme covert for life for her separate use, with remainder upon
such trusts as she may by will appoint, and she by will gives
legacies, and disposes of the residue and appoints executors,
the original trustees are bound to transfer the fund to the
executors to be administered by them ( d) ; [ and where the
original trustees, instead of transferring the fund to the ex
ecutors, paid it into Court under the Trustee Relief Act,
they were made to pay the costs of the petition for getting
the fund out of Court (e) . But if the donee of a special
power of appointment appoint the fund to trustees in trust
for the objects of the power, the trustees so nominated can
not call for a transfer of the fund (ƒ ) . ]

(e) Collard v. Roe, 4 Jur. N. S. 431 . (d) Re Philbrick's Trust, 13 W.

(a) Ib. 4 De G. & J. 525. R. 570 ; and see Hayes v . Oatley, 14
(b) Head v. Lord Teynham, 1 Cox, L. R. Eq. 1 .
57 ; and see v. Walford, 4 Russ. [(e ) Re Hoskin's Trusts, 5 Ch . D.
372 . 229, 6 Ch . D. 281 ; but see as to this
(c) Wetherell v. Wilson, 1 Keen, case Turner v. Hancock, 20 Ch . D.
86; Cooper v. Thornton, 3 B. C. C. C. 303. ]
96, 186 ; Woods v. Woods, 1 M. & Cr. [ (f) Busk v. Aldam, 19 L. R. Eq.
409 ; Angier v. Stannard , 3 M. & K. 16. But see Scotney v. Lomer, 29
571 ; Onslow v. Wallis, 16 Sim . 483 , Ch . D. 535 , where North, J., was of
1 Mac. & G. 506 ; - v. Walford, 4 the opposite opinion . ]
Russ . 372 ; Poole v. Pass, 1 Beav. 600.
926
CH. XXVI . S. 2. ] ESTATE IN SPECIAL TRUST. *689

10. Trustees for appointees . —Where trustees hold a fund

upon such trusts as a person by an instrument to be executed
in a particular manner may appoint, they must of course be
careful in transferring it to the appointees to see that all
the formalities attending the power have been duly observed ,
for if the execution of it be not regular, the trustees (except
in those cases where Courts of equity aid a defective exe
cution) will be personally liable for the fund to the parties
claiming in default of the execution of the power (g) .
11. Costs. The costs incurred by the trustee in relation
to the conveyance must be paid by the cestui que trust, or,
which is the same thing, must be discharged out of the trust
estate .

*SECTION II. [* 689]

OF THE CESTUI QUE TRUST'S ESTATE IN THE SPECIAL TRUST.

1. Cestui que trust's estate in special trust. This may be

said to be, The right to enforce in equity the specific exe
cution of the settlor's intention to the extent of that cestui
que trust's particular interest . The other parties entitled
may express a desire that the trust should be differently ad
ministered ; but if such a divergence from the donor's will
would prejudice or injuriously affect the rights of any one
cestui que trust, that cestui que trust may compel the trustees
to adhere strictly and literally to the line of duty prescribed
to them (a).
2. Special trust may be converted into a simple trust. - If
there be only one cestui que trust, or there be several cestuis
que trust, and all of one mind (in each case sui juris) , the
specific execution may be stayed, and the special trust will
then acquire the character of a simple trust ; for whatever
modifications of the estate the settlor may have contemplated ,
through whatever channel he may have originally intended
his bounty to flow, the cestuis que trust, as the persons to be
eventually benefited, are in equity, from the creation of the

(g) Hopkins v. Myall, 2 R. & M. (a) See Deeth v. Hale, 2 Moll.

86 ; Cocker v. Quayle, 1 R. & M. 535 ; 317.
Reid v. Thompson, 2 Ir. Ch. Rep. 26.
927
*690 ESTATE IN SPECIAL TRUST. [CH. XXVI. S. 2.

trust, and before the trustees have acted in the execution of

it, the absolute beneficial proprietors . Thus if a fund be
given to trustees upon trust to accumulate until A. attains
twenty -
four, and then to transfer the gross amount to him,
A., on attaining twenty-one, may, as the person exclusively
interested, call for the immediate payment (b) . So if real
estate be devised with a direction that the devisees are not
to have the enjoyment until they attain the age of twenty-
five
years, unless there be a clear indication of an intention on
the part of the testator, not only that his devisees are not to
have the enjoyment of the property until the age mentioned,
but that some other person is to have the enjoyment - or
unless the property is so clearly taken away from the devi
sees up to the time of their attaining twenty- five as to induce
the Court to hold that, as to the previous rents and profits ,
there has been an intestacy - the Court does not hesitate to
strike out of the will the direction as to non-enjoyment, and
gives the property at once to the devisees as the ab
[ * 690 ] solute owners (c) . So if a legacy be bequeathed
to trustees upon trust to purchase an annuity, the in
tended annuitant, if sui juris, may claim the legacy with
out going through the form of investment (a) ; and if a fund
be vested in trustees in trust for the personal support, cloth
ing, and maintenance of A., an adult, A. is exclusively entitled
to the benefit of the fund, and if he become bankrupt, it
passes to his trustee in bankruptcy (b) .
3. To illustrate this subject further, where a conveyance
had been made to trustees upon trust to sell, and with
the proceeds to purchase other lands to be settled on the
daughters of W. J. as tenants in common in tail, with
remainder to them in fee, and the daughters levied a fine
of the lands to be sold to the uses and upon the trusts of their
respective marriage settlements, the question was, whether
the entail had been effectually barred ; and Sir W. Grant

(b) Josselyn v. Josselyn, 9 Sim. 63 ; (c) Gosling v. Gosling, Johns . 265.

Saunders v. Vautier, 4 Beav. 115 ; (a) Dawson v. Hearn, 1 R. & M.
Cr. & Ph . 240 ; and see Curtis v. 606, and cases there cited ; Re Browne's
Lukin, 5 Beav. 147 ; Rocke v. Rocke, Will, 27 Beav. 324.
9 Beav. 66 ; Magrath v. Morehead, (b) Younghusband v. Gisborne, 1
12 L. R. Eq . 491. Coll. 400.
928
CH. XXVI. S. 2. ] ESTATE IN SPECIAL TRUST. *691

said, “ In the lands to be sold they (the daughters ) had no

interest, legal or equitable, expressly limited to them : but
the equitable interest in those lands must have resided some
where : the trustees themselves could not be the beneficial
owners ; and if they were mere trustees, there must have
been some cestuis que trust. In order to ascertain who they
are, a Court of equity inquires for whose benefit the trust
was created, and determines that those who are the objects
of the trust have the interest in the thing which is the sub
ject of it. Where money is given to be laid out in land, to
be conveyed to A., though there is no gift of the money to
him, yet in equity it is his, and he may elect not to have it
laid out : so, on the other hand, where land is given upon
trust to sell, and pay the produce to A., though no interest
in the land is expressly given to him, in equity he is the
owner, and the trustee must convey as he shall direct : if
there are also other purposes for which it is sold, still he is en
titled to the surplus of the price, as the equitable owner subject
to those purposes ; and if he provide for them he may keep the
estate unsold. The daughters by electing to keep this estate
have acquired the fee, and it was discharged of every trust
to which it had been subject ” (c) .
4. Special trust proceeds till countermanded by the cestui
que trust. -―― But until the cestui que trust or the joint cestuis
que trust countermand the specific execution, the special
trust will proceed ; as if lands be devised to trustees upon
trust to sell, and pay the proceeds to A., the prop
erty will remain personal estate in A. until he dis- [ * 691 ]
charge the character impressed upon it by electing
to take it as land (a).
5. Accounts. ― As an incident to the beneficial enjoyment
by the cestui que trust of his interest, he has a right to call
upon the trustee for accurate information as to the state of
the trust (b) . Thus, in a trust for sale and payment of

(c) Pearson v. Lane , 17 Ves . 101. per Lord Eldon ; Newton v. Askew,
(a) See Walter v. Maunde , 19 11 Beav. 152 ; Gray v. Haig, 20 Beav.
Ves . 429.
219 ; Burrows v. Walls, 5 De G. M.
(6) Springett v. Dashwood , 2 Giff. & G. 253.
521 ; Walker v. Symonds , 3 Sw . 58,
929
*691 ESTATE IN SPECIAL TRUST. [CH. XXVI. S. 2.

debts, the party entitled subject to the trust may say to the
trustee, What estates have you sold ? What is the amount
of the monies raised ? What debts have been paid ? &c . (e) .
It is therefore the bounden duty of the trustee to keep clear
and distinct accounts of the property he administers , and he
exposes himself to great risks by the omission (d) . It is the
first duty, observed Sir T. Plumer, of an accounting party,
whether an agent, a trustee, a receiver, or an executor (for
in this respect they all stand in the same situation ) , to be
constantly ready with his accounts (e).
6. Sanction of co-trustees' accounts. ―Not only is a trustee
bound to render accurate accounts, but if he stand by and
sanction the rendering of improper accounts by a defaulting
trustee, he becomes liable himself for the misrepresen
tation (f).
7. Legatee. - A legatee, as being a quasi cestui que trust, is
entitled to have a satisfactory explanation of the state of the
testator's assets and an inspection of the accounts, but not
to require a copy of the accounts at the expense of the
estate (g).

(c) Clarke v. Ormonde, Jac. 120, Kemp v. Burn, 4 Giff. 348 ; Wroe v .
per Lord Eldon. Seed, 4 Giff. 425 ; Payne v. Evens,
(d) Freeman v. Fairlie, 3 Mer. 43, 18 L. R. Eq . 356 ; Heugh v . Scard, 33
per Lord Eldon. L. T. N. S. 659 ; 24 W. R. 51 ; and
(e) Pearse v. Green, 1 J. & W. Jeffreys v. Marshall, ubi supra. In
140 ; and see Hardwicke v. Vernon, taking accounts against the trustee
14 Ves. 510 ; White v. Lincoln , 8 Ves. after a long lapse of time, the Court
363 ; Turner v. Corney, 5 Beav. 515 ; will show every indulgence it can to
Anon. 4 Mad. 273 ; Jeffreys v. Mar the trustee for enabling him to clear
shall, 23 L. T. N. S. 548 ; 19 W. R. his accounts, Banks v. Cartwright, 15
94 ; Underwood v. Trower, W. N. W. R. 417.
1867 , p. 83. As to the costs of suits (f) Horton v. Brocklehurst (No.
arising out of a refusal to render 2 ), 29 Beav. 504.
accounts, see Springett v. Dashwood, (g) Ottley v. Gilby, 8 Beav. 602.
2 Giff. 521 , and the cases there cited ;
930
 * CHAPTER XXVII . [ *692]

PROPERTIES OF THE CESTUI QUE TRUST'S ESTATE .

WE shall next enter upon the properties of the cestui que

trust's estate as affected by the acts of the cestui que trust, or
by operation of law.

SECTION I.

OF ASSIGNMENT.

Under this head we shall treat : First. Of the assignable

quality of an equitable interest ; Secondly. Of the rule that
the assignee of an equity is bound by all the equities affect
ing it; Thirdly. Of Notice ; and, Fourthly. Of the rule Qui
prior est tempore potior est jure.

First. Of the assignable quality of an equitable interest.¹

1. General rule. — It may be laid down as a general rule
that an equitable interest may be assigned, though it be a
mere possibility (a ) , and that either with or without the
intervention of the trustee (b) . And the assignee of the
cestui que trust may call upon the trustee to clothe the equi
table interest with the legal estate, and on his refusal may
by suit compel a conveyance without making the assignor a

(a) Courthorpe v. Heyman, Cart. Sir T. Clarke ; 21 Vin. Ab. 516, pl .

25; Warmstrey v. Tanfield, 1 Ch. 1 ; Smith v. Grant, W. N. 1874, pp.
Rep. 29 ; Goring v. Bickerstaff, 1 Ch . 78, 120.
Ca. 8 ; Cornbury v. Middleton, Ib. (b) Philips v. Brydges, 3 Ves. 127,
211 ; per Judges Wyld and Rainsford ; per Lord Alvanley.
Burgess v. Wheate , 1 Eden, 195, per

Kane Co. v. Herrington, 50 Ill. 232 ; Clapper v. House, 6 Paige, 149 ;

Cogswell v. Cogswell, 2 Ed. Ch . 231 ; McKissick v. Pickle, 4 Harris, 140 ;
Kent v. Mahaffey, 10 Ohio St. 204 ; Devin v. Hendershott, 32 Ia. 192.
931
* 693 EQUITABLE ENTAIL . [ CH. XXVII. S. 1.

party (c) . But a mere right to sue a trustee for an alleged

breach of trust, and which right is not annexed to any trans
fer of the trust estate , or any part thereof, is not assignable,
or at least will not pass by a deed for 5s . consideration so
as to enable the nominal purchaser to sue in respect of
it (d).
[*693 ] * 2 . Restraint of alienation. ― A restriction against
alienation (except in the case of a married woman)
will have no more effect in equitable than in legal interests,
but will be rejected as contravening the policy of the law (a) ,
but in a limitation to the separate use of a feme covert, in
order to give full effect to the estate itself, a clause against
anticipation during the coverture is allowed (b) .
3. Equitable interest in land. ―As to lands, the transfer of
an equitable interest might before the Statute of Frauds have
been made by parol, but now by the 9th section of the Act
all grants and assignments of any trust or confidence are
required to be in writing signed by the party granting or
assigningthe same, or else are utterly void. A writing, there
fore, is all that is necessary, but it is the practice to employ
the same species of instrument, and the same form of words
in the transfer of equitable as of legal estates .
4. 8 & 9 Vict. c. 106. — A recent statute (c) enacts that an
assignment of a chattel interest in lands not being copyhold
shall be void at law unless made by deed, but it is conceived
that this enactment affects legal interests only, and that the
legislature cannot have intended to require a more solemn
instrument for the assignment of an equitable chattel inter
est than for the conveyance of the equitable fee.
5. Equitable entail. - -The power of an equitable tenant in
tail to dispose of the equitable fee simple has been differently
viewed at different periods. At common law all inheritable
estates were in fee simple, and it was the statute de donis (d)

(c) Goodson v. Ellisson, 3 Russ. Graves v. Dolphin , 1 Sim. 66 ; Bran

583 ; Jones v. Farrell, 1 De G. & J. don v. Robinson , 18 Ves. 429 ; Roch
208. ford v. Hackman , 9 Hare, 480.
(d) Hill v . Boyle, 4 L. R. Eq . (b) See infra, chap. xxvii., s. 6.
260. (e) 8 & 9 Vict. c. 106, s. 3.
(a ) Snowdon v. Dales, 6 Sim. 524 ; (d) 13 Ed. 1 , st . 1, c. 1.
Green v. Spicer, 1 R. & M. 395 ;
932
CH. XXVII. S. 1.] EQUITABLE ENTAIL. *694

that first gave rise to entails and expectant remainders. As

this statute was long prior to the introduction of uses, had
equity followed the analogy of the common law only, a trust
limited to A. and the heirs of his body, and in default of
issue to B. would have been construed a fee simple condi
tional and the remainder over would have been void ; but
the known legal estates of the day, whether parcel of the
common law or ingrafted by statute, were copied without
distinction into the system of trusts, and, equitable entails
indisputably existing, the question in constant dispute was,
by what process they were to be barred . After much fluctua
tion (e) , it was finally established by Lord Hardwicke, that
as entails with expectant remainders had gained a footing in
trusts by analogy to the statute de donis, a Court of equity
was bound to follow the analogy throughout, and therefore
that a tenant in tail of a trust could not bar his issue,
or the remainderman, except by an assurance analo- [* 694]
gous to one, which would have been a bar had the
entail been of the legal estate.
6. Summary of the law before the late Fines and Recoveries
Act. The doctrines of equity, as finally settled upon this
principle, were as follows :——
a. For a good equitable recovery there must have been an
equitable tenant to the præcipe, that is the beneficial owner (a)
of the first equitable freehold must necessarily have con
curred (b).
B. An equitable recovery was a bar to equitable only and
not to legal remainders (c) .
7. An equitable recovery was not vitiated by the circum
stance that the equitable tenant to the præcipe had also the
legal freehold (d).

(e) See an account of the fluctua (c) Philips v. Brydges, 3 Ves. 128,
tion in 3d edit . p. 601-604. per Lord Alvanley ; Salvin v. Thorn
(a) Penny v. Allen, 7 De G. M. & ton, Amb. 585 ; S. C. 1 B. C. C. 73,
G. 425. note.
(b) North v. Williams, 2 Ch. Ca. (d) Philips v. Brydges, 3 Ves. 126,
64, per Lord Nottingham ; Highway per Lord Alvanley ; 2 Ch. Ca. 49 ;
v. Banner, 1 B. C. C. 586 ; and see Marwood v. Turner, 3 P. W. 171 ;
Wickham v. Wickham, 18 Ves. 418. Goodrick v. Brown, 2 Ch. Ca. 49 ;
S. C. Freem. 180.
933
*695 EQUITABLE ENTAIL. [CH. XXVII. S. 1.

8. An equitable remainder was well barred, though it was

vested in a person who had also the legal fee (e).
7. Fines and Recoveries Act. —At the present day, by the
operation of the Fines and Recoveries Act (f) , the equitable
tenant in tail may dispose of the equitable fee by the same
modes of assurance and with the same formalities as if he
were tenant in tail of the legal estate.
8. Inrolment of disentailing deed of copyholds. ―――― A deed
to bar the entail of an equitable interest in copyholds must,
though not so expressly enacted, be entered on the court
rolls within six calendar months from the date thereof (g) .
9. Estates pur autre vie. ― An estate pur autre vie was not
even at law within the statute de donis ; but a quasi entail
(an estate of a most anomalous character ) was introduced
into legal estates, and was thence imported into trusts . The
present doctrine of the Court appears to be this .
a. If quasi tenant in tail in equity, with remainder over,
be in possession, he may at any time, by a simple conveyance,
dispose of the absolute interest, as against the issue , and the
remainderman , and may even bind them in equity by his
contract.
B. But if quasi tenant in tail be in remainder after a prior
estate under the same settlement, he must have the consent
of the tenant for life or other precedent freeholder, as other
wise, though he may bind his issue , he cannot destroy the
remainder.
7. If lands held pur autre vie be limited to or in trust for
A. and the heirs of his body with remainder over, the
[* 695 ] entirety of the estate * is vested in A. , and the issue
and the remainderman stand in the light of mere
special occupants, that is, they have no title jure suo to any
present interest, but merely take the estate by devolution
where the owner has made no disposition.
8. A limitation in quasi entail of an estate pur autre vie
has been commonly assimilated to an estate in fee-condi
tional ; but the natures of the two estates are not to be con

(e ) Philips v. Brydges, 3 Ves . 120 ; (f) 3 & 4 Will. 4, c. 74.

Robinson v. Comyns, Cas. t. Talb. (g) Honywood v. Foster, 30 Beav.
164 ; S. C. 1 Atk. 172. (No. 1 ) , 1 .
934
CH. XXVII. S. 1. ] ASSIGNEE BOUND BY EQUITIES . *695

founded. The tenant of a fee-conditional can only aliene

after issue born, but tenant in quasi entail pur autre vie may
dispose absolutely as above without reference to the fact of
their being issue or not (a) .

Assignee bound by all equities . Secondly. The assignee of

an equity is bound by all the equities affecting it (b) .¹
1. In order to understand the limits of the rule, it will be
necessary before entering upon the cases to make a few pre
liminary remarks.
General observations upon the rule. If A. be possessed of
a legal chose in action ( c) , as if he be obligee of a bond, and
assign it in equity for valuable consideration, here at the
time of the assignment no equity existed in A.; and yet, as
this case is confessedly within the operation of the rule, the

(a) See the law upon this subject equity, but personal to the parties,
collected by Lord St. Leonards in will not affect the assignee, Beresford
Allen v. Allen, 1 Conn . & Laws . 427 ; v. Chambers, 5 Ir. Eq. R. 482 ; Bur
and see Edwards v. Champion, 1 Eq. rough v. Moss, 10 B. & C. 558 ; Re
Rep. 419 ; Betty v. Humphreys, 9 I. Dublin and Rathcoole Railway Com
R. Eq. 332 ; Batteste v. Maunsell, 10 pany, 1 L. R. Ir. 98. ]
I. R. Eq. 97 , 314 ; [ Re Barber's Set (c) Choses in action are now made
tled Estates, 18 Ch . D. 624 ; Black assignable if notice in writing be given
hall v . Gibson, 2 L. R. Ir. 49 ] . to the debtor or trustee, [but they are
[ (b) A right of set off subsisting expressly made subject in the hands
between the assignor and the person of the assignee to the subsisting
against whom the equity is enforce equities ] . See 36 & 37 Vict. c. 66, s .
able being a right not attaching to the 25, subs . 6.

1 A purchaser will take subject to all the equities or charges upon an estate,
if he have notice of them ; Wright v. Dame, 22 Pick. 55 ; Caldwell v. Car
rington, 9 Pet. 86 ; Wormley v. Wormley, 8 Wheat. 421 ; Smith v. Walser, 49
Mo. 250 ; Peebles v. Reading, 8 Serg. & R. 495 ; Jones v. Shaddock, 41 Ala.
262 ; Lyford . Thurston, 16 N. H. 399. If a transfer is procured by fraud,
the purchaser or grantee becomes a trustee ; Sadler's App . 87 Pa . St. 154 ;
Lyons v. Bodenhamer, 7 Kans. 455 ; Smith v. Bowen, 35 N. Y. 83. A pur
chaser without notice, if for valuable consideration, is entitled to his priority,
not only at law, but in equity as well ; Dana v. Newhall, 13 Mass . 498 ; Boone
v. Chiles, 10 Pet. 177 ; Griffith v. Griffith, 9 Paige, 315 ; Dillayev. Commercial
Bank, 51 N. Y. 345 ; Boynton v. Rees, 8 Pick. 329 ; High v. Batte, 10 Yerg.
335 ; Trull v. Bigelow, 16 Mass. 406. But a legal title controls as against
equities ; Vattier v. Hinde, 7 Pet. 252 ; Flagg v. Mann, 2 Sumn . 486 ; Wailes
v. Cooper, 24 Miss. 208 ; Shirras v. Caig, 7 Cranch, 48 ; Daniel v . Hol
lingshead, 16 Ga . 190. The consideration must be a valuable one ; Pat
ten v. Moore, 32 N. H. 382 ; Swan v. Ligan, 1 McCord Ch . 232 ; Frost
v. Beekman, 1 Johns. Ch . 288 ; Boon v. Barnes, 23 Miss . 136. All the
935
*696 ASSIGNEE BOUND BY EQUITIES . [CH. XXVII . S. 1.

maxim might perhaps be more accurately expressed by say

ing that the owner of an equity by assignment is bound by
all the equities affecting what is assigned.
Again, if A., having a debt due to him, or being entitled
to an equitable interest, charges it in favour of B. , the equity
which remains in A. is the debt or equitable interest subject
to the charge. If, therefore, A. afterwards assign the same
subject matter to C. , it might be thought that C. could take
nothing more than the interest of A. subject to the charge.
This, however, is not the case, for the priorities of B. and C.
will be regulated by the better or inferior equities of the re
spective parties. The rule does not mean that the assignee
of an equity shall be bound by all the equities affect
[ * 696 ] ing * the assignor as between him and previous pur
chasers or incumbrancers under the assignor, but
only by such as affect the assignor as between himself and
his debtor and any persons not claiming under himself. The
assignor can indisputably only give what he himself has, but
as between two persons claiming through him a conflict of
right may well arise. This will be better understood by
the instances exemplifying the rule to which we now proceed.
2. Transfer of equitable mortgage. A person taking an
equitable mortgage, with notice of a prior charge, transfers
his mortgage to another who has no notice of the prior
charge. The assignee is bound by the equity with which
the assignor was affected (a) .
3. Transfer of equitable interest obtained by fraud. - A. mort
gages or sells an equitable interest to B., which mortgage or

(a) Ford v . White, 16 Beav. 120.

money should have been actually paid to protect the purchaser ; Worm
ley v. Wormley, 8 Wheat. 421 ; Wood v. Mann, 1 Sumn. 506. But see Par
ker v. Crittenden, 37 Conn. 148. If the money is secured, the purchaser is a
trustee ; Palmer v. Williams, 24 Mich. 333 ; Rhodes v. Green, 36 Ind. 10 ; Jew
ett v. Palmer, 7 John. Ch. 65 ; Parkinson v. Hanna, 7 Blackf. 400. And the
title must have passed before notice to protect the purchaser ; Abell v. Howe,
43 Vt. 403 ; Doswell v. Buchanan, 3 Leigh . 362 ; Bush v . Bush, 3 Strob. Eq.
131. Possibly, if there has been a partial payment, the benefit will result to
the purchaser pro tanto ; Lewis v. Bradford, 10 Watts , 67 ; Juvenal v . Jack
son, 2 Harris, 519 ; Paul v. Fulton, 25 Mo. 156. And the purchaser will be
entitled to an allowance for improvements made ; Farmers' Loan Co. v.
Maltby, 8 Paige, 361 ; Everts v. Agnes, 4 Wis . 343.
936
CH. XXVII. S. 1. ] ASSIGNEE BOUND BY EQUITIES . *697

sale is fraudulently obtained , and then B. transfers to C.

Here C., whether he has notice of the fraud or not, takes
subject to A.'s equity to have the mortgage or sale set
aside (b) .
4. Trustee or cestui que trust debtor to trust estate. A
trustee or executor has a beneficial interest, but is a debtor
to the trust or executorship, and then assigns his beneficial
interest to a stranger. The assignee cannot claim the bene
ficial interest without discharging the debt (c ) . And a

similar equity attaches upon an assignee from a cestui que

trust who is a debtor to the estate (d) . [ And where at the
time of the assignment of a legacy, a suit by the legatee was
pending to recall the probate, and the suit failed with costs
to be paid by the legatee, the executor was allowed to set off
the costs against the legacy notwithstanding the assign
ment (e) . But where assets have been set apart and appro
priated by executors to meet a trust legacy , no part of the
appropriated assets can be retained or impounded to satisfy
a debt from the legatee to the general estate of the testator,
for the right of the legatee or his assignee is against the
holders of the appropriated assets in their character of
*
trustees, while the liability of the legatee is to them [ * 697 ]
in their capacity of executors (a) . ] And where the
assignor is a trustee or executor it is immaterial whether the
debt to the trust or executorship was contracted before or

(b) Cockell v. Taylor, 15 Beav. payment is, in general, subject to the

103 ; Barnard v. Hunter, 2 Jur. N. S. solicitors ' lien, and can only be exer
1213 ; Daubeny v. Cockburn, 1 Mer. cised with his consent, or where his
626 ; see 638 ; Parker v. Clarke, 30 interest will not be prejudiced by the
Beav. 54. exercise ; Exparte Cleland , 2 L. R. Ch.
(c) Clack v. Holland, 19 Beav. 262 ; App. 808 ; Re Harrald, 52 L. J. N. S.
Barnett v . Sheffield, 1 De G. M. & G. Ch. 435 ; 48 L. T. N. S. 352 ; 53 L. J.
371 ; Cole v. Muddle, 10 Hare, 186 ; N. S. Ch. 505 ; 51 L. T. N. S. 441 .
Wilkins v. Sibley, 4 Giff. 442. But the lien does not interfere with
(d) Priddy v. Rose, 3 Mer. 86 ; the right to set off costs payable out
Willes v. Greenhill (No. 1 ) , 29 Beav. of a trust fund against a debt due to
376 ; Stephens v. Venables (No. 1 ) , that trust, the lien of the solicitor
30 Beav. 625 ; [ Corr v. Corr, 3 L. R. being itself subject to this equitable
Ir. 435 ; Re Moore, 45 L. T. N. S. 466 ] . right of set off ; Re Harrald , 53 L. J.
[(e) Re Knapman, 18 Ch. D. 300. N. S. Ch. 505 ; 51 L. T. N. S. 441. ]
It must be borne in mind that the [ (a ) Ballard v. Marsden, 14 Ch .
right to set off costs against costs in D. 374.]
another matter or against a money
937
*697 ASSIGNEE BOUND BY EQUITIES. [ CH. XXVII. S. 1 .

after the assignment of the beneficial interest (b) . But if the

assignor did not become trustee or executor until after the date
of the assignment there is no equity against the assignee in
respect of a subsequently incurred debt (c) . If the assignor
be a cestui que trust, the trustee after notice cannot create
any new charge or right of set-off, as between him and the
assignor, so as to bind the assignee (d) .
5. Debtor and creditor. - A creditor transfers his debt to a
person who has no notice that part of it has been discharged.
The assignee is nevertheless bound by the state of the ac- ·
counts at the time of the assignment (e ) ; and when the
assignee does not give notice to the debtor of the assignment
so as to dissolve the relation of debtor and creditor between
the original parties, the assignee is compelled to allow the
payments to the creditor subsequent to the assignment (f) .
[ 6. Shares in a Company. Shares in a company which
are legally transferable are not subject in the hands of a
bona fide transferee without notice, or semble in the hands of
a person who bona fide and without notice has for value ac
quired a legal right to be registered , to equities affecting the
transferor (g) .
In the case of securities issued by companies the following
rules seem to apply
(1 ) . Where a company has power to issue securities, an
irregularity in the issue cannot be set up against even the
original holder if he has a right to presume omnia rite acta.
(2) . If the security be legally transferable, such an irregu
larity and á fortiori any equity against the original holder
cannot be asserted by the company against a bona fide trans
feree for value without notice .
(3) . Nor can such equity be set up against an equitable
transferee, whether the security was transferable at law or

(b) Hopkins v. Gowan , 1 Moll . 561 ; Investment Company, 3 L. R. Ch.

Morris v. Livie, 1 Y. & C. C. C. 380. App . 355 .
(c) Irby v. Irby, 25 Beav. 632. (f) Norrish v. Marshall, 5 Mad.
(d) Stephens v. Venables (No. 1 ) , 475 ; and see Stocks v. Dobson, 4 De
30 Beav. 625. G. M. & G. 11 .
(e ) Ord v. White, 3 Beav. 357 ; [ (g) Briggs v. Massey, 42 L. T. N.
Smith v . Parkes, 16 Beav. 115 ; Rolt S. 49. ]
v. White, 31 Beav. 520 ; Re Natal
938
CH. XXVII . S. 1.] ASSIGNEE BOUND BY EQUITIES . *698

not, if by the original conduct of the company in issuing the

security, or by their subsequent dealing with the transferee
he has a superior equity .
(4) . Nor can such an equity be set up against an equi
table transferee of a security, purporting on the face
of it to be legally * transferable, who has taken an [ * 698 ]
equitable transfer bonâ fide and without notice from
a transferor, who by reason of notice of the irregularity
could not have enforced the security. But in this case the
transferee can only recover the amount actually advanced
or given by him upon the transfer ( a) . ]
7. It was decided in the case of Cavendish v. Geaves (b)
that the assignee is liable to the same equities as his assignor,
not merely in respect of the actual payments, but in regard
to the right of set-off. In that case Sir John Romilly, M. R.
laid down the following canons :
a. If a customer borrow money from his bankers, and give
a bond to secure it, and afterwards on the balance of his
general banking account a balance is due to the customer
from the same bankers, who are the obligees of the bond, a
right to set off the balance against the money due on the
bond will exist both at law and in equity.
B. If the firm be altered and the bond be assigned by the
original obligees to the new firm, and notice of that assignment
be given to the debtor (c) , and if, after this , a balance be due
to him from the new firm (the assignees of the bond) , then
no right of set-off exists at law, because the assignment of
the chose in action would be inoperative at law, and the
obligees of the bond and the debtor on the general account
are different persons ; but as, in equity, the persons entitled
to the bond, and the debtors on the general account are the

[(a ) Per Kay, J. , Re Romford Ca Vale Railway Company, 4 L. R. Q. B.

nal Company, 24 Ch. D. 85 , 92 ; Foun 44 ; Higgs v. Northern Assam Tea
taine v. Carmarthen Railway Com Company, 4 L. R. Ex. 387. ]
pany, 5 L. R. Eq. 316 ; Webb v. Com (b) 24 Beav. 163 , see 173 ; [ see Re
missioners of Herne Bay, 5 L. R. Q. Dublin and Rathcoole Railway Com
B. 642 ; Re Agra and Masterman's pany, 1 L. R. Ir. 98 ] .
Bank, 2 L. R. Ch. App . 391 ; Re (c) See as to this, 36 & 37 Vict. c.
Blakely Ordnance Company, 3 L. R. 66, s. 25.
Ch. App. 154 ; Dickson v . Swansea
939
*699 ASSIGNEE BOUND BY EQUITIES . [CH. XXVII. S. 1 .

same persons, a right of set-off exists in equity, and the cus

tomer is entitled to set off the balance due to him against
the bond debt due from him.
7. If the bond be assigned to strangers, and no notice of
that assignment be given to the original debtor (the obligor
of the bond) , then his rights remain the same . Thus, if the
assignment be made to the stranger before any alteration of
the firm, then the right of set-off still remains at law, where
the obligees of the bond and the debtors on the general ac
count are the same persons, and in equity also , if the matter
of account be brought into Chancery , as the assignees of the
chose in action would be bound by the equities affecting their
assignors.
[* 699] * 8. If notice of the assignment be given to the
original debtor, no right of set-off exists in equity for
the balance subsequently due by the bankers to the obligor ;
because the persons entitled to the bond are, as the obligor
knew, different persons from the debtors to him on the gen
eral account, with whom he had continued to deal.
e. If the assignment of the bond be made to the new firm,
with notice to the obligor, the new firm would, if debtors on
the general account, be liable to the same rights of set-off in
equity as if they had been the obligees.
. If after the alteration of the firm and after the assign
ment of the bond to the new firm, with notice to the debtor
or obligor, the bond be assigned by the new firm to strangers,
and no notice of that second assignment given to the obligor,
then the rights of set-off still remain to him in equity as
against the first assignees , of whose assignment he had notice,
and the second assignees would in equity be bound by it ;
because the assignees of the bond take it subject to all the
equities which affect the assignors .
8. Set-off. It may be observed that the right of set- off,
though unknown to the common law, was recognised in equity
previously to the statutory enactments on the subject. Thus
where A. and B. were mutually indebted by simple contract
dealings, and B. died also indebted to others by simple con
tract and to one by specialty, in such a case, though it was
contended that if A. could set off his own debt, he was to
940
CH. XXVII . S. 1.] ASSIGNEE BOUND BY EQUITIES. *700

that extent paid in full, in preference to the other simple

contract creditors, and at the expense of the specialty cred
itor, yet a Court of equity presumed an agreement between
A. and B. that such set-off should be had, and as B. in his
lifetime could not have recovered from A. without the set-off,
it held that the personal representative of B. was bound by
the same equity (a) .
9. Autre droit. Recently the equity jurisdiction in respect
of set-off has been chiefly, if not entirely, confined to cases
where one or both of the cross demands is or are of an equi
table kind (b) . And it seems to be established that set-off
will not be allowed even in equity where the mutual demands
are between the parties in different rights ; as if A. give a
legacy to B., and appoint C. his executor, or executor and
residuary legatee , B. may sue C. for the legacy, and C. cannot
set off a debt owing , by B. to C. not as executor but
*
in C.'s own right (a ) . [ So where an executorship [* 700 ]
account was kept with bankers in the joint names of
two executors , one of whom was the residuary legatee under
the will, but the executorship account had never been wound
up so as to make the executors mere trustees for the residuary
legatee, on the failure of the bankers it was held that the

(a) Downham v. Matthews, Pr. Ch . liability of the assignees, and that

580 ; see Jeffs v. Woods , 2 P. W. 128 ; T. Boultbee never obtained his certi
and see 2 G. 2, c. 22 ; 8 G. 2, c . 24, s. ficate, so that his liability remained,
5; [since repealed by 42 & 43 Vict. c. and thus the legacy was owing to one
59, and 46 & 47 Vict. c . 49 ; and see 36 set of persons, viz., the assignees, and
& 37 Vict. c. 66, and Rules of Su the debt from another, viz. , T. Boult
preme Court, Ord. XIX. r. 3.] bee. In Bell v. Bell , 17 Sim. 127, it
(b) See now 36 & 37 Vict. c. 66, does not appear whether the creditor
and Rules of Supreme Court, Ord . had or not proved under the insol
XIX. r. 3. vency. If he had, the case could not
(a ) Whittaker v. Rush, Amb. 407 ; be supported on the authority of
Bishop v. Church, 3 Atk. 691 ; Free Cherry v. Boultbee, but if he had not
man v. Lomas, 9 Hare , 109 ; Chapman it must stand or fall with that case.
v. Derby, 2 Vern. 117 ; Medlicott v. It is believed that in a subsequent
Bower, 1 Ves. 207 ; Middleton v. Pol stage of the suit, V.C. Kindersley de
lock, 20 L. R. Eq. 29 ; [ Ballard v. cided the other way. See also Stam
Marsden, 14 Ch . D. 374. ] Cherry v. mers v. Elliott, 3 L. R. Ch . App. 195 ;
Boultbee, 4 M. & Cr. 442, which was Taylor v. Taylor, 20 L. R. Eq . 159 ;
questioned by V.C. Wigram in Free [Re Hodgson, 9 Ch . D. 673, in which
man v. Lomas, 9 Hare, 115 , turned on case Cherry v. Boultbee was fol
the facts that C. F. Boultbee never lowed. ]
proved her debt so as to make it a
941
*701 ASSIGNEE BOUND BY EQUITIES . [CH. XXVII. S. 1.

residuary legatee was not entitled to have another account

of his own with the bankers, which was overdrawn, set off
against the executorship account ; for "the case could not be
brought within the rules of equitable set-off or mutual credit,
unless the residuary legatee was so much the person bene
ficially interested that a Court of equity without any terms
or further inquiry would have obliged the other executor to
transfer the account into the name of the residuary legatee
alone " (b). But where, at the time of the failure of a bank,
two accounts were standing in the name of a customer, one
his private account, which was overdrawn, and the other an
executorship account, and the executor, who was also resid
uary legatee, had assets in his hand independently of the bal
ance at the bank more than sufficient to satisfy the pecuniary
legacies and all other claims against the estate, it was held
that he was entitled to set off the one, account against the
other, on the ground that there was a clear legal right of
set-off, and that there were no such equities affecting the
monies standing to the executorship account as to prevent
the customer from treating the balance as a fund to which
he was beneficially as well as legally entitled (c) .
[* 701 ] And] a * defendant may make such admissions in
his answer as to preclude himself from objecting to
the set-off at the hearing (a) . However, an admission of
assets for payment of the legacy will not have that effect (b).
A legacy to one of the members of a firm may be set off
against a debt owing by the firm (c) . But a legacy to a
married woman, and assigned by her under Malins ' Act,
cannot be retained by the executor as against the assignee

[(b) Ex parte Morier, 12 Ch . D. were likely to be made, and that if

491. ] claims had at the time of the bank
[ (c) Bailey v. Finch , 7 L. R. Q. B. ruptcy been made against it, they
34 ; and see the observations on this would have prevented the legal right
case in Ex parte Morier, ubi supra, of set-off from arising, but that, as it
where Cotton L.J. observed, “ As I was not shown there were any equita
understand it, the principle of the de ble claims against the fund, the legal
cision (whether right or wrong) was right of set-off could not be inter
this, not that the fund was a trust fered with," p. 502. ]
fund from the nature of the account, (a ) Jones v. Mossop, 3 Hare, 568.
or that the bankers had notice of (b) Freeman v. Lomas, 9 Hare, 109.
that, but that they had notice that it (c ) Smith v. Smith, 3 Giff. 263, see
was an account against which claims 270.
942
CH. XXVII S. 1.] NOTICE OF ASSIGNMENT. * 701

in discharge of a debt by the husband to the testator's

estate (d) . [ And a right to damages against an assignor
which does not ripen into a debt until after his assignment
of a debt due to him, cannot be set off against the debt due
to the assignor and assigned by him ( e) .
A person who owes a debt to a bankrupt at the time of his
bankruptcy and has no right of set-off, cannot acquire such a
right by taking an assignment of another debt due to another
creditor of the bankrupt (f) . And where there are mutual
dealings between a debtor and his creditors, the line as to
set-off must, as a general rule and in the absence of special
circumstances, be drawn at the date of the commencement of
the bankruptcy.1
10. Where a policy of assurance on the life of H. was
taken in the names of trustees, and a settlement was exe
cuted binding the policy in the hands of the trustees , but it
was expressly provided that nothing in the settlement should
vest in the trustees any bonus, and H. obtained possession of
and misappropriated part of the trust funds, it was held, in
an action by the executrix of H. to recover bonuses , that the
trustees held the bonuses under a resulting trust independ
ently of the settlement, and could not retain them against
the losses incurred in respect of the funds misappropriated
by H., and that as the claim of the executrix was in respect
of money which was never payable to H. personally, but only
after his death, while the claim of the trustees was for money
due from him in his lifetime, there was no right of set-off on
the footing of mutual debts (g) . ]

Thirdly. Of Notice 2 to the Trustee .

1. Notice. - As between assignor and assignee notice to
the trustee is not necessary for the completion of an assign

(d) Re Batchelor, 16 L. R. Eq . 481 . [ (g) Hallett v. Hallett, 13 Ch. D.

[(e) Ex parte Theys, 22 Ch. D. 122 ; 232 ; and see Rees v. Watts, 11 Exch.
25 Ch . D. 587.] 410 ; Newell v. National Provincial
[(f)Per Lord Selborne, L.C., Ex Bank of England, 1 C. P. D. 496. ]
parteTheys, 25 Ch. D. 592. ]

1 Ex parte Reid, 33 W. R. 707 ; 14 Q. B. D. 963.

2 The pleadings and evidence in reference to notice must be clear and
definite ; Alexander v. Pendleton, 8 Cranch, 462 ; Nantz v. McPherson , 7
943
*702 NOTICE OF ASSIGNMENT. [CH. XXVII . S. 1 .

ment (h), even though the assignment be volun

[ * 702] tary (i) . Nor is notice necessary for the * purpose
of making the assignment effectual as against subse
quent volunteers (a), or as against persons claiming only a
general equity under the assignor, such as a judgment creditor
who obtains a charging order (b) . Or equitable execution
by the appointment of a receiver subject to existing incum
brances. But the omission of notice may be followed by
very dangerous consequences by the operation of the reputed
ownership clause under the bankrupt laws ( c) , or the acqui
sition of priority by subsequent purchasers or incumbrancers.
And if the title be a derivative one, and not one that appears
upon the face of the instrument creating the settlement, the
trustee may, having neither express nor constructive notice,
pay upon the footing of the original title , and in that case he
cannot be made to pay over again to the assignee under the
derivative title (d).

(h) Burn v. Carvalho, 4 M. & Cr. ante, p. 242 ; and see Ex parte Ark
702 ; Bell v. London and North West wright, 3 Mont. D. & De G. 129 ;
ern Railway Company , 15 Beav. 552 ; Bartlett v. Bartlett, 1 De G. & J. 127 ;
Dufaur v. Professional Life Assurance Re Webb's Policy, ubi sup.; Daniel
Company, 25 Beav. 599 ; Re Lowe's v. Freeman, 11 I. R. Eq. 233, 638 ;
Settlement, 30 Beav. 95. Re Irving, 7 Ch . D. 419 ; where it
(i) Donaldson v. Donaldson, Kay, was held that the equitable assign
711 . ment created a trust for the assignee
(a) Justice v. Wynne, 12 Ir. Ch. and so took the case out of the order
Rep. 289 ; Re Webb's Policy, 36 L. J. and disposition clause ; Re Power, 11
N. S. Ch . 341. L. R. Ir. 93. ]
(b) Scott v. Hastings, 4 K. & J. (d) Cothay v. Sydenham, 2 B. C.
633. C. 391 ; Leslie v. Baillie, 2 Y. & C. C.
(c) 46 & 47 Vict. c. 52, s . 44. [ See C. 91 ; [and see Re Lord Southamp

T. B. Mon. 597 ; Dillard v. Crocker, 1 Speers ' Eq . 20 ; Halstead v . Bank,

4 J. J. Marsh. 554. Notice to an agent is notice to the principal ; Jack
son v. Leek, 19 Wend. 339 ; Astor v. Wells, 4 Wheat. 466 ; Jackson v.
Sharp, 9 Johns. 163 ; Hovey v. Blanchard, 13 N. H. 145 ; but he must be
an agent in the strict sense of the word ; Hood v. Fahnestock, 8 Watts,
489 ; Winchester v. Railroad Co. 4 Md . 231 ; Howard Ins. Co. v. Halsey,
4 Seld. 271 ; Fulton Bank v. Canal Co. 4 Paige, 127 ; Bank v. Payne,
25 Conn. 444. Any purchaser taking from one who is relieved of any equities
attaching to an estate, likewise is free from them ; Church v. Ruland , 64 Pa.
St. 441 ; Boynton v. Rees , 8 Pick. 329 ; Fletcher v. Peck, 6 Cranch, 87 ; see
Lawrence v. Stratton, 6 Cush. 163. Constructive notice may be sufficient ;
Maul v. Rider, 59 Pa. St. 167 ; Farnsworth v. Childs , 4 Mass . 637 ; Leitch v.
Wells, 48 N. Y. 591 ; Calhoun v. Burnett, 40 Miss. 599.
1 Arden v. Arden, 29 Ch. D. 702.
944
CH. XXVII. S. 1.] NOTICE OF ASSIGNMENT. *703

2. Priority of charge from priority of notice . -- If the owner

of an equitable interest in money or stock, or generally of
any chose in action, assign it to A., who gives no notice of
the transfer to the trustee or debtor, and then for valuable
consideration assigns it over again to B., who having had
no notice of the prior assignment when he advanced his
money, gives notice of his own assignment to the trustee or
debtor, in this case B. has priority over A. That a pur
chaser's notice will secure to him this advantage of priority,
has been only settled in modern times. In Cooper v. Fyn
more (e ) , Sir T. Plumer, V. C. , decided that mere neglect to
give notice would not postpone an incumbrancer, but that
such laches ought to be shown as, in a Court of equity,
would amount to fraud ; but in Dearle v. Hall (f) , and Lov
eridge v. Cooper (g) , nine years after, his Honour, when
Master of the Rolls, came to a contrary conclusion, and de
livered a very elaborate argument that notice would gain
priority. His Honour's judgments were affirmed on ap
peal (h) , and the doctrine has been recognised in numerous
subsequent cases (i) . [ And the same principle applies
where the owner of the equitable interest has died
after making an assignment, and his legal personal [ * 703 ]
representative has made a subsequent assignment of
the interest to a purchaser for value without notice of the
prior assignment (a) . ]
But the principle does not extend to the shares of com
panies registered under the Companies Act, 1862 , the 30th
section of which provides that no notice of any trust ex
pressed, implied, or constructive, shall be entered on the
register. The course which the assignee of an equitable
interest in such shares should adopt for his protection is to

ton's Estate, Banfather's Claim , 16 (i) Hutton v. Sandys, 1 Younge,

Ch. D. 178 ; Re Lord Southampton's 602, see 607 ; Smith v . Smith, 2 Cr.
Estate, Roper's Claim, 50 L. J. N. S. & M. 231 ; Foster v. Blackstone , 1 M.
Ch. 155. ] & K. 297, see 307. For the principles
(e) 3 Russ. 60. upon which Sir T. Plumer proceeded,
(ƒ) 3 Russ. 1. see 3 Russ. pp . 12-14, 20-22.
(g) Ib. 30. [ (a) Re Freshfield's Trust, 11 Ch.
(h) Ib. 38, 48. D. 198.]

¹ Société Générale de Paris v. Tramways Union Company, 14 Q. B. D. 424.

945
*703 NOTICE OF ASSIGNMENT. [CH. XXVII. S. 1.

serve a notice in lieu of distringas on the company under 5

Vict. c. 5, s . 5, and Order xlvi . of the Rules of the Supreme
Court, which will prevent any legal transfer being made of
the shares without notice to the equitable assignee, and will
give him an opportunity to obtain an order restraining the
transfer. It must not however be assumed that the directors
of a company may safely ignore a notice given to them, and
allow shares, which are to their knowledge affected by equi
table rights, to be fraudulently transferred so as to destroy
such rights . For if knowledge of the fraud can be brought
home to the directors they would be liable as parties to the
fraud ; and in the opinion of Cotton, L. J., " where directors
are asked to register a transfer, which from circumstances in
fact known to them at the time would be in violation of the
rights of others, they cannot either safely to themselves or
without disregard of their duty register the transfer without
allowing time for enquiry and for the assertion of the equi
table rights , if any, inconsistent with the claim to register
the transfer " ; and in the opinion of Lindley, L. J., " a re
fusal by directors or an omission on their part to pay atten
tion to a notice given to them by a person having an equi
table interest in shares, and requiring the directors not to
register a transfer for such time as might be necessary to allow
him to apply for a proper restraining order, would be primâ
facie improper. Such conduct on the part of directors would
be strong evidence of fraud." 1
3. As against trustees in bankruptcy . This rule as to gain
ing priority by notice has been held to prevail not only as
between two purchasers for value, but also as between a
purchaser for value, and the assignees of a bankrupt neglect
ing to give notice ; as , if A. being entitled to an equitable
interest become bankrupt, and then assign it to a purchaser
for valuable consideration without notice of the bankruptcy,
who serves notice on the trustee, the purchaser gains priority
over the assignees who gave no notice (b ) . In a case, how
(b) Re Barr's Trusts, 4 K. & J. sell's Policy Trusts, 15 L. R. Eq . 26 ;
219 ; Re Atkinson , 4 De G. & Sm. [Palmer v. Locke, 18 Ch. D. 381 ; ]
548 ; 2 De G. M. & G. 140 ; Re Rus and see infra, p. 711 .

1 S. C. pp. 445, 453. But see the observations of Brett, L. J., S. C. at p. 440.
946
CH. XXVII. S. 1.] NOTICE OF ASSIGNMENT . *704

ever, arising under the Bankruptcy Act of 1849, it was held

that an assignment, after bankruptcy, to an assignee who
gave notice to the trustee before the assignees in bankruptcy,
could not prevail against the title of the latter (e) ; [ and in
a subsequent case (d) where the same view was adopted by
the Court of Appeal, L. J. Baggallay held that the 141st sec
tion of the Act of 1849, which governed the case, applied
equally to all bankruptcies under the Act of 1861. ] The
judgment of the Court was grounded on the strong negative
words in the Act (e) ; but similar words occur in the origi
nal Bankrupt Act of James I. (ƒ ) , and the principle of the
former decisions was that, as regards equitable interests, the
Act can pass nothing more than the fullest assignment which
the bankrupt could have made, and that assignees by opera
tion of law cannot in a Court of equity be viewed as under
less obligation to give notice than a particular assignee, who,
generally speaking, is more favoured. It would seem
that the rule as to notice cannot be applied as against as
signees in bankruptcy where the subject matter of assign
ment is a debt which was recoverable at law by the bankrupt,
since in that case the legal title vests in the assignees .
[4. Solicitor's Lien. ―――――――――――- A solicitor having a lien for costs
on documents in his possession is under no obligation to
give any further notice of his lien , the fact of his having
possession of the documents being notice to all the world
of the only fact (viz . possession ) necessary to raise
* the lien . A subsequent assignee who has given no- [ * 704]
tice will accordingly not gain priority ( a) . ]
5. Purchase by a trustee without notice. -- If a cestui que
trust charge his interest, but gives no notice to the trustee,
or gives notice to the trustee who dies so that the notice
falls to the ground, and then a trustee subsequently ap

(c) Re Mary Coombe's Will , 1 (i.e. of assignees ) neither the bank

Giff. 91 . rupt, nor any person claiming through
[(d) Re Bright's Settlement, 13 Ch. or under him, shall have power to
D. 413 ; see the observations on this recover the same," &c.; 12 & 13 Vict.
case in Palmer v. Locke, 18 Ch. D. c. 106, s. 141.
381 ; and in Re Jakeman's Trusts, 23 (f) 1 Jac. 1 , c. 15, s. 13.
Ch. D. 344. ] [(a ) West of England Bank v.
(e) " And after such appointment Batchelor, 51 L. J. N. S. Ch. 199. ]
947
*704 NOTICE OF ASSIGNMENT. [CH. XXVII. S. 1.

pointed and having no notice of the charge, purchases from

the cestui que trust, or takes a mortgage of his interest, such
trustee stands in the position of an assignee, who , having
no notice of the prior charge and giving notice of his own
charge, gains a priority (b) .
6. Cautions in assignment of equitable interests. - The
purchaser of an equitable interest in choses in action should,
for his security, never dispense with the two following
precautions : First, he should make enquiries of the trus
tee or debtor whether the equity or claim of the vendor
has been made the subject of any prior incumbrance. The
purchaser, as the implied agent of the cestui que trust, has a
right to require all necessary information ; and if the trustee
or debtor refuse to answer the enquiry (c), to be guilty of
misrepresentation , or even of mis-statement from forgetful
ness, the purchaser may charge him personally with the
amount of the consequent loss (d) . Secondly, upon the
execution of the assignment, the purchaser should himself
give notice of his own equitable title to the trustee or debtor,
by means of which he will gain precedence of all prior in
cumbrancers who have not been equally diligent, and will
prevent the postponement of himself to subsequent incum
brancers more diligent than himself ; and of course the trus
tee or debtor will be personally responsible , if, after such
notice, he part with the fund to any person not having a
prior claim (e) .
7. Notice in respect of real estate. Between choses in
action and real estate there is an observable distinction . As
regards the former the purchaser knows the legal title is
outstanding in a third person, and is therefore bound to give
notice of his incumbrance ; but in lands it often happens that
the vendor professes to have the legal ownership in himself,
whereas it afterwards appears that it was really vested in

(b) Phipps v. Lovegrove, 16 L. R. (d) Burrowes v. Lock, 10 Ves . 470 ;

Eq . 80 ; London Chartered Bank of Browne . Savage, 5 Jur. N. S. 1020 ;
Australia v. Lemprière, 4 L. R. P. C. S. C. 4 Drew. 635 ; Slim v. Croucher,
572. 1 De G. F. & J. 518.
(c) Browne v. Savage, 4 Drew. (e ) Hodgson v. Hodgson, 2 Keen,
639. 704 ; Roberts v. Lloyd, 2 Beav. 376 ;
Andrews v. Bousfield, 10 Beav. 511.
948
CH. XXVII . S. 1. ] NOTICE OF ASSIGNMENT . *705

some stranger. If the purchaser be not cognizant of the out

standing legal estate, he cannot give notice of his
interest, and therefore cannot be held to have for- [ * 705 ]
feited his right by having neglected a precaution that
was impossible . On the other hand, to hold that the doctrine
of notice does not apply at all to real estate, renders any
dealings with equitable interests therein needlessly danger
ous. Thus A. is entitled to an equitable interest, of which
the legal estate is in B. upon trusts requiring B. to retain
possession of the title-deeds, and not to part with the legal
estate. A. conveys his interest to C. , who makes no en
quiries about incumbrances, and gives no notice to the trus
tee ; A. afterwards, fraudulently concealing the previous
assurance, conveys the same interest to D. , who makes en
quiries of the trustee respecting incumbrances, and gives
him notice of his own charge. There seems no sound reason
for postponing D. who has taken these precautions to C.,
who has merely priority in point of time. It is , however,
now settled that the incumbrances in such a case are not
governed by the law of notice, but rank primâ facie, and in
the absence of other controlling equities , in order of date (a) .
However, the rule as to notice , though not applicable to
estates in land, whether freehold or leasehold, applies when
the subject matter is a sum of money to arise from a trust
for sale of land (b ) , or which is charged upon land ( c) .
[ 8. Purchaser completing bankrupt's contract without notice
――――
of bankruptcy. Where a bankrupt before adjudication con
tracted to sell leasehold property, and received a deposit in
respect of the purchase-money, and after the adjudication but
before the purchaser had any notice of any act of bankruptcy

(a ) Lee v. Howlett, 2 K. & J. 531 ; Dunster v. Lord Glengall, 3 Ir. Ch.

Wiltshire v. Rabbits, 14 Sim. 76 ; and Rep . 47.
see Wilmot v. Pike, 5 Hare, 14 ; (b) Lee v. Howlett, 2 K. & J. 531 ;
Bugden v. Bignold, 2 Y. & C. C. C. The Consolidated Investment, &c.
392 ; Rochard v . Fulton, 7 Ir. Eq. Rep. Company v. Riley, 1 Giff. 371 ; Foster
131 ; Rooper v. Harrison, 2 K. & J. v. Blackstone, 1 M. & K. 297, 9 Bligh,
86 ; Prosser v. Rice, 28 Beav. 68 ; N. S. 332 ; Arden v. Arden, 29 Ch.
Pease v. Jackson, 3 L. R. Ch. App. D. 702.
576 ; Phipps v. Lovegrove, 16 L. R. (c) Re Hughes's Trust, 2 H. & M.
Eq . 80. As to the effect of notice 89 ; [Daniel v. Freeman, 11 I. R. Eq.
upon a transfer of railway shares, see 233, 638. ]
949
*706 NOTICE OF ASSIGNMENT. [CH. XXVII. S. 1.

received the balance of the purchase-money from the pur

chaser, it was held that the trustee in bankruptcy could not
be compelled to assign the lease to the purchaser except
upon the terms of his paying him the purchase-money . The
equity of the purchaser under the contract was to have the
property conveyed to him upon payment of the purchase
money to the person to whom the property belonged ; and it
was the purchaser's misfortune if he paid the money to a per
son who had ceased to be the owner of the property (d) . ]
9. Second incumbrancer giving notice but making no en
-
quiries . A second incumbrancer who advances his money
without enquiry as to the existence of previous
[ * 706 ] charges, but afterwards, and before any notice
given by the first incumbrancer, gives notice of his
own security, obtains thereby priority (a) . The reason is ,
that, in the case supposed, non-enquiry by the second in
cumbrancer is immaterial, since the answer to any enquiry
would have been that there were no prior charges, whereas
the absence of notice by the first incumbrancer works an ex
post facto injury to the second, who, if informed at the time
of giving his own notice of the existence of the earlier
charge, would immediately have exerted himself to obtain
repayment of his money (b).
10. Notice to one of several co-trustees. - If notice be
given to one of several co-trustees, it is sufficient as against
all subsequent incumbrancers during the lifetime of that
trustee ; for the subsequent incumbrancer should have made
enquiry of all the trustees, and if he had done so he would
have come to a knowledge of the prior charge, so that here
non-enquiry is material (c) .
11. Death of the single trustee to whom notice was given.
But if a prior incumbrancer content himself with giving

[(d) Ex parte Rabbidge, 8 Ch. D. (b) Meux v. Bell, 1 Hare, 86, 87 .

367.] (c) Smith v. Smith, 2 Cr. & M.
(a) Foster v. Blackstone, 1 M. & K. 231 ; Ex parte Rogers, 8 De G. M. &
297 ; Foster v. Cockerell, 9 Bligh, G. 271 ; Willes v. Greenhill ( No. 2 ) ,
N. S. 376 ; Timson v. Ramsbottom , 2 29 Beav. 387 ; S. C. 4 De G. F. & J.
Keen, 49 ; and see Etty v. Bridges, 2 147 ; and see Ex parte Hennessey, 1
Y. & C. C. C. 494 ; Warburton v. Hill, Conn. & Laws . 562 ; Wise v. Wise, 2
Kay, 478. Jon. & Lat. 412.
950
CH. XXVII. S. 1.] NOTICE OF ASSIGNMENT. *707

notice to one of the trustees, and that trustee dies, and a

second incumbrancer gives notice of his assignment, then,
as the first incumbrancer did not do his utmost to guard
against the fraud, and the second incumbrancer had no
means in his power of detecting the fraud, the loss will fall
on the person who had so far occasioned that he might have
prevented it (d) .
12. Enquiry by incoming trustees of outgoing trustees . - If
there be two trustees, and notice be given to both of them,
and then one dies and the other retires, and new trustees are
appointed in the place of both, and the new trustees having
no notice of the charge distribute the fund, the incum
brancer cannot hold the new trustees liable as for a misap
plication on the ground that, when appointed, they ought
to have enquired of the retiring trustee whether he had
notice of any charge in which case it would have come to
their knowledge (e) .
13. Where the assignor or assignee is one of the trustees. ―――
As the rule requiring notice is not only to prevent the trus
tees from parting with the fund, but also and more particu
larly to enable future purchasers to ascertain prior incum
brances, it has been held that where the assignor, the
party beneficially interested , is also one of the trus- [ * 707 ]
tees, the notice which he has is not sufficient, as it is
so strongly his interest to suppress the assignment. But if
the assignee be one of the trustees , the notice which he has is
sufficient, for he will of course, for his own protection, take
"
care to apprise future incumbrancers of the assignment to
himself (a).
[ A trustee having himself a charge upon the trust fund
is not, in the absence of enquiry, bound to communicate
that charge to a person giving him notice of a subsequent

(d) See Meux v . Bell, 1 Hare, 73 ; (e) Phipps v. Lovegrove, 16 L. R.

Ex parte Hennessey, 1 Conn. & Laws. Eq. 80.
562 ; Timson v. Ramsbottom, 2 Keen, (a) Browne v. Savage , 4 Drew.
35 ; [ Re Hall, 7 L. R. Ir. 180 ; ] but 635 ; Willes v. Greenhill (No. 1 ) , 29
see Willes v. Greenhill (No. 2) , 29 Beav. 376 ; S. C. (No. 2) , 29 Beav.
Beav. 387. 391 ; Newman v. Newman, 28 Ch. D.
674.
951
*708 NOTICE OF ASSIGNMENT. [CH. XXVII. S. 1 .

charge (b) ; but a trustee concealing his own prior charge

would be narrowly watched by the Court, and it is conceived
that if by his conduct he had led the subsequent incum
brancer to believe the fund to be unincumbered, he would .
lose his priority . ]
14. Notice to all the trustees, and all dying. As an incum
brancer may, by giving notice to one trustee, complete his
title for the time, and yet may afterwards by the death of
the trustee be displaced ; so, if notice be sent to all the
trustees, and they all die, a second incumbrancer, who gives
notice to the succeeding trustees, will gain priority. Notice
properly given at the time does not make an absolute title,
but one liable to be defeated by an alteration of circum
stances (c). An incumbrancer, therefore, would do well not
only to give notice to all the trustees in the first instance ,
but to watch as well as he can the changes in the state of the
trust, and to take care , by repeating his notice, that there is
never a set of trustees of whom there is not at least one who
has notice of his charge .
15. Time of giving notice . ― Notice of an equitable incum
brance ought to be given to the trustees as early as possible,
but if delayed for any length of time, it will be equally effica
cious, provided no notice of any other charge has been served
in the interval (d) . Therefore, if the owner of an equitable
interest, but who has given no notice to the trustees, contract
for the sale of it, the purchaser cannot object to the title on
the ground of no notice having been given, unless he can
show some intermediate incumbrance ; but it is the vendor's
duty, by pointing out who have been the trustees from time
to time, to furnish full means to the purchaser of enquiring
whether or no any such charge has been created (e).
[*708 ] * 16. Notice to a person about to become a trustee.
Notice to a person who is not actual trustee at the

[(b) Re Lewer, 4 Ch. D. 101 ; 5 Drew. 635 ; Re Durand's Trusts, 8

Ch. D. 61. ] W. R. 33.
(c) Phipps v . Lovegrove, 16 L. R. (d) Meux v. Bell, 1 Hare, 86, per
Eq . 80 ; and see Meux v. Bell, 1 Hare, Sir J. Wigram ; Browne v. Savage, 5
97 ; but see Etty v. Bridges , 2 Y. & Jur. N. S. 1020 ; and see Stocks v.
C. C. C. 492 ; Browne v. Savage, 4 Dobson, 4 De G. M. & G. 17.
(e) Hobson v. Bell, 2 Beav. 17.
952
 CH. XXVII . S. 1.] NOTICE OF ASSIGNMENT. *708

time, but who may and probably will become such, confers
no right to priority.
Thus, where A. had a first charge, and
B. the second charge, on the proceeds to arise from the sale
of an officer's commission ; and B. first, and then A., gave
notice of their respective charges to the army agent of the
regiment ; but both notices preceded the time when the army
agent first actually assumed the character of trustee ; it was
held that A. retained his priority (a) . [ Where an officer
retires under " The Regulation of the Forces Act, 1871 " (b) ,
the amount payable on his retirement, though previously
lodged with the army agents and entered in their books under
the officer's name , cannot be affected by notice of an incum
brance created by him until after his retirement is gazetted (c).
But as soon as the retirement is gazetted , the amount lodged
becomes the money of the retiring officer in the hands of the
army agents, and is liable to set-off in respect of any monies
owing by the officer to the army agents (d) . ]
17. These cases do not disturb the great principle that
an equitable assignment is complete, if notice be given to
the person by whom payment of the assigned debt is to
be made, whether that person be himself liable, or is merely
charged with the duty of making the payment ; and it is
not material whether the right to receive the money and
the consequent obligation to pay is at the time when the
notice is given absolute or conditional, so long as the per
son who receives the notice is himself bound by some con
tract or obligation at the time when notice reaches him to
receive and pay over, or to pay over if he has previously
received, the fund out of which the debt is to be satisfied.
The cases on the sales of commissions turn upon the fact
that the notice was given to a mere possible agent before
he was an actual agent, ― before the time when he was in
any sense liable to make payment, neither being himself a

(a) Addison v. Cox, 8 L. R. Ch . L. R. Ch. App . 109 ; Yates v. Cox, 17

App. 76 ; Buller v. Plunkett , 1 J. & W. R. 20.
H. 441 ; Webster v. Webster, 31 [ (b ) 34 & 35 Vict . c . 86. ]
Beav. 393 ; Somerset v. Cox, 33 Beav. [(c) Johnstone v. Cox, 16 Ch . D.
634; [ Roxburghe v. Cox, 17 Ch. D. 571 ; 19 Ch. D. 17. ]
520 ;] and see Calisher v. Forbes, 7 [(d) Roxburghe v. Cox, 17 Ch. D.
520. ]
953
*709 NOTICE OF ASSIGNMENT. [ CH. XXVII. S. 1 .

debtor nor at that time charged with the duty of paying the
money in question (e) .
18. Notice as between volunteers . -➖➖ -The doctrine of priority
by notice applies only in favour of purchasers ; for as between
two volunteers notice is not necessary, but qui prior est tem
pore potior est jure, whether the first assignee did or not give
notice (f).
[ *709 ] * 19. Simultaneous notices. Where two or more
notices are served simultaneously, the incumbrances
rank according to their respective dates (a) .
20. To whom notice should be given. - The notice , written
or unwritten (b) , but better written, should be given to the
trustees themselves, [ and notice to the solicitors of the trus
tees will be of no effect unless the solicitors are expressly or
impliedly authorised to receive such notices ( c) ; ] and where
there are two settlements, one original and the other deriva
tive, the notice should be given to the trustees of the origi
nal settlement who hold the property (d) . Where notice to
one trustee would be sufficient, it may be given to one who
is not the acting trustee, the law recognising no distinction
between an acting and a passive trustee (e ) . Where the
trust fund consists of shares in a company, the notice may be
sent to the secretary (f) ; but notice to A., a director, and
B., the actuary, was in one case considered sufficient (y) ;

(e) Addison v . Cox, 8 L. R. Ch. [(c) Saffron Walden Second Ben

App. 79, per L. C. Selborne. efit Building Society v. Rayner, 14
(f) Justice v. Wynne, 12 Ir. Ch . Ch. D. 406 ; Arden v . Arden, 29 Ch.
Rep. 289. This was so laid down by D. 702 ; and see Re Durand's Trusts,
L. C. Brady, and his opinion carries 8 W. R. 33 ; ] Foster v. Blackstone,
the greater weight with it, as at the 1 M. & K. 297 , 306 ; Rickards v. Gled
original hearing he had thought stanes , 3 Giff. 298 ; Willes v. Green
otherwise ; see S. C. 10 Ir. Ch. Rep. hill (No. 2 ) , 29 Beav. 392.
489. (d) Bridge v . Beadon , 3 L. R. Eq .
(a ) Calisher v. Forbes, 7 L. R. Ch . 664.
App. 109 ; [ Johnstone v. Cox, 16 Ch. (e) Smith v . Smith, 2 Cr. & M.
D. 571 ; 19 Ch. D. 17.] 233.
(b) Smith v. Smith, 2 Cr. & M. (f) Ex parte Stright, Mont. 502 ;
231 ; Ex parte Carbis, 4 Deac. & Ch. and see Alletson v. Chichester, 10 L.
357, per Sir G. Rose ; S. C. 1 Mont. R. C. P. 319.
& Ayr. 695, note, per eundem ; Browne (g) Ex parte Watkins, 1 Mont. &
v. Savage, 4 Drew. 640 ; Re Tichener, Ayr. 689 ; S. C. 4 Deac. & Ch . 87 ;
35 Beav. 317 ; Re Agra Bank, 3 L. R. but see Ex parte Hennessey, 1 Conn.
Ch . App. 555. & Laws. 559.
954
CH. XXVII. S. 1. ] NOTICE OF ASSIGNMENT. *710

and, in another, notice to A., one of the directors, and B. ,

an auditor (h) ; and in another verbal notice , not casually,
but in the way of business, to the board of directors (i) . But
the fact that the secretary or any other officer of the com
pany had casual knowledge, acquired in his individual capac
ity and not whilst engaged in transacting the business of the
company, of any matter, will not affect the company with
notice of it. It was at one time held that, as notice to a
partner was notice to the partnership, if by the constitution
of an assurance office the person insuring became a partner,
the assignment of a policy by him was ipso facto notice of it
to the society ( ) ; but this was going very far, as it was the
assignor's interest to suppress the assignment, and the point
has since been ruled the other way (k) . The negotiation for
the assignment through a solicitor, who happens to be the
local agent of the insurance office, is not notice to the
* office (a) . Incidental mention of the charge to a [ * 710 ]
clerk of the company, though in the office of business ,
will not be constructive notice to the company itself (b) ;
and the fact that the solicitor to the trustees was a creditor
under an insolvency, and must have known of the insol
vency, was no notice of it to the trustees (c) .
21. Notice must be clear. ―――- If the notice be by parol it
must be clear and distinct (d) , [and sufficient to bring
to the mind of the trustee an intelligent apprehension of
the nature of the dealing with the trust property, so that

(h) Ex parte Waithman, 4 Deac. 13 Sim . 469 ; Martin v. Sedgwick, 9

& Ch. 412 ; but see Ex parte Hen Beav. 333 ; and see Powles v. Page ,
nessey, 1 Conn. & Laws. 559. 3 C. B. 16 ; Ex parte Boulton, 1 De
(i) Re Agra Bank, 3 L. R. Ch. G. & J. 175.
App. 555 ; and see Ex parte Richard (a) Re Russell's Policy Trusts, 15
son, Mont. & Ch. 43 ; Alletson v. Chi L. R. Eq. 26.
chester, 10 L. R. C. P. 319. (b) Ex parte Carbis, 4 Deac. &
(j) Duncan v. Chamberlayne, 11 Ch . 354 ; S. C. 1 Mont. & Ayr. 693,
Sim. 126 ; Ex parte Rose, 2 Mont. note (a).
D. & De G. 131 , and see Ex parte (c) Re Brown's Trust, 5 L. R. Eq.
Cooper, Id. 1 ; Re Styan, Ib. 219, and 88.
1 Ph. 105. (d) Re Tichener, 35 Beav. 317 ;
(k) Ex parte Hennessey, 1 Conn . Re Brown's Trust, 5 L. R. Eq . 88.
& Laws. 559 ; Thompson v. Speirs,

¹ Société Générale de Paris v. Tramways Union Company, 14 Q. B. D. 424.

955
*711 NOTICE OF ASSIGNMENT. [CH. XXVII. S. 1.

he may regulate his conduct by it in the execution of the

trust (e).
An error in the notice in an immaterial point, such as the
date of the deed of which notice is given, will not invalidate
it (f) .]
22. By whom notice should be given. It was held by
Lord Romilly, M. R., that the notice should be given by or
on behalf of the assignee himself, and that notice to a trustee
proceeding from a mere stranger would be insufficient (g) ,
but the case on appeal was reversed on the ground that the
trustee had received such notice as he would or should have
acted upon (h).
23. Where trustee is incumbrancer. ――――― Where the trustee
himself is the assignee or incumbrancer, the transaction nec
essarily carries notice along with it, and no other notice is
necessary (i) . So in the case of a Joint Stock Bank, the lien
of the bank under the deed of settlement for a debt owing
from one of its members, does not require any further notice
than that which the bank, the only trustee, already possesses
from the relative position of the parties (j).
24. Form of the notice. ― - The notice , if it goes into details
at all, should set forth the entire amount of the assignee's
claim, for it has been held that the trustee is affected by no
tice only of the amount stated upon the face of the memo
randum served, and not by notice of all the contents of the
instrument to which the memorandum refers (k) . But notice
of a charge in general terms without expressing any amount
in particular, will be sufficient (7) ; and if there be no doubt
as to the fund intended, a mistake in the description will not
vitiate the notice as against a subsequent purchaser,
[ * 711 ] but the * Court will not extend the security beyond

[ (e) Lloyd v. Banks, 3 L. R. Ch. (i) Elder v. Maclean, 3 Jur. N. S.

App. 488, 490 ; Saffron Walden 283 ; Ex parte Smith, 4 Deac. & Ch.
Second Benefit Building Society v. 579 ; Ex parte Smart, 2 Mont. & Ayr.
Rayner, 14 Ch. D. 406. ] 60.
[(f) Whittingstall v. King, 46 L. (j) Assignees of Dunne v. Hiber
T. N. S. 520. ] nian Joint Stock Company, 2 Ir. Rep.
(g) Lloyd v . Banks, 4 L. R. Eq. Eq. 82.
222, 3 L. R. Ch. App. 488. (k) Re Bright's Trust, 21 Beav. 430 .
(h) 3 L. R. Ch . App . 488. (1) Ib. 434.
956
CH. XXVII. S. 1.] STOP-ORDER. *711

the amount of the sum mentioned in the notice as intended

to be charged (a) .
25. Case of the fund being in Court. - Where the fund is in
Court the step equivalent to notice is the obtaining of a stop
order to restrain the transfer of the fund, and as between two
assignees the one who first gets a stop-order will have pri
ority (b) ; [ though the other may have given prior notice to
the trustees of the settlement (c) ; and] though the first stop
order was upon the general fund, and the second stop-order
was the first upon the share when carried over to the sepa
rate account of the debtor and his incumbrancers (d) ; and
trustees in bankruptcy who claim under the order and dispo
sition clause in the Bankruptcy Act will lose the benefit of
the transfer to them, if an assignee for value give notice to
the Court of his incumbrance before any notice is given of
the assignment under the bankruptcy (e) ; but the incum
brancer who obtains the first stop-order will not prevail over
an incumbrancer who gave the regular notice to the rep
resentative of the trust before the money was paid into
Court (f) ; [nor will he prevail over a prior incumbrancer
of whose incumbrance he had notice at the time of making
his advance (g) . ] And even after the money has been paid
into Court, although the legal title is in the Paymaster-Gen
eral (h) , the trustees remain such for the purposes of notice,
and priority may be gained by serving notice upon the trus
tees (i).
[ But where part of the trust estate was in Court and part
in the hands of the trustees, and a first mortgagee gave notice

(a) Woodburn v. Grant, 22 Beav. G. & Sm. 122 ; and in Thomas v.

483. Cross, 2 Dr. & Sm. 423, the same
(b) Greening v. Beckford, 5 Sim . doctrine was applied as between two
195 ; Swayne v. Swayne, 11 Beav. 463 ; judgment creditors.
Elder v. Maclean , 3 Jur. N. S. 283. [(g) Re Holmes, W. N. 1885 , p. 6. ]
[(c) Pinnock v. Bailey, 23 Ch . D. (h) Thorndike v. Hunt, 3 De G. &
497.] J. 563.
(d) Lister v. Tidd , 4 L. R. Eq. 462. (i) Thompson v. Tomkins, 2 Dr.
(e) Stuart v. Cockerell, 8 L. R. & Sm . 8 ; Matthews v. Gabb, 15 Sim.
Eq. 607 ; and see supra, note (b) , p. 51 ; Warburton v. Hill, Kay, 477 ;
703 . Bartlett v. Bartlett, 1 De G. & J.
(f) Livesey v. Harding, 23 Beav. 127 ; [but see Mutual Life Assurance
141 ; Brearcliff v. Dorrington, 4 De Society v. Langley, 26 Ch. D. 686. ]
957
*712 PRECAUTION WHERE FUND IN COURT . [ CH. XXVII . S. 1 .

to the trustees but did not obtain a stop-order, and a subse

quent incumbrancer both gave notice and obtained a stop
order, the first mortgagee had priority as to the funds in the
hands of the trustees, and the second mortgagee had priority
as to the fund in Court (j ) . ]
26. Notice to trustee, where fund in Court and neither as
signee obtains a stop-order, confers priority . ― Should an in
cumbrancer give notice to the trustees, but neglect to obtain a
stop-order, he will still take precedence of a prior incum
brancer, who has neither obtained an order nor given notice,
or who had given notice to only one of several trus
*
[* 712 ] tees, and that trustee had died before the time of
the second incumbrance. It is true the second in
cumbrancer did not adopt every precaution , but he resorted
to one which the prior incumbrancer neglected to the detri
ment of the second incumbrancer, while the first assignee
either sent no notice, or one which, by the death of the trus
tee before the time of the second incumbrance, had become
equivalent to no notice (a) .
27. Precaution where the fund is in Court. - If the trust
fund be in Court, the following course should be adopted .
The intended assignee should enquire at the Paymaster-Gen
eral's and Registrar's offices whether any stop-order has been
made to restrain the transfer of the fund, and also of the
trustees, whether notice has been given of any prior incum
brance ; and, on the completion of his own assignment, he
should give notice to the trustees personally, and obtain a
stop-order himself, and leave it at the Paymaster-General's
office to be entered. If the Paymaster-General's office is
closed, the order should still be entered at the Registrar's
office (b) . The enquiry at the Paymaster-General's or Regis
trar's offices is merely for the purchaser's greater satisfaction ,
and makes no part of his own title, for neither the Paymas
ter-General nor the Registrar is the trustee, but the Court is

[(j) Mutual Life Assurance Soci (b) As to the practice respecting

ety v. Langley, 26 Ch . D. 686. ] stop-orders (which may be obtained
(a ) Timson v. Ramsbottom, MS .; at chambers , where the assignee and
S. C. 2 Keen, 35 , pp. 49 and 50 ; assignor concur) ; see [ Rules of the
Matthews v. Gabb, 15 Sim. 51 ; [Re Supreme Court, Ord. 46 , R. R. 12 &
Hall , 7 L. R. Ir. 180.] 13.]
958
CH. XXVII. S. 1.] PURCHASER WITH NOTICE. *713

the trustee . The stop-order is the effective step, and whether

previous enquiry was or not made at the Paymaster-General's
or Registrar's offices, is immaterial ( c) .
28. Case where there is no trustee . - It may happen that
at the time of the incumbrance there is no representative of
the trust on whom notice can be served, as if A. be trustee of
stock for B., and A. dies intestate, or his executor declines to
act. In such a case it has been held, that an incumbrancer
gains priority by taking all the precautions that under the
circumstances are practicable, as if he serves a [notice in lieu
of] distringas on the Bank where the stock is standing (d) .
29. Purchaser with notice. - A purchaser who gives notice ,
or obtains a stop-order, can gain no priority over an incum
brance of which he has notice himself, at the time of his own
purchase (e).
30. 36 & 37 Vict. c. 66, s. 25, sub-s. 6. ―― By 36 & 37 Vict.
c. 66, s . 25, sub-s . 6, any legal chose in action may be
assigned at law by writing under the hand of the * as- [ * 713]
signor (not purporting to be by way of charge
only) (a) upon express notice in writing being given to the
legal holder of the chose in action, but subject to all the
equities which would have been entitled to priority had
the Act not passed . The notice of assignment of a policy of
assurance which is required to be given by " The Policies of
Assurance Act, 1867 " (30 & 31 Vict. c. 144 ) to enable the
assignee to sue, is not requisite to complete the title of the
assignee as against a subsequent assignee ; and accordingly
a second incumbrancer who advanced his money with notice
of a prior incumbrance, does not by giving the statutory
notice gain priority over the prior incumbrancer who has
neglected to give the notice." 1

(c) See Warburton v. Hill, Kay,478. (e) Warburton v. Hill , Kay, 470 ;
(d) Etty v. Bridges, 2 Y. & C. C. Re Holmes, W. N. 1885, p. 6. ]
C. 486. [ See as to the notice which [ (a ) As to the meaning of the
has been substituted in the place of words " not purporting to be by way
the writ of distringas Rules of the of charge only," see National Pro
Supreme Court, Ord. 46, R. R. 2 et vincial Bank v. Harle, 6 Q. B. D.
seq.; and post, Chap. xxxii, s. 1. ] 626 ; Burlinson v. Hall, 12 Q. B. D.
347.]
1 Newman v. Newman, 28 Ch. D. 674.
959
*713 "QUI PRIOR EST TEMPORE," ETC. [CH. XXVII. S. 1 .

Fourthly. Of the rule Qui prior est tempore potior est jure.
1. General rule. " The rule," observed V. C. Kinders
ley (b), " is sometimes expressed in this form : - ' As be
tween persons having only equitable interests, qui prior est
tempore potior est jure.' This is an incorrect statement of it ;
for not only is it not universally true, as between persons
having only equitable interests , but it is not universally true
even where their equitable interests are of precisely the same
nature, and in that respect precisely equal, as in the common
case of two successive assignments for valuable consideration
of a reversionary interest in stock standing in the names of
trustees, where the second assignee has given notice, and the
first has omitted it. Another form of stating the rule is
- _6
this : As between persons having only equitable inter
ests, if their equities are equal, qui prior est tempore potior
est jure. But even this enunciation of the rule (when ac
curately considered ) seems to involve a contradiction . For
when we talk of two persons having equal or unequal equi
ties, in what sense do we use the word ' equity ' ? For ex
ample, when we say that A. has a better equity than B., it
means only that, according to those principles of right and
justice, which a Court of equity recognises and acts upon, it
will prefer A. to B., and will interfere to enforce the rights
of A. as against B. And therefore it is impossible (strictly
speaking) that two persons should have equal equities, ex
cept in a case in which the Court of equity would altogether
refuse to lend its assistance to either party as against the
other. To lay down the rule, therefore, with perfect accu
racy, I think it should be stated in some such form as this : ―――――――――――――
'As between persons having only equitable interests , if their
equities are in all other respects equal, priority of time gives
"9
the better equity ; or qui prior est tempore potior est jure.'
" Questions of priority between equitable incumbrancers," said
L. J. Turner, “ are in general governed by the rule qui prior
est tempore potior est jure. The rule, as I conceive, is
founded on this principle, that the creation or declaration of
a trust vests an estate in the person in whose favour the

(b) Rice v. Rice, 2 Drew. 77.

960
CH. XXVII. S. 1.] EQUITIES. *714

trust is created or declared. * Where, therefore , it is [ * 714]

sought to postpone an equitable title created by dec
laration of trust, there is an estate or interest to be dis
placed. No doubt there may be cases so strong as to justify
this being done, but there can be as little doubt that a strong
case must be required to justify it " (a) .
2. All circumstances to be considered. ― - - For ascertaining
priorities, the Court directs its attention to the nature and
condition of the conflicting equitable interests, the circum
stances and manner of their acquisition, and the whole con
duct of the respective parties : in short, all the circumstances
of the case (b) . The following instances will suffice for
illustration.
3. Vendor's lien. ――- A vendor has an equitable lien for his
purchase-money ; but if he deliver the deed of conveyance
with a receipt for the purchase-money endorsed and signed ,
and the purchaser then makes an equitable mortgage of the
property by deposit, the equity of the mortgagee, who was
deceived by the deed, is better than that of the vendor,
who was careless enough to sign the receipt without pay
ment of the money (c) . But if the mortgagee have notice
of the lien, he of course cannot complain, and is bound
by it (d).
4. Possession of title deeds . - The possession of the title deeds
is a circumstance which may give the holder a better equity,
provided they have come into his possession from want of
due activity on the part of the prior incumbrancer, or through
some neglect or default of such incumbrancer (e ) . But the

(a) Cory v. Eyre, 1 De G. J. & S. Waldron v. Sloper, 1 Drew. 200 ;

167. Perry-Herrick v. Attwood, 25 Beav.
(b) Rice v. Rice, 2 Drew. 78, per 205, 2 De G. & J. 21 ; Pease v. Jack
V. C. Kindersley . son, 3 L. R. Ch . App. 576 ; Briggs v.
(c) Rice v. Rice , 2 Drew. 73 ; West Jones, 10 L. R. Eq. 92 ; Re Russell
v. Jones, 1 Sim. N. S. 205 ; The Queen Road Purchase-moneys, 12 L. R. Eq.
v. Shropshire Union Canal Company, 78; [Clarke v. Palmer, 21 Ch. D. 124 ;
8 L. R. Q. B. 420 ; [and see now 44 & Re Lambert's Estate, 11 L. R. Ir. 534 ;
45 Vict. c. 41 , s . 54]. 13 L. R. Ir. 234 ; Lloyd's Banking
(d) Mackreth v. Symmons, 15 Company v. Jones, 29 Ch. D. 221 ; ]
Ves. 349. and see Ratcliffe v. Barnard, 6 L. R.
(e) Layard v. Maud, 4 L. R. Eq . Ch. App. 652 ; [ Spencer v. Clarke, 9
397 ; see Rice v. Rice, 2 Drew. 80 ; Ch. D. 137] .
961
*715 EQUITIES . [CH. XXVII . S. 1.

onus lies on the holder to establish a case of blamable con

duct against the first incumbrancer (ƒ) ; and the second in
cumbrancer gains no priority if the deeds get into his hands
by an accident or by the misconduct of a stranger ( g) , or
the wrongful act of the solicitor of the first incumbrancer (h) ,
for it is not the doctrine of the Court that in the case of
mere equitable interests priority can be obtained through the
medium of a breach of trust or duty (i) . *

[ * 715] * [The whole question as to what conduct in re

lation to the title deeds on the part of a mortgagee
who has the legal estate, is sufficient to postpone such mort
gagee to a subsequent equitable mortgagee who has obtained
the title deeds without knowledge of the legal mortgage, has
been fully discussed by the Court of Appeal (Cotton, Bowen
and Frye, L. JJ. ) in a recent case (a ) ; in which the Court,
after reviewing and classifying the earlier cases, arrived at
-
the following conclusions :
" (1). That the Court will postpone the prior legal estate
to a subsequent equitable estate - (A) , where the owner of
the legal estate has assisted in or connived at the fraud
which has led to the creation of a subsequent equitable
estate, without notice of the prior legal estate ; of which
assistance or connivance , the omission to use ordinary care
in enquiry after or keeping title deeds may be, and in some
cases has been, held to be sufficient evidence, where such
conduct cannot be otherwise explained ; (B) , where the
owner of the legal estate has constituted the mortgagor his
agent with authority to raise money, and the estate thus
created has, by the fraud or misconduct of the agent, been
represented as being the first estate.
But (2) that the Court will not postpone the prior legal
estate to the subsequent equitable estate on the ground of

(f) Allen v. Knight, 5 Hare, 272, 170 ; [ and see Harpham v. Shacklock,
11 Jur. 527 ; Dixon v. Muckleston , 8 19 Ch. D. 207 ]. But see The Queen
L. R. Ch. App . 155. v. Shropshire Union Canal Company,
(g) Rice v. Rice, 2 Drew. 83. 8 L. R. Q. B. 420 ; 7 L. R. H. L. 496 ;
(h) Cory v. Eyre, 1 De G. J. & S. [Bradley v. Riches, 9 Ch. D. 189] .
149 ; [Bradley v. Riches, 9 Ch. D. [(a) Northern Counties of England
189] . Fire Insurance Company v. Whipp, 26.
(i) Cory v. Eyre, 1 De G. J. & S. Ch. D. 482, 491 ] .
962
CH. XXVII. S. 1.] EQUITIES . *716

any mere carelessness or want of prudence on the part of

the legal owner " (b) .]
--If a
[5. Trustee improperly dealing with share certificates.
trustee in whose name shares in a company are standing
borrow money for his own purposes and deposit the certifi
cates as a security for his debt, the equitable title of the
mortgagee will not in the absence of negligence on the part
of the cestui que trust prevail against the prior equitable title
of the cestui que trust (c).
6. Where trust funds were invested in the names of two
trustees in the shares of a bank, the articles of which pro
vided that the bank should have a paramount charge on the
shares held by more persons than one in respect of all monies
owing to the bank from all or any of the holders thereof,
alone or jointly with any other person, it was held that the
bank had a lien on the shares for a debt owing by a firm in
which one of the trustees was a partner, which must prevail
over the title of the cestuis que trust (d) .]
—
* 7. Secret equity. - A party, having a secret [ * 716 ]
equity, who stands by and permits the apparent
owner to deal with others, as if he were the absolute owner
and as if there were no such secret equity, shall not be per
mitted to assert such secret equity against a title founded
upon such apparent ownership (a ) . A fortiori if the person
having the secret equity be party to a document which
assumes that there is no such equity, or on having notice of
a purchaser's claim do not give information of the equity, so
as to enable him to proceed against the person by whom he
has been deceived (b) . [ " It is a principle of natural equity
[ (b ) p. 494. The whole judgment Miles v. New Zealand Alford Estate
deserves careful perusal. And see Company, 32 Ch. Div. 266. ]
Lloyd's Banking Company v. Jones, (a ) Mangles v. Dixon, 1 Mac. & G.
29 Ch. D. 221 ; Manners v. Men, 29 446, per Lord Cottenham; S. C. 3 H.
Ch. D. 725.] L. Cas. 739, per Lord Truro ; Trough
[(c) Shropshire Union Railways ton v. Gitley, Ambl. ( Blunt's ed . ) 633,
and Canal Company . The Queen, 7 and cases cited, Ib. note (4) ; Corn
L. R. H. L. 496. ] forth v. Pointon, W. N. 1866 , p. 189 ;
[(d) New London and Brazilian [Ex parte Bolland, 9 Ch. D. 312 ; Re
Bank v. Brocklebank, 21 Ch. D. 302 . Blachford, W. N. 1884, p. 141. ]
But see Bradford Banking Company (b) Mangles v. Dixon, 1 Mac. & G.
v. Briggs & Co., 29 Ch. D. 149 ; re 447, 3 H. L. Cas. 740.
versed on appeal, 31 Ch . Div. 19 ;
963
*717 EQUITIES. [CH. XXVII. S. 1.

which must be universally applicable, that where one man

allows another to hold himself out as the owner of an estate,
and a third person purchases it for value from the apparent
owner in the belief that he is the real owner, the man who
so allows the other to hold himself out shall not be permitted
to recover upon his secret title unless he can overthrow that
of the purchaser by showing either that he had direct notice ,
or something which amounts to constructive notice, of the
real title, or that there existed circumstances which ought to
have put him upon an inquiry that, if prosecuted, would have
led to a discovery of it " (c) . ]
8. Canons laid down in Thornton v. Ramsden. ―――― The doc
trines of the Court on this subject were much discussed in
the case of Thornton v . Ramsden ( d) , and the following
canons were laid down by the highest authorities in the
-
House of Lords on appeal :
a. If a stranger begins to build on land, supposing it to be
his own, and the real owner, perceiving his mistake, abstains
from setting him right, and leaves him to persevere in his
error, a Court of equity will not afterwards allow the real
owner to assert his title to the land.
b. But if a stranger builds on land knowing it to be the
property of another, equity will not prevent the real owner
from afterwards claiming the land , with the benefit of all the
expenditure upon it (e).
c. If a tenant builds on his landlord's land, he does
[ * 717 ] not, in the * absence of special circumstances, acquire
any right to prevent the landlord from taking pos
session of the land and buildings when the tenancy has de
termined.
d. If the tenant, being a mere tenant at will, builds on
the land in the belief that he thereby acquires a title after
wards to claim a lease of the land, and the landlord allows
him so to build, knowing that he is acting in that belief, and

[(c) Per Jud. Com. Ramcoomar [ Plimmer v. Mayor, &c. of Welling

Koondoo v. Macqueen, L. R. Ind . App. ton , 9 App. Cas. 699. ]
Supp . vol . 40. ] (e) See also Crampton v. Varna
(d) 4 Giff. 519 ; 1 L. R. H. L. 129, Railway Company, 7 L. R. Ch. App.
nom . Ramsden v. Dyson ; and see 562.
Bankart v. Tennant, 10 L. R. Eq. 141 ;
964
 CH. XXVII . S. 1.] EQUITIES . *717

does not interfere to correct the error, (semble) equity will

interfere to compel the grant of a lease.
e. If a man, under a verbal agreement with a landlord for
a certain interest in land, or under an expectation , created or
encouraged by the landlord that he shall have a certain in
terest, takes possession of such land with the consent of the
landlord, and upon the faith of such promise or expectation,
with the knowledge of the landlord, and without objection by
him, lays out money upon the land, a Court of equity will
compel the landlord to give effect to such promise or ex
pectation (a).
-
[ 9. Willmott v . Barber. The real ground upon which
relief is given in these cases is fraud in the possessor of the
legal right, and the elements necessary to constitute fraud of
this description were enumerated by Fry, J., in a recent
case (b) , as follows : -
" (1) . The plaintiff must have made a mistake as to his
legal rights .
(2) . The plaintiff must have expended some money, or
must have done some act (not necessarily upon the defend
ant's land) on the faith of his mistaken belief.
(3) . The defendant, the possessor of the legal right, must
know of the existence of his own right which is inconsistent
with the right claimed by the plaintiff.
(4) . The defendant, the possessor of the legal right, must
know of the plaintiff's mistaken belief of his rights (c) .
(5) . The defendant, the possessor of the legal right, must
have encouraged the plaintiff in his expenditure of money,
or in the other acts which he has done , either directly or by
abstaining from asserting his legal right. "]
10. The question who has the better equity frequently
arises where estates, subject to a common charge, become
vested in different owners, and each assignee endeavours to
throw the charge upon the other.

[(a) See Plimmer v. Mayor, &c. of [ (c) See as to this Plimmer v.

Wellington, 9 App. Cas. 699. ] Mayor, &c . of Wellington, 9 App . Cas.
[ (6) Willmott v. Barber, 15 Ch. D. 699.]
96, 105. And see Weller v. Stone, 54
L. J. N. S. Ch. 497.]
965
*718 EQUITIES . [CH. XXVII. S. 1.

[*718] * 11 . Express agreement to exonerate from a judg

ment. -It has been held in Ireland that if there be
an express agreement that one estate shall exonerate another
from a judgment, a purchaser with notice of the agreement
will be bound by it (a) . And a covenant that the one estate
is free from incumbrances or for quiet enjoyment will amount
to such an agreement (b) .
12. Judgments as between two purchasers. - It has been
further decided in Ireland that where A., the conusor of a
judgment, settles an estate for valuable consideration, and
afterwards sells an unsettled estate, the purchaser of the
latter cannot have the judgment raised by a contribution
from both estates (c) ; and even where a purchaser was not
seeking relief against another purchaser, but the plaintiff
was the judgment creditor seeking to have his debt raised, it
was held that the whole onus must be borne by the subse
quent purchaser ( d) ; and the circumstance that the convey
ance to the first purchaser contained a covenant against in
cumbrances or for quiet enjoyment does not appear, where it
occurred, to have been the material ground on which the
decision was rested (e) . Neither did the Court distinguish
the case where the subsequent purchaser had no notice of
the prior charge . Indeed, in the leading case, the subsequent
purchaser on whom the onus was thrown was apparently a
purchaser without notice (ƒ) .
13. As between settled and unsettled estates. - It has been
further ruled in Ireland that where the conusor of a judg
ment settles an estate with a covenant against incumbrances,
the purchasers under the settlement can throw the judgments
on the unsettled estates as against subsequent judgment

(a) Hamilton v. Royse, 2 Sch. & (d) Aicken v. Macklin, 1 Dru. &
Lef. 315 ; Handcock v. Handcock, 1 Wal. 621.
Ir. Ch . Rep. 444. (e) Aicken v. Macklin, 1 Dru. &
(b) Handcock v . Handcock, 1 Ir. Wal. 621 ; Handcock v. Handcock, 1
Ch. Rep. 444 ; and see Re Roddy's Es Ir. Ch. Rep. 444 ; and see Hughes v.
tate, 11 Ir. Ch. Rep. 369 ; Aicken v. Williams, 3 M. & G. 690 ; Averall v.
Macklin, 1 Dru. & Walsh. 621. Wade, LI. & G. t. Sugden, 259.
(c) Hartley v. O'Flaherty, Beat. (f) See Hartley v. O'Flaherty,
61 ; Ll. & G. t. Plunket, 208 ; and see Beat. 69.
Re Roddy's Estate, 11 Ir. Ch . Rep.
369.
966
CH. XXVII. S. 1.] EQUITIES . *719

creditors, who had merely a general and roving lien , and did
not stand in the place of specific purchasers (g) , and even
where the settlement was voluntary and without a covenant
against incumbrances, it was ruled by the M. R. in Ireland
that the owners of other estates devised by the settlor had
no equity for contribution from the settled estate to pay off
a judgment to which both settled and unsettled estates were
subject at the date of the settlement ( h) . But on appeal the
decision was reversed (i) .
*
[ So where estates were expressed to be settled [ * 719 ]
for value, subject to charges amounting to 65,000l .,
with a covenant against incumbrances except " the charges
now existing thereon, amounting to the said sum of 65,000l.,"
and a power was reserved of further charging the property
to a specific amount, which power was subsequently exer
cised, but the charges upon the estates at the time of the
settlement in fact far exceeded 65,000l . , it was held that
the purchasers under the settlement were entitled to be re
couped the difference between the charges actually sub
sisting and the 65,000l . , in priority to the mortgagees under
the power (a) . ]
14. Law in England . - These principles, which have been .
acted upon in Ireland, will no doubt be followed to some
extent in England . If, for instance, A. , possessing Blackacre
and Whiteacre [which are subject to a common incumbrance, ]
mortgages Blackacre to B., and covenants that it is free from
incumbrances, this is a contract between A. and B. , and
every purchaser of Whiteacre with notice of the incumbrance
and of the contract must be bound by the contract.
15. Rule in equity in absence of contract. ― - But if there be
no express contract between A. and B., then the right of, B.
depends on a rule of equity, and as against A. himself it is
clear that B. can insist on throwing the whole incumbrance
on Whiteacre (b) ; and so as against any person claiming a

(g) Averall v. Wade, Ll. & G. t. (i) 4 I. R. Eq . 15.

Sugden, 252 ; Hughes v. Williams, 3 [ (a) Re Barker's Estate, 3 L. R.
Mac. & G. 683 ; and see Re Roddy's Ir. 395.]
Estate, 11 Ir. Ch. Rep. 369. (b) See Averall v. Wade, L1. & G.
(h) Ker v. Ker, 3 Ir. Rep. Eq. 489. t. Sugden, 259.
967
*720 EQUITIES . [CH. XXVII. S. 1.

general and roving lien only as a judgment creditor of A. (c) ;

and even if A. afterward sell Whiteacre to C., who has notice
of the incumbrance and of the mortgage, there is no ground
for saying that B. has not the like equity as against C., but
if C. have no notice of the incumbrance or no notice of the
mortgage, the Court will probably refuse to enforce the rule
against him. At least Lord St. Leonards seems to have
thought that the decisions in Ireland do not affect innocent
purchasers - i.e. purchasers for valuable consideration with
out notice (d) . And in the case of Strong v. Hawkes (e),
L. J. Turner expressed a doubt whether the cases in Ireland
had not gone too far.
16. In Barnes v. Racster (ƒ) a person mortgaged Foxhall
to A., and then to B., and then Foxhall and No. 32 to A.,
and then Foxhall and No. 32 to C. All parties had notice
of the prior transactions. It was held that B. could
[*720 ] not compel A. to pay himself * exclusively out of
No. 32, so as to leave B. the first incumbrancer on
Foxhall, but C. was entitled to have the charges thrown pro
portionately upon Foxhall and No. 32.
17. Purchaser with notice. —A purchaser of an equitable
interest specifically has a higher equity than a person claim
ing under a general and roving charge as a judgment, and
therefore the purchaser of such an equitable interest without
notice of an equitable judgment was properly held not to be
bound by it (a) .
[ 18. Rule where specific charge on one property and general
lien on another. - - If there be a specific charge on one property
to secure a sum of money, and there be a general lien on
other property, (as for instance a banker's lien on his cus
tomer's securities in his hands ) , to secure the same sum, the
property comprised in the specific charge must be primarily

(c) See Averall v. Wade, Ll. & G. R. Eq. 110. As to the right of judg
t. Sugden, 252. ment creditors to marshall' inter se,
(d) Vend. & P. 746, 14th ed. see Re Lynch's Estate, 1 Ir. Rep. Eq.
(e) 4 De G. & J. 652, & MS. 396.
(f) 1 Y. & C. C. C. 401 ; Bugden (a) Re Grady, 13 Ir. Ch . Rep. 154.
v. Bignold, 2 Y. & C. C. C. 377 ; and See Wells v. Kilpin , 18 L. R. Eq.
see Re Lawder's Estate , 11 Ir. Ch. 298.
Rep. 346 ; In re Mower's Trust, 8 L.
968
CH. XXVII. S. 2.] DEVISE OF A TRUST . * 721

resorted to in exoneration of the property subject to the gen

eral lien (b).
19. Where goods wrongfully pledged by a firm. ―――― The
owner of goods which have been wrongfully pledged by a
partnership firm to secure an advance to them, which is fur
ther secured by the guarantee of one of the partners, or by
the deposit of partnership property, is entitled to have the
securities marshalled and to have the benefit of the guarantee
or a lien on the deposited property (c) . ]

SECTION II.

OF TESTAMENTARY DISPOSITION.

1. How trusts of freeholds to be devised . ――――― An equitable

interest in lands is transmissible by devise (d) . Indeed the
old use, which preceded the trust, was devisable by parol pre
viously to the Statute of Wills , 32 H. 8, c. 15 (e) ; but after
that Act the trust by analogy to legal estates , became devisa
ble only by will in writing.
2. Statute of Frauds. ―- The Statute of Frauds, 29 Car. 2,
c. 3 , followed, which required a devise of " lands " to be by a
will, signed by the testator in the presence of and attested by
three witnesses. This enactment was applied by the Courts
to a devise of the equitable interest in lands . Otherwise a
door would have been opened to all the mischiefs and
* inconveniences the Statute was intended to pre- [ *721 ]
vent (a). Whether trusts were within the letter of
the Act, or equity brought them under its operation by

[(b) Re Dunlop , 21 Ch . D. 583. ] (e) Shepp . Touch. 407 ; and see

[(c) Ex parte Salting, 25 Ch . D. ante, p. 611 , note ( 1 ) .
148 ; Ex parte Alston, 4 L. R. Ch . (a) Wagstaff v. Wagstaff, 2 P. W.
App. 168. ] 259, per Lord Macclesfield ; Adlington
(d) Cornbury v. Middleton , 1 Ch. v. Cann, 3 Atk. 151 , per Lord Hard
Ca. 211 , per Wyld, Just.; Greenhill v. wicke ; Burgess v. Wheate, 1 Eden,
Greenhill, 2 Vern. 679, per Lord Har 224, per Lord Mansfield.
court; Philips v. Brydges, 3 Ves . 127.

1 Equitable are governed by the same rules as legal estates ; Cushing v.

Blake, 30 N. J. Eq. 689 ; Noble v. Andrews, 37 Conn. 346.
969
*721 DEVISE OF A TRUST. [CH. XXVII . S. 2.

analogy, it is not easy to determine ( b ) ; but undoubtedly

the word "lands " has often been extended to include.
trusts (e) , and, if so, there seems to be little reason why
trusts should not have fallen within the express terms of the
Statute .
3. Trusts of copyhold. - Copyholds, strictly speaking, are
not at common law a devisable interest. A surrender is
made to the use of the will, and the gift contained in the
will operates as a declaration of the use. The devisee does
not come in by the will, but by the surrender and the wil
taken together, as if the name had been inserted in the sur
render itself (d) . Thus copyholds at law were out of the
Statute of Frauds, and might have been devised by a will
neither signed nor attested ; and as equity followed the law
the trust of a copyhold was devisable in the same manner (e) .
And the equitable interest might always have been passed
by will, though not preceded by a surrender, which pre
viously to 55 G. 3, c . 192, was required to pass the legal es
tate (f) .
4. Where no custom to devise the legal estate of copyholds.
-As equitable interests in copyholds were regulated by
analogy to the custom affecting the legal estate, one might
have supposed, that where the legal estate could not be de
vised, the equitable estate in like manner must have been left
to descend. However, it was decided by the Court, that
even assuming the absence of any power to devise the legal
estate (g) , the owner of the equitable estate could pass it by
will (h). Whether the will must have been executed accord
ing to the Statute of Frauds, or whether any instrument

(b) See Burgess v. Wheate, Wag (ƒ) Greenhill v. Greenhill, 2 Vern.

staff v. Wagstaff, ubi supra ; Doe v. 679 ; Tuffnell v. Page, 2 Atk. 37 ;
Danvers, 7 East, 322. Gibson v. Rogers, Amb. 93.
(c) See supra, p. 681. (g) As to the validity of a custom
(d) Hussey v. Grills, Amb. 800, restraining surrenders to the use of a
per Lord Hardwicke . will, see Pike v. White, 3 B. C. C.
(e) Appleyard v. Wood, Sel. Ch. 286, and note 1, ib.; Doe v. Thomp
Ca. 42 ; Wagstaff v. Wagstaff, 2 P. son, 7 Q. B. 897.
W. 258 ; Tuffnell v. Page, 2 Atk. 37 ; (h) Lewis v. Lane, 2 M. & K. 449 ;
and see Attorney-General v. Andrews, Wilson v . Dent, 3 Sim. 385 ; [ Allen
1 Ves. 225 ; but see Anon. case, cited v. Bewsey, 7 Ch . D. 453 ; ] but see
Wagstaff v. Wagstaff, 2 P. W. 261 . Hussey v. Grills , Amb . 299.
970
CH. XXVII. S. 2. ] DEVISE OF A TRUST. *722

sufficient for declaring the uses on a surrender would have

been enough, does not sufficiently appear.
Of customary freeholds. ――― But in a case of customary free
holds of which the legal estate could not be devised (and
customary freeholds are now regarded as copyholds (i) ) ,
Lord Hardwicke held that the reason why the equi
table interest in * copyholds could be devised by an [ * 722]
unattested will, was because the legal estate of copy
holds could be devised by an unattested will, and that as, in the
case of customary freeholds before him, the legal estate could
not be devised, the equitable interest could only pass by a
will executed according to the Statute of Frauds (a) . And
à fortiori where a customary freehold, of which the legal
estate was not devisable, was vested in a trustee upon such
trusts as the cestui que trust should by will "to be by him
legally executed " appoint, it was held that the equitable
interest could not be devised by a will not executed accord
ing to the Statute of Frauds (b) .
5. Late Wills Act. - - By the late Wills Act (c) , as to wills
made on or after 1st January, 1838, property, of whatever
description, whether real or personal, freehold or copyhold,
legal or equitable, may be devised or bequeathed by a will in
writing, signed by the testator in the presence of and at
tested by two witnesses, and by such a will only.
6. Revocation of wills by alteration of estate. -- If, before
this Act, a testator seised of an equitable estate in fee had
devised it, and then disturbed the equitable seisin by execut
ing a conveyance and taking back a new estate in the same
property, the will was revoked in like manner as if the estate
had been legal ( d) . But if a testator had devised an equita
ble estate and afterwards taken a conveyance so as merely

(i) See ante, p. 248. does not state whether the will was or
(a) Hussey v. Grills, Amb. 300. not so executed . Amb. Blunt's edit.
The whole argument in this case as (b) Willan v. Lancaster, 3 Russ.
sumes that the will as opposed to the 108.
codicil was executed according to the (c) 1 Vict. c. 26.
Statute of Frauds, and yet the report (d) Lock v. Foote, 5 Sim. 618 ;
states that the will was in writing, Earl of Lincoln's case, 1 Eq. Ca. Ab.
"but not attested according to the 411 ; S. C. Shower's P. C. 154 .
Statute of Frauds." The Reg. Lib.
971
*723 SEISIN OF A TRUST. [CH. XXVII. S. 3.

to clothe the equitable estate with the legal, or was party to

a conveyance for merely changing the trustees, such convey
ances were not a revocation of the prior will (e ) . Now by
the late Wills Act, a subsequent disturbance of the seisin ,
either at law or in equity, does not revoke the will (ƒ) .

[* 723] * SECTION III.

OF SEISIN AND DISSEISIN.

1. Equitable seisin. —- The term seisin is properly applicable

to legal estates ; but a Court of equity regards actual receipt
of the rents and profits under the equitable title as equiva
lent to seisin at law, and has often adjudicated upon the
rights of parties with reference to that circumstance .
Thus, in Casborne v . Scarfe (a) , it was disputed, whether,
as curtesy did not attach at law without a seisin in fact, the
husband could claim his curtesy out of the wife's equity of
redemption ; but Lord Hardwicke said, " It is objected there
is no seisin whatever of the legal estate in the wife , in the
consideration of law. But the true question is, if there was
such a seisin or possession of the equitable estate in the wife ,
as in this Court is considered equivalent to an actual seisin
of a freehold estate at common law ; and I am of opinion
there was actual possession , clothed with the receipt of the
rents and profits, is the highest instance of an equitable seisin,
both of which were in this case ."
2. Possessio fratris. - And so it was held that there was
possessio fratris of a trust, in other words, that if a person
inherited a trust and died before actual seisin of the estate
by receipt of the rents and profits, it should descend to the
brother of the half blood, as heir to the father, in preference
to the sister of the whole blood ; but that if there had been
such a receipt of the rents and profits as constituted equita

(e) Doe v. Pott, 2 Doug. 710 ; (f) 1 Vict. c. 26, s. 23.

Watts v. Fullarton, cited Doug. 718 ; (a) 1 Atk. 603 ; and see Parker v.
Parsons . Freeman, 3 Atk. 741 ; Carter, 4 Hare, 413.
Dingwell v. Askew, 1 Cox, 427 ;
Clough v. Clough, 3 M. & K. 296.
972
CH. XXVII . S. 3. ] SEISIN OF A TRUST. * 724

ble seisin, the sister of the whole blood, as heir to the brother,
would exclude the brother of the half blood (b) .
3. Marquis of Cholmondeley v . Lord Clinton. The doc
trines of the Court upon the subject of equitable disseisin
cannot be better illustrated than by a statement of the
well-known case of the Marquis of Cholmondeley v. Lord
Clinton (c). The circumstances were briefly these : -
George, Earl of Orford, conveyed certain manors and here
ditaments to the use of himself for life, remainder to the heirs.
of his body, remainder as he should by deed or will appoint,
remainder to the right heirs of Samuel Rolle, with a power
reserved of revocation and new appointment. Some time
after, the Earl executed a mortgage in fee , which
operated in equity as a revocation of the settle- [ * 724 ]
ment pro tanto. In 1791 the Earl died without issue
and intestate, and upon his death the ultimate remainder
(which had been a vested interest in the Earl himself, as the
heir of Samuel Rolle at the date of the deed) , should have
descended to the right heir of the Earl, but, the parties mis
taking the law, the person who was heir of Samuel Rolle at
the death of the Earl was allowed to enter on the premises,
and continued in possession, subject to the mortgage, up to
the commencement of the suit. The bill was filed in 1812,
by the assign of the right heir of the Earl against the mort
gagee and the assign of the right heir of Samuel Rolle, for
redemption of the premises, and an account of the profits.
It was debated whether, as the legal estate was vested in the
mortgagee, and the heir of Samuel Rolle had held the posses
sion subject to a subsisting mortgage, the assign of the Earl's
heir, to whom the equity of redemption belonged in point of
right, had been disseised of his equitable interest, and was
now barred by the effect of time. Sir W. Grant argued,
that although there might be what was deemed a seisin of
an equitable estate, there could be no disseisin - first, be
cause the disseisin must be of the entire estate, and not of a
limited and partial interest in it ; and, secondly, because a
tortious act could never be the foundation of an equitable
(b) See now 3 & 4 W. 4, c. 106. (c) 2 Mer. 171 ; 2 J. & W. 1 ; and
see Penny v. Allen, 7 De G. M. & G. 422.
973
*725 SEISIN OF A TRUST . [CH. XXVII. S. 3.

title ; that an equitable title might undoubtedly be barred by

length of time but could not be shifted or transferred (a) ;
that the equity of redemption subsisted , and it must there
fore belong to some one, and could only belong to the orig
inal cestui que trust (b) ; that the cestuis que trust could only
be barred by barring the trustee (c) . Sir W. Grant did not
then decide the point, but directed a case for the opinion of
the Queen's Bench on a question of law, and retained the
bill in the meantime.
Reheard . - The cause was afterwards reheard on the
equity reserved before Sir T. Plumer, who determined that
the original cestui que trust had been disseised and was conse
quently barred (d) . " The grounds," he said, " upon which
it is contended that the holder of the rightful equity is not
bound by laches and non-claim are that the tortious possessor
does not claim to be the holder of more than the equitable
estate ―――――――― that there is no disseisin abatement or intrusion of a
trust that the possessor is only tenant at will, and may be
dispossessed at any time by the trustee of the legal
[ * 725 ] estate, and he has * therefore only a precarious and
-
permissive possession that tortious possession can
never be the foundation of an equitable title (a) . But this
reasoning," he continued, " proceeds on a mistaken view of
the manner in which, and the grounds upon which, the bar
from length of time operates. The question respects the
plaintiff's right to the remedy, not the defendant's title to
the estate. A tortious act can never be the foundation of a
legal any more than of an equitable title. The question is,
whether the plaintiff has prosecuted his title in due time (b ) .
As to the argument that a title in a Court of equity may be
lost by laches, but cannot be transferred without the act of
the party, the case is the same in this respect both in equity
and law. If the negligent owner has forever forfeited by his
laches his right to any remedy to recover, he has in effect
lost his title for ever. The plaintiff is barred of his remedy ;

(a ) See Hopkins v. Hopkins, 1 . (d) 2 J. & W. 1.

Atk. 590. (a ) 2 J. & W. 153.
(b) 2 Mer. 357-359. (b) Ib . 155.
(c) Ib. 361.
974
CH. XXVII . S. 4. ] MERGER. *726

the defendant keeps possession without the possibility of

being ever disturbed by any one : the loss of the former
- he gains a posi
owner is necessarily his gain ; it is more
tive title under the statute at law, and, by analogy, in
equity (c) . If the mere existence of an old legal estate
would have the effect of preventing the bar attaching upon
the equitable estate, all the principles that have been es
tablished respecting equitable estates and titles would be
overturned. According to this reasoning, whenever the
legal estate is outstanding, in an old term, for instance, to
attend the inheritance, the earliest equitable title must in all
cases prevail ; quiet enjoyment for sixty, one hundred, or
two hundred years or more, would be no security, if the old
term had existed longer ; it would always be open to en
quiry in whom was vested the equitable title which origi
nally existed when the old term was created " (d) .
Appeal to the House of Lords . - - On appeal to the House of
Lords his Honour's decision was affirmed, and the principle
on which it proceeded was approved. Lord Eldon said,
" He could not agree , and had never heard of such a rule
as that adverse possession, however long, would not avail
against an equitable estate : his opinion was, that adverse
possession of an equity of redemption for twenty years was
a bar to another person claiming the same equity of redemp
tion, and worked the same effect as abatement or intrusion with
respect to legal estates, and that for the quiet and peace of titles
and the world it ought to have the same effect " (e) .`

* SECTION IV. [*726]

OF MERGER.¹

1. General view. ――――― At law merger is the necessary conse

quence of the union of two estates in the same person in the

(c) Ib. 155, 156. (e) Ib. 190, 191.

(d) 2 J. & W. 157.

¹ Merger. Where the legal estate and equitable estate come into possession
of the same person, the equitable becomes merged in the legal estate ; Hop
kinson v. Dumas, 42 N. H. 306 ; Healey v. Alston, 25 Miss. 190 ; Gardner v.
975
*726 MERGER . [CH. XXVII . S. 4.

same right, but in equity two estates without any interven

ing interest may meet in the same person in the same right
without merger, and, on the other hand, though the estates
are separated by an intervening interest, merger may take
effect . The principle by which the Court is guided is the
intention ; and in the absence, of express intention , either in
the instrument or by parol, the Court looks to the benefit of
the person in whom the two estates become vested (a) .
―
2. Purchase subject to charges. The chief importance of
the doctrine of merger is with reference to charges . Thus
A., the owner of an estate subject to a first incumbrance in
favour of B. and a second incumbrance in favour of C.,
contracts to sell the estate to D. Here, if the purchaser
knows of both the incumbrances, he of course will not ac
cept the title until they have been discharged . But should
he have actual notice of the incumbrance to B. only, and
take a conveyance from A. and B. , so as to extinguish the
charge of the latter, this act (if, by reason of his having
constructive notice of C.'s incumbrance or otherwise , the de
fence of purchase for value without notice is not available)
lets in the incumbrance of C. as the first charge (b) . If,

(a) Lord Compton v. Oxenden , 2 Smith v. Phillips, 1 Keen, 694 ; Brown

Ves. jun. 264 ; Forbes v. Moffatt, 18 v. Stead, 5 Sim. 535 ; Mocatta v. Mur
Ves. 390 ; Horton v. Smith, 4 K. & J. gatroyd, 1 P. W. 393. [ The case of
630. Toulmin v. Steere, ubi sup. has been
(b) Toulmin v. Steere, 3 Mer. 210 ; doubted, and in the recent case of
Medley v. Horton, 14 Sim. 226 ; Parry Adams v. Angell, 5 Ch. D. 634, 645,
v. Wright, 1 S. & S. 369, 5 Russ. 142 ; the late M. R., sitting in the Court of

Astor, 3 Johns . Ch . 53 ; James v. Johnson, 6 Johns. Ch . 417. The equitable

will not merge in the legal estate unless the latter is larger or commensurate
with the former, nor will an equitable fee merge in anything less than a legal
fee ; Donalds v. Plumb, 8 Conn. 453 ; Hunt v. Hunt, 14 Pick. 374. A merger
may be prevented by the intention of the parties ; Starr v. Ellis , 6 Johns. Ch .
393 ; James v. Morey, 2 Cow. 246 ; Gardner v . Astor, 3 Johns. Ch. 53. As
between husband and wife, if one hold the legal and the other the equita
ble estate there will be no merger ; Clark v . Tennison, 33 Md . 85. Mere
possession is no indication or evidence of merger ; Brasswell v. Downs, 11
Fla. 62. In some cases there is a presumption of a delivery or convey
ance to the cestui que trust which would bring about a merger ; Church v. Mott,
7 Paige, 77 ; Sinclair v. Jackson, 8 Cow. 543 ; Jackson v. Moore, 13 Johns . 513.
If a life tenant remove an incumbrance from an estate, it is presumed that it
was not intended to remove, but merely to transfer the incumbrance ; State v.
Koch, 47 Mo. 582.
976
CH. XXVII. S. 4. ] MERGER . * 727

* on the other hand, the purchaser, being apprehen- [ * 727 ]

sive of some outstanding incumbrance, take an as
signment of B.'s security to a trustee for him in order that
it may be kept on foot, then the charge does not merge in
the fee-simple ; but should C. take proceedings for raising
his charge, the purchaser may protect himself by the shield
of B.'s incumbrance as the first charge (a).
3. Purchase by person entitled to the charge. ――― The same
principle under different circumstances applies where B., the
first incumbrancer, buys up the interest of the owner subject
to the charge ; for if the charge be not kept on foot the in
cumbrance of C. will be let in, unless the defence of pur
chase for value without notice be applicable (b) .
4. Purchaser may require the charge to be kept on foot.
The vendor must not be put to extra expense by the form in
which the purchaser wishes the conveyance to be made, and
where the vendor is under a personal liability he may insist
on being discharged from it, but with these qualifications the
purchaser can insist on having charges kept up instead of
being merged (c) .
5. Mode of keeping charge on foot. ― If the purchaser
desire to keep on foot a charge vested in himself, he should
take a conveyance of the equity of redemption to a trustee,

Appeal, while withholding his opinion doctrine of Toulmin v. Steere to India

as to whether it was binding in that on the ground that it did not rest on
Court, observed, " it amounts to no any broad intelligible principle of
more than this, that in the case of a justice ; Gokuldoss Gopaldoss v . Ram
purchase from the owner of an equity bux Seochand, 11 L. R. Ind. App.
of redemption in which the purchase 126.] As to Greswold v. Marsham, 2
money is partly applied in paying off Ch. Ca. 170, see Dart. 917, 918 , 5th
incumbrances, the purchaser with no edit. [ Gokuldoss Gopaldos v. Ram
tice, whether actual or constructive, bux Seochand, 11 L. R. Ind. App. 126,
of other incumbrances is not, in the 130. ] See also Anderson v. Pignet, 8
absence of any contemporaneous ex L. R. Ch. App. 180.
pression of intention, entitled as (a) Watts v. Symes, 16 Sim. 646,
against the other incumbrancers, of per V.C. Shadwell ; Smith v. Phillips,
whose securities he has notice, to say 1 Keen, 699, per Lord Langdale ;
afterwards that the incumbrancers so Parry v. Wright, 1 S. & S. 379, per
paid off are not extinguished . It does Sir John Leach.
not go beyond that, and there are (b) Parry v. Wright, 1 S. & S. 369 ;
several authorities which say that this 5 Russ. 142 ; Garnett v. Armstrong, 2
doctrine is not to be carried further." Conn. & Laws. 458.
And in a recent Indian appeal the (c) Cooper v. Cartwright, Johns.
Privy Council refused to apply the 679.
977
*728 MERGER. [ CH. XXVII. S. 4.

and the intention should be expressed on the face of the

instrument, and if this be done the charge and the inheri
tance will both be sustained in equity so as to afford protec
tion against any intervening incumbrance (d) .
6. Merger on a contingency. —A purchaser may even have
the charge assigned so as to keep it on foot in one event, and
merge it in another event, should the contingencies affecting
the estate make such a course desirable (e) .
7. A trustee not absolutely necessary. The assignment
should in prudence be made to a trustee, but if the purchaser
have the equity of redemption conveyed to himself, yet if the
intention to keep up the charge be clear, no merger will take
place (ƒ) .
8. Getting in a charge pending contract for purchase. --If a
person contract only for the purchase of an estate, and pays
off a first charge with a view to the purchase but before the
completion of it, no merger takes place, but the purchaser
stands in the shoes of the first incumbrancer ( g) .
Where the person who created the second charge buys up the
first charge. ―― The question of merger has been spoken of as
one of intention, but this principle must not be applied
[ * 728 ] where a person has * himself created two successive
incumbrances and then buys up the first charge, for
in this case the mortgagor when he creates the second incum
brance is under a duty to discharge the debt previously in
curred, and though the second mortgagee cannot compel him .
to do this, yet if the mortgagor do discharge the first debt,
the second incumbrancer, whatever may have been the inten
tion, will have the benefit of it. Besides, in most cases a
mortgagor, in creating an incumbrance, enters into a cove
nant for further assurance, and this, independently of any
general equity, would, it is conceived, give the incumbrancer
a right to call for the assignment to him of any interest in the
estate subsequently acquired by the mortgagor. Although,

(d) Bailey v. Richardson, 9 Hare, 542 ; Forbes v. Moffatt, 18 Ves . 384 ;

736 ; and see Holt v. Holt, cited 1 P. Earl of Clarendon v. Barham, 1 Y. &
W. 374. C. C. C. 688 ; Keogh v. Keogh, 8 I. R.
(e ) See Selsey v. Lake, 1 Beav. Eq. 179.
146, 148 . (g) Watts v. Symes, 1 De G. M. &
(f) See Davis v. Barrett, 14 Beav. G. 240.
978
CH. XXVII. S. 4. ] MERGER. *729

therefore, the mortgagor take an assignment of the prior

charge to a trustee for himself to the intent that the same
may be kept on foot, yet equity will not allow this as against
the second incumbrancer (a) .
10. Otter v. Vaux. ―― This has been carried so far that
where a mortgage was made with a power of sale , and then
a second incumbrance was created, and then the mortgagor
purchased under the power of sale in the first mortgage, it
was held that by this means the second incumbrance was let
in as the first charge upon the estate (b) . It was clear that
if the mortgagor had paid off the first mortgage and taken a
re-conveyance, this would have enured to the benefit of the
second mortgagee ; and the substance of the transaction was
thought to be the same where the mortgagor took a re-con
veyance from the mortgagee by the machinery of the power
of sale : it was said that this gave the second incumbrancer
a double security - first, the purchase money in the hands of
the first mortgagee, and then the estate in the hands of the
mortgagor ; but the answer was that the mortgagee could
get no more than he was entitled to, viz ., his principal money
and interest (c) .
[ 11. Trustee in bankruptcy buying up charge .. But where
the trustee in bankruptcy of the mortgagor purchased from
the first mortgagee, it was held that the second mortgagee
was unaffected by the transaction, that the trustee stood in
the position of transferee of the mortgage, and the second
mortgagee was entitled to redeem him upon the usual
terms (d) . ]
12. Owner of a charge may buy equity of redemption and
hold his charge against an intervening incumbrancer. ―――― It was
observed by Sir William Grant ( e ) that the cases of Greswold
v. Marsham (ƒ) and Mocatta v. Murgatroyd ( g) were express
authorities to show that one purchasing an equity of
redemption could not set up a prior mortgage of [ * 729 ]

(a) Otter v. Lord Vaux, 2 K. & J. [ (d) Bell v. Sunderland Building

657, per V.C. Wood. Society, 24 Ch . D. 618. ]
(b) Otter v. Lord Vaux, 2 K. & J. (e ) Toulmin v. Steere, 3 Mer. 224.
650. (f) 2 Ch . Ca. 170.
(c) Otter v. Lord Vaux, 2 K. & J. (g) 1 P. W. 393.
657.
979
*729 MERGER. [CH. XXVII. S. 4.

his own, nor consequently a mortgage which he had got

in, against subsequent incumbrances of which he had notice.
Now a person who borrows money cannot be his own creditor,
or set up an incumbrance of his own, as against his own
creditor (a) ; and if the vendor of the equity of redemption
be himself personally liable for the charge, the purchaser will,
as a general rule, be bound to indemnify him, but that one pur
chasing an equity of redemption cannot set up a mortgage of
his own, or one which he has got in, as against incumbrances
not created by himself (a proposition not established by the
authorities cited by Sir W. Grant ( b ) ) is, it is conceived, not
law at the present day (c) . If the first mortgage be paid off
and extinguished, of course the second charge is let in ; but,
subject to the equities flowing from the contract between the
purchaser and his vendor, the first mortgage and the equity
of redemption may be so vested in the same person as to
keep the two separate, and so exclude the second incum
brance.
13. Effect of keeping a charge on foot. ――――― It must be borne
in mind that where the charge and the inheritance do not
merge, the person in whom they are vested has two distinct
possessions, and in the absence of any indication of inten
tion that the charge shall in equity wait upon and attend the
inheritance, the charge will go to the executor, subject to
probate and legacy duty (d) , and the inheritance to the
heir (e ) . The question , therefore , is constantly arising as
between the real and personal representatives , whether the
two interests merged in the lifetime of the person entitled to

(a) Watts v. Symes, 1 De G. M. & (2) Belaney v. Belaney, 2 L. R. Ch .

G. 244, per L. J. Knight Bruce. App. 138 ; 35 Beav. 469. Lord Ro
(b) See Watts v. Symes, 1 De G. milly, M.R., observed that " If the
M. & G. 244 ; and Dart V. & P. 917, testator had died intestate altogether,
918, 5th edit.; [ Adams v. Angell, 5 and the question had arisen between
Ch. D. 634. ] the heir and the next of kin, I think
(c) See now Hayden v. Kirkpatrick, the term would have gone to the
34 Beav. 645 ; Stevens v. Mid-Hants heir." Is it meant by this that a
Railway Company, 8 L. R. Ch . App. charge cannot be kept up for the ben
1064 ; [ Gokuldoss Gopaldoss v. Ram efit of the next of kin, but only for
bux Seochand, 11 L. R. Ind . App. the benefit of persons claiming under
126. ] a will?
(d) See Swabey v. Swabey, 15 Sim.
502.
980
CH. XXVII . S. 4.] MERGER . *730

both or were subsisting at the time of his death ; and the ques
tion of merger or non-merger is held to be an open one up to
the death of a testator (f) , and for the purpose of collecting
the intention parol evidence is admissible ( g) .
14. Rule where charge and inheritance become united.
Where a person is entitled to a charge and to the
* inheritance under the same instrument (a ) , or being [ * 730 ]
first entitled to the charge subsequently acquires the
inheritance as devisee ( b) , or heir ( c ) , or being first entitled
to the inheritance acquires the charge by bequest (d) , or by
succession as next of kin ( e ) , in all these cases, in the ab
sence of anything said or done by the owner of the charge
and of the estate to show what his intention was (ƒ) , the
Court presumes the charge to be merged or not according as
merger would or not be for the owner's benefit. If, there
fore, the owner would, as in the case of an infant previously
to the late Wills Act, have had a larger testamentary power
over the charge than over the inheritance (g) , or if the mer
ger would let in subsequent or competing incumbrances (h)
of substantial amount (i) , or the debts of the testator or

(f) Swinfen v. Swinfen (No. 3) , when he became entitled to the abso

29 Beav. 199 ; and see Tyrwhitt v. lute interest in the charges are : 1.
Tyrwhitt, 32 Beav. 244. Any actual expression of that inten
(g) Astley v. Milles, 1 Sim . 298. tion ; 2. where the form and charac
(a ) Grice v. Shaw, 10 Hare, 76 ; ter of the acts done are only consist
Richards v . Richards, Johns. 754 . ent with the keeping the charge on
(b) Forbes v. Moffatt, 18 Ves. 384 ; foot ; and 3. such an intention may
Earl of Clarendon v . Barham, 1 Y. & be presumed when, though a total
C. C. C. 688 ; Davis v. Barrett, 14 silence in all other respects pervades
Beav. 542 . the matter, it appears that it was for
(c) Chester v. Willes, Amb. 246 ; the interest of the owner of the
Powell v. Morgan, 2 Vern. 90 ; Thomas charge that it should not merge in
v. Kemeys, 2 Vern. 348. the inheritance ."
(d) Price v. Gibson , 2 Eden, 115 . (g) Powell v. Morgan, 2 Vern. 90 ;
(e) Donisthorpe v. Porter, 2 Eden, Thomas v. Kemeys , 2 Ib . 345 ; Duke
162 ; Lord Compton v. Oxenden, 2 of Chandos v. Talbot, 2.P. W. 601 .
Ves. jun. 260. (h) Forbes v. Moffatt, 18 Ves . 384 ;
(f) See Tyrwhitt v. Tyrwhitt, 32 Earl of Clarendon v. Barham, 1 Y. &
Beav. 244 , in which case Sir John C. C. C. 688 ; Grice v. Shaw, 10 Hare,
Romilly, M.R., observed , " The three 76 ; Richards v. Richards, Johns . 754 ;
tests usually applied for the purpose Keogh v. Keogh, 8 I. R. Eq . 179.
of ascertaining whether the owner of (i) Richards v. Richards, Johns.
the charge intended that it should 767.
merge in the inheritance at the time
981
*731 MERGER. [CH. XXVII . S. 4.

grantor (j) , the Court presumes the intention to have been

that the charge and the inheritance, though both vested in
the same person, should be kept distinct. But if it clearly
appear that to keep the charge on foot could in no way
benefit the owner it will merge (k) .
15. Rule where owner pays off a charge. -- Where a charge
is paid off by a person owning an interest in the property
charged, the quantum of interest which he owns is, in the
absence of direct evidence of intention, the chief guide in
determining whether merger takes place. If he be absolutely
entitled, the presumption is that he meant to free the property
from the charge ; if only partially interested, the presumption
is that he intended to keep it on foot.
16. Tenant in fee-simple paying off a charge. Thus ,
[* 731 ] if the person paying off the charge be tenant in * fee
simple, the presumption will be that the charge
was meant to be merged ( a) , unless the assignment of the
charge was to a trustee in trust for the owner of the inheri
tance, his " executors, administrators and assigns," instead of
his heirs and assigns " (b), or there were other circum
stances in the transaction sufficient to exclude the presump
tion (c).
The mere fact of taking the assignment to a trustee for the
person paying off, though a material ingredient in the ques
tion of intention , is not alone enough to keep the charge on
foot (d).
[And where a person, claiming to be the absolute owner
of an estate, borrows money to pay off a mortgage, there
being no intermediate incumbrance, the presumption is that
he means to extinguish the charge (e) . ]

(j) Davis v. Barrett, 14 Beav. 552 ; (b) Gunter v. Gunter, 23 Beav. 571 ;
Sing v. Leslie, 2 H. & M. 68. and see Tyrwhitt v. Tyrwhitt, 32
(k) Price v. Gibson, 2 Eden, 115 ; Beav. 244.
Donisthorpe v. Porter, Ib. 162 ; Lord (c) Keogh v. Keogh, 8 I. R. Eq .
Compton v. Oxenden , 2 Ves. jun. 263 ; 179.
Swinfen v. Swinfen (No. 3) , 29 Beav. (d) Pitt v. Pitt, 22 Beav. 294 ;
199. Hood v. Phillips, 3 Beav. 513.
(a) Hood v . Phillips, 3 Beav. 513 ; [ (e ) Mohesh Lal v. Mohunt Bawan
Pitt v. Pitt, 22 Beav. 294 ; Gunter v. Das, 10 L. R. Ind. App. 62. ]
Gunter, 23 Beav. 571 ; Swinfen v.
Swinfen (No. 3) , 29 Beav. 199.
982
CH. XXVII. S. 4.] MERGER. *732

17. Tenant for life paying off a charge. - If the person pay
ing off the charge be tenant for life, the Court considers that
as his interest ceases with his death, he could never have
meant that the charge should be extinguished instead of
enuring to the benefit of his representatives (ƒ) ; and the
same rule applies though the tenant for life be or become
entitled (subject to remainders to his own issue which fail )
to the ultimate reversion in fee (g) . But even in the case of
tenant for life, positive evidence may be given by parol that
he meant to merge the charge (h).
18. Tenant in tail in possession and of age paying off a charge.
-As tenant in tail in possession, if of age, has an absolute
power of disposition over the estate, subject to his compliance
with certain forms, the presumption is, that if he pay off a
charge he meant to merge it (i) .
19. Special cases where charge has been kept on foot. - But
if tenant in fee-simple, subject to an executory limitation over,
which he cannot destroy (j) , or a tenant in tail under an Act
of Parliament, who is incapable of acquiring the fee-simple (k) ,
or tenant in tail in remainder during the existence of
the tenant for * life whose issue, if any, will be prior [ *732]
tenants in tail (a), pay off a charge, in all these cases ,
as the interest of the party required the charge to be kept on
foot, the presumption is that such was the intention. And
where a tenant in tail paid off a charge with the intention of
extinguishing it believing himself to be tenant in fee-simple,
and assuming that as the basis of the transaction, the Court
considered, on the ground of mistake, that the tenant in tail
had not merged the charge (b) .
(f) Pitt v. Pitt, 22 Beav. 294 ; hamshire v. Hobart, 3 Sw. 199 ; Keogh
Burrell v. Earl of Egremont, 7 Beav. v. Keogh , 8 I. R. Eq. 179.
205 ; Redington v. Redington, 1 B. & (j) Drinkwater v. Combe, 2 S. & S.
B. 131 ; Faulkner v. Daniel , 3 Hare , 340.
217 ; Lindsay v. Earl Wicklow , 7 I. R. (k) Shrewsbury v. Shrewsbury, 3
Eq . 192. B. C. C. 120 ; S. C. 1 Ves . jun . 227 ;
(g) Wyndham v . Earl of Egre see Earl of Buckinghamshire v. Ho
mont, Amb. 753 ; Trevor v. Trevor, 2 bart, 3 Sw. 200.
M. & K. 675. (a) Wigsell v. Wigsell, 2 S. & S.
(h) Astley v. Milles, 1 Sim. 298. 364 ; Horton v . Smith, 4 K. & J. 624.
(i) St. Paul v . Dudley, 15 Ves. (b) Earl of Buckinghamshire v.
173, per Lord Eldon ; Jones v. Mor Hobart, 3 Sw. 186 ; Kirkham v . Smith,
gan, 1 B. C. C. 206 ; Earl of Bucking 1 Ves. 258.
983
*733 MERGER. [CH. XXVII . S. 4.

20. Payment of charge and subsequent acquisition of fee. It

seems to be settled that where a tenant for life or tenant in
tail in remainder pays off a charge, and afterwards the fee
devolves on the tenant for life, or the remainder of the tenant
in tail vests in possession, this subsequent union of the charge
and the inheritance is not per se sufficient to rebut the inten
tion previously shown to keep the charge on foot (c) .
21. Mortgage by person who has bought up a charge. - If a
person having both a subsisting charge and the estate mort
gage or convey the latter, without mention of the charge, the
security carries with it all the mortgagor's interest, and as
between the mortgagor and mortgagee there is a merger (d) .
If tenant in fee of an estate mortgage it to the trustees of his
settlement to secure a fund to which he is absolutely entitled,
subject to a life interest limited to his wife, and then dies in
the lifetime of the wife there can be no merger, for during
the existence of the wife's interest the trustees could not,
without a breach of trust, release the charge to him (e) .
22. Whether charges can be made to attend the inheritance.
―――――
- As charges are not unfrequently assigned like terms of
years upon trust to attend the inheritance, it may be useful to
add some cautionary remarks. So far as the author is aware,
there is no authority for saying that charges can be made to
wait upon the inheritance like terms of years . No doubt
charges, like heirlooms and other personalty, can be settled
to a certain extent to run in the channel of realty, but can
they be impressed with the nature of realty itself ? Thus A.
buys an estate, and settles it by the purchase deed to the use
of himself for life, with remainder to his first and other sons.
in tail, with remainder over to B., and suspecting secret incum
brances has a charge assigned to a trustee upon trust to attend
the inheritance ; A. dies , leaving an only son, who shortly
afterwards dies without issue, when the estate be
[ * 733 ] comes * vested in B. An incumbrancer now starts
up, and the charge is raised. Who is to have the

(c) Trevor v. Trevor, 2 M. & K. Johnson v. Webster, 4 De G. M. & G.

675 ; Wigsell v. Wigsell, 2 S. & S. 474.
364 ; Horton v. Smith , 4 K. & J. 624. (e ) Wilkes v. Collin, 8 L. R. Eq.
(d) Tyler v. Lake, 4 Sim. 351 ; 338 .
984
CH. XXVII. S. 5. ] DOWER AND CURTESY OF A TRUST. *733

benefit of it ? Not, it will be said, A.'s real or personal repre

sentative, for by the trust he has parted with the absolute
interest in favour of others . Not B., for how can personal
estate go after an entail to a remainderman. The practice of
assignment of charges, however, is so prevalent that when
the point comes to be decided, the Court may go the whole
length of holding that charges can attend the devolution of
real estate through all its changes, and that they are not
barred, & c ., and that though latent before, yet they resume
their vitality when a secret incumbrance is disclosed . The
point must at present be considered an open one.
23. 36 & 37 Vict. c . 66, s. 25. -- Now by a recent Act, 36 &
37 Vict. c . 66, s. 25, sub-s. 4, there is not any merger by
operation of law only of any estate, the beneficial interest in
which would not be deemed to be merged or extinguished in
equity.

SECTION V.

OF DOWER AND CURTESY.¹

1. Dower and curtesy of a trust. ――――――――― A trust or equitable in

terest (a) and equity of redemption (b ) , of freeholds, were
until the late Act (c) exempt from the lien of dower ; but

(a) Colt v. Colt, 1 Ch. Rep. 254 ; husband himself, and trusts originat
Bottomley v. Lord Fairfax, Pr. Ch . ing from a stranger, has been over
336 ; Attorney-General v. Scott, Cas. ruled by subsequent cases ; see Cur
t. Talb. 138 ; Chaplin v. Chaplin, 3 tis v. Curtis , 2 B. C. C. 630 ; D'Arcy
P. W. 229 ; Shepherd v. Shepherd, Id. v. Blake , 2 Sch. & Lef. 391 ; Burgess
234, note (D) ; Lady Radnor v. Roth v. Wheate, 1 Eden, 197.
erham, Pr. Ch. 65, per Lord Somers ; (b) Dixon v. Saville, 1 B. C. C. 326 ;
Godwin v. Winsmore , 2 Atk. 525. Reynolds v. Messing, cited 1 Atk. 604 ;
The distinction taken by Sir Jos. Casborne v. Scarfe, 2 J. & W. 194.
Jekyll in Banks v. Sutton, 2 P. W. (c) 3 & 4 W. 4, c. 105.
700, between trusts created by the

1 In most of the states dower will attach to an equitable estate ; Lewis v.

James, 8 Humph. 537 ; Gully v. Ray, 18 Ky. 113 ; Bowers v. Keesecker, 14
Ia. 301 ; Miller v. Stump, 3 Gill, 304 ; Lawson v. Morton , 6 Dana, 471 ; the
contrary is true in Massachusetts and Maine ; Lobdell v. Hayes , 4 Allen, 187 ;
Reed v. Whitney, 7 Gray, 533 ; Hamlin v . Hamlin, 19 Me. 141. Curtesy also
attaches to an equitable estate in most of the states ; Gardner v. Hooper, 3
Gray, 404 ; Tillinghast v. Coggeshall, 7 R. I. 383 ; Cushing v. Blake, 30 N. J.
Eq . 689 ; but not unless the estate was actually in the possession of the wife ;
Sentill v. Robeson , 2 Jones Eq. 510.
985
* 734 DOWER AND CURTESY OF A TRUST. [ CH. XXVII. S. 5.

were subject to the curtesy of the husband (d) , unless the

husband was an alien (e) .
2. Freebench. An equitable interest in copyholds (as the
late Act does not apply to them (ƒ) ) remains as before not
subject to freebench (g) .
3. What seisin required to give curtesy . ―――― With re
[* 734 ] spect to curtesy, as at law the wife, to entitle her * hus
band to curtesy, must have seisin in deed of the free
hold (a) , the question arises whether in the instance of a trust,
there must not be such a seisin of the equitable estate in the
wife as is considered equivalent to legal seisin, as actual
possession of the estate clothed with the receipt of the rents
and profits .
4. No curtesy where there is adverse possession. It seems
to be admitted that if the equitable interest be in the posses
sion of a stranger, adversely to the right of the wife, there is
no such seisin in deed as to entitle the husband to his cur
tesy (b).
5. Executory trusts. - But if money be articled or directed
by will to be laid out in a purchase of land to be settled on a

(d) Chaplin v . Chaplin, 3 P. W. advowson or rent in fee hath issue a

234, per Lord Talbot ; Attorney- Gen daughter, who is married, and hath
eral v. Scott, Cas. t. Talb. 139, per issue and dieth seised, the wife , before
eundem ; Watts v. Ball, 1 P. W. 108 ; the rent became due or the church
Sweetapple v . Bindon, 2 Vern. 536 ; became void, dieth, she had but a
Cunningham v. Moody, 1 Ves . 174 ; seisin in law, and yet he shall be ten
Casborne v. Scarfe, 1 Atk. 603 ; Dod ant by the curtesy, because he could
son v. Hay, 3 B. C. C. 405. by no industry attain to any other
(e) See Dumoncel v. Dumoncel, seisin," Co. upon Litt . 29a . So where
13 Ir. Eq. Rep. 92. But see now 33 a testator devised an estate to his
Vict. c. 14, s . 2. daughter, her heirs and assigns, for
(f) See p. 738. her separate use, and the daughter
(g) Forder v. Wade, 4 B. C. C. 521 . died in the lifetime of the testator
[(a ) The seisin in deed of the free leaving a husband and an only child,
hold is necessary only in the cases in it was held that under the operation
which , in the language of Lord Coke, of the Wills Act the husband was
"it may be attained unto ; " Co. upon entitled to curtesy, and that as there
Litt. 29a., but where there are no were no possible means by which the
possible means by which the seisin in husband could have obtained seisin
deed can be acquired, the husband in the wife's lifetime, it was not re
will be entitled to curtesy notwith quired, Eager v. Furnivall, 17 Ch. D.
standing its absence, for impotentia 115.]
excusat legem. Thus in the case put (b) Parker v. Carter, 4 Hare, 413.
by Lord Coke, " a man seised of an
986
CH. XXVII. S. 5. ] DOWER AND CURTESY OF A TRUST. *735

married woman in fee or in tail, the husband is entitled to

curtesy, though no rent or interest may have been actually
paid during the coverture ( c) . This proceeds on the prin
ciple that the laches of the trustees shall not prejudice the
right of a third person, and, therefore, the claim to curtesy
arises in the same manner as if the trustees had actually laid
out the money in land and put the parties in possession .
6. Parker v. Carter. — And it has been held, that in the
case of an ordinary trust any seisin of the wife, though she
has not possession or receipt of rents, is sufficient to entitle
the husband to curtesy. Thus an estate had been vested in
trustees upon trust for Carter, during the joint lives of him
self and Mary his wife, and upon the death of either of them,
and in default of appointment, upon trust for the children in
fee. There were two children, a son and a daughter Eliza
beth, and the daughter married Parker ; Carter died in 1817,
and on his decease the widow, although she had no life es
tate, held possession of the estate until her own death in
1839. Elizabeth Parker died in 1836, and the question was,
whether Parker the husband was tenant by the curtesy, al
though his wife had never been in receipt of rents . The Vice
Chancellor ruled, that the possession of Carter was the posses
sion of his trustee, and gave to the trustee a seisin of
the * inheritance : that the death of Carter did not in- [ * 735 ]
terrupt that seisin, but the trustee was still in actual
possession, not by a new title then for the first time accruing,
but by continuance of the seisin acquired during the cover
ture that the trustee was in such possession for the benefit
of the party lawfully entitled thereto, and that he continued
in such possession until the entry of Mary, which might be
supposed to be a month or more after the death of her hus
band, and that such interval, there being no adverse posses
sion, would entitle the husband to his curtesy (a).
7. Curtesy where there is separate use. ――――――- If the trust be for
the separate use of the wife, so that her seisin would not en
title her husband to the possession or profits, it was formerly

(c) Sweetapple v. Bindon, 2 Vern. (a) Parker v. Carter, 4 Hare, 400 ;

536 ; Dodson v. Hay, 3 B. C. C. see Casborne v. Scarfe, 1 Atk. 606.
405.
987
*736 DOWER AND CURTESY OF A TRUST. [ CH. XXVII. S. 5.

doubted whether in this case curtesy was not excluded.

Lord Hardwicke was originally in favour of the curtesy (b) ;
but in a subsequent case (without any allusion , however, to
his former opinion ) , he decided against the claim of the hus
band (e) . It has since been determined that the husband is
entitled (d).
[Defeated by a disposition by the wife. --- The right of the
husband will however be defeated by a disposition by the
wife of her inheritance by act inter vivos or by will (e) . ]
8. Opinion of Sir John Leach . - - It was observed by Sir
John Leach that at law the husband could not be excluded
from the enjoyment of property given to or settled upon the
wife, but in equity he might, and that not only partially,
as by a direction to pay the rents and profits to the separate
use of his wife during coverture, but wholly, by a direction
that upon the death of the wife the inheritance should descend
to the heir of the wife, and that the husband should not be en
titled to be tenant by the curtesy (f) ; but this doctrine may
admit of question, as there appears no reason why a person
should be able to exempt equitable any more than legal es
tates from the ordinary incidents of property. A declaration, H
for instance, by a settlor, that a trust should be inalienable
or not available to creditors would be absolutely void. In
the case of Bennet v . Davis (g) , which is cited by Sir J.
Leach for his position, the question discussed was not
whether curtesy attached on an equitable estate but whether
an equitable estate arose. A testator had devised lands "to
his daughter, the wife of Bennet, for her separate
[ * 736 ] use, exclusive of her husband, to * hold the same to
her and her heirs, and that her husband should not be
tenant by the curtesy, nor have the lands for his life in case
he survived, but that they should upon his wife's death go
to her heirs. It was contended that the wife could not be a

(b) Roberts v. Dixwell, 1 Atk . 609. But see contra, Moore v. Webster, 3
(c) Hearle v. Greenbank, 3 Atk. L. R. Eq . 267.
715, 716. [ (e) Cooper v . Macdonald, 7 Ch.
(d) Morgan v. Morgan, 5 Mad. D. 288. ]
408 ; Follett v . Tyrer, 14 Sim. 125 ; (f) Morgan v. Morgan, 5 Mad.
Appleton v. Rowley, 8 L. R. Eq. 139 ; 411 .
[Cooper v. Macdonald, 7 Ch. D. 288. ] (g) 2 P. W. 316.
988
CH. XXVII. S. 5. ] DOWER AND CURTESY OF A TRUST . *736

trustee for herself, and that the husband could not be a trus
tee for the wife, they both being one person, and , that conse
quently, as there was no trustee, the husband was entitled to
the estate beneficially. But the Court held that the husband
was a trustee for the wife, and observed, " though the hus
band might be tenant by the curtesy (viz . , of the legal
estate ) , yet he should be but a trustee for the heirs of the
wife ." The remark certainly implies that on the death of
the wife the husband would not be tenant by the curtesy of
the equitable estate, but that question had not been adverted
to at the bar, and apparently, from the context, was not
under the consideration of the Court. Even assuming the
remark to have been made advisedly, the view of the Court
may have been that the curtesy of the husband was excluded
on the ground now overruled, viz ., that the trust being not
simply for the wife and her heirs but during the coverture
for the separate use of the wife, and after her death for her
heirs, there was not a sufficient seisin as regarded the hus
band for the curtesy to attach upon (a) .
[ 9. Effect of Married Women's Property Act, 1882. - Under
the Married Women's Property Act, 1882, a married woman
is enabled to acquire, hold, and dispose of property as her
separate estate as if she were a feme sole, without the inter
vention of any trustee, and the question has been suggested
whether a husband can become entitled to curtesy out of
property which the wife has acquired as separate estate under
the Act. It is conceived that, in the event of the wife not
otherwise disposing of the property, he will be entitled to his
curtesy in the same manner as if the property had inde
pendently of the Act been settled for the separate use of the
wife (b).]
10. Distinction between dower and curtesy . - It must be
acknowledged, that as dower and curtesy stand exactly on
the same footing upon principle, either the rejection of dower,
or the admission of curtesy, was an anomaly. Some high

(a) See Hearle v. Greenbank, 3 [ (b) 45 & 46 Vict. c. 75. See as

Atk. 715, 716 ; Morgan v. Morgan, to the effect of the Act, infra, p. 751,
5 Mad. 408 . et seq.]
989
*737 DOWER AND CURTESY OF A TRUST . [ CH. XXVII. S. 5.

authorities, as Lord Talbot ( c) , Sir T. Clarke (d) , and Lord

Loughborough (e) , regarded the allowance of curtesy as
the exception ; and the ground upon which they pro
[ * 737 ] ceeded was that as trusts followed the likeness of
the use, and there was no curtesy of the use, there
could be none of the trust. On the other hand, Sir J.
Jekyll (a) , Lord Hardwicke ( b) , Lord Cooper (c) , Lord Mans
field (d), Lord Henley (e ) , and Lord Redesdale (ƒ) , thought
that consistency would be restored by the admission of the
title to dower ; for since the Statute of Frauds, they argued
the system of trusts had undergone considerable alteration ,
and was conducted upon a much more liberal footing : the
rule now was, that, as between the cestui que trust and the
trustee and all claiming by or under them, whoever would
have a right against the legal estate had a like right against
the equitable. Thus either argument had a fair show of rea
son to support it ; but the latter view was, no doubt, more in
harmony with the system of trusts as eventually established.
How curtesy came to be allowed and not dower. - The
Courts, according to Lord Redesdale, were led to refuse
dower out of trust estates from a well-founded fear of affect
ing the titles to a large proportion of the estates in the coun
try, because parties had been acting on the footing that
dower did not attach to a trust ; but the same objection did
not apply to allowing tenancy by the curtesy, inasmuch as no
person would purchase an estate without the concurrence of
the husband (g) .
11. Late Dower Act. - By a late Act (h) , the widow is
entitled to dower in equity where the husband dies beneficially
entitled to any interest (not conferring a title to dower at
law) which whether wholly equitable, or partly legal and

(c) Chaplin v. Chaplin, 3 P. W. (c) Watts v. Ball, 1 P. W. 109.

234 ; Attorney-General v . Scott, Cas. (d) Burgess v. Wheate, 1 Eden,
t. Talb. 139. 224.
(d) Burgess v. Wheate, 1 Eden, (e) Ib. 249-251 .
196-198. (f)D'Arcy v. Blake, 2 Sch. & Lef.
(e) Dixon v. Saville, 1 B. C. C. 327. 388.
(a) Banks v. Sutton, 2 P. W. 713, (g) D'Arcy v. Blake, 2 Sch. & Lef.
714. 388.
(b) Casburne v. Casburne, 2 J. & (h) 3 & 4 W. 4, c. 105.
W. 200.
990
 CH. XXVII. S. 5. ] DOWER AND CURTESY OF A TRUST. * 738

partly equitable, is an estate of inheritance in possession ,

or equal to an estate of inheritance in possession, other
than an estate in joint tenancy (i) . But in either case
the wife will not be entitled to dower out of any property
absolutely disposed of by the husband in his lifetime or by
will ( ) .And by the Act a widow is not entitled to dower
out of any land, when in the deed of conveyance thereof to
her husband, or in any deed executed by him, it shall be
declared that his widow shall not be entitled to dower (k) .
And the widow's right of dower may also be barred by
declaration contained in the husband's will (7) .
――
* 12. Exceptions from Act. - The Act does not ex- [ * 738 ]
tend to the dower of any widow married on or before
the 1st January, 1834 (a) , and does not apply to copy
holds (b) , though it does to lands of gavelkind tenure (c) .
13. Dower uses no bar to widow married since the Act. -
The ordinary uses to bar dower vest in the husband the whole
inheritance in possession, partly at law and partly in equity,
and therefore, in the absence of declaration by him to the con
trary, must confer on a widow, married after the Act, a right
to dower (d).
14. Intent to bar dower expressed in deed dated before the
-
Act inoperative. And if an estate was conveyed before the
Act to uses in bar of dower with words expressing the intent
of the limitations to be to prevent any wife of the purchaser
from becoming dowable, such words cannot amount to a
declaration under the Act (e) ; and, if they did, the deed, as
being executed before 1st January, 1834, could not prejudicę
any right of dower (ƒ) ; and consequently the widow mar
ried after the Act will, in such a case, be dowable (g) .
(1) Ib. sect. 2. (a) 3 & 4 W, 4, c. 105, sect. 14.
(j) 3 & 4 W. 4, c. 105, sect. 4. (b) Powdrell v. Jones, 2 Sm. & G.
But whether the husband has devised 407 ; Smith v. Adams , 5 De G. M. &
his estate in such a way as to mani G. 712 .
fest an
intention that the estate (c) Farley v. Bonham, 2 J. & H.
should be free from dower, is a ques 177.
tion often of great nicety. See Gib (d) Fry v. Noble, 20 Beav. 602.
son v. Gibson , 1 Drew. 42 ; Lacey v. (e ) Fry v. Noble, 7 De G. M. & G.
Hill, 19 L. R. 346, and Lord St. Leon 687.
ards on Real Property Statutes, p . 254. (f) Fry v. Noble, 20 Beav. 598,
(k) 3 & 4 W. 4, c. 105, sect. 6. per M. R. relying on sect. 14.
(1) Ib. sect. 7. (9) Fry v. Noble, 20 Beav. 598 ; 7
991
*738 ESTATE OF A FEME [CH. XXVII . S. 6.

15. Dower out of equitable fee subject to executory devise.

And a widow married since the Act is dowable of an equi
table estate limited to the husband in fee, but subject to a
limitation over on his dying without issue living at his death
and which event has since occurred (h) .

SECTION VI .

OF THE ESTATE OF A FEME COVERT CESTUI QUE TRUST .

Under the above title we propose, First, To advert shortly

to the effect of marriage upon property, held upon trust for
a feme covert simply, and not for her separate use, treating,
in order, of pure personalty, chattels real, and real estate of
freehold or inheritance ; and, Secondly, To consider the nature
of a wife's separate estate (i) .

First. Of a feme covert's equitable interest generally.¹

[ And here we may observe, that the mutual rights of
husband and wife in the property of the wife have recently

De G. M. & G. 687 ; Clarke v. Frank (i) This section in the third and
lin, 4 K. & J. 266. fourth editions was added to and
(h) Smith v. Spencer, 2 Jur. N. S. much improved by the author's friend,
778. the late Mr. F. O. Haynes.

1 Married women ; right to a settlement . - Personal property held in trust for

a feme covert belongs to the husband ; Crook v . Turpin, 10 B. Mon. 244 ;
Mumford v. Murray, 1 Paige, 620 ; and the same is true of choses in action, if
there reduced to possession ; Murphy v. Grice, 2 Dev. & B. Eq . 199 ; a
proper settlement, out of her equitable estate, may be made for the wife ;
Moore v. Moore, 14 B. Mon. 259 ; Guild v . Guild , 16 Ala. 122 ; Barron v .
Barron, 24 Vt . 375 ; Page v. Estes, 19 Pick . 269 ; Poindexter v. Jeffries, 15
Gratt. 363 ; Corley v. Corley, 22 Ga . 178 ; Chase v . Palmer, 25 Me. 342 ; Davis
v. Newton, 6 Met. 537 ; Glen v . Fisher, 6 Johns. Ch . 33 ; Van Duzer v. Van
Duzer, 6 Paige, 368 ; but see Lassiter v. Dawson, 2 Dev. Eq. 383 ; settlements
must be made , if at all, before the husband reduces to possession the property
in question ; Pool v. Morris, 29 Ga. 374 ; Wickes v. Clarke, 8 Paige, 161 ;
Mitchell v. Sevier, 9 Humph. 146 ; Whitesides v. Dorris, 7 Dana, 107 ; or an
attempt made for a settlement before possession is obtained ; Crook v. Turpin,
10 B. Mon. 243 ; Fry v. Fry, 7 Paige, 461 ; Dearin v. Fitzpatrick, Meigs , 551 ;
if husband holds property in some other capacity than that of husband , it is
no hindrance to effecting a settlement ; Barron v . Barron, 24 Vt. 375 ; Goche
naur's Est. 11 Harris, 460. A wife may seek a settlement by a bill in equity ;
Wright v. Arnold , 14 B. Mon. 642 ; Wiles v. Wiles, 3 Md . 1 ; and can if neces
sary obtain an injunction meanwhile ; Dumond v. Magee, 4 Johns. Ch. 318.
992
CH. XXVII . S. 6. ] COVERT CESTUI QUE TRUST. *738

undergone such great changes, that it will be well, for the

sake of simplicity, to deal separately with (A) , the law as

Courts cannot interfere unless they are such as would have jurisdiction of the
trust assets ; Wheeler v . Bowen, 20 Pick. 563 ; Parsons v. Parsons, 9 N. H.
309 ; Allen v . Allen , 6 Ired . Eq . 293. A feme covert cannot claim a settlement
after giving her assent to a disposition of the property ; Smith v . Atwood, 14
Ga. 402 ; Wright v. Arnold, 14 B. Mon. 638. Where there are special reasons
why the husband should not reduce personalty to possession, the courts will
interfere, regardless of any technical objections to so doing ; Haviland v.
Myers , 6 Johns. Ch. 178 ; Rees v. Waters, 9 Watts, 90 ; Renwick v . Renwick,
10 Paige, 421 ; Chambers v . Perry, 17 Ala. 726. It is not necessary that the
property should be within the jurisdiction of the court ; Guild v. Guild, 16
Ala. 122. Such a settlement may be made for the wife, not only as against
the husband, but also as against his creditors or any one claiming by, through
or under him in any way ; Gassett v. Grout , 4 Met. 486 ; Andrews v. Jones, 10
Ala. 401 ; Hord v. Hord, 5 B. Mon. 81 ; Phillips v. Hassel, 10 Humph. 197 ;
Kenny v. Udall, 5 Johns . Ch . 464 ; Athey v. Knotts, 6 B. Mon. 24 ; Heath v.
Heath, Hill, Ch. 100. A settlement cannot be had in an estate in reversion
or remainder, until such time as they might be reduced to possession ; Good
win v. Moore, 4 Humph. 221 ; Reese v. Holmes, 5 Rich . Eq . 531 ; Sale v.
Saunders, 24 Miss. 24 ; but see Jackson v. Sublett, 10 B. Mon. 469 ; Weeks v.
Weeks, 5 Ired . Eq. 111 ; the amount involved is not material ; Roberts v.
Collett, 6 Sm. & Gif. 138. If a settlement has been made, courts will not com
pel another ; Martin v . Martin, 1 Comst. 473. The amount which will be
settled upon the wife depends upon circumstances ; Napier v. Howard, 3
Kelley, 205 ; Barron v. Barron, 24 Vt. 375 ; McVey v. Boggs, 3 Md . Ch . 94.
A settlement must be for wife and children ; Andrews v . Jones, 10 Ala. 401 ;
Udall v. Kenney, 3 Cow. 609 ; Howard v . Moffatt, 2 Johns. Ch . 206. Children
cannot ask it ; Martin v. Sherman, 2 Sandf. Ch. 341 ; but see Hill v. Hill, 3
Strob. Eq. 94 ; Mumford v. Murray, 1 Paige, 621.
Reduction to possession. — The husband must have done some act to reduce
the property into his possession ; Dunn v . Sargent, 101 Mass . 336 ; Hayward v.
Hayward, 20 Pick. 517 ; Rice v. Thompson, 14 B. Mon. 379 ; Searing v. Searing,
9 Paige, 283 ; Edwards v . Sheridan, 24 Conn. 165 ; Ross v . Wharton, 10 Yerg.
190 ; as if he uses the money for himself ; Ellis v . Baldwin, 1 Watts & S. 253 ;
or takes a legacy as his own ; Pierce v. Thompson , 17 Pick . 391 ; or sells the
property ; Dunn v. Sargent, 101 Mass. 336 ; Wardlaw v. Gray, 2 Hill, Eq.
644. If the property has not been actually received, it is not in possession ;
Smith v. Atwood, 14 Ga. 402 ; George v. Goldsby, 23 Ala. 333 ; Ryan v. Spruill,
4 Jones, Eq. 27. The bringing of a suit or even the obtaining of a judgment
is not sufficient for reducing the property to possession ; Probate Court r .
Niles, 32 Vt. 775 ; Pike v. Collins, 33 Me . 43 ; Knight v. Brawner, 14 Md . 1 ;
Mason v. McNeill , 23 Ala. 201 ; Hall v. McLain, 11 Humph. 425 ; there must
have been an execution or a transfer of the property ; Alexander v. Crittenden,
4 Allen, 342 ; a receipt for property is not in itself sufficient ; Hake v. Fink,
9 Watts, 336 ; McDowell v. Potter, 8 Barr, 191 ; the holding of the paper
securities is insufficient ; Hall v. Young, 37 N. H. 134 ; Barber v . Slade, 30 Vt.
191 ; Pickett v. Everett, 11 Mo. 568. The intention of the husband is material,
and certain acts may or may not reduce the property to possession according
to his intention ; Gochenaur's Est. 23 Pa. St. 460 ; McDowell v. Potter, 8 Barr,
191 ; Gray's Est. 1 Barr, 327. If the property has been actually reduced to
993
*739 ESTATE OF A FEME [CH. XXVII . S. 6.

*
[ * 739 ] regards cases not affected by the Married Women's
Property Act, 1882, and (B), the modifications intro
duced by that Act.
(A. ) As to cases not affected by the Married Women's
Property Act.
The cases to be considered under this head will be confined
to those in which property accrued before the 1st January,
1883 , to women who were married before that date . ]
1. Pure personal estate not settled to separate use. - As
respects pure personal estate (by which expression is meant
personalty exclusive of chattels real, such as chattels personal,
legacies, and other choses en action) , not settled to the wife's
separate use, the husband's power over the equitable estate is
regulated by his power over the legal estate . A personal
chattel, as furniture , held in trust for the wife , belongs in

possession, the rights of creditors cannot be destroyed ; Nolen's App. 23 Pa.

St. 37 ; Searing v. Searing, 9 Paige, 283 ; Starke v. Starke, 3 Rich. 438 ; stocks
must be transferred to name of husband for possession ; Arnold v. Ruggles,
1 R. I. 165 ; receiving dividends or interest is a reduction pro tanto only ;
Stanwood v. Stanwood, 17 Mass. 57 ; likewise of a part payment of the princi
pal ; Schuyler v. Hoyle, 5 Johns. Ch . 196 ; an indorsement and transfer of nego
tiable paper is sufficient ; Allen v. Wilkins, 3 Allen, 322 ; Tryon v. Sutton, 13
Cal. 490 ; Hemmingway v. Mathews, 10 Tex. 207. Agreements to do certain
things, which in themselves would be sufficient, are inadequate ; Stout v.
Levan, 3 Barr, 235 ; Tritt v. Colwell, 31 Pa . St. 228 ; Casey v. Wiggin, 8 Gray,
231 ; Dixon v . Dixon , 18 Ohio, 113. The reduction must take place before
the death of the husband, if at all ; Mason v . McNeill, 23 Ala . 201 ; Flory v.
Becker, 2 Barr, 471 ; Kreider v. Boyer, 10 Watts , 58 ; Siter v . M'Clanachan ,
2 Gratt. 280. The above decisions have been modified in some jurisdictions,
and actual holding of the property is not necessary, if sufficient has been
done to show the purpose, or it is clear that reduction was intended ;
Manion v. Titsworth, 18 B. Mon. 582 ; Tuttle v . Fowler, 22 Conn. 58 ; Parsons
v. Parsons, 9 N. H. 309 ; Webb's App. 21 Pa. St. 248 ; Barnes v. Pearson , 6
Ired. Eq. 482 ; Slaymaker v . Bank, 10 Barr, 373. Assignees may take on
conditions, even though there has been no possession ; Poor v. Hazleton, 15
N. H. 568 ; Shay v. Sessaman, 10 Barr, 434. An assignment without consider
ation, or fraudulent, will not stand ; Hartman v. Dowdel, 1 Rawle, 279 ;
Tuttle v . Fowler, 22 Conn. 58 ; and this has been carried so far that it is diffi
cult or impossible to prevent creditors from seizing the trust property ; Hol
brook v. Waters , 19 Pick. 354 ; Wheeler v. Bowen, 20 Pick. 563 ; Vance v.
McLaughlin, 8 Gratt. 289 ; Mellinger's Ad. v. Bausman, 45 Pa . St. 522. It is a
personal privilege of the husband ; Andover v. County, 37 N. H. 437. If a
husband and wife hold property jointly, he may reduce it to possession, other
wise it survives to her ; Hayward v. Hayward, 20 Pick. 517 ; Pike v . Collins,
33 Me. 43 ; and in former cases creditors can seize it ; Rivers v. Thayer, 7
Rich. Eq . 166. See the statutes relating to married women in the several
states, which materially change the law.
994
CH. XXVII. S. 6.] COVERT CESTUI QUE TRUST. * 740

equity to the husband absolutely. But as to choses en action,

as legacies, the right of the husband depends upon the fact
of reduction into possession ( a ) . If the wife's equitable inter
est be a present one, and the trustee is willing to facilitate
the reduction into possession by payment, transfer, & c., to
the husband, the trustee is at liberty to do so, and will not
thereby incur any personal responsibility (b) . On the other
hand, the trustee, in whose hands the wife's chose en action
is, may, in a proper case, insist on having it settled ; and if
for that purpose he pay it, by arrangement with the husband,
to the trustees of an existing settlement, to be held by them
upon the trusts thereof, such settlement will be as valid as if
made by the Court (c) . But a wife has no equity to a settle
ment until her antenuptial debts have been discharged ( d) ;
and she has no such equity against a purchaser where the
fund has been aliened by the husband, and the alienation is
binding on the wife from her having taken a fraudulent part
in the alienation (e).
Reduction into possession . ―― An actual reduction into pos
session (f) is required for defeating the wife's rights (g) ;
and in the absence of reduction into possession by the
husband during his life, the equitable interest passes
* to the wife by survivorship (a) . It follows that [ * 740 ]

(a) Purdew v. Jackson , 1 Russ. will amount to a reduction into pos

45, 46. session, see Donnelly v. Foss, 7 L. R.
(b) See Re Swan, 2 H. & M. 37. Ir. 439. ]
(c) Montefiore v. Behrens, 1 L. R. [ (g) A release by the husband of a
Eq . 171. In this case M. R. speaks chose en action payable in præsenti is
of the wife's right to have it settled effectual to bar the wife's equity to a
as she pleased, but as to the wife's settlement, and if the release be of a
capacity, see Re Swan, 2 H. & M. 37 ; legacy by deed poll it will be opera
and see Re Roberts' Trust, 38 L. J. N. tive although there was no legal per
S. Ch. 708. sonal representative in existence at
(d) Barnard v. Ford , 4 L. R. Ch. the time of its execution ; and the
App. 247 ; Miller v. Campbell , W. N. release is good although the husband
1871 , p. 210. was living apart from the wife and
(e) Re Lush's Trust , 4 L. R. Ch . not contributing to her support, Mc
App. 591 ; [ Cahill v. Cahill, 8 App . Creery v. Searight, 5 L. R. Ir. 206,
Cas. 437 ; S. C. nom. Cahill v. Martin, 641 ; Harrison v. Andrews, 13 Sim.
5 L. R. Ir. 227, 7 L. R. Ir. 361. ] 595 ; see Roper on Husb. & Wife, vol.
[( ) As to the circumstances un 1, p. 240 et seq.]
der which a lodgment in Court of a [ (a) If the husband and wife ap
chose en action belonging to the wife point an agent to receive a chose en
995
*740 ESTATE OF A FEME [CH. XXVII. S. 6.

where the wife's interest remains reversionary until after

the husband's death, and the wife survives, she necessarily
takes by survivorship (b) . And so if the marriage be dis
solved, or a judicial separation be decreed (e) , [or a pro
tection order be obtained (d) ] before the chose en action is
got in, it belongs to the wife. A similar principle applies,
where the interest of the wife may be viewed as partly posses
sory and partly reversionary, -as where the wife is entitled
.
during her own life ; in which case, the husband cannot bind
the interest of the wife beyond the duration of the cover
ture (e ) . So, even if the husband assign the wife's reversion
ary interest, and it subsequently, during the husband's life
time, becomes possessory, the wife's right by survivorship
remains, unless reduction into possession be actually effected
by the husband in his lifetime (ƒ) .
2. Equity to a settlement . - The equity to a settlement

action of the wife, and he receives it, it was discovered that the sale had
but does not pay it over to either taken place under circumstances which
husband or wife, his receipt neverthe it was contended rendered it voidable,
less operates as a reduction into pos and on the question as to who was
session by the husband, Huntley v. entitled to take proceedings to set
Griffith, F. Moore, 452, Goldsborough, the sale aside, it was held that the
2d ed. p . 159, pl. 91 ; and this will right to do so was in the husband's
also be the case, where the chose en representatives and did not survive to
action is the distributive share of the the wife. ]
wife in the estate of an intestate of (c) [ Wells v. Malbon, 31 Beav . 48 ; ]
which she is the administratrix , Re Re Insole, 35 Beav. 92 ; Prole v.
Barber, 11 Ch . D. 442. If the wife Soady, 3 L. R. Ch . App . 220 ; Johnson
with the assent of her husband re v. Lander, 7 L. R. Eq . 228 ; Heath v.
ceives a chose en action, it operates as Lewis, 4 Giff. 665 ; Swift v. Wenman,
a reduction into possession by him, 10 L. R. Eq. 15 ; and see Fussell v.
Rogers v. Bolton, 8 L. R. Ir. 69 ; but Dowding, 14 L. R. Eq. 421 ; 27 Ch. D.
the payment to the wife without the 237 ; Jessop v. Blake, 3 Giff. 639 ;
husband's assent will not prevent the Fitzgerald v. Chapman, 1 Ch. D. 563 .
husband, if he survive her, from suing [(d) Re Coward and Adam's Pur
for the chose en action as her legal per chase, 20 L. R. Eq. 179 ; Nicholson v.
sonal representative , S. C.] Drury Buildings Estate Company, 7
(b) Purdew v. Jackson, 1 Russ. 1 ; Ch . D. 48 ; Re Emery's Trusts , 50 L.
Honnor v. Morton, 3 Russ. 65. [In T. N. S. 197 ; 32 W. R. 357. ]
Widgery v. Tepper, 5 Ch . D. 516, af (e) Stiffe v. Everitt, 1 M. & Cr. 37 ;
firmed 7 Ch . D. 423 , a husband sold Harley v. Harley, 10 Hare, 325.
his wife's share as one of the next of (f) Ellison v. Elwin, 13 Sim. 309 ;
kin of an intestate in certain chattels Ashby v. Ashby, 1 Coll. 553 ; Baldwin
and received the purchase money for v. Baldwin, 5 De G. & Sm. 319 ; and
her share. After the husband's death, see Hamilton v. Mills, 29 Beav. 193.
which occurred in the wife's lifetime,
996
CH. XXVII. S. 6.] COVERT CESTUI QUE TRUST. *741

appears to have had its origin (g) in cases where the trustee,
declining to pay, transfer, &c ., the wife's possessory interest
to the husband, and the husband filing a bill against the
trustee to compel payment, transfer, &c ., the Court held
that those who seek equity must do equity ; and
declined to assist the husband in obtaining the [ *741 ]
wife's equitable interest, except upon the terms of
some portion of it being settled for the benefit of the wife
and her issue .
[ But where property is given to husband and wife, inas
much as by the unity of the persons in law they take by
entireties, and the husband is entitled in his own right to the
entirety during his life, the wife will have no equity to a
settlement out of any part of the property (a) . ]
3. Feme may assert her equity to a settlement actively.
Whatever may have been the source of this equity, it is
undoubtedly one which the wife has a right, according to the
now established practice of the Court, to assert actively,
either by an action (b) , or, in the case of an already existing
suit, by petition ( c) , at any time before the husband has finally
reduced the equitable interest into possession ; and possession

(g) See Bosvil v. Brander, 1 P. W. or order, and may bring an action to

458 ; Browne v. Elton, 3 P. W. 202 ; enforce the settlement. But if the
Wallace v. Auldjo, 2 Dr. & Sm. 216 ; wife dies after the institution of the
Osborn v. Morgan, 9 Hare , 432. action, but before a decree or order
[(a) Atcheson v. Atcheson , 11 Beav. for a settlement has been made , the
485 ; Ward v. Ward, 14 Ch. D. 506 ; children, who have no equity except
Re Bryan, 14 Ch. D. 516. See as to to enforce a judgment obtained in
cases since the recent Act, Re March, their favour, cannot compel a settle
24 Ch . D. 222, 27 Ch . D. 166. ] ment, Lloyd v. Williams, 1 Mad. 450 ;
(b) Lady Elibank v . Montolieu, 5 De la Garde v . Lempriere, 6 Beav.
Ves. 737 ; Duncombe v. Greenacre, 28 344 ; Wallace v. Auldjo, 2 Dr. & Sm.
Beav. 472 ; on appeal, 2 De G. F. & 216, 234 ; and even after a decree for
J. 509. [The right is a personal one a settlement has been made, the wife
in the wife, and, on her death without may, while the settlement is still in
having taken any steps to assert it, fieri and unexecuted, come into Court
fails, and cannot be set up by her and waive her right, and so disappoint
children. If, however, the wife has the claims of the children, Lloyd v.
taken proceedings to enforce her Williams, ubi sup.; Pemberton v. Mar
equity, and has obtained a decree or riott, 47 L. T. N. S. 332. ]
order referring the matter to the (c) Greedy v. Lavender, 13 Beav.
Judge in chambers to approve a 62 ; Scott v . Spashett, 3 Mac . & G. 599 ;
proper settlement, the children are [ Re Robinson's Settled Estate, 12 Ch.
entitled to the benefit of that decree D. 188. ]
997
* 742 ESTATE OF A FEME [CH. XXVII . S. 6.

by the husband in the mere character of executor, or adminis

trator, or trustee, and not as husband in his marital right will
not be deemed a reduction into possession to defeat the equity
to a settlement (d) . [ And the equity may be enforced in
respect of a fund which is possessory although not actually
distributable, as in the case of a share of an estate which is
being administered by the Court, but which will not be dis
tributable until further consideration (e) . ] It is equally
clear that the equity is one which the wife has a right to
waive, by consenting in open Court ( ƒ) to the receipt
[ * 742 ] of the equitable interest by the * husband, [but an
infant is not capable of giving such consent (a) .]
But the wife may revoke her consent at any time before the
actual transfer (b) , and she has no power of consenting out
of Court, and therefore a trustee who thinks a settlement
ought to be executed, which the husband rejects, is justified ,
notwithstanding the wife's wishes to the contrary, in paying
the money into Court (e) . Where the husband, an executor,
is a defaulter to the estate, the wife, one of the residuary
legatees, has no equity to a settlement as against the claims
of other persons who suffer by the default (d) . But if the
husband be a debtor to the estate of an intestate the wife's
equity will prevail, and the administrator cannot stop the
debt as against the wife (e) .
4. As to fund under 2001. In one case where the fund
was under 2007. , and therefore by the practice of the Court
payable to the husband without the consent of the wife, the
wife, though the husband had deserted her, had no equity

(d) Baker v. Hall , 12 Ves. 497 ; [ (a ) Shipway v. Ball, 16 Ch. D.

Wall v. Tomlinson, 16 Ves. 413 ; [ Re 376. ]
Birchall, 44 L. T. N. S. 243. ] (b) Penfold v. Mould, 4 L. R. Eq.
[ (e ) Re Robinson's Settled Estate, 562.
12 Ch. D. 188. ] (c) Re Swan, 2 H. & M. 34. But
(f) And now as to interests ac see contra, Re Roberts' Trusts, 38 L.
quired under an instrument made J. N. S. Ch. 708, [ where the trustees
after 31st December, 1857, the wife were saddled with costs for paying
may, after the fund has become pos the money into Court.]
sessory, release her equity to a settle (d) Knight v. Knight, 18 L. R. Eq.
ment by deed acknowledged, 20 & 21 487.
Vict. c. 57, s. 1. (e) In re Cordwell's Estate, 20 L.
R. Eq . 644.
998
CH. XXVII. S. 6. ] COVERT CESTUI QUE TRUST. *743

to a settlement (f) . But this case has since been over

ruled, and the Court has directed the whole fund, though
it was under 2001., to be settled upon the wife and chil
dren (g).
5. Equity to settlement prevails against assignees in law or
by deed. - The wife's equity to a settlement subsists not
only against the husband himself, but also, as a general rule,
against those claiming under him, as a trustee under his
bankruptcy, or an assignee by deed, even for valuable con
sideration ; in fact, the assertion of the equity most com
monly takes place in cases where the husband has become
bankrupt or has assigned the fund . Where , owing either to
the trustee refusing to pay without suit, or to the wife's
taking independent proceedings of her own, the fund comes
under the control of the Court, the latter commonly consid
ers that payment of one-half to the husband or the assignees,
and the settlement of the other half on the wife and children,
is, in the absence of special circumstances, a reasonable
apportionment (h) . As the moiety paid to the husband or
assignees represents the whole of the husband's interest, the
entirety of the other moiety must be settled on the
wife and children, to the exclusion of the * hus- [ *743 ]
band (a), except on failure of issue (b) , in which
event the husband will take, whether he survive the wife or
not (c) . It would appear that in Lord Eldon's time a rule

(f) Foden v. Finney, 4 Russ . 428. Sm. 49 ; Spirett v. Willows, 12 Jur.

(g) Re Cutler, 14 Beav. 220 ; [ Re N. S. 538 ; Gent v. Harris , 10 Hare,
Kincaid's Trusts, 1 Drew. 326 ; ] Re 383 ; Bagshaw v. Winter, 5 De G. &
Merriman's Trust, 10 W. R. 334. Sm . 468.
(h) Spirett v. Willows, 1 L. R. Ch. (c) Croxton v. May, 9 L. R. Eq.
App. 520 ; Napier v. Napier, 1 Dru. & 404 ; Walsh v. Wason , 8 L. R. Ch.
War. 407 ; Vaughan v. Buck, 1 Sim . App. 482 ; but see Re Suggitt's Trusts ,
N. S. 287 ; Bagshaw v. Winter, 5 De 3 L. R. Ch . App . 215. For the details
G. & Sm. 468 ; Marshall v. Gibbings, of the proper settlement, see Spirett v.
4 Ir. Ch. Rep. 276 ; Re Grove's Trusts, Willows, 4 L. R. Ch. App. 407 ; [ Co
3 Giff. 582. In Re Suggitt's Trusts, gan v. Duffield, 2 Ch . D. 44 ; Re Gowan,
3 L. R. Ch. App. 215, the L. J. J. gave 17 Ch. D. 778 ; and as to giving the
the husband a third only. wife a power of appointment among
(a) Lloyd v. Williams, 1 Mad . 450 ; the children , see Oliver v . Oliver, 10
Barker v. Lea, 6 Mad. 330 ; Whittem Ch . D. 765 ; which case, however, was
v. Sawyer, 1 Beav. 593. disapproved of in Re Gowan.]
(b) Carter v. Taggart, 5 De G. &
999
*744 ESTATE OF A FEME [CH. XXVII. S. 6.

existed against giving the wife the whole fund ( d) . But

subsequently, in a case (e) in the Exchequer, where the hus
band was insolvent, Baron Alderson directed a settlement of
the whole fund, considering insolvency to afford ground for a
special exception. At the present day it is clear that the
Court, wherever the special circumstances warrant the step
(as, for instance, where the husband has abandoned the wife,
or is not in a position to maintain her, and the fund is not
more than sufficient for her maintenance ) will settle the
whole corpus, and, it seems, the arrears of income (ƒ) on the
wife and children (g) . In every case the Court exercises a
discretion as to the amount with reference to the particular
--
circumstances (h) — namely, the conduct of the parties (i) ,
the wife's means of livelihood ( ), the settlement, if any,
previously made upon her (k) , and the sums before received
by the husband in respect of the wife's fortune (1) .
[ * 744 ] Where the wife has been amply provided for, * and
the husband has not misconducted himself, the Court

(d) Dunkley v. Dunkley, 2 De G. 22 W. R. 819 ; Re Cordwell's Estate,

M. & G. 396. 20 L. R. Eq. 644 ; and see [Taunton v.
(e) Brett v. Greenwell, 3 Y. & C. Morris, 8 Ch . D. 453 ; 11 Ch . D. 779 ;]
230. [But Sir E. Sugden when Lord Bonner v. Bonner, 17 Beav . 86. In one
Chancellor of Ireland declined to fol case where the wife had been aban
low this case. See Napier v. Napier, doned by her husband for upwards of
1 Dru. & War. 407. ] 20 years, the Court ordered the corpus
(f) Wilkinson v. Charlesworth, 10 of the fund to be paid to the wife as a
Beav. 324 ; but see Newman v . Wilson, feme sole; Re Pope's Trust, W. N. 1873,
31 Beav. 34. p. 79.
(g) Smith v. Smith, 3 Giff. 121 ; (h) Re Suggitt's Trust, 3 L. R. Ch.
Bowyer v. Woodman, 3 L. R. Eq . 313 ; App . 215 .
Duncombe v. Greenacre (No. 2) , 29 () Gilchrist v. Cator, 1 De G. &
Beav. 378 ; Re Grove's Trust, 3 Giff. Sm. 188 ; Barrow v. Barrow, 5, De G.
582 ; Bray v. Laycock, 2 Eq . Rep. 385 ; M. & G. 782 ; [ Boxall v. Boxall, 27
Gardner v. Marshall, 14 Sim . 575 ; Ch . D. 220. ]
Koeber v. Sturgis, 22 Beav. 589 ; Re (j) Bagshaw v. Winter, 5 De G. &
Kincaid, 1 Drew. 326 ; Watson v. Mar Sm. 467 ; Ex parte Pugh, 1 Drew.
shall, 17 Beav. 363 ; Ward v. Yates , 202.
1 Dr. & Sm. 80 ; Dunkley v. Dunk (k) Scott v. Spashett, 3 Mac. & G.
ley, 2 De G. M. & G. 390 ; Carter v. 599 ; Spicer v. Spicer, 24 Beav. 365 ;
Taggart, 5 De G. & Sm. 49 ; Duncombe Spirett v. Willows , 12 Jur. N. S.
v. Greenacre, 28 Beav. 472 ; Gent v. 538.
Harris, 10 Hare, 383 ; Re Welchman, (1) Gardner v. Marshall, 14 Sim.
1 Giff. 31 ; Re Tutin's Trust, W. N. 575 ; Vaughan v. Buck, 1 Sim. N. S.
1869, p. 141 ; Nicholson v. Carline, 287.
1000
CH. XXVII . S. 6. ] COVERT CESTUI QUE TRUST. *744

has dismissed the wife's bill with costs, and left the husband
at liberty to follow up his marital rights (a ) .
[6. Part of the fund retained in Court with liberty to apply.
-Where a married woman, upon being examined , expressed
a wish that part of the fund to which she was entitled should
be retained in Court, and the income paid to her, with liberty
for her to apply for payment of the capital at a future period,
if she desired it, the Court made the order, settling the fund
upon her for life, with remainder to her children , with liberty
for her to apply to the Judge at chambers for a transfer of
all or any of the capital to her, by way of revocation of the
settlement (b) . ]
7. How far life interest of wife is subject to equity to a set
tlement. —Upon principle it would seem that the wife's
equity to a settlement ought in all cases to be the same,
whether it be claimed against the husband or his trustee in
bankruptcy or his assignee for value . There is , however, an
exception where the subject matter against which the equity
is asserted is a life interest of the wife. In this case, so long
as the husband maintains the wife, he is entitled to receive
the income of her life estate, and there can be no equity to
a settlement (c) . If, however, he deserts her, or is divorced
by reason of his misconduct, the Court will not allow him to
receive the income without securing at least a portion of it
for the maintenance of the wife (d) ; and pari ratione where
the husband becomes bankrupt and the wife is left without
the means of subsistence , the same equity will be enforced
against the trustee in bankruptcy (e) . But where the hus
band assigns the income for value while duly discharging

(a) Giacometti v . Prodgers, 14 L. & G. 782 ; Tidd v. Lister, 3 De G. M.

R. Eq . 253 ; 8 L. R. Ch . App. 338 . & G. 870.
[(b) Re Craddock's Trust, W. N. (e) Vaughan v. Buck, 1 Sim. N. S.
1875, p. 187 ; see Boxall v. Boxall, 27 384 ; Squires v. Ashford, 23 Beav.
Ch. D. 220, 225. ] 132 ; Barnes v. Robinson, 1 N. R. 257.
(c) Bullock v. Menzies , 4 Ves. [See Taunton v. Morris , 8 Ch. D. 453 ,
798 ; Re Duffy's Trust, 28 Beav. 386, affirmed 11 Ch. D. 779, where the
and cases there cited . [ But see the court in the case of an insolvent
observations in Taunton v. Morris, 8 debtor who contributed nothing to
Ch. D. 453 ; 11 Ch. D. 779. ] the support of his wife, gave the
(d) Barrow v. Barrow, 5 De G. M. whole income to the wife to the ex
clusion of the provisional assignee. ]
1001
*745 ESTATE OF A FEME [CH. XXVII. S. 6.

the marital obligation of maintenance, and subsequently

deserts his wife , the wife is held to have no equity against
the particular assignee for value, for the very object of the
husband in making the alienation may have been to find the
means for better providing for his wife, and the purchaser
cannot be involved in such an enquiry (ƒ) .
8. Right by survivorship . It must be remembered
[ * 745 ] that the wife's equity to a settlement * and her right
by survivorship are two entirely distinct things. The
former does not apply where the fund is reversionary (a),
but arises only when the fund is ready for reduction into
possession, and may be waived by the wife as before stated ;
the latter the wife cannot, by any act during coverture,
deprive herself of, except so far as the provisions of the
recent Act (b ) may enable her so to do . Occasionally resort
has been had to certain ingenious devices for the purpose of
bringing the wife's reversionary interest into possession .
Thus where a fund has been settled on A. for life , and after
his decease on B. a married woman absolutely, the husband
of B., in order to reduce the wife's chose en action into pos
session, has purchased the prior life interest, and had it
assigned to himself or his wife . But this scheme will not
bear examination , for if the assignment be made to the hus
band, then, as the life interest was possessed by him in his
own right, and the reversionary interest in right of his wife,
the two will not coalesce ; and if the assignment was made
to the wife so that the husband would have both interests in
the same right, then the feme on the coverture ceasing might
disclaim the accession of interest and so prevent the intended
merger. The late Vice Chancellor of England held in sev
eral cases that the chose en action could thus be reduced into
possession (c) , and on one occasion Lord Cottenham, on an

(f) Tidd v. Lister, 10 Hare, 140 ; (c) Creed v. Perry, 14 Sim. 592 ;
3 De G. M. & G. 857 ; Re Duffy's Bean ". Sykes, Ib . 593 ; Lachton v.
Trust, 28 Beav. 386 ; [ and see Taun Adams, Ib. 594 ; Hall v. Hugonin , Ib.
ton v. Morris , 11 Ch . D. 779.] 595 ; Bishop v. Colebrook, 16 Sim .
(a) Osborn v. Morgan, 9 Hare, 39 ; Wilson v. Oldham, 5th March,
432. 1841 , MS .; see the opinion of the late
(b) 20 & 21 Vict. c. 57 ; see p. 23, Mr. Jacob in 3d . edit. p . 371.
supra.
1002
CH. XXVII. S. 6. ] COVERT CESTUI QUE TRUST. *746

application to take the wife's consent, seems to have assented

to the doctrine (d) . But in a case before Lord Langdale,
M. R., the question was considered to involve too much diffi
culty to be disposed of on petition (e) ; and the case of
Whittle v. Henning (f) before Lord Cottenham, and other
cases (g) , have since decided that a reversionary chose en
action of the wife cannot by means of this machinery be re
duced into possession so as to be made disposable . However,
if a fund be settled on A. for life, and the remainder be ap
pointed to the feme covert for her separate use, and her power
of anticipation is not restrained, the tenant for life and feme
covert in remainder can deal with the fund (h) .
[ 9. Administration by surviving husband to wife's estate .
If the husband assign the reversionary interest of his wife in
a chose en action, and survive her, and the interest be
not reduced into possession during her life , admin- [ * 746 ]
istration to the wife's estate must be taken out before
the assignee of the husband can compel payment of the in
terest assigned (a) . ]
10. Equitable chattels real of feme covert. - As regards the
wife's equitable chattels real, the effect of marriage being, as
a general rule, the same upon equitable as upon legal in
terests, it follows, that as the husband may assign the chattels
real of the wife at law, so he may assign her trust of a term
in equity ( 6 ) , though it be [ reversionary (c) or ] merely a
contingent interest (d) ; and without the concurrence of
(d) Lachton v. Adams, 14 Sim . Eq. 609 ; Packer v. Wyndham, Pr.
594. Ch. 418, 419, per Lord Cowper ;
(e) Story v. Tonge, 7 Beav. 91 ; ` Franco v. Franco, 4 Ves. *528, per
and see Box v. Box, 2 Conn. & Laws. Lord Alvanley ; Bullock v . Knight, 1
605. Ch. Ca. 266, per Lord Nottingham ;
(f) 2 Ph. 731 . Sanders v. Page, 3 Ch. Rep. 223, per
(g) Box v. Jackson, 6 Ir. Eq. Rep. Cur.; Macaulay v. Philips, 4 Ves. 19,
174 ; Williams v. Mayne, 1 I. R. Eq. per Lord Alvanley ; Wikes ' Case,
519 ; [ Re Butler's Trusts, 3 I. R. Eq. Lane, 54, per Barons Snig and Al
138 ; 3 L. R. Ir. 89. ] tham ; S. C. Roll. Ab. 343 ; Jewson
(h) See Dudley v. Tanner, W. N. v. Moulson, 2 Atk. 421 , per Lord
1873 , p . 75 . Hardwicke ; Incledon v. Northcote, 3
[(a ) Re Butler's Trusts, 3 L. R. Ir. Atk. 435, per eundem ; Clark v. Burgh,
89. ] 2 Coll. 221 ; [Re Bellamy, 25 Ch. D.
(b) Roupe v. Atkinson, Bunb. 162 ; 620. ]
Mitford v. Mitford , 9 Ves . 99, per Sir [ (c ) Re Bellamy, 25 Ch. D. 620. ]
W. Grant ; Re Carr's Trusts, 12 L. R. (d) Donne v. Hart, 2 R. & M. 360.
1003
* 747 ESTATE OF A FEME [CH. XXVII. S. 6.

either the wife or the trustee, and without consideration.

And this doctrine is not interfered with by the case of Pur
dew v . Jackson (e) ; for a trust of chattels real is not a chose
en action, but a present interest -an estate in possession (f) .
If, however, the equitable interest in the chattel be such
that it could not by possibility vest in the wife during the
coverture, then, inasmuch as the legal interest of a similar
kind could not be disposed of by the husband, he cannot
dispose of the equitable interest (g) . If a husband mortgage
his wife's chattel real, and the wife survives, she has the
equity of redemption , though the mortgage deed recited
falsely that the husband was absolutely entitled ( h) . If
the equitable interest in the chattel be settled to the sepa
rate use of the feme covert, and she does not dispose of it, it
survives to the husband (i) .
11. Whether wife entitled to settlement out of equitable
chattels real. Whether the doctrine regarding the wife's
equity to a settlement extends to the equitable chattels real of
the wife, has been much doubted. It was held in one case,
by Vice-Chancellor Wigram, as a result of the principles
laid down by Lord Cottenham, in Sturgis v. Champneys (j) ,
that even where the husband could dispose of the equitable
chattel, the wife was entitled to a provision out of the equi
table interest, as against the assignee of the husband for
valuable consideration (k) . The opinion of the
[ * 747 ] Vice-Chancellor * himself was the other way, but he
considered himself bound by the authority of the
Chancellor in the case referred to .
12. Result of decisions . - The result of these decisions is
remarkable . Thus, a mortgage by the husband of the wife's
legal term bars her of all right, except in the equity of re
demption (a ) ; while under a similar mortgage of the equi

1 Russ. 1 . (i) Archer v. Lavender, 9 I. R. Eq.

(f) See Mitford v. Mitford , 9 Ves. 220.
98, 99 ; Holland's Case, Style, 21 ; (j) 5 M. & Cr. 77 ; and see Worth
Burgess v. Wheate, 1 Eden, 223, 224 ; am v. Pemberton, 1 De G. & Sm. 644 .
Box v. Jackson, 1 Drury, 84. (k) Hanson v. Keating, 4 Hare, 1 .
(g) Duberly v. Day, 16 Beav. 33. (a ) Hill v. Edmonds, 5 De G. &
(h) M'Cullagh v. Littledale, 9 I. Sm. 603 ; Clark v. Cook, 3 De G. &
R. Eq. 465. Sm. 333.
1004
CH. XXVII. S. 6.] COVERT CESTUI QUE TRUST. *747

table term, she would have an equity to a settlement as

against the mortgagee. Again, the legal reversionary term
of the wife, provided it be such as may by possibility vest
during the coverture, is capable of absolute assignment by
the husband ; and the wife has no right by survivorship ,
such as exists in the case of her chose en action, while as
respects the assignment of a similar equitable interest there.
would be an equity to a settlement in the wife. The diffi
culties of applying the doctrine of the wife's equity to the
case of chattels real, must, undoubtedly, prove considerable ;
but it can be hardly expected that the steps, of which Lord
Cottenham in Sturgis v. Champneys took the first, will now
be retraced.
13. Effect of getting in legal estate of wife's equitable term.__
It is conceived that if the husband, or the assignee from him
of the wife's equitable term, can procure an assignment of
the legal estate from the trustee, the wife's equity to a settle
ment is at an end ; but the point is not touched by au
thority.
14. Arrears of income. -The equitable interest of the
wife in a chattel real is not a chose en action, but an estate,
and therefore , although, according to the principles laid
down in Sturgis v. Champneys, the wife can claim an equity
to a settlement out of such estate prospectively, yet until
such claim is established, the right of the husband prevails.
All arrears of income therefore which may have occurred
before the claim, whether from an equitable estate in fee or
for life, or a term of years , will be exempt from the equity to
a settlement, and belong to the husband or his assignee (b) .
15. Estate by elegit in trust for a feme covert. If a judg
ment be acknowledged to A. in trust for a feme sole, and
she marries, and the conusee of the judgment sues out an
elegit, and possession of the lands is delivered to him in
trust for the wife , the husband may assign the extended in
terest, as he might have assigned the trust of a term cer
tain (c) ; and the law is the same where the feme is put in

(b) Re Carr's Trust, 12 L. R. Eq. W. 201, per Lord King. But this
609. was before the case of Purdew v.
(c) Lord Carteret v. Paschal , 3 P. Jackson, 1 Russ . 1.
1005
*748 ESTATE OF A FEME [CH. XXVII . S. 6.

possession of lands by a decree of a court of equity until a

certain sum is raised by way of equitable elegit (d) . But a
mere judgment, recovered by the wife before the
[* 748 ] * coverture, is clearly a chose en action, and as such
cannot be disposed of by the husband as against the
wife surviving (a).
16. Mortgage term in trust for a feme covert. - And it has
been held that a mortgage term in trust for the wife (b) , or a
term in trustees for raising a portion for her ( c) , may be
assigned by the husband, so as to carry the beneficial interest.
But in these cases a doubt arises whether the debt or portion
may not be held to be the principal thing ; and as the doctrine
that a chose en action of the wife is not disposable by the hus
band is of far more recent date than the decisions referred
to, the question cannot be considered as settled. The cases
in which it has been held under the order and disposition
clause in bankruptcy, that the land draws with it the debt,
so as to exclude the operation of the clause, tend to support
the old authorities (d) , but they are hardly conclusive, and
a modern decision of Sir John Romilly, M. R., which was
affirmed on appeal, has shaken the authority of the older
cases (e) .
17. Wife's equitable interest in lands of freehold or inherit
ance. - The case of the wife's equitable estate in lands of free
hold or inheritance, presents in the main the same general
similarity to the case of her legal estate in like lands, as has
been noticed in respect of chattels real. Thus the husband
without the wife can, in the case of the equitable as in that
of the legal interest, convey an estate for the joint lives of
himself and his wife (f ) , or for his own life after issue born.
So he and his wife conjointly can, by deed acknowledged by

(d) S. C. Ib. 179. ford, 9 Ves. 99 ; Hore v. Becher, 12

(a) Fitzgerald v. Fitzgerald, 8 C. Sim . 465 .
B. 611. (d) Jones v. Gibbons, 9 Ves. 407 ;
(b) Bates v. Dandy, 2 Atk. 207 ; and see Rees v. Keith, 11 Sim . 388.
Packer v. Wyndham, Pr. Ch . 412, (e) Duncombe v. Greenacre, 28
see 418 . Beav. 472, 2 De G. F. & J. 509.
(c) Walter v. Saunders, 1 Eq . Ca. (f) As to the legal estate, see
Ab. 58 ; Incledon v . Northcote, 3 Atk. Robertson v . Norris, 11 Q. B. 916.
430, see 435 ; and see Mitford v. Mit
1006
 CH. XXVII. S. 6.] COVERT CESTUI QUE TRUST . * 749

the latt er under the Fines and Recoveries Act, dispose of the
equitable and of the legal interest ; and can bar an equitable
entail as they might a legal entail, by deed inrolled in Chan
cery ; [ and can dispose of an equitable reversionary interest
in free hold property, which has been purchased by trustees
in breach of trust and is still personal estate in equity (g) .]
18. But according to Lord Cottenham's decision in Sturgis
r. Champneys (h), the acts of the husband alone cannot affect
the wife's equity to a settlement, where the interest of the
wife can only be recovered through the medium of a Court
of equity (i).
* The propriety of the decision in this case was [ *749 ]
questioned by the late Lord Westbury (a) . But after
so long a lapse of time it is not likely that the principle of it
will be shaken. It has accordingly been held that as regards
an equitable freehold, that is, an estate to which a feme covert
is entitled in equity for her own life, she may proceed actively,
and institute a suit against the trustee of her bankrupt hus
band for a settlement of it upon herself ( b ) . But she has no
such equity against a purchaser, for value, from her husband,
who at the time was supporting her (c) . In short, the princi
ples which govern the wife's equitable interest for life in
realty, are the same as those which regulate the like interest
of the wife in personalty (d).
19. Equitable estates in fee simple or fee tail . - As to the
case of an equitable fee simple or fee tail to which a feme
covert is entitled, a distinction must be borne in mind between

[ 9) Re Durrant and Stoner, 18 the legal estate for his own life, ex
Ch. D. 106. ] cept by a conveyance which carried
(h) 5 M. & Cr. 97. the fee tortiously, as by a feoffment ;
( ) At law a husband during the Co. Lit. 30, a.
Coverture and before issue born has (a) See Gleaves v. Paine, 1 De G.
the estate for the joint lives of him J. & S. 87.
self and his wife, but in her right (b) Barnes v . Robinson, 1 New
only ; and even after issue born he Rep. 257 ; Sturgis v. Champneys, 5
has
no estate in his own right, for M. & Cr. 97.
curtesy does not commence until the (c) Tidd v . Lister, 10 Hare, 140 ;
death of the wife, Jones v. Davies , 8 3 De G. M. & G. 857 ; Stanton v. Hall,
Jur. N. S. 592. Until the late Act, 8 2 R. & M. 175.
& 9 Vict. c. 106, s . 6, a husband could (d) See ante, 744.
not during the coverture have passed
1007
 *750 ESTATE OF A FEME [CH. XXVII. S. 6.

the husband's powers over a wife's personal, and over her real
estate. The husband can get possession of the absolute
interest of the former and make away with it ; and therefore
the Court settles the corpus or a competent part of it on the
wife and her children ; but as to realty, the husband has no
power over the corpus, but can dispose only of the interest
during the joint lives, or if there be issue, for his own life ;
and as this limited interest is all that the husband or those
claiming under him can deal with, and the husband has the
curtesy in his own right, it is only the interest during the
joint lives that requires to be settled. As to any ulterior
interest, the Court has properly nothing to do with it. If the
wife be tenant in fee, ――――― why should the heir be disinherited
in favour of the children ? and if the wife be tenant in tail ,
why should the issue in tail and remainderman be defeated ?
"In the case of the wife's real estate," observed V. C. Wood,
" she wants no protection out of the corpus of that estate,
for she cannot be deprived of it without her own concurrence,
which the law requires to be given in such a manner as will
protect her from her husband " (e). Where, therefore, the
wife is tenant in fee or in tail in equity, the claim
*
[* 750 ] of the wife stands on the same footing as where she
is tenant for life in equity, and has been so dealt with
accordingly (a) .
[ 20. Real estate held upon trust for sale. Where real
estate is held upon trust for sale and to pay the proceeds to
a married woman , the husband can , after the land has actually

(e) Durham v. Crackles, 8 Jur. N. 3 De G. F. & J. 153. From which it

S. 1175. might be inferred that a settlement
(a) Wortham v. Pemberton, 1 De subject to the curtesy might extend
G. & Sm. 644 ; Durham v. Crackles, beyond the joint lives ; but if the
8 Jur. N. S. 1174. L. J. Knight Court under special circumstances,
Bruce on one occasion observed, has ever directed a settlement of the
" We do not touch the husband's equitable fee on the wife and children,
- possible tenancy by the curtesy in the settlement as regards the children
the real estate of which we direct a must be viewed as the voluntary
settlement, and, so far as I am con settlement of the wife, and not the
cerned, for this reason, that in my judicial act of the Court. See
opinion we have not jurisdiction to Gleaves v. Paine, 1 De G. J. & S. 87 ;
order any settlement which shall Smith v. Matthews, 3 De G. F. & J.
interfere with it ; " Smith v. Matthews, 139.
1008
CH. XXVII. S. 6. ] COVERT CESTUI QUE TRUST. *751

been sold, give a good discharge for the purchase-money, but

until the sale the husband cannot by any act of his bar the
wife's right (b ).
21. Fund in Court representing realty. Where a fund in
Court represents realty to which a married woman is abso
lutely entitled , she may elect to take it as personalty, and,
upon her being separately examined and consenting, it
may be paid out to her husband without any deed being
executed (c) .
22. Alimony. A married woman, to whom permanent
alimony has been allowed on a judicial separation from her
husband, cannot alienate it, as it is not in the nature of prop
erty but is simply an allowance to provide for the daily
maintenance of the wife and is by its very nature inaliena
ble (d).]
23. Existence of an outstanding term. The mere circum
stance of the existence of a jointure-term, preceding the
estate of a feme covert tenant in tail in possession subject to
the term, sufficiently renders the wife's estate equitable to
entitle her to a settlement during the joint lives in a suit
instituted by her (e) . And, indeed, wherever a plaintiff is
obliged to come into a Court of equity he must submit to do
equity, though the estate of the wife is legal, as if a husband
.
make an equitable mortgage of land of which his wife is
seised at law, the mortgagee cannot obtain a legal mortgage
or enforce his security without providing for the wife, if
deserted or not maintained at the time of the equitable mort
gage (f) .
24. Getting in the legal estate. --The effect of the husband,
or the husband's assignee, procuring a conveyance of
the legal estate so as to clothe his equitable interest [*751 ]
therewith, must be the same as in the case of an equi
table term of years before adverted to (a) .

[ (6) Franks v . Bollans, 3 L. R. Ch. (e) Wortham v. Pemberton, 1 De

App. 717.] G. & Sm. 644.
[(c) Standering v. Hall, 11 Ch . D. (f) Durham v. Crackles, 8 Jur.
652 ; Re Robin's Estate, 27 W. R. N. S. 1174.
705.]
(a) See ante, p. 747.
[(d) Re Robinson, 27 Ch . D. 160. ]
1009
*751 MARRIED WOMEN'S [CH. XXVII. S. 6.

[ (B.) Married Women's Property Act, 1882. Of the modi

fications introduced by the Married Women's Property Act,
1882 (b).
1. The 2d sect. of the Act enables every woman married
after the commencement of the Act (1st January, 1883 ) to
hold as her separate property and to dispose of by will , or
otherwise, all real and personal property which belongs to
her at the time of marriage, or is acquired by or devolves
upon her after marriage, including any wages, earnings,
money, and property gained or acquired by her in any employ
ment, trade, or occupation in which she is engaged, or which
she carries on separately from her husband, or by the ex
ercise of any literary, artistic, or scientific skill.
And the 5th sect. enables every woman married before
the commencement of the Act to hold and to dispose of in
manner aforesaid as her separate property all real and per
sonal property, her title to which, whether vested or con
tingent, and whether in possession , reversion , or remainder,
accrues after the commencement of the Act, including any
wages, earnings, money and property, so gained or acquired
by her as aforesaid (c) .
2. The result of this enactment is that as to women mar
ried since the 31st December, 1882, and also as to property
accruing after that date to women married before that date ,
the rights of the husband, at any rate during the life of the
wife, are entirely excluded, and the wife is enabled to deal
with, bind and dispose of her property, whether real or per
sonal, in the same manner as if she were a feme sole. The
cases relating to the rights of the husband in the wife's
property, and to the equity to a settlement of the wife, and
to the wife's right by survivorship have , therefore, no bear
ing, where the marriage has taken place or the property has
been acquired since the 31st December, 1882.
3. Property falling into possession after the commencement
of the Act. ―――――――-It will be observed that the 5th sect. relates to
the accruer of the married woman's title, which must take

[ (b) 45 & 46 Vict. c . 75. ] the earnings arise, see Ashworth v.

[(c) As to the protection extended Outram, 5 Ch. D. 923, post 788,
to the trade or business from which note (c) . ]
1010
CH. XXVII . S. 6. ] PROPERTY ACT, 1882. *752

place after the commencement of the Act to bring the case

within the section , and the section seems not to deal with
the case of a change in the title such as occurs when a con
tingent interest becomes vested or a reversionary interest
falls into possession .The contrary view was however taken
by Chitty, J., in a case where the question was whether the
separate examination of the married woman could be
dispensed with ( d) . * The case appears to have been [ *752 ]
unopposed and can hardly be regarded as a final de
cision on the point and although it has since been fol
lowed (a) ,¹ the judges in following it have withheld any
expression of their own opinions upon the point, and it is
submitted that the true construction of the section is to
confine it to the case where the original title has accrued
since the commencement of the Act. The Act ought not
to be construed so as to deprive husbands married before the
Act of an interest which had already accrued to them when
the Act was passed.
[ 4. Rights of husband in property not disposed of by wife.
-Whether the rights of the husband after the wife's death
in such parts of her property as have not been disposed of
by her are affected by the Act, is a question upon which
there has been some difference of opinion founded on the
use of the words " feme sole " in the 1st sect., but it will be
observed that that section only gives to a married woman
certain specific rights, or subjects her to certain specific
liabilities " as if she were a feme sole," such as " to acquire,
hold and dispose of property," " to contract, " " to sue and
be sued," or " to be made a bankrupt," and by implication ex
cludes the construction that she is for all purposes to be
treated as a feme sole. It is conceived, therefore, that
the true construction of the Act is that the rights in a
married woman's property after her death, so far as such
[ (d) Baynton v. Collins, 27 Ch. subsequent cases of Re Tucker, 54 L.
D. 604. ] J. Ch. 874, and Re Adams' Trusts, 54
[ (a ) Re Thompson and Curzon , L. J. Ch. 878, where Pearson, J. , and
W. N. 1885, p. 60 ; Re Hughes' Trusts, Kay, J., declined after argument to
W. N. 1885, p. 62 ; Re Thompson and follow the former cases .]
Curzon, 29 Ch. D. 177. But see the
1 It is now overruled . Reid v. Reid, 31 Ch . Div. 402, 1886.
1011
*753 MARRIED WOMEN'S [CH. XXVII . S. 6.

property is not disposed of or bound by her in her lifetime,

are unaffected by the Act, and that the husband will be en
titled, as to personal chattels and cash by the marital right,
and as to choses en action on taking out administration to her
estate under 29 Car. II, c . 3, s . 24, to retain her undisposed
of personal estate to the exclusion of her next of kin (b) .
It is true that the 23d sect. provides that " for the purposes
of the Act the legal personal representative of any married
woman is in respect of her separate estate to have the same
rights and liabilities " as she would have if living (e) , but
these rights cannot include a right of disposition
[ * 753 ] * so as to affect the beneficial interest, and refer only,
as is conceived, to rights for the protection or benefit
of the separate estate .
Extent of Act. The Act has no application where the
marriage took place and the property was acquired before
the commencement of the Act, 1st January, 1883, and in
such cases the old law applies (a) .
Where a testator dies after the Act, but his will was
executed before the passing of the Act, the will must be
construed according to the law in force when it was exe
cuted, but the interest of a married woman under the will
will be governed by the Act. Thus where a residuary estate
was given by such a will to A. and B. and C., his wife ,
under which gift before the Act, A. would have taken one
moiety, and B. and C. the other moiety as if they had been

[ (b) The contrary opinion is inti tions of the Act, the property to
mated in Wolstenholme & Turner's which administration was granted
Conveyancing Acts, 3d ed. p. 8, and went on her decease intestate " as the
the case of In the Goods of Worman, same would have gone if her husband
1 Sw. & Tr. 513, is cited in support had then been dead," the case is no
of it, but that was the case of an authority in construing the Married
application for administration to the Women's Property Act, 1882 , which
estate of a married woman who had contains no similar words.]
obtained a protection order under 20 [(c) The section is ungrammatical
& 21 Vict. c. 85, s. 21 , by reason of but this is apparently what is in
the husband's desertion, and the grant tended. The words " have or be sub
of administration was expressly lim ject to " seem to have been omitted
ited to " such property as the deceased from the last line. ]
acquired since her husband's deser [ (a ) Re Harris' Settled Estates,
tion," and inasmuch as, by the joint 28 Ch. D. 171.]
operation of the 21st and 25th sec
1012
CH. XXVII . S. 6.] PROPERTY ACT, 1882. *753

one person , it was held by the Court of Appeal, reversing

Chitty, J., that A. was still entitled to one moiety, but the
other moiety belonged to B. and C. as joint tenants as if she
were unmarried. But the Court of Appeal expressed no
opinion as to what share A. would have taken if the will
had been executed after the passing of the Act (b) .
[Whether will of married woman passes property acquired
after the death of her husband. - A question arises whether
under the Act a married woman can during her coverture
dispose by will of property which she may acquire after the
death of her husband and it has been held by Pearson, J.,
that she has no power to do so (c) . This seems a somewhat
narrow construction of the Act as the 2d and 5th sects. in
terms apply to all real and personal property acquired by a
married woman after her marriage, where married after the
Act, or after the commencement of the Act where previously
married, and authorise her to dispose of such property by
will as her separate property (d) .
If it was intended that the power should be confined to
property acquired " during the coverture " these words
should have been used in the 2d sect. instead of " after her
marriage," and in the 5th sect. instead of " after the com
mencement of the Act ."]
Secondly. - Of the separate use.¹
1. Trusts for separate use of a feme covert. — [Indepen
dently of the recent enactments affecting the property of
[ (b) Re March, 27 Ch . D. 166 ; re (i.e. by will or otherwise), while in
versing S. C. 24 Ch. D. 222. ] the 5th sect. they are 66 to have and
[(c) Re Price, 28 Ch. D. 709. ] to hold and to dispose of in manner
[ (d) It is observable that in the aforesaid as her separate property ,"
2d sect. the words are " to have and but no distinction can be founded
to hold as her separate property and upon this.]
to dispose of in manner aforesaid "

1 Separate estate. - Property may be settled upon a feme covert free from
the control or interference of the husband ; Fellows v. Tann, 9 Ala. 1003 ;
Robert v. West , 15 Ga . 123 ; Beaufort v. Collier, 6 Humph. 487 ; and it is not
even necessary that there should be an express trustee, the husband, if neces
sary, acting as a trustee ; Wilkinson v. Cheatham, 45 Ala. 337 ; Richardson v.
Stodder, 100 Mass. 528 ; Wade v. Fisher, 9 Rich. Eq. 362 ; Shirley v. Shirley,
9 Paige, 364 ; Hamilton v. Bishop, 8 Yerg. 33 ; Long v. White, 5 J. J. Marsh,
226 ; Barron v. Barron, 24 Vt . 375. The property must be clearly and un
equivocally given to the wife for her sole use, to bar the husband from his
1013
*754 WIFE'S SEPARATE ESTATE. [CH. XXVII . S. 6.

married women ] the principle at common law is that, as the

husband undertakes the debts and liabilities of the
[ * 754 ] wife , he is entitled * absolutely or partially , accord
ing to the circumstances of the case, to the enjoy
ment of her property ; but in equity a feme is allowed to

rights ; Hale v. Stone, 14 Ala. 803 ; Ashcraft v. Little, 4 Ired. Eq. 236 ; Rudi
sell v. Watson, 2 Dev . Eq. 430 ; Boal v. Morgner, 46 Mo. 48 ; Somers v. Craig,
9 Humph. 467 ; Nixon v . Rose, 12 Gratt. 425 ; but no exact form of words is
required ; Nightingale v . Hidden , 7 R. I. 115. The following expressions are
sufficient to bar the husband ; to the wife " exclusively " ; Gould v . Hill , 18
Ala. 84 ; "to be hers and hers only " ; Ozley v. Ikelheimer, 26 Ala. 332 ;
Ellis v. Woods, 9 Rich. Eq. 19 ; "for her sole and separate use " ; Petty v.
Boothe, 19 Ala. 633 ; " to her own use and benefit independent of any
other person "; Williams v. Maull, 20 Ala. 721 ; Ashcraft v. Little, 4 Ired.
Eq. 236 ; " solely for her own use " ; Jarvis v. Prentice, 19 Conn. 273 ; Fisher
v. Filbert, 6 Barr, 61 ; Goodrum v. Goodrum, 8 Ired . Eq . 313 ; " for her
own and her family's use during her natural life " ; Heck v . Clippenger,
5 Barr, 385 ; " for her support " ; Markley v. Singletary, 11 Rich. Eq . 393 ;
" for the use and benefit of the wife and her heirs " ; Good v. Harris, 2 Ired.
Eq. 630 ; "to be at her own disposal in true faith to her and her heirs forever " ;
Bridges v. Wood, 4 Dana , 610 ; " to her during her life, afterwards to her chil
dren "; Hamilton v. Bishop, 8 Yerg. 33 ; Tyson's App. 10 Barr, 221. Others
have been held not sufficiently clear and definite ; " not to be liable for hus
band's debts " ; Gillespie v. Burleson, 28 Ala. 551 ; but see Young v. Young,
3 Jones, Eq. 216 ; " to her use " ; Tennant v. Stoney, 1 Rich. Eq. 222 ; " for the
joint use of husband and wife " ; Geyer v. Bank, 21 Ala. 414 ; " to her during
her life , after her death to her issue " ; Bryan v. Duncan, 11 Ga. 67 ; " the
gift not to extend to any other person " ; Ashcraft v. Little, 4 Ired. Eq . 236 ;
66
to her heirs and assigns, for her or their own sole use " ; Houston v. Embry,
1 Sneed, 480. A mere conveyance to wife and her heirs ; Shirley v. Shirley,
9 Paige, 364 ; Fitch v. Ayer, 2 Conn . 143 ; nor a gift to a trustee ; Pollard v.
Merrill, 15 Ala. 170 ; Mayberry v. Neely, 5 Humph. 339 ; in general, the
words must clearly shut out the rights of the husband ; Good v. Harris , 2
Ired. Eq. 630 ; Jasper v. Howard, 12 Ala . 652. If property is conveyed to an
unmarried woman, to her sole and separate use, the effect of the conveyance is
no different from a general conveyance, until she marries, and she holds it free
from any control of her husband ; Blackstone Bank v. Davis, 21 Pick. 42 ;
Hamersley v. Smith, 4 Whart. 126 ; Hallett v. Thompson, 5 Paige, 583 ;
Snyder's App. 92 Pa. St. 504 ; Ogden's App . 70 Pa . St. 501 ; Wallace v. Coston,
9 Wall. 137 ; Talbot v. Calvert, 12 Harris, 328. Property conveyed properly
to the sole and separate use of a woman, is absolute, and she can deal with it
as she chooses ; Parker v. Converse, 5 Gray, 336 ; Williams's App . 83 Pa. St.
377. And such a conveyance bars the rights of all future husbands, as well
as those of the present or first one ; Roberts v. West, 15 Ga . 123 ; but see
Waters v. Tazeweil, 9 Md . 291 ; Shirley v . Shirley, 9 Paige , 364 ; as to legal
proceedings relating to separate estate, see Furguson v. Smith, 2 Johns . Ch .
139 ; Wilson v. Wilson, 6 Ired . Eq . 236 ; Sherman v. Burnham, 6 Barb. 403 ;
Grant v. Van Schoonhoven , 9 Paige, 255. The laws relating to separate prop
erty vary in the different states, and the different statutory provisions relating
thereto may lead to entirely different results.
1014
CH. XXVII. S. 6.] WIFE'S SEPARATE ESTATE. *754

contract with the husband before marriage, for the exclusive

enjoyment of any specific property (a) ; or a person may
make a gift to the wife during the coverture, and shut out
the husband's interference by clearly expressing such an in
tention. Where the separate estate is the result of a special
agreement between the parties, the policy of the law can
scarcely be said to be transgressed, for the old rule was es
tablished for the benefit and protection of the husband, and
quisque renuntiare potest juri pro se instituto ; but that equity
should have allowed a stranger to vest property in the wife
independently of the husband during the coverture , appears
a more questionable doctrine, though it may be said, that
even in that case, there was no violation of the marital
rights, for the property never vested in the feme herself, and
the donor might limit any estate which the law did not re
fuse to recognise . The Court has also permitted the further
anomaly of a restriction upon the feme's anticipation (where
such an intention has been expressed) of the growing pro
ceeds of the separate estate ; but this indulgence appears not
a distinct inroad upon the common law incidents of property,
but rather an appendage to the separate use for the purpose
of more effectually excluding the influence of the husband .
If the wife were not debarred from anticipating the proceeds,
she might, where the husband was not actuated by proper
motives, be induced to divest herself of the property, and
place it at the husband's disposal.
2. Not necessary that there should be an express trustee.
At the first introduction of the settlement to the separate
use it was doubted, whether, to accomplish the object, the
interposition of an express trustee was not necessary (b) , but
it was afterwards determined that this precaution might be
dispensed with, for, rather than the intention should be dis
appointed, the husband himself should be construed a trustee
for the wife ( c ) . But [ as to cases not falling within the

(a) See Parkes v. White, 11 Ves. v. Budder, Bunb. 187 ; Prichard v .

228. Ames, T. & R. 222 ; Newlands v .
(b) Harvey v. Harvey, 1 P. W. Paynter, 10 Sim . 377 ; 4 M. & Cr. 408 ;
125 ; Burton v. Pierpont, 2 P. W. 78. Turnley v. Kelly, Wallis's Rep. by
(c) Bennet v. Davis, 2 P. W. 316 ; Lyne, 311 ; Archer v. Rooke, 7 Ir.
Parker v. Brooke, 9 Ves . 583 ; Rolfe Eq. Rep. 478.
1015
*755 WIFE'S SEPARATE ESTATE. [CH. XXVII. S. 6.

recent statute ] whether a trustee be expressly appointed or

not, the intention of excluding the husband must not be left
to inference, but must be clearly and unequivocally declared ;
for, as the husband is bound to maintain the wife, he has
prima facie a right to her property (d) ; but, pro
[* 755 ] vided the meaning be clear, * the Court will execute
the intention, though the settlor may not have ex
pressed himself in technical language ( a) .
[ The husband may himself during the coverture give any
specific property to the wife for her separate use, without the
intervention of a trustee (b) ; and if a husband permit his
wife to carry on a business for her own benefit, independently
of him , it becomes her separate property, and the husband
becomes so far as is necessary a trustee of everything em
ployed in the business for the wife (c) .
In the absence of proof of an unequivocal or final inten
tion on the part of a husband to constitute himself a trustee
for his wife, the Court will not after his death , upon her
uncorroborated statement, treat the property as belonging to
her for her separate use (d) .
An allowance made under an order in lunacy to the wife
of a lunatic living apart from her husband for her separate
maintenance belongs to her for her separate use (e) .
3. [Married Women's Property Act, 1882. Now by the
Married Women's Property Act, 1882, a married woman can
acquire, hold, and dispose of property as her separate estate
without the intervention of any trustee (ƒ) ; and under the
2d and 5th sections of the Act all property acquired by any

[ (d) Ex parte Ray, Mad. 207, per [ (b) Lady Cowper's case, cited in
Sir T. Plumer ; Wills v. Sayers, 4 Graham v. Londonderry, 3 Atk. 393 ;
Mad. 409, per eundem ; Massey v. Lucas v. Lucas, 1 Atk. 270 ; Walter
Parker, 2 M. & K. 181 , per Sir C. v. Hodge, 2 Sw . 92 ; Ex parte White
Pepys ; Kensington v. Dollond, 2 M. head, 14 Q. B. D. 419. ]
& K. 188, per Sir J. Leach ; Moore v. [(c) Ashworth v. Outram, 5 Ch .
Morris, 4 Drew. 37, per V. C. Kinder D. 923 ; Ex parte Whitehead, 14 Q.
sley ; Fitzgibbon v. Pike, 6 L. R. Ir. B. D. 419 ; and see Slanning v. Style,
487. ] 3 P. W. 334 ; Calmady v. Calmady,
(a ) Darley v. Darley, 3 Atk. 399, cited in Slanning v. Style, Ib . 338. ]
per Lord Hardwicke ; Stanton v. [(d) Re Whittaker, 21 Ch. D. 657. ]
Hall, 2 R. & M. 180, per Lord Broug [ (e) In the Goods of Tharp, 3 P.
ham ; [and see Re Peacock's Trusts , D. 76.]
10 Ch. D. 490. ] [ (ƒ) 45 & 46 Vict. c. 75, s . 1.]
1016
CH. XXVII. S. 6.] WIFE'S SEPARATE ESTATE. *756

married woman since the 31st December, 1882, irrespective

of the date of her marriage, and also all property belonging
to any woman married since that date are made her separate
estate.
It is conceived that subject to the enlarged rights and
liabilities introduced by the Act, the principles, which regu
late the administration of property held for the separate use,
will apply equally to any property which by virtue of the
late Act belongs to a married woman as her separate estate .
Thus, while the old law has to some extent ceased to be
applicable to cases governed by the late Act, it will fre
quently be necessary to refer to it even in connection with
property bound by that Act ; and as to property acquired
before the 1st January, 1883, by women married before that
date the law remains unaffected by the Act.
4. What words will create a trust for separate use. ――――― In
cases not falling within the recent Act ] the marital
claims will be defeated if the gift be to the wife [ * 756 ]
for her " separate use " (a) , or " sole and separate
use " (b) , or " solely for her own use " (c) , (which is con
strued as separate use) , or " solely and entirely for her own
use and benefit " (d) , [ or " for her sole use and disposal " (e) ,
or " for her sole and absolute use and disposal " (ƒ) , ] or for
(a ) Massy v. Rowen, 4 L. R. H. L. and takes its color from the context.
294, 299, and 300, per Cur. It has been held, in Ireland, in a
(b) Parker v. Brooke, 9 Ves . 583 ; recent case, affirmed on appeal by the
Archer v. Rooke, 7 Ir. Eq . Rep. 478 . House of Lords , not to create per se
(c) Re Tarsey's Trust, 1 L. R. Eq. a separate use in a gift to a legatee,
561 ; Adamson . Armitage, 19 Ves. where at the date of the will the
416 ; G. Coop. 283 ; Ex parte Ray, 1 legatee was a feme sole ; Massy v.
Mad. 199 ; Ex parte Killick, 3 Mont. Hayes, 1 Ir. Rep. Eq. 110. S. C. nom
D. & De G. 480 ; Davis v. Prout, 7 Massy v. Rowen, 4 L. R. H. L. 288.
Beav. 288 ; Arthur v. Arthur, 11 Ir. But otherwise where the legatee was
Eq . Rep. 511 ; Lindsell . Thacker, known to the testator to be a married
12 Sim. 178 (the marginal note in woman ; Hartford v . Power, 2 Ir. Rep.
the last case is altogether erroneous) ; Eq. 204 ; [ Farrow v. Smith, W. N.
and see Massy v . Parker, M. & K. 1877, p. 21 ; Re Amies' Estate, W. N.
181 ; v. Lyne, Younge, 562 ; but 1880, p . 16. ]
as to the latter case, see Tullett v. (d) Inglefield v. Coghlan, 2 Coll.
Armstrong, 4 M. & Cr. 403 ; and see 247.
Gilbert v . Lewis, 1 De G. J. & S. 39 ; [ (e ) Bland v. Dawes, 17 Ch. D.
Lewis v. Matthews, 2 L. R. Eq. 177. 794.]
The word " sole " by itself is a word [(ƒ) Baker v. Ker, 11 L. R. Ir. 3. ]
of equivocal and ambiguous meaning ,
1017
 *757 WIFE'S SEPARATE ESTATE. [CH. XXVII. S. 6.

" her livelihood ” (g) , or “ that she may receive and enjoy the
profits " (h) , or " to be at her disposal " (i) , or " to be by her
laid out in what she shall think fit " (j) , or " for her own
use, independent of her husband " (k) , or " not subject to his
control " (1) , or " for her own use and benefit, independent
of any other person " (m) , or " to receive the rents from the
tenants while she lives, whether married or single," with a
direction that no sale or mortgage should be made during
her life (n ) for such expressions as these are considered
inconsistent with the notion of any interference on the part
of the husband. So , if the gift be accompanied with such
expressions as " her receipt to be a sufficient discharge " (0 ) ,
or " to be delivered to her on demand " ( p) ; for in these
cases the check put upon the husband's legal right to receive
could only have been with the intention of giving the
[ * 757 ] wife a particular benefit. So , if the gift be * to the
husband should he be living with his wife, but if
separate then half to the husband and the other half to the
wife " absolutely," for the context shows that by absolutely
is meant for the separate use (a) .
*
[ Where trustees have a discretion to " pay, apply, and dis
pose of" the income of a trust fund for the maintenance and
support of a married woman, they may pay the income to
her for her separate use (b) . ]
5. What words not sufficient. -- But if the trust be merely
"to pay to her," or " to her and her assigns " (c) , or the gift
(g) Darley v. Darley, 3 Atk. 399, (k) Wagstaff v. Smith, 9 Ves. 520.
per Lord Hardwicke ; and see Cape (1) Bain v . Lescher, 11 Sim. 397.
v. Cape, 2 Y. & C. 543 ; Ex parte Ray, (m) Margetts v. Barringer, 7 Sim.
1 Mad. 208 ; but see Lee v. Prieaux, 482.
3 B. C. C. 383 ; Wardle v. Claxton, 9 (n) Goulder v. Camm, 6 Jur. N. S.
Sim. 524, id qu. 113 ; 1 De G. F. & J. 146 .
(h) Tyrrell v. Hope, 2 Atk. 558. (0) Lee v. Prieaux, 3 B. C. C. 381 ;
But this was in marriage articles, Woodman v. Horsley, cited Ib. 383 ;
and under special circumstances , and Cooper v. Wells, 11 Jur. N. S. 923 ;
must not be taken to establish any Re Molyneux' Estate, 6 I. R. Eq .
general rule. 411 ; and see Stanton v. Hall, 2 R. &
(i) Prichard v. Ames, T. & R. 222 ; M. 180.
Kirk . Paulin, 7 Vin. 96. Secus (p) Dixon v. Olmius, 2 Cox, 414 .
probably if these words had occurred (a ) Shewell v. Dwarris, Johns . 172.
in a gift to a feme sole. [(b) Austin v. Austin , 4 Ch . D. 233. ]
(j) Atcherley v. Vernon, 10 Mod. (c) Dakins v. Berisford , 1 Ch . Ca.
531. 194 ; Lumb v . Milnes, 5 Ves. 517.
1018
CH. XXVII. S. 6.] WIFE'S SEPARATE ESTATE . *758

be " to her use " (d) , or " her own use " (e ) , or " her absolute
use " (f), or " in trust only for her, her executors, adminis
trators, and assigns " (g), or, "to her, her heirs, and assigns,
for her or their own sole and absolute use " (h), or " to pay
into her own proper hands for her own use " (i) , or " to pay
to her to be applied for the maintenance of herself and such
child or children as the testator might happen to leave at his
death " (j) , there is no such unequivocal evidence of an in
tention to exclude the husband.
6. Husband made a trustee for the wife. ――― - Where property
was vested in the husband jointly with another, as general
trustees of the will, upon trust (inter alia) , for the wife , it
was held not to be a gift to her separate use (k) . Had the
husband alone been appointed a trustee for the wife the
decision might have been different (7) .
[7. Resumption of cohabitation . - On the resumption of
cohabitation in cases where there has been a judicial separa
tion or a protection order, the property to which the wife is
entitled when such cohabitation takes place belongs to her
for her separate use (m) . ]
8. Effect after marriage of the trust for separate use. - If a
feme sole marry without having disposed of the property
settled to her separate use, the limitation to the separate use
will on the marriage take effect. This doctrine is
open to much observation * upon principle ( a) , but [ * 758 ]
Lord Cottenham, in the cases of Tullett v. Armstrong,

(d) Jacobs v. Amyatt, 1 Mad. 376, (i) Tyler v. Lake , 2 R. & M. 183 ;
n.; Wills v. Sayers, 4 Mad . 411 ; Anon. Kensington v. Dolland, 2 M. & K. 184 ;
case, cited 7 Vin. 96. Blacklow v. Laws, 2 Hare, 48 ; but see
(e) Johnes v. Lockhart, in note to Hartley v. Hurle, 5 Ves . 545, contra.
Lee v. Prieaux, 3 B. C. C. 383, ed. by (j) Wardle v. Claxton, 9 Sim. 524.
Belt (this case is erroneously cited as (k) Exparte Beilby, 1 Gl. & J. 167 ;
an authority to the contrary in Lumb and see Kensington v. Dollond, 2 M.
v. Milnes, 5 Ves . 520, and Ex parte & K. 184.
Ray, 1 Mad. 207) ; Wills v . Sayers, (1) Ex parte Beilby, ubi supra ; and
4 Mad. 409 ; Roberts v. Spicer, 5 Mad. see Darley v. Darley, 3 Atk. 399.
491 ; Beales v. Spencer, 2 Y. & C. C. C. [ (m ) 20 & 21 Vict. c. 85, s . 25 ; 21
651 ; Darcy v. Croft, 9 Ir. Ch . Rep. 19. & 22 Vict. c. 108, s. 8 ; 41 Vict. c. 19,
(f) Rycroft v. Christy, 3 Beav. 238. s. 4 ; Re Emery's Trusts, 50 L. T. N.
(g) Spirett v. Willows, 3 De G. J. S. 197 ; 32 W. R. 357.]
& S. 293. (a) Some observations upon this
(h) Lewis v. Mathews, 2 L. R. Eq. subject will be found in the 3d edit.
177. p. 124.
1019
*758 WIFE'S SEPARATE ESTATE. [CH. XXVII . S. 6.

and Scarborough v. Borman (4) , anxious to prevent the con

sequences that would have flowed from a different decision ,
and not finding any other safe ground upon which to base
his judgment, asserted an inherent power in the Court of
Chancery to modify estates of its own creation , and in virtue
of that jurisdiction established the validity of the separate
use in case of the feme's marriage. If a fund be given to a
feme sole for her separate use, without the intervention of a
trustee, and she sells out the fund and invests it in another
form, and then marries , the separate use has been destroyed ,
and she is regarded as the owner of the new property in the
ordinary way (c) .
9. Effect of separate use on second marriage. — If property
be settled, whether by deed or will, to the separate use of a
feme, and the separate use was meant to be confined to a
particular marriage, and the husband dies and the widow
marries again, the second husband will not be excluded [by
the terms of the instrument ] from his ordinary marital
rights (d) . The question simply is, What was the intention
of the settlement or will ? So, if real or personal estate be
devised or bequeathed to A., a married woman , for her sole
and separate use independent of her husband B., the separate
use applies only to the existing and not to any future cover
ture (e) ; but if the exclusion of any future husband was also
in contemplation , it will be carried into effect (ƒ) ; and if
the separate use do extend to any marriage, present or future,
even the arrears due to the feme at the time of a subsequent
marriage are protected from the after-taken husband (g) .

(b) 4 M. & C. 377 ; and see New Rep. 81 ; Edmonds v. Dennington ,

lands v. Paynter, Ib. 408 ; Russell v. cited Carleton v. Earl of Dorset, 2
Dickson, 2 Dru . & War. 138 ; Archer Vern. 17. [But see the Married
v. Rooke, 7 Ir. Eq. Rep. 478. Women's Property Act, 1882 , when
(c) Wright v. Wright, 2 J. & H. 647. the marriage takes place after the 31st
(d) Barton v. Briscoe, Jac. 603 ; Dec. 1882. ]
Benson v. Benson, 6 Sim . 126 ; Knight (e ) Moore v. Harris, 4 Drew. 33.
v. Knight, Ib. 121 ; Jones v. Salter, 2 (ƒ) Ashton v. M'Dougall, 5 Beav.
R. & M. 208 ; Moore v. Harris, 4 56 ; Re Gaffee, 7 Hare, 101 ; 1 Mac. &
Drew. 33 ; Tudor v. Samyne , 2 Vern. G. 541 ; Hawkes v. Hubback, 11 L. R.
270 ; Sir E. Turner's case , 1 Ch. Ca. Eq . 5 ; Re Molyneux's Estate , 6 I. R.
307 ; 1 Vern. 7. And see Sanders v. Eq. 411 .
Page, 3 Ch. Rep . 224 ; Pitt v. Hunt, (g) Ashton v. M'Dougall, 5 Beav.
1 Vern. 18 ; Howard v. Hooker, 2 Ch. 56 ; and see Newlands v. Paynter, 4
1020
CH. XXVII. S. 6.] WIFE'S SEPARATE ESTATE. *759

And if a jointure or other interest to arise on the cesser of

the present marriage be provided for a feme covert, it may be
so limited as to enure to her separate use, and the inalienable
during the present coverture (h) .
* [ 10. Where policies of assurance on the life of [ * 759 ]
the husband were settled for the benefit of the wife
during her life for her separate use independently of any
future husband with whom she might intermarry, it was held
that the trust for the separate use did not arise until after
the death of the first husband (a ) . ]
11. The wife's separate estate. - Where property is settled
to the separate use, the feme covert, unless her power of
anticipation be restrained, may, without the concurrence of
her trustees, unless the terms of the settlement require it (b) ,
deal with the property directly and expressly, precisely in
the same manner as if she were a feme sole. But, at the same
time she will be protected against fraud, and, therefore , a
settlement procured from her by her husband, upon a false
representation, will be set aside (c) .
12. General rule. The general principle that governs the
law of separate use was laid down by Lord Thurlow, and
has been recognised by the highest authorities , viz ., that “ a
feme covert, acting with respect to her separate property, is
competent to act in all respects as if she were a feme sole " (d).
13. Pleadings, contract, & c. - A feme covert, therefore , as
regards her separate property, sues separately as plaintiff
[and since the Married Women's Property Act, 1882 , with
out a next friend , ¹ ] and defends separately (e ) , and, if out

M. & Cr. 418 ; England v. Downs, 6 (c) Knight v. Knight, 11 Jur. N.

Beav. 269. S. 618 ; and see Sharpe v. Foy, 4 L.
(h) Re Molyneux's Estate, 6 I. R. R. Ch. App. 35.
Eq. 411. (d) Hulme v. Tenant, 1 B. C. C.
[ (a) King v. Lucas, 23 Ch . D. 712. ] 20.
(b) Grigby v. Cox, 1 Ves . 518, per [ (e) 45 & 46 Vict. c. 75, s . 1 (2) :
Lord Hardwicke ; Dowling v. Ma Rules of Supreme Court, Order 16,
guire, Rep. t. Plunket, 19, per Lord r. 16 ; and it is not material whether
Plunket. the contract, in respect of which the

1 And she cannot be compelled to give security for costs where she sues as
sole plaintiff, even though she may have no separate estate, and there is noth
ing upon which, if she fails , available execution can issue. Jacob v. Isaac,
30 Ch. Div. 418 ; but see Re Robinson, 27 Ch. Div. 160.
1021
*760 WIFE'S SEPARATE ESTATE. [ CH. XXVII. S. 6.

of the jurisdiction, may be served with process by leave of

the Court (f) , may present a petition [ without a next friend]
and without her husband (g) , and will be bound by a submis
sion in her pleadings ( h) , or by a settlement of ac
[ * 760 ] counts (i) , or by a contract for * purchase ( a) , or
sale (b) , and may give away the chattels settled to
her separate use by manual delivery (e) , or may lend money
to her own husband (d) , or may demise land settled to her
separate use, when the lessee will be protected even at law
under the equitable plea against intrusion by the holder of
the legal estate (e) , may dispose of her equitable interest in
freehold estate settled to her separate use, without acknowl
edgment under the Fines and Recoveries Act (ƒ) , and will
be bound as to her separate estate, if she agree verbally to
accept a lease and takes possession (which is part perform
ance) under the agreement (g) , and may be made a contribu
tory under a winding-up order (h) , and her declarations may

action is, was entered into before or should permit her to produce ; Cow
after the Act : Gloucestershire Bank dery v. Way, V. C. K. B. 2d Nov.
ing Company v. Phillipps, 12 Q. B. D. 1843. And see Callow v. Howle, 1 De
533. ] G. & Sm. 531 ; Beeching v. Morphew,
(f) Copperthwaite v. Tuite, 13 Ir. 8 Hare, 129 ; Clive v. Carew, 1 J. &
Eq. Rep. 68 ; [ Rules of Supreme H. 207.
Court, Order 11.] (i) Wilton v. Hill, 25 L. J. N. S.
[ (g) 45 & 46 Vict. c. 75, s . 1 , (2) ; Ch. 156.
Re Outwin's Trusts, 48 L. T. N. S. (a) Picard v. Hine, 5 L. R. Ch.
410.] App. 274.
(h) Allen v. Papworth, 1 Ves. 163 ; (b) Davidson v. Gardner, Sugd.
Clerk v. Miller, 2 Atk. 379 ; Bailey v . Vend. & Purch. 891 , 11th edit.; Stead
Jackson, C. P. Cooper's Rep. 1837-8, v. Nelson, 2 Beav. 248 ; and see Har
495. Husband and wife put in a joint ris v . Mott, 14 Beav. 169 ; Vansittart
answer, and the wife admitted certain v. Vansittart, 4 K. & J. 70 ; Milnes v.
indentures to be in her possession and Busk, 2 Ves . jun . 498.
claimed the estates to which the in (c) Farrington v. Parker, 4 L. R. '
dentures related to her separate use Eq. 116 .
for her life. The plaintiff moved for (d) Woodward v. Woodward, 3 De
production, but it was argued that the G. J. & S. 672.
answer was the husband's and could (e ) Allen v. Walker, 5 L. R. Ex.
not be read as an admission by the 187.
wife. However, the Court said though (f) Pride v . Budd, 7 L. R. Ch . App .
there was a logical difficulty, there 64.
was none in substance : that if the (g) Gaston v. Frankum, 2 De G. &
wife claimed the benefit of the separate Sm. 561 ; S. C. on appeal, 16 Jur. 507.
use she must take it with its disad (h) Re Leeds Banking Company, 3
vantages ; and ordered the production L. R. Eq. 781 ; and see Butler v.
by the wife, and that the husband Cumpston, 7 L. R. Eq. 16.
1022
CH. XXVII . S. 6. ] WIFE'S SEPARATE ESTATE. *761

be read in evidence against her (i) , and she will be liable to

an attachment for want of answer where she answers sepa
rately (j ) , and similarly for disobeying the order of the
Court in a suit to which she is a party in respect of her sep
arate estate (k) , or her separate property may be ordered to
be sequestered (1) .
[ 14. Since the Married Women's Property Act , 1882 , a
married woman may by sect. 1 , sub-sect. ( 2) , sue or be sued,
in contract or in tort, or otherwise, in all respects as if she
were a feme sole, and her husband need not be made a party
to any action or proceeding, and any damages or costs recov
ered by her in any such action or proceeding are her separate
property ; and any damages or costs recovered against her are
payable out of her separate property and not otherwise (m) .
Under this section a married woman may sue without her
husband in respect of a tort committed before the commence
ment of the Act, and the damages recovered belong to her as
separate property (n), but it would seem that if the action
were brought by the husband and wife jointly, the section ,
which applies only to " any such action ," i.e., an action
brought by the wife as if she were a feme sole, will [ * 761 ]
not make the damages separate property ( a) . Under
this section the right to bring an action in respect of any .
cause of action within section 7 of the Statute of Limitations,
21 Jas. I. c. 16, which accrued before the passing of the
recent Act, commenced at the date of that Act coming into
operation , and time runs against the married woman as from
that date (b).
And every woman has in her own name against all persons,
including her husband, the same civil remedies for the pro
tection and security of her own separate property, as if such

(i) Peacock v. Monk, 2 Ves. 193, (k) Ottway v. Wing, 12 Sim. 90.
per Lord Hardwicke. (1) Keogh v. Cathcart, 11 Ir. Eq.
(j) Graham v. Fitch, 2 De G. & Rep. 280 ; and see cases cited Ib.
Sm. 246 ; Taylor v. Taylor, 12 Beav. [ (m ) 45 & 46 Vict. c . 75, s. 1 (2 ) . ]
271 ; Home v. Patrick (No. 1), 30 [ (n ) Weldon v. Winslow, 13 Q. B.
Beav. 405, in which case M. R. ob D. 784 ; Weldon v. De Bathe, 14 Q.
served that if the feme had not ob B. D. 339. ]
tained or concurred in the order to [ (a ) Ib. ]
answer separately there might be a [ (b) Weldon v. Neal, 51 L. T. N.
difficulty. S. 289. ]
1023
* 761 WIFE'S SEPARATE ESTATE. [ CH. XXVII. S. 6.

property belonged to her as a feme sole ; but no husband or

wife is entitled to sue the other for a tort (c) . Since the
Married Women's Property Act, 1882, the sole undertaking
of a married woman as to damages must be accepted where
she as sole plaintiff is entitled to an injunction .' ]
15. General engagement of a feme covert in writing. -- The
Courts have further determined [irrespective of the Married
Women's Property Act, 1882, ] that if, without any direct or
express reference to her separate property, a feme covert who
has property settled to her separate use ( ) , professes to bind
herself by any written instrument, the implication of law is ,
that she meant to charge her separate estate ; for, except with
reference to that, the instrument was without meaning and
nugatory. Thus, if a feme covert execute a bond (e) , even to
her husband (ƒ) , or join in a bond with another, even with
her husband ( g) , or sign a promissory note (h) , or bill of
exchange (i) , [or give a guarantee ( j) , ] though she is not
personally bound, yet her separate estate, if anticipation be
not restrained (k), is liable. [ But if, prior to the recent Act,
her anticipation was restrained as to such separate estate as
she was entitled to at the time of entering into the engage

[ (c) Sect. 12. An application by (g) Heatley v. Thomas, 15 Ves.

a husband against his wife for dam 596 ; Standford v. Marshall, 2 Atk.
ages under an undertaking given by 68 ; Hulme v. Tenant, 1 B. C. C. 20.
her on an injunction which was sub (h) Bullpin v. Clarke, 17 Ves . 365 ;
sequently dissolved, is not in the Field v. Sowle , 4 Russ. 112 ; Tullett
nature of an action for tort within v. Armstrong, 4 Beav. 323, per Lord
this section ; Hunt v. Hunt, W. N. Langdale ; Fitzgibbon v. Blake, 3 Ir.
1884, p . 243.] Ch. Rep. 328 ; [Davies v. Jenkins, 6
(d) As to the power of a married Ch. D. 728 ; Devitt v. Faussett, 7 L.
woman to contract under 3 & 4 W. 4, R. Ir. 511. ]
c. 74, in respect of her real estate (i) Stuart v. Kirkwall , 3 Mad. 387 ;
generally, see Crofts v. Middleton, 2 Coppin v. Gray, 1 Y. & C. C. C. 205 ;
K. & J. 194 ; 8 De G. M. & G. 192 ; Tullett v. Armstrong, 4 Beav. 323,
Pride v. Bubb, 7 L. R. Ch. App . 64. per Lord Langdale ; McHenry v.
(e ) Lillia v. Airey, 1 Ves. jun. 277 ; Davies, 10 L. R. Eq . 88 ; Lancashire
Norton v. Turvill, 2 P. W. 144 ; Pea and Yorkshire Bank v. Tee, W. N.
cock v. Monk, Ves. 193, per Lord 1875, p. 213.
Loughborough ; Tullett v. Armstrong, [(j) Morrell v. Cowen, 6 Ch . D.
4 Beav. 323, per Lord Langdale. 166, reversed on other grounds .]
(f) Heatley v. Thomas, 15 Ves. (k) Re Sykes's Trusts, 2 J. & H.
596. 415.

1 Re Prynne, 53 L. T. N. S. 465.
1024
CH. XXVII. S. 6.] WIFE'S SEPARATE ESTATE. *762

ment, such engagement had no effect either at law

or in equity (1) . ] So , if she give a written * retainer [ * 762 ]
to a solicitor, it entitles him to have his costs out of
her separate estate (a) , though the circumstance that the
solicitor of a husband and wife has transacted business relat
ing to the separate estate is not, per se, sufficient to make
that estate directly liable for the amount of his costs (b) .
And if she enter into a contract in writing for the purchase
of an estate, she may enforce it against the vendor, as it
creates a valid obligation in respect of her property ( c) . And
it is not necessary that the contract should expressly refer
to the separate property, or that the vendor should know that
the purchaser was a married woman (d) . In one case a feme
executed a bond before her marriage, and her property having
been settled upon her marriage to her separate use , the obligee
filed his bill against the husband and wife to have the debt
paid out of her separate estate, and the husband having
absconded, the Court made the order (e ) . [But the engage
ment of a married woman has been held not to bind any sepa
rate property which she had not already acquired at the time
of its being entered into ( ƒ) .
――
16. Recent Act. Now by the Married Women's Property
Act, 1882, sect. 1, sub-sect. (3) , every contract entered into
by a married woman shall be deemed to be a contract entered
into by her with respect to and to bind her separate property,
unless the contrary be shown ; and by sub-sect. (4) , every
contract entered into by a married woman with respect to
and to bind her separate property shall bind, not only the
separate property which she is possessed of or entitled to
at the date of the contract, but also all separate property
which she may thereafter acquire. But the contract will

[() Roberts v. Watkins, 46 L. J. v. Platt, Sugd. Vend. & Purch. 207,

N. S. Q. B. 552. ] 14th edit.
(a) Murray v. Barlee, 4 Sim. 82 ; (d) Dowling v. Maguire, Ll. & G.
3 M. & K. 209. Rep. t. Plunket, 1.
(b) Callow v. Howle, 1 De G. & (e) Biscoe v. Kennedy, cited Hulme
Sm. 531 ; and see Re Pugh, 17 Beav. v. Tenant, 1 B. C. C. 17.
336. [ (f) Pike v. Fitzgibbon, 17 Ch.
(c) Dowling v. Maguire, Ll. & G. D. 454 ; Smith v. Lucas, 18 Ch . D.
Rep. t. Plunket, 1 ; but see Chester 531 ; King v. Lucas, 23 Ch . D. 712.]
1025
*763 WIFE'S SEPARATE ESTATE. [ CH. XXVII. S. 6.

not affect property as to which there is a restraint on antici

pation (g) .
It is conceived that if a married woman enters into a con
tract and her husband dies, and she after his death acquires
property, such property will not be bound by a judgment in
an action for enforcing the contract, though instituted after
the property has been acquired (h) .
Costs of raising the charge. - The liability of the separate
estate extends to the costs of an action to enforce the charge
against the estate (i) . ]
17. General engagements not in writing. – It has been
[* 763 ] stated that a feme covert makes her separate * property
liable by the execution of any written instrument ;
and to that extent there can be no question ; but the princi
ples upon which the liability was held to attach were until
recently involved in much doubt . Thus it was considered
by Lord Loughborough (a ) , Sir J. Leach (b) , and the late
Vice-Chancellor of England (e) , that the separate estate of a
feme covert was not subject to her general engagements, and
this upon the notion that a feme covert could not contract,
but that every dealing in respect of her estate was in the
nature either of an appointment or of a disposition (d) . How
ever, it is clear that [ irrespective of the recent Act] a feme
covert can, in respect of her separate use, contract (e) , and
that her written obligations are not to be viewed as appoint
ments, and do not operate merely by way of disposition .

[(g) Sect. 19 ; and see post, p. 787.] 82 ; and see Digby v . Irvine, 6 Ir. Eq.
[ (h) See Re Price, 28 Ch. D. 709 ; Rep. 149.
and see ante, p. 753. ] (d) See Bolton v. Williams, 2 Ves.
[ (i) Morrell v . Cowan, 6 Ch . D. jun. 150 ; Greatley v. Noble, 3 Mad .
166 ; and see now 45 & 46 Vict. c . 75, 94 ; Stuart v. Kirkwall, Ib. 389 ;
s. 1 (2) . ] Aguilar v. Aguilar, 5 Mad . 418 ; Field
(a) See Bolton v. Williams, 2 Ves. v. Sowle, 4 Russ . 114.
jun. 142 , 150, 156 ; Whistler v. New (e) See Owens v . Dickenson, Cr.
man, 4 Ves. 145. & Ph. 53 ; Dowling v. Maguire, Rep .
(b) See Greatley v. Noble, 3 Mad . t. Plunket, 19 ; Master v. Fuller, 4 B.
94 ; Stuart v. Kirkwall, Ib . 389 ; Agui C. C. 19 ; Stead v. Nelson, 2 Beav .
lar v. Aguilar, 5 Mad. 418 ; Field v. 245 ; Bailey v. Jackson , C. P. Coop
Sowle, 4 Russ. 114 ; Chester v. Platt, er's Rep. 1837-8, 495 ; Francis v. Wig
Sugd. Vend. & Purch. 207, 14th edit. zell, 1 Mad. 261 ; Crosby v Church,
(c) See Murray v. Barlee, 4 Sim. 3 Beav. 489 ; Tullett v. Armstrong, 4
Beav. 323.
1026
CH. XXVII. S. 6.] WIFE'S SEPARATE ESTATE. *764

The principles that govern the liability of a feme's separate

property have been very satisfactorily explained by Lord
Brougham and Lord Cottenham.
Lord Brougham's exposition of the principles which regulate
the liability of the feme's separate estate. - Lord Brougham
observed, " At first the Court supposed that nothing could
touch the separate estate but some real charge, as a mortgage,
or an instrument amounting to an execution of a power ; but
afterwards the Court only required to be satisfied that she
intended to deal with her separate property. Thus, if she
only executed a bond, or made a note, or accepted a bill,
because those acts would have been nugatory if done by a
feme covert without any reference to her separate estate, it
was held that she must be intended to have designed a charge
on that estate, since in no other way could the instruments
thus made by her have any validity or operation . But doubts
have been, in one or two instances , expressed as to the effect
of any dealing, whereby a general engagement only is raised,
that is, where she becomes indebted without executing any
written instrument at all (ƒ) . I own I can perceive no reason
for drawing any such distinction ” (g) .
* Lord Cottenham's view of the principles regulating [ *764 ]
the liability of the separate estate . - " A writing," says
Lord Cottenham, " is operative upon a feme's separate estate ,
not by way of the execution of a power ; for it neither refers
to the power, nor to the subject-matter of the power, nor, in
deed, in many of the cases has there been any power existing
at all. Besides, if a married woman enters into several
agreements of this sort, and all the parties come to have sat
isfaction out of her separate estate, they are paid pari passu ;
whereas, if the instruments took effect as appointments under
a power, they would rank according to the priorities of their
dates. It has sometimes been treated as a disposing of the
particular estate ; but it is not correct, according to legal

(f) It may be observed that the have conceived that any distinction
late V. C. of England while express existed between a written and un
ing his opinion upon the hearing written obligation ; see 4 Sim. 94.
below, that the general engagements (9) Murray v. Barlee, 3 M. & K.
of the feme covert did not affect the 223.
separate estate, does not appear to
1027
*765 WIFE'S SEPARATE ESTATE. [CH. XXVII . S. 6.

principles, to say that a contract to pay is to be construed

into a contract to pay out of a particular property, so as to
constitute a lien on that property. The view taken of the
matter by Lord Thurlow, in Hulme v. Tenant (a) , is more
correct : viz . — If a married woman has power to deal with
her separate property, she has the other power incident to
property in general, namely, the power of contracting debts
to be paid out of it. I observe that in Clinton v . Willes ( b) ,
Sir Thomas Plumer suggested a doubt whether it was neces
sary that the feme's engagements should be secured by writ
ing. It certainly seems strange that there should be any
difference between a contract in writing and a verbal
promise to pay, when no statute requires it to be in writ
ing. It is an artificial distinction not recognized in any other
case "(c) .
Results of judgments of Lord Cottenham and Lord Brougham.
-The judgments of Lord Cottenham and Lord Brougham,
before referred to , must be held to have clearly established
that the dealings of a feme covert with her separate estate do
not operate by way of appointment or disposition, and if this
be so, it is difficult to see on what ground any valid distinc
tion can be sustained between written and verbal engage
ments. If a written promise to pay, as a promissory note,
referring neither to the instrument of trust nor to the prop
erty, be held to bind the separate estate, upon what ground
can a verbal assumpsit be distinguished ? So long as it could
be maintained that the dealing of the married woman opera
ted by way of disposition of the separate estate, there seemed
room for contending that the disposition , as being an assign
ment of trust, must have been in writing ( d) ; but so soon as
it is admitted that the general engagement in writing binds,
it seems impossible to resist the conclusion that a verbal gen
eral engagement must bind likewise . When it is attempted
to imply a promise from mere acts of the feme, which
[ *765 ] may be construed as intended to bind either her * hus
band or herself, there seems room for a distinction ,

(a ) 1 B. C. C. 16. (c) Owens v. Dickenson, Cr. & Ph.

(b) 1 Sugd. Pow. 208, n. 53.
(d) See page 761, supra.
1028
CH. XXVII. S. 6. ] WIFE'S SEPARATE ESTATE. *765

but an express verbal promise and an express written promise

to pay must, it is conceived, stand on the same footing.
Observations of V. C. Kindersley respecting feme's verbal en
-
gagements. The late Vice-Chancellor Kindersley, upon this
subject expressed himself as follows : -" It has not yet, in
deed, been made the subject of positive decision , that the
principle embraces a feme's verbal engagements or cases of
common assumpsit. Considering, however, the opinions ex
pressed and the reason of the thing, I think it very probable
that when that question arises for decision , it will be decided
in the affirmative " (a) .
[ Under the Married Women's Property Act, 1882 , no dis
tinction is made between written and verbal engagements
and they both equally bind the separate estate (b) . ]
Cases where writing is required . —- But a verbal engagement
will not bind the wife where the Statute of Frauds requires,
in the case of a feme sole, an engagement in writing, as if the
feme covert were to undertake verbally to pay the debt of a
stranger, or of her husband, who, for this purpose, is a
stranger (c). It has even been held, in Ireland, that the
general engagements of the wife not in writing, cannot, by
reason of the Statute of Frauds, be satisfied out of any inter
est in land settled to her separate use (d) . But this seems
to involve a confusion between special contracts, which in
the case of a feme sole, are required by the statute to be in
writing, and general contracts, which, in the case of a feme
sole, are not required to be in writing. In the latter case the
remedy is against the feme sole personally, but where the
feme is covert, is not against the person, but the property.
The satisfaction, therefore, decreed against the separate es
tate is not the specific performance of a special contract, but
an equitable execution by way of legal process for working out
the liability created by the general contract.

(a) Vaughan v. Vanderstegen, 2 [ (b) 45 & 46 Vict. c. 75, s. 1 (3) . ]

Drew. 183 ; and see Wright v. Chard, (c) Re Sykes's Trust, 2 J. & H. 415.
+ Drew. 673 ; Newcomen v. Hassard, (d) Burke v . Tuite, 10 Ir. Ch . Rep.
4 Ir. Ch . Rep. 274 ; Blatchford v. 467 ; and see Shattock v. Shattock, 2
Woolley, 2 Dr. & Sm. 204 ; Shattock L. R. Eq . 192 ; Johnson v. Gallagher,
r. Shattock, 2 L. R. Eq. 182 ; 35 2 De G. F. & J. 514.
Beav. 489.
1029
*766 WIFE'S SEPARATE ESTATE. [ CH. XXVII. S. 6.

18. Whether separate estate can be made liable by operation of

law in clear contravention of the intention . - It has been con
sidered that there is still another distinction , viz ., that, allow
ing the general engagements of the wife, whether written or
unwritten, to bind her separate estate, yet, supposing the
doctrine of these cases to be founded on the intention to
charge the settled property as implied by the circumstance
that otherwise the act would be nugatory, the same result
will not follow where it was clearly not the intention of the
-―
feme to create any charge where, in short, there
[ * 766 ] was no contract either express or implied . * Thus it
was decided, that where an annuity granted by a feme
covert and charged upon her separate estate, had been set
aside as void for want of compliance with the requisitions of
the Annuity Acts, the separate estate was not liable to re
pay the consideration money (a) ; and the decisions to this
effect were cited, without disapprobation , by L. J. Turner (b) .
And where a married woman received rents claiming them
as her separate property, but was in fact not entitled, Vice
Chancellor Kindersley held that the rents so received could
not be recovered from her separate estate (c) .
19. A feme covert having separate estate is a feme sole to all
intents and purposes . - The Vice-Chancellor at the same time
observed, " The doctrine (of the separate use) is now in a
state of transition , and is not clearly established in all its
points ; but the modern tendency has been to establish the
principle, that if you put a married woman in the position of a
feme sole in respect of her separate estate, that position must
be carried to its full extent, short of making her personally
liable " (d).
[ This, however, must be understood in respect only of the
separate estate to which the married woman was actually
entitled at the time of the engagement, which it is sought to
enforce against her separate estate ; for a married woman

(a) Jones v. Harris, 9 Ves. 486 ; F. & J. 513 ; and see Shattock v.
Aguilar v. Aguilar, 5 Mad. 414 ; and Shattock, 2 L. R. Eq . 182 ; 35 Beav.
see Bolton r. Williams, 4 B. C. C. 297 ; 489.
S. C. 2 Ves. jun. 138. (c) Wright v. Chard, 4 Drew. 673.
(b) Johnson v. Gallagher, 3 De G. (d) Ib. 4 Drew. 685.
1030
 CH. XXVII . S. 6.] WIFE'S SEPARATE ESTATE . * 767

does not, by having separate estate, acquire an equitable status

of capacity to contract debts, so as to enable her to bind sepa
rate estate to which she may afterwards become entitled, but,
prior to the Married Women's Property Act, 1882 , could only
contract with reference to separate estate to which she was
actually entitled, and so as to bind that estate (e ) . So where
an infant feme, in contemplation of her marriage , covenanted
to settle all her after-acquired property, and subsequently,
after attaining her majority but prior to the Married Women's
Property Act , 1882, confirmed the settlement , it was held
that this confirmation made the settlement absolutely bind
ing only so far as related to property which she had al
ready acquired at the time of confirmation, but that as to
" property which she might afterwards acquire for her sepa
rate use the covenant would remain voidable, and the mar
ried woman might, on such subsequent property accruing,
elect to avoid the settlement as to it, and take it for her
separate use (ƒ) .
Now, by the recent Act, a contract entered into
by a married woman will bind not only the separate [ * 767 ]
estate which she has at the date of the contract,
but also all separate property which she may thereafter
acquire (a ) . The Act does not expressly state whether it
affects contracts entered into prior to the commencement
of the Act (1st Jan. 1883 ) , for enforcing which proceedings
are taken after that date ; but the language of the 1st section
points to future contracts, and in the absence of express
words the Act should be construed so as not to affect liabili
ties under engagements already in existence at the commence
ment of the Act (b) .
But an order made by consent after the commencement of
the Act in an action relating to a contract before the Act,
whereby all questions under the contract were referred to
arbitration, and the parties bound themselves to perform

[ (e) Pike v. Fitzgibbon, Martin v. [ (b) Conolan v. Leyland, 27 Ch.

Fitzgibbon, 17 Ch . D. 454. ] D. 632 ; and see Re March, 27 Ch. D.
[(f) Smith v. Lucas, 18 Ch. D. 166 ; Turnbull v. Forman, 15 Q. B. D.
531.] 234. ]
[(a) 45 & 46 Vict. c. 75, s. 1 (4) . ]
1031
*768 WIFE'S SEPARATE ESTATE. [CH. XXVII. S. 6.

and keep the award, was held to be a new contract, and to

be within the Act (c) . ]
――――
20. True principle. The principle [affecting cases not
within the recent Act, ] so far as the authorities have hitherto
gone, is thus laid down by L. J. Turner. " To affect the
separate estate there must be something more than the mere
obligation which the law would create in the case of a single
woman. What that something more may be must depend in
each case upon the circumstances. What might affect the
separate estate in the case of a married woman living sepa
.
rate from her husband, might not affect it in the case of a
married woman living with her husband," & c. " In order,"
he continued, " to bind the separate estate by a general
engagement, it should appear that the engagement was made
with reference to, and upon the faith or credit of that estate,
and the question whether it was so or not is to be judged of
by the Court upon all the circumstances of the case " (d).
These opinions have since been indorsed by the Court as a
correct exposition of the law (e ) . In a late case Lord Jus
tice James, in further illustration of the subject, observed,
" The term general engagement is a misleading one. If it
merely mean that goods sold to a married woman in the ordi
nary course of domestic life.――――― that contracts expressed to be
made by her in respect of property not her separate
*
[ * 768 ] estate - e.g. for buying or selling, or letting or
hiring a house - - do not necessarily impose a liability
to be satisfied out of the separate estate which she may hap
pen to have, in that sense and to that extent the proposition
that her separate estate is not liable to her general engage
ments is quite correct. But that does not affect the rule, as
laid down by Lord Justice Turner, as to general engage
ments, as to which it appears that they were made with ref

[ (c) Conolan v. Leyland, 27 Ch. V. C. Malins in Butler v. Cumpston,

D. 632. ] 7 L. R. Eq. 20 ; and by V. C. in Ire
(d) Johnson v. Gallagher, 3 De G. land, in Hartford v. Power, 3 I. R. Eq.
F. & J. 515 ; see the principle ap 602 ; and by Lord Hatherley in Pic
proved and expanded by Sir R. T. ard v. Hine, 5 L. R. Ch. App . 274 .
Kindersley, V. C. , in Re Leeds Bank (e ) See London Chartered Bank
ing Company, 3 L. R. Eq . 787 ; and of Australia v. Lemprière, 4 L. R. P.
see the same principle approved by C. 591 ; and see preceding note.
1032
CH. XXVII. S. 6. ] WIFE'S SEPARATE ESTATE. *768

erence to, and upon the faith or credit of, the separate es
tate. It would be very inconvenient that a married woman
with a large separate property should not be able to employ
a solicitor or a surveyor, or a builder or tradesman, or hire
labourers or servants , and very unjust if she did that they
should have no remedy against such separate property " (a) .
[ 21. Where a married woman is living separate from her
husband, and monies are advanced by a stranger in providing
her with necessaries , such monies constitute a debt binding
her separate estate (b) . ]
22. Liability of estate of feme covert to make good her
breaches of trust. - The inquiry now under consideration in
volves the question how far a feme covert [could before the
Married Women's Property Act, 1882, ] commit a breach of
trust for which her separate estate would be made liable.
Where the breach of trust resulted in the loss of the very
fund in which the feme had an interest to her separate use,
the Court treated her acts as amounting to a disposition of
the separate interest which she had power to bind (c ) . So
if a feme covert who was executrix or trustee had wasted the
trust estate, the ordinary right of retainer might be exer
cised against her separate estate under the same instru
ment (d) . And the separate estate of a married woman under
a settlement was held liable to make good the loss occasioned
by her wrongfully selling absolutely a valuable chattel in
which, under the same settlement, she had only a limited inter
est (e) . And the separate estate has been made to answer a
debt of the wife contracted before marriage (f) ; and by the
Married Women's Property Act, 1870 (g) , property belong
ing to a feme and settled by her to her separate use without
power of anticipation, was made liable to such a debt (h) .

(a) London Chartered Bank of (e) Clive v. Carew, 1 J. & H.

Australia v. Lamprière, 4 L. R. P. C. 199.
593. (f) Chubb v. Stretch, 9 L. R. Eq.
[ (b) Hodgson v. Williamson, 15 555.
Ch . D. 87. ] (g) 33 & 34 Vict. c . 93, s . 12.
(c) Crosby v. Church, 3 Beav. 485 ; (h) Sanger v. Sanger, 11 L. R. Eq.
Hanchett v. Briscoe , 22 Beav. 496 . 470 ; [London and Provincial Bank
(d) Pemberton v. M'Gill, 1 Dr. & v. Bogle, 7 Ch. D. 773. ]
Sm. 266 ; and see p. 696, supra.
1033
*769 WIFE'S SEPARATE ESTATE. [CH. XXVII . S. 6.

But where an annuity was devised to a feme sole in trust to

apply it for the benefit of another, and the feme
[ * 769 ] afterwards married and * property was settled to her
separate use, and then there was a breach of trust in
respect of the annuity, the M. R. held that the effect of the
marriage was to vest the legal estate of the annuity in the
husband, that she could only act as his agent, that she could
not be made liable for general torts in reference to trusts any
―
more than for general torts at law that strictly speaking
she could not commit torts, but that they were the torts of
her husband, and her acts created a liability against her hus
band that he acted for her although she remained trustee,
just as the husband of an executrix acted for the executrix,
that her receipts must be treated as his receipts, and he alone
was liable, and on these grounds the M. R. refused all relief
against the separate property of the wife (a) .
――――
[ 23. Married Women's Property Act, 1882. Now by the
recent Act (b) , sect. 1 , a married woman may be sued in con
tract or in tort, or otherwise , in all respects as if she were a
feme sole, and any damages or costs recovered against her
are payable out of her separate estate, and not otherwise ;
and by sect. 13 , to the extent of her separate estate, her lia
bility continues after her marriage " for all debts contracted,
and all contracts entered into, or wrongs committed by her
before her marriage, including any sums for which she may
be liable as a contributory " to any joint stock company ; and
by sect. 19, no restriction against anticipation contained in
any settlement of a woman's own property to be made by
herself is to have any validity against debts contracted by
her before marriage, and no settlement is to have any greater
force or validity against creditors of such a woman than a
like settlement made by a man would have against his cred
itors ; and sect. 24 expressly provides that the provisions of
the Act as to liabilities of married women shall extend to all
liabilities by reason of any breach of trust or devastavit com
mitted by any married woman being a trustee, or executrix
or administratrix either before or after her marriage. ]

(a) Wainford v. Heyl, 20 L. R. [ (b) 45 & 46 Vict. c. 75.]

Eq . 321 .
1034
CH. XXVII. S. 6. ] WIFE'S SEPARATE ESTATE. * 770

24. Nature of the relief against the separate estate. — Suppos

ing a person entitled to establish his claim against the sepa
rate estate, the limits of his remedy appear to be [ as follows :
Prior to the recent Act he could] not bring an action against
the feme covert as the sole defendant and as personally lia
ble (c) . "There is no case," said Sir T. Plumer, " in which
this Court has made a personal decree against a feme covert.
She may pledge her separate property, and make it
*
answerable for her engagements ; but where her [ * 770]
trustees are not made parties to a bill and no par
ticular fund is sought to be charged, but only a personal de
cree against her, the bill cannot be sustained " (a) . But the
party aggrieved might have brought an action against her
and her trustees (and the death of her husband, which put
an end to the separate use, either after the commencement
of the action (b ) , or even before it ( c ) , would not have de
feated the action), and might have prayed payment of his
demand out of all personal estate in the hands of the trustees
to which she was entitled absolutely (including arrears of
rents ), and also out of the accruing rents of real estate, if
there were no clause against anticipation, until the claim and
costs had been satisfied ( d) . " Determined cases, ” said Lord
Thurlow, " seem to go thus far, that the general engage
ment of the wife shall operate upon her personal property,
shall apply to the rents and profits of her real estate , and that
her trustees shall be obliged to apply personal estate, and
rents and profits when they arise, to the satisfaction of such
general engagement ; but this Court has not used any direct
process against the separate estate of the wife, and the man

[ (c) Where a judgment had been (c) Heatley v. Thomas, 15 Ves.

obtained against a married woman, it 596 ; but see Kenge v. Delavall, 1
was on her application set aside, after Vern. 326.
a considerable lapse of time, as being (d) Hulme v. Tenant, 1 B. C. C.
irregular and wrong, Atwood v. Chi 20 ; Standford v . Marshall, 2 Atk.
chester, 3 Q. B. D. 722 ; Davis v. Bal 68 ; Murray . Barlee, 4 Sim. 82 ; 3
lenden, 46 L. T. N. S. 797.] M. & K. 209 ; Field v . Sowle, 4 Russ .
(a ) Francis v. Wigzell , 1 Mad. 112 ; Nantes v. Corrock, Ves. 182 ;
262. [But see Picard v . Hine , 5 L. R. Bullpin v. Clarke, 17 Ves. 365 ; Jones
Ch . App. 274 ; Davies v. Jenkins , 6 v. Harris, 9 Ves. 492, 493 , 497 ; Stu
Ch. D. 728.] art v. Kirkwall, 3 Mad. 387.
(b) Field v. Sowle, 4 Russ. 112.
1035
*771 WIFE'S SEPARATE ESTATE. [CH. XXVII . S. 6.

ner of coming at the separate property of the wife has been

by decree to bind the trustees as to personal estate in their
hands, or rents and profits, according to the exigency of jus
tice or of the engagement of the wife to be carried into ex
ecution." His Lordship then adds, " I know of no case
where the general engagement of the wife has been carried
to the extent of decreeing that the trustees of her real estate
shall make conveyance of that real estate, and by sale, mort
gage, or otherwise, raise the money to satisfy that general
engagement on the part of the wife " (e) . But it is con
ceived that if in any case the instrument were so specially
worded as to place the corpus of real estate also at the sep
arate disposal of the feme covert, the engagements of the wife
would, upon principle [independently of the recent Act ,
have bound] the whole interest settled to the separate use,
whether corpus or income (ƒ) .
[Where the property is acquired subsequent to the engage
ment. A judgment recovered against the separate estate
of a married woman in respect of an engagement
[* 771 ] not within the recent Act, binds only so much
.
of the separate estate as the married woman was
entitled to at the time when the engagement was entered
into, and as remains undisposed of at the time of the judg
ment, and does not affect separate estate acquired subse
quently to the engagement (a ) . In such a case, therefore,
the proper inquiry to be inserted in a judgment against
the separate estate is, " what was the separate estate which
the married woman had at the time of contracting the debt
or engagement, and whether that separate estate or any part
of it still remains capable of being reached by the judgment
and execution of the Court " (b).

(e) Hulme v. Tenant, 1 B. C. C. 20, and see as to the effect of the recent
21 ; and see Boughton v. James, 1 Açt ante, p . 766. ]
Coll. 26 ; Nantes v. Corrock, 9 Ves . [ (b) Pike v. Fitzgibbon, Martin v.
189. Fitzgibbon, 17 Ch. D. 454 ; Durrant v.
(f) See p . 779 and p. 803, note (c) . Ricketts, 8 Q. B. D. 177 ; 30 W. R.
[(a ) Pike v. Fitzgibbon, 17 Ch. D. 428 ; Gloucestershire Banking Com
451 ; reversing S. C. 14 Ch . D. 837 ; pany v. Phillipps, 12 Q. B. D. 533 ;
Flower v. Buller, 15 Ch. D. 665 ; and see Gallagher v. Nugent, 8 L. R.
Chapman v. Biggs, 11 Q. B. D. 27 ; Ir. 353. ]
1036
CH. XXVII. S. 6. ] WIFE'S SEPARATE ESTATE. * 772

Where clause against anticipation . ――― -If there be a clause

against anticipation as to any part, the Court directs pay
ment out of the feme's separate estate, except that part of
which she has no power of anticipation (e) ; and separate
estate as to which anticipation was restrained at the time of
the engagement, will not become available for the payment
by reason of the determination of coverture before the date
of the judgment (d) , and in this respect the law is not al
tered by the recent Act (e).
Equitable execution without new proceedings. - The rem
edy against the separate estate is in the nature of equitable
execution, which may be obtained either by the appointment
of a receiver or by a direction to the trustees to pay, and if
any proceedings are pending between the married woman
and her creditor, the order may be obtained in such proceed
ings without instituting a fresh action (ƒ) .
25. Trustee not a necessary party . ―――――――― The rule that the
trustees of the property , held for the separate use of a feme
covert, must be parties to a suit for charging that property
has in recent cases been broken through. Thus , in Picard v.
Hine (g) , where the trustee of a particular property was a de
fendant, the Court made a decree in a general form declaring
that the separate property of the feme covert, vested in her or
in any other person in trust for her, was chargeable with the
payment of the plaintiff's debt, and in a later case V. C. Hall,
on the authority of Picard v. Hine, held expressly that it
was not necessary to make the trustees parties (h) .
But any order made in the absence of the trustees [ * 772 ]
must be without prejudice to any claims they may
have against the trust estate (a).
Nor the husband. -- Now, by the recent Act, although the

[(c) Murray v. Barlee, 4 Sim. 95. ] [ (h) Davies v. Jenkins, 6 Ch . D.

[(d) Pike v. Fitzgibbon, Martin v. 728 ; Flower v. Buller, 15 Ch. D. 665 ;
Fitzgibbon, 17 Ch . D. 454, reversing Durrant v. Ricketts, 8 Q. B. D. 177 ;
S. C. 14 Ch. D. 837. ] but see Atwood v. Chichester, 3 Q. B.
[ (e ) Myles v. Burton, 14 L. R. Ir. D. 722.]
258. ] [ (a) Collett v. Dickenson, 11 Ch.
[(f) Re Peace and Waller, 24 Ch. D. 687 ; Re Peace and Waller, 24 Ch.
D. 405.] D. 405. ]
[ (g) 5 L. R. Ch. App. 274. ]
1037
*772 WIFE'S SEPARATE ESTATE. [ CH. XXVII . S. 6.

ultimate remedy is only against the separate estate, the ac

tion may be brought against the married woman as if she
were a feme sole without joining either her husband or any
trustee as a party, and a judgment obtained against the mar
ried woman (b) . This judgment can, however, only be
enforced against the separate estate, but it is available (in
cases where the engagement in respect of which it is obtained
was made after the 31st of December, 1882) against any sep
arate estate of the married woman whether acquired before
or after the date of the engagement (c) .
26. Form of judgment against separate estate. -Under the
recent Act, judgment in default or under Ord. 14of the
Rules of the Supreme Court may be signed against a married
woman, but execution can only issue against her separate
estate as to which her anticipation is not restrained (d) , un
less the restraint arises under a settlement made by the mar
ried woman herself of her own property (e) . The judgment
should expressly state that " execution is limited to such
separate estate as she is not restrained from anticipating, un
less such restraint exists under any settlement or agreement
for a settlement of her own property made or entered into
by herself " (f) .
27. No injunction to restrain dealing with separate estate
until claimant's right established. A person entitled to es
tablish a claim against the separate estate of a feme covert
cannot obtain an injunction against her to restrain her from
dealing with it until his right has been established by obtain
ing a judgment (g) .
28. Statute of Limitations. — Where ] the creditor proceeds
not against the feme covert personally, but against her sepa
rate property as a trust fund , it has been held, though not

[(b) . Brown v. Morgan, 12 L. R. the Act, Ortner v. Fitzgibbon, 50 L.

Ir. 122. ] J. N. S. Ch. 17 ; 43 L. T. N. S. 60. ]
[ (c) 45 & 46 Vict. c. 75, s. 1 ; Bur [ (e ) Bursill v. Tanner, 13 Q. B. D.
sill . Tanner, 13 Q. B. D. 691 ; but 691. ]
see Moore v. Mulligan, W. N. 1884, [(f) Bursill v . Tanner, 13 Q. B.
p. 34. ] D. 691. ]
[ (d) Perks v. Mylrea, W. N. 1884, [ (g) Robinson v. Pickering , 16
p. 64 ; and as to the practice before Ch. D. 660, reversing S. C. 16 Ch. D.
371.]
1038
CH. XXVII . S. 6. ] WIFE'S SEPARATE ESTATE. *773

without a conflict of judicial opinion , that the Statute ofLimi

tations does not apply and cannot be pleaded (h) . [ But it is
conceived that a married woman may, if sued under the first
section of the Married Women's Property Act, 1882 , plead
the statute of limitations in bar.]
* 29. Stock settled to the separate use. - In one [ * 773 ]
case the Court refused to hold the Bank Annuities of
a feme covert liable, as stock could not, in the case of a person
sui juris be taken in execution (a ) : but now that stock is
available to the creditor ( b ) , the distinction may be consid
ered as obsolete .
30. Assignment good against creditor. ― As the process
against the separate property of the wife in her lifetime is in
the nature of an equitable execution, it may, like an execution
at law, be defeated by a bona fide assignment to a purchaser
or mortgagee (c) .
31. Creditor's suit after death of feme covert. ――― After the
death of the feme covert the creditor may bring an action for
payment of his debt out of her separate estate (d) ; and Sir
W. Grant ruled that all the creditors, whether by specialty
or simple contract, should be paid pari passu (e) . But ac
cording to Lord Romilly the debts should be paid in order of
priority (f) . Two conflicting principles were in fact then
at work in different branches of the Court (g) : one was, that
the general engagements of the wife are charges on the sep
arate property equivalent to so many assignments, and if so ,
the debts would be payable in order of date : the other was,
that the general engagements are not charges , but create a
liability, the remedy for which, if the feme were sole, would
be against the person , but as she is covert, there is no remedy

(h) Norton v. Turvill, 2 P. W. (e) Anon. 18 Ves . 258 ; and see

144 ; [ Hodgson v. Williamson , 15 Ch. Johnson v. Gallagher, 3 De G. F. &
D. 87 ; ] Vaughan v. Walker, 6 Ir. J. 520.
Ch. Rep. 471 ; 8 Ir. Ch. Rep. 458. (f) Shattock v. Shattock, 2 L. R.
(a) Nantes v. Corrock, 9 Ves. 182 . Eq. 182. The decision in this case
(b) 1 & 2 Vict. c. 110, s. 14. involved a sum of 14/. 15s. only, so
(c) Johnson v. Gallagher, 3 De G. that of course there was no appeal.
F. & J. 520, per L. J. Turner. (g) Compare Johnson v. Gallagher,
(d) See Owens v. Dickenson, Cr. 3 De G. F. & J. 494 , and Shattock v.
& Ph. 48 ; Gregory v. Lockyer, 6 Mad. Shattock, 2 L. R. Eq. 182.
90.
1039
*774 WIFE'S SEPARATE ESTATE . [CH. XXVII. S. 6.

against the person, but the law gives an equitable execution

against the property ; and in this view the separate estate
would be applicable as assets pari passu. Of these two prin
ciples the latter is clearly the more correct one (h) .
-
[32. Earnings . The earnings of a feme covert, which un
der the Married Women's Property Acts, belong to her for
her separate use, are like her other separate estate divisible
upon her death amongst her creditors pari passu (i) . ]
33. Funeral expenses. - -It has been doubted whether the
funeral expenses of the wife should be thrown upon her sep
arate estate ( ) .
34. Savings . - The savings by a feme covert out of her sep
arate estate form part of it, and are equally at her
[ * 774 ] exclusive disposal, or, according to * the language of
an early authority, " the sprout is to savour of the
root and to go the same way " (a ) ; and the same has been
held with respect to savings out of a maintenance allowed on
separation (b) . Where a fund is settled to the separate use
of a married woman and her anticipation is restrained, as the
income when actually accrued is at her absolute disposal, any
savings from the income, though invested by her in the name
of the trustees of the original settlement, will not be subject
to the fetter against anticipation which attached to the corpus
whence the savings proceeded ( c) . Savings out of money
given to the wife by her husband for household purposes,
dress, or the like, belong to the husband (d) .
35. Power of disposition by will of separate estate. ―――― Afeme
covert has, as incident to her separate estate, a power to dis
pose of it, whether it be real or personal, not only by act
inter vivos, but also by testamentary instrument in the nature
of a will ( e) . [ And her will will be effectual to pass after

(h) See now the observations of 432 ; [Fitzgibbon v. Pike, 6 L. R. Ir.

the Court in London Chartered Bank 487.]
of Australia v. Lemprière, 4 L. R. P. (b) Brooke v. Brooke, 25 Beav.
C. 594. 347 ; and see Messenger v. Clarke, 5
[(i) Thompson v. Bennett, 6 Ch. Exch . 388.
D. 739. ] (c) Butler v. Cumpston, 7 L. R.
(j) Gregory v. Lockyer, 6 Mad . 90 . Eq. 16.
(a) Gore v. Knight. 2 Vern. 535 ; (d) Barrack v. McCulloch, 3 K. & J.
Molony v. Kennedy, 10 Sim. 254 ; 114 ; see Mews v . Mews, 15 Beav. 529.
Humphery v. Richards, 2 Jur. N. S. (e) Fettiplace v. Gorges, 1 Ves.
1040
CH. XXVII. S. 6. ] WIFE'S SEPARATE ESTATE. *775

acquired separate property although she had no separate

property at the time of making it (f) , ] and administration
with the will annexed (where [ no executors are appointed ,
or where ] the executors die in her lifetime ) , will be granted
not to her husband the survivor, but to her residuary lega
tees (g) . And if a feme leave a will and make bequests, the
usual course of administration will be observed. Thus, in
the payment of her debts, the undisposed of interest will be
first applied, then, general legacies, and, if there still be a
deficiency, the specific legacies (h) ; and general legacies
will, it is presumed, as in the ordinary case, carry interest,
not from the death of the testator, but from the expiration of
one year after the death (i) . And a general residue will
sweep all arrears of income due at the time of the death ( ) .
36. Separate estate undisposed of survives to the husband.
If a feme covert having personal estate settled to her separate
use die without disposing of it the husband will be
entitled to it ; * as to so much thereof as may consist [ * 775 ]
of cash, furniture , or other personal chattels, in his
marital right, and as to so much as may consist of " choses en
action," upon taking out administration to his wife (a) .
37. Executors take as appointees . - If a feme covert [ in a
case not governed by the Married Women's Property Act,
1882, make a will in exercise of a power and] appoint exec
utors, they do not take all the separate property jure repre
sentationis, but as appointees under the power to the extent

jun. 46 ; Rich v. Cockell, 9 Ves. 369 ; (h) Norton v. Turvill, 2 P. W. 144.

Humphery v. Richards, 2 Jur. N. S. (i) See Tatham v. Drummond, 2
432 ; Moore v. Morris, 4 Drew. 38 ; H. & M. 262 ; the case of a will exe
Pride v. Bubb, 7 L. R. Ch. App. 64 ; cuting a special power.
Noble v. Willock, 8 L. R. Ch . App. (j) See Tatham v. Drummond, 2
778 ; S. C. nom. Willock v. Noble, 7 H. & M. 262.
L. R. H. L. 580 ; Taylor v. Meads, 4 (a ) Proudley v. Fielder, 2 M. & K.
De G. J. & S. 597 ; [ Bishop v . Wall, 57 ; Molony v. Kennedy, 10 Sim. 254 ;
3 Ch . D. 194.] Bird v. Peagrum , 13 C. B. 639 ; John
[(ƒ) Charlemont v. Spencer, 11 L. stone v. Lumb, 15 Sim. 308 ; Drury
R. Ir. 347, 490. ] v. Scott, 4 Y. & C. 264 ; Askew v.
(g) [ Brenchley v. Lynn, 2 Rob. Rooth, 17 L. R. Eq . 426 ; Tugman v.
441 ; Re Goods of Maria Bailey, 2 Hopkins, 4 Man. & G. 389 ; Archer v.
Sw. & Tr. 135 ; and see ] Re Goods of Lavender, 9 I. R. Eq . 220 ; [ see ante,
Pine, 1 L. R. P. & D. 388 ; Re Goods p. 752, as to the effect of the Married
of M. Fraser, 2 L. R. P. & D. 183. Women's Property Act, 1882. ]
1041
*776 WIFE'S SEPARATE ESTATE. [CH. XXVII . S. 6.

of the fund appointed ( b ) . And therefore if the will do not

dispose of [the separate property not subject to the power]
the executors take only the [property ] disposed of, while
the husband takes such chattels as are in possession, and as
regards choses en action there must be letters of administra
tion (c).
[Secus, where will not under a power, or made since the Mar
ried Women's Property Act. - But if the feme covert being pos
sessed of separate personal estate make a will, not under a
power, but by virtue of her right as a married woman to dis
pose of her separate estate, and appoint executors, and direct
them to pay legacies, they are entitled to probate, and all the
separate estate vests in them jure representationis ( d) . And
since the Married Women's Property Act, 1882 , if a married
woman make a will in execution of a power and also ap
point executors they are entitled to probate in general form
and the right of the husband to administration cæterorum is
excluded (e ) . ]
38. Separate use invested on land. - If a feme covert hav
ing income settled to her separate use, lay out the savings
in a purchase of land in the name of a trustee, [ or in her
own name, ] the land on her dying intestate will descend to
the heir and not be personal estate in equity for the benefit
of the administrator (f) .
[ 39. Appointment does not pass savings after the termination
of the coverture. - A testamentary appointment by a feme
covert will not pass dividends arising after the termination
of the coverture from property settled to her sepa
[ * 776 ] rate use for life with a power of appointment * by

[ (b) If a married woman execute constituting executors ; O'Dwyer v.

a power by will, the instrument Geare, 1 Sw. & Tr. 465 ; Re Goods of
though in form a will is in fact a con Barden, 1 L. R. P. & D. 325 ; Re
veyance by means of the appointment Goods of Tomlinson , ubi supra.]
exercised, and although an executor (c) Tugman v. Hopkins, 4 Man. &
is appointed, he takes nothing in his G. 389.
character of personal representative , [ (d) Brownrigg v. Pike, 7 P. D.
per Sir James Hannen, Re Goods of 61.]
Tomlinson, 6 P. D. 209 ; and on this [ (e) Re Goods of levers, 13 L. R.
principle probate has been refused of Ir. 1.]
a will by a married woman appoint (f) Steward v. Blakeway, 6 L. R.
ing real estate under a power and Eq. 479 ; 4 L. R. Ch. App . 603.
1042
CH. XXVII. S. 6. ] WIFE'S SEPARATE ESTATE. *776

deed or will, and in default of appointment, in the event

of her surviving her husband, for her, her executors , admin
istrators, and assigns, or investments which have been ac
quired by her after the termination of the coverture from
the sale and reinvestment of property subject to the power
of appointment (a) . ]
40. Arrears of separate estate . - - If the husband receive
the wife's separate income, it is clear that neither the wife
nor those entitled under her can claim against the husband
or his estate, or any one standing in his place (b), more than
one year's arrears, but it is still sub judice whether the wife
.
or her representative can claim even so much. Lord Maccles
field (c) , Lord Talbot (d) , Lord Loughborough ( e) , Sir W.
Grant (f), and Lord Chancellor Brady (g) held that the
wife or her representative could claim nothing. On the
other hand, in the judgment of Sir T. Sewell (h) , Lord Cam
den (i) , Lord King (j) , Lord Hardwicke (k ) , Lord Eldon (1) ,
Sir J. Leach (m) , Sir J. Stuart (n) , Lord St. Leonards (0),
Smith, M. R., in Ireland ( p) , and Dobbs, J., in the Landed
Estate Court (q) , the husband's estate is liable to an account
for one year (r) . Where there is such a conflict of author

[(a) Mayd v. Field, 3 Ch . D. 587. (k) Townshend v. Windham, 2

See as to the effect of a will, made Ves. sen. 7 ; Peacock v. Monk, 2 Ves.
since the Married Women's Property sen. 190 ; Aston v. Aston, 1 Ves. sen.
Act, 1882, by a married woman, of 267.
property acquired after the termina (1) Parkes v. White, 11 Ves. 225 ;
tion of the coverture, ante, p. 753. ] Brodie v. Barry, 2 V. & B. 36.
(b) Payne v. Little, 26 Beav. 1. (m) Thrupp v. Harman , 3 M. & K.
(c ) Powell v. Hankey, 2 P. W. 82. 513.
(d) Fowler v. Fowler, 3 P. W. 353. (n) Lea v. Grundy, 1 Jur. N. S.
(N.B. A case of pin-money.) 953.
(e) Squire v. Dean, 4 B. C. C. 325 ; (0) Property as administered by
Smith v. Camelford , 2 Ves. jun. 716. D. P. p. 169.
(f) Dalbiac v. Dalbiac, 16 Ves. 126. (p) Corbally v. Grainger, 4 Ir. Ch.
(g) Arthur v. Arthur, 11 Ir. Eq. Rep. 173 ; Mackey v. Maturin, 15 Ir.
Rep. 511 . Ch. Rep. 150.
(h) Burdon v. Burdon, 2 Mad. 286, (9 ) Re Kirwan, 1 Ir. Rep. Eq . 553.
note. (r) In Howard v. Digby , Cl. &
(i) Ib. p. 287, note. Fin. 643, 665, Lord Brougham
(j) Countess of Warwick v . Ed thought that in separate use, as dis
wards, 1 Eq. Ca. Ab. 140. In Thomas tinguished from pin-money, the wife
v. Bennet, 2 P. W. 341 , his Lordship or her representatives could recover
probably held only that ten years' the whole arrears, but this is clearly
arrears could not be given. untenable ; see Arthur v. Arthur,
1043
*777 WIFE'S SEPARATE ESTATE. [CH. XXVII. S. 6.

ity it is hard to say which way the balance inclines . The

better opinion, independently of authority, is thought to be
that the wife can recover nothing from the husband's estate .
Should the husband die insolvent, could she recover anything
from the trustees on the ground of misapplication ? and if the
payment was a proper one, why should it be recover
[ * 777 ] able from the estate of the husband ? The * wife's
assent must be deemed to continue until revoked by
something either expressed or implied.
41. Wife's acquiescence in receipt of her separate income by
―――
husband presumed. The principle upon which the relief
against the husband's estate is thus denied is, that the Court
presumes the acquiescence of the wife in the husband's receipt
de anno in annum (a) . If, therefore, the wife did not in fact
consent to the husband's receipt, but remonstrated and re
quired that the separate income should be paid to herself, the
Court will carry back the account of the arrears to the time of
the wife's assertion of her claim (b) . But the Court requires
very clear evidence that the demand was seriously pressed
by the wife, and will not charge the husband's estate from
any idle complaints against his receipt which the wife may
have occasionally made (e) . There can be no acquiescence
by the wife, and, therefore , no waiver of her rights where
the income has not actually come to the hands of the hus
band, as where it is still in the hands of a receiver (d) .
42. Case of feme covert being non compos . ――― As the Court
proceeds upon the notion of the wife's acquiescence , the
question arises where she is non compos, and so incapable
of waiving her right, whether the husband's estate shall not
be liable for the entire arrears ; and it would seem that in

11 Ir. Eq. Rep. 513. In the same Moore v. Moore, 1 Atk. 272 ; see
case the V. C. of England, when the Moore v. Earl of Scarborough, 2 Eq.
cause was before him, hesitated Ca. Ab. 156 ; Parker v. Brooke, 9
whether the general rule gave an Ves. 583 ; [ Dixon v. Dixon, 9 Ch. D.
account for a year or none at all ; 587.]
see Digby v. Howard, 4 Sim. 601. (c) Thrupp v. Harmon, 3 M. & K.
(a) Caton v. Rideout, 2 H. & Tw. 512 ; Corbally v. Grainger, 4 Ir. Ch.
41 ; see Dixon v. Dixon, 9 Ch. D. Rep. 173 .
587 ; Re Lulham, 53 L. J. N. S. Ch. (d) Foss v. Foss, 15 Ir. Ch. Rep.
928. 215.
(b) Ridout v. Lewis, 1 Atk. 269 ;
1044
CH. XXVII S. 6. ] WIFE'S SEPARATE ESTATE. * 778

such a case the husband's estate must account for the whole,
but will be entitled to an allowance for payments made for
the wife's benefit, and which ought properly to have fallen
on her separate estate (e).
43. In Howard v. Digby (f) , a woman's pin-money was
distinguished from ordinary separate use, and it was held as
to pin-money that the wife's representative (g) could make
no claim to any arrears. The ground upon which the House
proceeded was that pin-money was for the personal use and
ornament of the wife, and the husband had a right to see
the fund properly applied, and that if the husband himself
found the necessaries for which the pin-money was intended,
the wife or her representative could have no claim against
the husband's estate when the requirements for her personal
use and ornament had ceased (h ) . Lord St. Leonards has
justly questioned these principles (?) , and it remains
to be seen whether any distinction between pin- [ * 778 ]
money and separate use generally can be maintained.
44. Gift of corpus to husband not resumed. - As regards
the corpus of the separate estate no presumption arises in fa
vour of a husband who has received it . He is primâ facie a
trustee for his wife, and a gift from her to him will not be
inferred without clear evidence (a) . [ Thus, where a legacy
bequeathed to the separate use of a wife was paid by a bank
er's draft payable to her order, and she indorsed the draft
and handed it over to her husband, who paid it into his own
bank, and had the amount carried over to a deposit account
in his name, it was held that this was not sufficient to deprive
the wife of her right (b) . So where shares in a company,
which were appropriated to a married woman as part of her
share of a residue bequeathed to her for her separate use,

(e) Attorney-General v. Parnther, (h) See, too, Aston v. Aston, 1 Ves.

3 B. C. C. 441 ; 4 B. C. C. 409 ; sen. 267 ; Fowler v. Fowler, 3 P. W.
Howard v. Digby, 2 Cl. & Fin . 671, 355 ; Barrack v. McCulloch, 3 K. &
673. J. 110.
(f) 2 Cl. & Fin . 634 ; 4 Sim. 588. (i) Law of Property as adminis
(9) Lord Brougham considered tered by D. P. p. 162.
the wife herself might in her lifetime (a) Rich v. Cockell, 9 Ves . 369.
have recovered one year's arrears ; [ (b) Green v. Carlill, 4 Ch. D.
see 2 Cl. & Fin. 643, 653, 659. 882. ]
1045
*778 WIFE'S SEPARATE ESTATE. [CH. XXVII . S. 6.

were transferred into the name of the husband, and he made

an entry in his ledger that the shares were part of his wife's
portion of the testator's estate, the separate use of the wife
was not destroyed (c) ; and the husband's estate was held
liable for the proceeds of new shares which had been allotted
in respect of the old shares, and had been sold by him ( d) . ]
But the employment of the money by the husband in his
business and for his family expenditure with the knowledge
and assent of his wife, will, in the absence of agreement to
the contrary, amount to a gift by her (e) . Where a joint
account was opened at a bank in the names of the husband
and wife, and each of them had power to draw on the ac
count, and each of them had also a separate account at other
bankers, and the monies credited to the joint account were
chiefly derived from the wife's separate income, it was held
that the monies paid in had ceased to be part of the separate
estate of the wife.¹
45. Feme not bound to contribute to household expenses. -1
Occasionally a feme covert has a large income from property
settled to her separate use, and being of penurious habits ac
cumulates the whole, and yet looks to her much poorer hus
band for her support. This is a hard case, but it is said that
the Court cannot advert to the question whether she accum
ulates or not (ƒ) .
[ 46. Trespass on wife's separate property. ― Where the
house in which the wife resides is settled to her separate use,
and the husband has been guilty of improper conduct, and
claims to use the house not for the purpose of consorting
with his wife, but for his own purposes, the Court will grant
an injunction to restrain him from entering the house (g) .
And a married woman, in the sole occupation of a house
bought out of her own earnings, can sue a stranger for a
trespass in having entered the house without her leave, even

[(c) Re Curtis, 52 L. T. N. S. 244. ] (f) Re Smith's Trusts, W. N.

[ (d) Re Curtis (No. 2) , W. N. 1867, p . 283.
1885 , p. 55. ] [(g) Symonds v. Hallett, 24 Ch.
(e) Gardner v. Gardner, 1 Giff. D. 346 ; Green v. Green, 5 Hare, 400,
126. n.; Wood v. Wood, 19 W. R. 1049. ]

¹ Re Young, 28 Ch. D. 705 .

1046
CH. XXVII. S. 6.] WIFE'S SEPARATE ESTATE. *779

though the entry was made under the authority of her

husband (h) . ]
* 47. Separate use may extend to corpus, or to in- [* 779]
come beyond coverture. - It has never been ques
tioned but that if personal estate be given to a feme covert
for her separate use, her power of disposition extends over
the corpus ; and so, if the income of property be limited to
afeme covert for her life, either in possession or reversion ,
for her separate use, or if the absolute interest be given to
her in reversion for her separate use, if it appear that the
separate use applies not only to the income accruing during
the coverture, but to the life estate, or absolute reversionary
interest, the feme may aliene the whole life estate, or abso
lute reversionary interest (a ) . The question in these cases
is one of construction only, and therefore if the fund be set
tled upon trust for a feme covert " absolutely," and " during
her life for her separate use," her power does not extend be
yond the life estate (b ) . But if personalty be limited to the
separate use upon a mere contingency (as on the insolvency
of the husband, an event which has not yet occurred) , it
seems that the feme covert cannot, pending the contingency,
aliene or otherwise dispose of her possible interest (c) . [ But
since the Married Women's Property Act, 1882, as to cases
falling within that Act, a married woman can dispose of a
contingent interest (d) . ]
48. Separate use in reference to real estate. - As regards
realty it was formerly held that the feme covert could not by
virtue of the separate use, if there were no express power,
dispose of the freehold, at least not for any larger interest
than during her life (e ) , for between real and personal estate

[ (h) Weldon v. De Bathe, 14 Q. B. 496 ; Crosby v. Church, 3 Beav. 485 ;

D. 339. ] [but see 45 & 46 Vict. c. 75. ]
(a) Sturgis v. Corp, 13 Ves. 190 ; (c) Mara v. Manning, 2 Jon. &
Stead v. Nelson, 2 Beav. 245 ; Han Lat. 311 ; Bestall v. Bunbury, 13 Ir.
chett v. Briscoe, 22 Beav. 503 ; Stam Ch . Rep. 549 ; S. C. Ib. 349 ; Keays
ford, Spaulding and Boston Bank v. v. Lane, 3 Ir. Eq. 1 ; and see Luther
Ball, 10 W. R. 196 ; 4 De G. F. & J. v. Bianconi, 10 Ir. Ch. Rep. 194 ; Re
310 ; Dudley v. Tanner, W. N. 1873, Shakespear, 33 W. R. 744 ; 30 Ch. D.
p. 75. 169.
(b) Hanchett v. Briscoe, 22 Beav. [(d) 45 & 46 Vict . c. 75, ss. 1, 2, 5. ]
(e) Churchill v. Dibben, 2 Lord
1047
*780 WIFE'S SEPARATE ESTATE. [CH. XXVII . S. 6.

it was said there was this distinction, that on the death of

the feme in her husband's lifetime, the absolute interest in
the personal estate would devolve on the husband, but the
inheritance of the real estate would descend upon the heir,
who was not to be disinherited but in some formal mode.
However, the favour shown anciently to the heir has in later
times been disregarded ; and at the present day, if lands be
conveyed to a trustee and his heirs upon trust as to the fee
simple for a feme covert " for her separate use," she may deal
with the fee as if she were a feme sole. It is simply a ques
tion of intention . A married woman may have limited to
her a power of disposition over a fee simple estate,
[* 780 ] and if it appear clearly * that the separate use was
meant to extend to the fee, she ought upon principle
to be able to deal with the absolute property by virtue of the
separate use, whether by act inter vivos, or by testamentary
instrument, as fully as she might in the case of personal
estate (a). And so it has now been decided both in Ireland
and England (b) . But the feme covert is not regarded as a
feme sole in respect of the fee simple, unless it clearly appear

Kenyon's Rep. 2d part, 68, p. 84 ; solicitor of the defendants , the tenant

case cited in Peacock v . Monk, 2 Ves. for life, and infant remainderman ,
192 ; and see 2 Rop. Husb. and Wife, petitioned for payment of his costs
182, 2d ed.; 1 Sand. on Uses, 345, out of the estate , on the ground of
4th ed.; Lechmere v. Brotheridge, his lien, and by an order made in the
32 Beav. 353. cause (though the bill had been dis
(a) Stead v. Nelson, 2 Beav. 245 ; missed) , it was declared that the
Wainwright v. Hardisty, Ib . 363 ; petitioner, as solicitor employed by
Baggett v. Meux, 1 Coll. 138 ; 1 Ph. or on behalf of the defendants to de
627 ; see p. 628 ; Major v. Lansley, 2 fend the said cause, was entitled to
R. & M. 355. But see Newcomen v. a charge on the premises for the
Hassard, 4 Ir. Ch . Rep. 274 ; Harris amount at which his costs should be
v. Mott, 14 Beav. 169 ; Moore v. taxed, including the costs of the ap
Morris, 4 Drew. 38. plication, and directions were given
(b) Adams v. Gamble, 11 Ir. Ch. for the sale, with the approbation of
Rep. 269 ; 12 Ir. Ch. Rep . 102 ; Bestall the Court, of a competent part of the
v. Bunbury, 13 Ir. Ch . Rep. 549 ; estate for raising the costs ; Ex parte
Hall v. Waterhouse, 6 N. R. 20 ; Marshall. Taylor v. Meads, M. R.
Atchison v. Lemann, 23 L. T. 302 ; 6 May, 1865. See Haymes v . Cooper,
Pride v. Bubb, 7 L. R. Ch. App. 64 ; 33 Beav. 431 ; Bonser v. Bradshaw,
[Cooper v. Macdonald , 7 Ch . D. 288 ; ] 4 Giff. 260 ; Wilson v. Round, 4 Giff.
Re Smallman, 8 Ir. Eq. 249 ; Taylor 416 ; and see Allen v. Walker, 5 L.
v. Meads, 5 N. R. 348 ; S. C. 4 De G. R. Ex . 187.
J. & S. 597. In the last case the
1048
 CH. XXVII. S. 6. ] WIFE'S SEPARATE ESTATE. *781

from the instrument itself, that the fee simple, and not the
mere life estate, was limited to the separate use (c) .
[The mere renunciation by an intended husband of his
marital rights in his wife's realty is not sufficient to clothe
her with a testamentary power, or to constitute a valid
declaration of trust of the fee (d) .
Under the recent Act ( e) , the whole interest in real es
tate given to a married woman belongs to her as her separate
estate , and can be disposed of by her accordingly (ƒ) .
49. Feme covert can bar an equitable entail. If a married
woman be equitable tenant in tail in possession of real estate,
which is settled to her separate use, she can under the pro
visions of the Fines and Recoveries Act bar the entail, with
the concurrence of her husband (g) , and the husband's
power of concurring will not be affected by his bank
ruptcy (h) ; and in cases falling within the recent Act the
concurrence of the husband is unnecessary (i) . ]
* 50 . Feme covert as protector. ---- If a legal estate [ * 781 ]
be limited to a married woman for her life for her
sole and separate use, without the interposition of a trustee ,
with remainder in tail, the wife is the sole protector of the
settlement, and the husband's consent in barring the entail
is not necessary (a) .
51. It still remains to treat of restraint of anticipation .
Clause restraining anticipation . The clause against the
feme's anticipation is of. comparatively modern growth . In
Hulme v. Tenant (b) it was held that a limitation to the
separate use simply did not prevent the feme from aliening.
In Pybus v. Smith (e) great pains had been taken in framing
the separate use, and the income was made payable as the

(c) Troutbeck v. Boughey, 2 L. R. [(f) As to the cases to which the

Eq . 534 .
Act applies see ante, p . 751 et seq. ]
see Dye v. Dye, 13 Q. B. D. 147 .
But[(d) [ (g) 3 & 4 Will. 4, c . 74, ss . 15,
Rippon v. Dawding, Amb. 40. ]
565, in which case, however , the 7th [ (h) Cooper v. Macdonald, 7 Ch.
sect. of the Statute of Frauds was D. 288. ]
not referred to, and see the observa [ (i) See supra, notes (e) , (ƒ) .]
tions of
L. J. Turner in Field v. (a) Keer v. Brown, Johns. 138 ;
Moore , 7 De G. M. & G. 718, 719. ]
[and see 45 & 46 Vict. c. 75.]
[(e) 45 & 46 Vict. c . 75.] (b ) 1 B. C. C. 16.
(c) 3 B. C. C. 340.
1049
*782 WIFE'S SEPARATE ESTATE. [CH. XXVII . S. 6.

feme should by writing under her proper hand from time to

time appoint, but it was again decided that the feme could
even then dispose of her interest. After this Lord Thurlow
happened to be nominated a trustee of Miss Watson's set
tlement, and he directed the insertion of the words " and
not by anticipation " (d) , from which time this has been
the usual formulary, and the effect of it for the purpose of
excluding the power of disposition has never been ques
tioned.
52. No particular form of words required to restrain antici
pation. ― - But although these words are now almost univer
sally employed they are not absolutely indispensable, for if
the intention to restrain anticipation can be clearly col
lected from the whole instrument it is sufficient (e) ; as if
there be a direction to pay the income to such persons as the
feme shall after it has become due appoint (ƒ) , or for her sole
separate and inalienable use (g) ; [ or her receipt to the trus
tees is to be given after the rents shall become due from
time to time ( h) . ] But if the limitation be merely to the
sole and separate use, or to pay from time to time upon her
receipt under her own proper hand (i), or if the trust be to
pay her upon her personal appearance (j) , the feme is left
at liberty to part with her interest, for such expressions are,
as Lord Eldon observed, " only an unfolding of all that is
implied in the gift to the separate use " (k) . Where
[ *782] a testator directs a daughter's share of his estate * to
be so settled that she may enjoy the income during
her life for her separate use," the trust is executory, and the

(d) See Jackson v. Hobhouse, 2 [(h) Re Smith, 51 L. T. N. S. 501. ]

Mer. 487 ; Parkes v. White , 11 Ves. (i) Ellis v. Atkinson, 3 B. C. C.
221. 565 ; Clarke v. Pistor, cited Ib . 568 ;
(e) Ross's Trust, 1 Sim. N. S. 199 ; Brown v. Like, 14 Ves . 302 ; Acton v.
Doolan v. Blake, 3 Ir. Ch. Rep. 349, White, 1 S. & S. 429 ; Witts v. Daw
and cases cited Ib. kins, 12 Ves. 501 ; Wagstaff v. Smith,
(ƒ) Field v. Evans, 15 Sim. 375 ; 9 Ves. 520 ; Sturgis v. Corp, 13 Ves.
Baker v . Bradley, 7 De G. M. & G. 190 ; and see Scott v. Davis, 4 M. &
597 ; Estate of H. H. Molyneux, 6 I. Cr. 87 ; Hovey v. Blakeman, cited 9
R. Eq. 411 . Ves. 524.
(g) D'Oechsner v. Scott, 24 Beav. (j) Re Ross's Trust, 1 Sim. N. S.
239 ; Spring v. Pride, 10 Jur. N. S. 196.
876 ; S. C. 4 De G. J. & S. 395. (k) Parkes v. White, 11 Ves. 222.
1050
CH. XXVII. S. 6. ] WIFE'S SEPARATE ESTATE. * 782

Court will insert a clause against anticipation (a) ; and if

upon marriage a fund be articled to be vested in the wife
and a co-trustee in trust for herself, but not to be disposed
of without the consent of both parties, the wife cannot antici
pate without the consent of the co-trustee (b) .
53. Effect before marriage of the clause against anticipation.
-
A widow may, after her husband's death (c) , and a feme
sole may, before marriage (d) , dispose absolutely of a gift
limited to her separate use, though coupled with words pur
porting to restrain her power of anticipation ; and the prin
ciple is briefly this ― that wherever a person possessing an
interest, however remote a possibility, is sui juris, that person
cannot be prevented by any intention of the donor from ex
ercising the ordinary rights of proprietorship. The fund
may be limited " in trust for the separate use of the feme,"
or " in trust for her, and in the event of her marriage, for
her separate use," or " in trust for her separate use in the
event of her marriage, " without the gift of any estate inde
pendently of that contingency ; but in all these cases the in
terest, whether vested or contingent, is in favour of one who is
now sui juris, and who therefore cannot be restrained from
disposing of property to which she either now is, or may
eventually become entitled .
54. The clause against anticipation will operate upon the
marriage. ―――― It was formerly held by Sir L. Shadwell, that
while the separate use took effect upon marriage (e) , the
clause against anticipation was nugatory (ƒ) . Lord Lang
dale, with more consistency, held that in the absence of
alienation during discoverture, both the separate use and also
the clause against anticipation came into operation upon mar
riage (g) . And it was so finally decided by Lord Cotten
ham on appeal (h) .

(a) Re Dunnell's Trusts, 6 I. R. (e) Davies v. Thornycroft, 6 Sim.

Eq . 322 . 420.
(b) Hastie v. Hastie, 2 Ch. D. 304. (f) Brown v. Pocock, 5 Sim. 663 ;
(c) Jones v. Salter , 2 R. & M. 208. Johnson v. Freeth, 6 Sim. 423.
(d) Woodmeston v. Walker, 2 R. (g) Tullett v. Armstrong, 1 Beav.1.
& M. 197 ; Brown v. Pocock, Ib . 210 ; (h) S. C. 4 M. & Cr. 390 ; and see
S. C. 2 M. & K. 189 ; and see Massey Sanger v. Sanger, 11 L. R. Eq. 470.
v. Parker, 2 M. & K. 174.
1051
*783 WIFE'S SEPARATE ESTATE. [CH. XXVII . S. 6.

55. It was also held in a case (i) before Sir L. Shadwell,

that if a fund be vested in trustees upon trust to pay the
proceeds to such persons and for such purposes as a feme
covert shall, when and as they become due, appoint, but so
as not to charge or anticipate the same, and in default of ap
pointment to pay the same into the hands of the feme for
her separate use (without the addition of any words
[ * 783 ] to restrain her power of anticipation) , if * the feme
covert assign the life estate limited to her in default
of appointment, it destroys the power, and the restriction
upon the anticipation annexed to it is nugatory. Such a
doctrine would have led to great inconvenience , as the pre
cedents of the most approved conveyancers were known to
have been frequently expressed in that form, and the de
cision after failing to secure the assent of other judges (a)
was ultimately reversed on appeal (b) . The substantial in
tention was taken to be, that the payment into her hands, as
well as the power to appoint, was not to operate until the
annual proceeds had become actually due.
-
[ Release of power of appointment. Where property was
held in trust for a married woman for life for her separate
use, without power of anticipation, and after her death for
such persons as she should by will appoint, it was held by
the Court of Appeal in Ireland, reversing the decision of
the Judge of first instance, that she could, while under
coverture, extinguish the power (c) . ]
56. Absolute gift followed by restraint of anticipation.
Where there is an absolute gift of bank annuities - i.e. of a per
petual annuity redeemable by the State, to a married woman,
followed by a restraint against anticipation , she cannot aliene
during coverture (d) ; and generally where property is given
absolutely to a married woman, but clogged with a clause
restraining anticipation, [and an intention is shown by the

(i) Brown v. Bamford, 11 Sim. 127 . cellor in Brown v. Bamford had been
(a) Moore v. Moore, 1 Coll . 54 ; overruled, and cannot be considered
Harrop v. Howard, 3 Hare, 624 ; Har as law.
nett v. Macdougall, 8 Beav. 187. [(c) Heath v. Wickham , 5 L. R. Ir.
(b) 1 Ph. 620. The case of Medley 285 ; 3 L. R. Ir. 376. ]
v. Horton, 14 Sim. 222, was decided (d) Re Ellis's Trust, 17 L. R. Eq.
before the decision of the Vice-Chan 409 ; [Re Bown, 27 Ch. D. 411. ]
1052
CH. XXVII. S. 6. ] WIFE'S SEPARATE ESTATE. *784

instrument giving the property that the income only is to be

paid to her, ] she cannot aliene either income or corpus during
the coverture ( e) . [ But where a testator gave the proceeds
of a mixed fund of realty and personalty to trustees upon
trust to invest the residue after payment of debts , funeral
and testamentary expenses, and legacies in specified securi
ties, and to pay the income to A. for life, and after her
death (which occurred in the testratrix's lifetime ) to divide
and pay the said residue between B. and C., one of whom was
a married woman, and there was a declaration that every
gift to a married woman was to be for her separate use with
out power of anticipation , V. C. Bacon drew a distinction
between a gift of a sum of money and of a fund producing
income, and held that in that case the gift was equiv
alent to a gift of a sum of money, and that the * re- [ * 784 ]
straint against anticipation would not prevent the
married woman from receiving her share of the residue (a) .
But this distinction has been disapproved of, and cannot
be supported upon principle ; and the true test as to whether
a clause against anticipation is effectual, to prevent a married
woman from requiring the payment or transfer of property
given absolutely to her subject to such a restraint, is , whether
upon the construction of the whole document the intention is
or is not shown that the trustees should retain the property
and pay the income to the married woman (b) . But if the in
terest of the married woman is reversionary, a clause against
anticipation, even though not effectual to interfere with her
right to receive the property when it falls into possession ,
will be an effectual restraint so long as it is reversionary (c) .
57. Enlarging equitable entail into an equitable fee. - A mar
ried woman cannot, by a deed acknowledged under the Fines
and Recoveries Act, dispose of an interest in land as to which
her anticipation is restrained (d) . But where an equitable

(e) Re Ellis's Trust, 17 L. R. Eq . Ch. 721 ; Re Coombes, W. N. 1883,

412 ; [Re Benton, 19 Ch . D. 277 ; Re p. 169. ]
Sarel, 4 N. R. 321 ; Re Clarke's Trusts, [ (b) Re Bown, 27 Ch . D. 411. ]
21 Ch. D. 748 ; Re Bown, ubi sup. ] [ (c) Re Bown, ubi sup. ]
[ (a) Re Croughton's Trusts, 8 Ch . [ (d) Boggett v. Meux , 1 Ph. 627 ;
D. 460 ; Re Clarke's Trusts, 21 Ch. Heath v. Wickham, 3 L. R. Ir. 376.
D. 748 ; Re Taber, 51 L. J. N. S. The Irish statute 4 & 5 William 4,
1053
*785 WIFE'S SEPARATE ESTATE. [CH. XXVII . S. 6.

estate tail was limited to a married woman for her separate

use, and it was also provided that the rents and profits were
to be paid to her without power of alienation or anticipation ,
it was held that this did not prevent her from barring the
entail and limiting the equitable fee to herself. For that was
not an alienation so as to deprive herself of anything ; it was
not, strictly speaking , an alienation at all, except in a very
wide sense of the term . It was what was always called an
enlargement of the estate (e) .
58. Enlarging long term into a fee. So a married woman
entitled to a long term for her separate use may, if the case
falls within the Conveyancing and Law of Property Act,
1881 , enlarge the term into a fee simple, notwithstanding her
anticipation may be restrained (ƒ) .
59. Restraint against anticipation not avoided by fraud.
The clause against anticipation cannot be got over even in
the case of deliberate fraud by the feme covert. Thus where
a feme covert, by fraudulently suppressing the restraint on
anticipation, obtained an advance on the mortgage of prop
erty limited to her separate use, it was held upon an
*
[ *785 ] application by her that the property was protected
against the mortgage by the clause restraining her
anticipation (a) .]
60. Court could not discharge the clause against anticipation.
― Where the clause against anticipation
had once attached,
even a Court of equity [could not until a recent Act have ]
discharged it, though alienation [ might have been ] for the
feme covert's own advantage (b) . An estate so settled may,
however, be subject to paramount equities, as for raising costs
of suit, [ or for ante-nuptial debts (e) , ] which may enable the
c. 92 , s. 69, contains a clause which [ (f) 44 & 45 Vict. c. 41 , s. 65
is not in the English Act, preventing (2 ) (i). ]
alienation by a married woman where [ (a) Thomas v. Price, 46 L. J. N. S.
the settlement contains a valid restric Ch. 761 ; Stanley v. Stanley, 7 Ch . D.
tion against anticipation . But this 589 ; Cahill v. Cahill, 8 App . Cas. 420 ,
was considered by Lord Lyndhurst, 427 ; see S. C. nom . Cahill v. Martin,
L. C., in Baggett v. Meux, as an ex 5 L. R. Ir. 227 ; 7 L. R. Ir. 361. ]
pression by the legislature of what (b) Robinson v. Wheelwright, 21
was meant by the English Act. ] Beav. 214 ; 6 De G. M. & G. 535.
[(e) Cooper v . Macdonald, 7 Ch. [ (c) London and Provincial Bank
D. 288. ] v. Bogle, 7 Ch. D. 773 ; 45 & 46 Vict.
c. 75, s. 19.]
1054
CH. XXVII . S. 6. ] WIFE'S SEPARATE ESTATE. *785

Court to direct a sale (d) ; and in case of adultery by the wife

may be dealt with by the Divorce Court under the provisions
of 22 & 23 Vict . c . 61 , s . 5 (e) ; and as a married woman whose
anticipation is restrained may still employ a solicitor to de
fend her right to the separate use, the solicitor so employed
may acquire a lien on the separate estate for his costs thereby
incurred (f) . However, in a recent case, where a married
woman entitled to the income of a trust fund for her life with
a restraint upon anticipation took proceedings for administra
tion of the estate, which were dismissed with costs, Pearson ,
J., gave the trustees liberty to retain their costs out of the
plaintiff's income , and said " that the restraint on anticipation
was intended for the protection of a married woman outside
the Court ; it was not intended to enable her to do a wrong
in the Court. The Court was not fettered by the restriction
in the exercise of its powers as to costs.1 "
[ 61. May now under 44 & 45 Vict. c. 41. - Now, by the
Conveyancing and Law of Property Act, 1881 , s . 39, the
Court may, " notwithstanding that a married woman is
restrained from anticipation, where it appears to the Court
to be for her benefit, by judgment or order, with her consent,
bind her interest in any property ."
Applications under this section should be made by sum
mons, and not on petition ( g) .
The Court must be satisfied that it will be for the benefit
of the wife to accede to the application (h) , and will not bind
her interest where the object is to benefit the husband (i) ;
but where a married woman, who was entitled to the income
of a fund for her life for her separate use without power of
anticipation, with remainder in the events which happened
for her appointees by will, and in default of appointment
for herself absolutely, had contracted debts and was being
harassed by her creditors, the Court made an order binding

(d) Fleming v. Armstrong, 34 [(g) Re Lillwall's Settlement

Beav. 109. Trusts, 30 W. R. 243. ]
(e) Pratt v. Jenner, 1 L. R. Ch . [(h) Re Flood's Trusts , 11 L. R. Ir.
App . 493. 355.]
(ƒ) Re Keane, 12 L. R. Eq. 115 ; [ (i) Tamplin v. Miller, 30 W. R.
and see p. 780, note (b) . 422. ]
1 Re Andrews, 30 Ch. D. 159 ; and see Re Prynne, 53 L. T. N. S. 465.
1055
*786 WIFE'S SEPARATE ESTATE. [CH. XXVII . S. 6.

the property (j) . The Court has no power simply to remove

the restraint ; it can only bind the married woman's
[* 786 ] interest in spite of the restraint, when a * disposition
is made of the property which the Court considers
to be for her benefit (a) .
Where the Court is satisfied by the evidence of the consent
of the married woman, it will not require her separate exami
nation (b).]
62. Restraint of anticipation void for perpetuity. - The
restraint against alienation may also be void for perpetuity,
as if a fund be settled on A.'s marriage upon himself for life,
with a power to A. to appoint to his issue, A. cannot appoint
to his daughters as the issue of the marriage for their sole
and separate use without power of anticipation , for this would
prevent alienation for more than a life in being, and twenty
one years, which the law does not allow (c).
[Where, in a post-nuptial settlement, the trusts were, after
the death of the husband and wife and in default of appoint
ment, for sons at twenty-one and daughters at twenty-one, or
marriage, but the daughters ' shares were for their separate
use without power of anticipation, it was held that as to the
daughters in esse at the time of the settlement the restraint
against anticipation was valid (d) . So the restraint on
anticipation attached to the interests of the children of a
woman who, at the date of the will creating the interests,
was past child bearing, is valid (e) .
63. Election where property subject to the restraint . ――
Opinions have differed as to whether a feme covert can be put

[(j) Hodges v. Hodges, 20 Ch. D. Trusts, 46 L. J. N. S. Ch. 651 ; Re

749 ; Sedgwick v. Thomas, 48 L. T. Ridley, 11 Ch. D. 645, in which case
N. S. 100. ] the late M. R. followed the previous
[(a ) Per Cotton, L. J., Re War decisions, though he at the same time
ren's Settlement, 52 L. J. N. S. Ch. expressed his disapproval of them ,
928 ; 49 L. T. N. S. 696. ] Herbert v. Webster, 15 Ch . D. 610, in
[(b) Hodges v. Hodges , 20 Ch. D. which V. C. Hall expressed dissatis
749 ; but see Musgrave v. Sandeman, faction with his own decision in Re
48 L. T. N. S. 215.] Michael's Trusts.
(c) See Armitage v. Coates, 35 [ (d) Herbert v. Webster, 15 Ch.
Beav. 1 , and the cases there cited ; D. 610 ; and see Wilson v. Wilson, 4
and Re Teague's Settlement, 10 L. R. Jur. N. S. 1076. ]
Eq. 564 ; Re Cunynghame's Settle [(e) Cooper v. Laroche, 17 Ch. D.
ment, 11 L. R. Eq . 324 ; Re Michael's 368.]
1056
CH. XXVII. S. 6. ] WIFE'S SEPARATE ESTATE. *787

to her election to give up, or make compensation out of,

property as to which her anticipation is restrained, and the
authorities on the point are about evenly balanced ; but on
principle it would seem that the better opinion is that she
cannot be called upon to elect (ƒ) . ]
64. Settlement of accounts . -- It has been held that a
clause against anticipation, though applicable to the fund
when raised, does not prevent a feme covert from adjusting
the amount of the fund with the trustees (g) .
* 65. Breach of trust. - Compensation for a breach [ * 787 ]
of trust by a feme covert in respect of settled prop
erty cannot be enforced, even against a fund limited by the
same settlement to her separate use without power of antici
pation (a) .
66. Interest due but not payable. —Interest accrues due de
die in diem ; but if the interest, though due, be not payable
under the contract before a particular day, which has not
arrived, the interest so accrued is not regarded in the light "
of arrears but of future income, and therefore the feme
covert, if anticipation be restrained, has no power over it (b) .
67. Arrears of income. The clause against anticipation
does not prevent the operation of the rule, that if the hus
band be allowed to receive the wife's income she or her per
sonal representative cannot recover more than one year's
income, if so much (c) ; and the contracts or other engage

[(f) See Willoughby v. Middle her. M. S. And see Derbyshire v.

ton, 2 J. & H. 344 ; Smith v. Lucas, Home, 3 De G. M. & G. 113.
18 Ch . D. 531 ; Robinson v . Wheel (a) Clive v. Carew, 1 J. & H. 199 ;
wright, 6 De G. M. & G. 535 ; Cahill Pemberton v. M'Gill, 8 W. R. 290 ;
v. Cahill, 8 App. Cas . 420, 427 ; S. C. Sheriff v . Butler, 12 Jur. N. S. 329 ;
nom. Cahill v. Martin, 5 L. R. Ir. 227 ; Arnold v. Woodhams, 16 L. R. Eq .
7 L. R. Ir. 361 ; Re Wheatley, 27 Ch. 29. See, however, the observations
D. 606 ; Re Vardon's Trusts, 28 Ch. of M. R. (but which were extra
D. 124 ; Re Queade's Trusts , 33 W. judicial) in Davies v. Hodgson, 25
R. 816 ; 54 L. J. Ch. 786. ] Beav. 186. As to breaches of trust
(g) Wilton v. Hill , 25 L. J. N. S. by femes covert, see further, ante, p .
Ch. 156 ; and in Stroud v. Gwyer, 768.
M. R. 27 April, 1865, it was ruled (b) Re Brettle, Jollands v. Burdett,
that Mrs. Heath, whose share was 2 De G. J. & S. 79 ; 10 Jur. N. S.
settled by the will for her separate 349.
use without power of anticipation, (c) Rowley v. Unwin, 2 K. & J.
was bound by a settlement of ac 138 ; see ante, p. 776.
counts which had been executed by
1057
*788 MARRIED WOMEN'S [CH. XXVII. S. 6.

ments of the wife, which would affect her separate use

generally, may be enforced against arrears already accrued,
and which consequently have become emancipated from the
clause against anticipation (d) .
[68. Restraint of anticipation unaffected by the late Act. -
The 19th section of the Married Women's Property Act,
1882, provides that nothing in the Act " shall interfere with
or render inoperative any restriction against anticipation
at present attached, or to be hereafter attached , to the enjoy
ment of any property or income by a woman " (e) ; and it is
apprehended that the effect of this clause is to prevent
property acquired by a married woman after entering into
an engagement, but as to which her anticipation is restrained,
from being bound under sect. 1 of the Act, although the
coverture may have determined before the date of the judg
ment founded on the engagement (f) .
Except as to antenuptial debts . ―――― The section further pro
vides that no restriction against anticipation contained in
any settlement or agreement for a settlement of a woman's
own property, to be made or entered into by herself, shall
have any validity against debts contracted by her before
marriage ; and having regard to this clause, judgment against
a married woman should be so worded as not to
[ *788 ] exclude its operation against property subject to a
restraint on anticipation , where such restraint arises
under a settlement made by herself (a) .
69. A restraint on anticipation in a settlement will not
prevent a married woman from exercising any power given
to her as tenant for life , or as a person having the powers of
a tenant for life by the Settled Land Act, 1882 (b) .]
70. 33 & 34 Vict. c. 93. -By the Married Women's Prop
erty Act, 1870, it was enacted :
S. 1. That the wages and earnings of any married woman
acquired or gained after the passing of the Act, 9th August,

(d) Fitzgibbon v. Blake, 3 Ir. Ch. [ (a ) Bursill v. Tanner, 13 Q. B. D.

Rep. 328 ; Moore v. Moore, 1 Coll. 54. 691 ; see ante, p . 772. ]
[ (e) 45 & 46 Vict. c. 75. ] [ (b ) 45 & 46 Vict. c. 38, s. 61
[(f) Myles v. Burton, 14 L. R. Ir. (6) . ]
258.]
1058
CH. XXVII. S. 6. ] PROPERTY ACTS . *789

1870, in any employment, occupation or trade in which she

was engaged, or which she carried on separately from her
husband, and also any money or property so acquired by her
through the exercise of any literary, artistic, or scientific
skill, should be deemed and taken to be property held and
settled to her separate use (c) .
S. 2. That any deposit made or annuity granting by the
commissioners for the reduction of the national debt after
the passing of the Act, in the name of a married woman, or
a woman who might marry after such deposit or grant, should
be deemed to be her separate property.
S. 3. That any married woman , or any woman about to be
married, might cause any sum in the public stocks or funds,
and not being less than 207. , to which she was entitled, or
which she was about to acquire, to be transferred into the
books of the Governor and Company of the Bank of England
to, or made to stand in her name or intended name to her
separate use, which should thenceforth be deemed her sepa
rate property (d) .
* S. 4. 33 & 34 Vict. c. 93. That any married [ * 789]
woman, or woman about to be married, might cause
any fully paid up shares, or any debenture or debenture stock,
or any stock of an incorporated or joint stock company, to

[(c) In Ashworth v . Outram, 5 Ch. but it must carry the protection of

D. 923, 939, Lord Coleridge com the wages and earnings to those
menting upon this section, observed, things which are necessary to make
"It clearly means to protect the the wages and earnings which are to
wages and earnings gained or ac be protected. Therefore, the effect
quired by a woman while married in of the Act, if fairly construed, is to
any employment or trade carried on protect the trade or business of the .
separately from her husband. It married woman which she carries on
seems to me the Vice-Chancellor was separately from her husband, for
justified in finding as a fact that this without the protection of the trade
person was engaged in an employ itself it is manifest that the protection
ment, occupation or trade,' after the of the wages and earnings of the
marriage separately from her hus trade is impossible ; " and see Lovell
band, and the wages and earnings v. Newton, 4 C. P. D. 7. ]
acquired in such employment, occu (d) See Re Bartholomew's Estate,
pation or trade, are admitted to be 23 L. T. N. S. 433 ; 19 W. R. 95 ; Re
protected. But how far does this Tanner's Trust, W. N. 1874, p. 198 ;
carry us ? It seems to me that it Howard v. Bank of England, 19 L.
must carry the protection, I will not R. Eq. 295.
say beyond the wages and earnings,
1059
*789 MARRIED WOMEN'S [CH. XXVII. S. 6.

the holding of which no liability was attached, to be registered

in the books of the company in her name or intended name
to her separate use, which should thenceforth be deemed her
separate property (a) .
S. 5. That any married woman, or woman about to be
married, might cause any share, benefit, debenture, right or
claim in, to, or upon the funds of any industrial and provi
dent society, or any friendly society, benefit building society or
loan society, to the holding of which share, benefit, or de
benture no liability was attached, to be entered in her name
to her separate use, which should thereupon be deemed her
separate property.
S. 7. That where any woman married after the date of the
Act should during coverture become entitled to any personal
property as next of kin (b) , or any sum not exceeding 2007.
under any deed or will, such property should belong to her
for her separate use.
S. 8. That where any freehold or copyhold property should
descend upon any woman married after the passing of the
Act, the rents and profits ( c) thereof should belong to her
for her separate use .
S. 10. That a married woman might effect a policy of in
surance upon her own life, or the life of her husband for her
separate use, and that a policy of insurance effected by any
married man on his own life, and expressed upon the face of
it to be for the benefit of his wife or his wife and children ,
should be deemed a trust for the benefit of the wife for her
separate use, and of the children ; [and that when the sum
secured by the policy should become payable, or at any time
previously, a trustee thereof might be appointed by the
Court of Chancery, or the Judge of the County Court of
the district in which the insurance office was situated, and

(a) See The Queen v. Carnatic [(c) As the rents and profits here
Railway Company, 8 L. R. Q. B. 299. mentioned are not limited to those
(b) The amount coming to her as arising during the life of the married
next of kin appears to be without woman, it may be open to question
limit ; [so now decided Re Voss, 13 whether this provision does not bind
Ch. D. 504.] the corpus of the property, see Re
Voss, 13 Ch . D. 504. ]
1060
CH. XXVII . S. 6. ] PROPERTY ACTS . *790

that the receipt of such trustee should be a good dis

charge (d) . ]
* S. 12. 33 & 34 Vict. c. 93. - That a husband [ *790 ]
should not by reason of any marriage after the pass
ing of the Act be liable for the debts of his wife contracted
before marriage (a), and that the wife should be liable to be
sued for, and any property belonging to her for her separate
use should be liable to satisfy such debts, as if she had con
tinued unmarried (b) .

[ (d) Upon an application under case of an intestacy. But this case

this section the Court declared the has been disapproved of in Re Adam's
rights and interests of the wife and Policy Trusts, 23 Ch . D. 525, where
children of the deceased, and directed Chitty, J., held that the Court had
a proper settlement of the fund ; Re no jurisdiction under this section to
Mellor's Policy Trusts, 7 Ch . D. 127. do more than make an order appoint
In this case a husband effected a ing a trustee, and intimated an
policy on his own life under the opinion that a policy by a husband
Married Women's Property Act, for under this section " for the benefit of
the benefit of his wife and children, his wife and children," should be
but the interest they were to take read in conjunction with the section,
was not expressed on the face of the and that the proper construction was,
policy. On an application to the by virtue of the words " separate
Chancery Division by the widow and use "3 in the section, for the benefit of
children (who were two daughters) the wife for her life with remainder
V. C. Malins at first appointed two to the children as joint tenants. It
trustees of the policy monies, and is doubtful whether since the Act of
" declared that they were to hold the 1882, this section now remains in
monies when received upon trust to force for any purpose (see sect. 11 of
pay thereout the costs, and to invest that Act, post) and where the appoint
the residue in securities authorized ment by the Court of a new trustee
by the court, and to pay the income is required, the petition should be
to the widow for life for her separate entitled also in the matter of the
use without power of anticipation, Trustee Act, and in the matter of
with remainder (as to both capital the Act of 1882 , Re Soutar's Policy
and income ) for the children on at Trusts, 26 Ch. D. 236.]
taining 21 or marriage under that (a) See Conlon v. Moore, 9 I. R. C.
age in equal shares, and if but one L. 190. [ If the husband survive the
the whole for that one , with remain wife and takes out administration to
der (as to both capital and income) her estate, he will, notwithstanding
if neither child attained 21 or mar this section, be liable to the extent of
ried under that age for the widow her assets to the wife's antenuptial
absolutely." But on a subsequent debts ; Turner v. Caulfield , 7 L. R. Ir.
application in the same matter, 7 Ch. 347 ; and these debts will be payable
D. 200, the V.C. held that the section pari passu out of the wife's separate
did not prevent a woman whose hus estate and her general personal
band was dead from taking a share estate, S. C. ]
of the capital with the sanction of (b) The separate property will be
the Court, and he directed the policy made available for payment of the
monies to be distributed as in the debts [even although anticipation be
1061
*791 MARRIED WOMEN'S [CH. XXVII. S. 6.

[ 71. 37 & 38 Vict . c. 50. By the Amendment Act of

1874 (c) , as to marriages which took place after the 30th
July, 1874, by the 1st sect. the liability of the husband was
restored, but by the subsequent sections his liability is to be
confined to the extent of the fortune of the wife received, or
which ought to have been received , by him, if he pleads that
limit to his liability ; but it is in the option of the husband
either to claim this limit to his liability or not, and if he do
not so claim it, he will be liable for the wife's debts in the
same manner as the husband originally was at common law.
It follows, that where the case falls under the Act of 1874,
in a statement of claim by a creditor of the wife against the
husband and wife it is not necessary for the plaintiff to
allege that the husband has received or with reasonable
diligence might have received assets of the wife ,
[ * 791 ] * but the husband if he intends to rely upon the
Act must claim the benefit of it in his defence (a) :
72. The Married Women's Property Act, 1870 , and the
Amendment Act of 1874, have now been repealed by the
Married Women's Property Act, 1882, but without predju
dice to " any act done or right acquired while either of such
Acts were in force, or any right or liability of any husband
or wife, married before the 1st January, 1883 , to sue or be
sued under the provisions of the repealed Acts, for or in
respect of any debt, contract, wrong, or other matter or thing
whatsoever, for or in respect of which any such right or lia
bility shall have accrued " before that date (b ) . It will
therefore still be necessary in many cases to refer to the pro
visions of the repealed Acts.
―――
[73. 45 & 46 Vict. c. 75. By the Married Women's Prop
erty Act, 1882, it is in effect enacted :
S. 1. subs . (5) . That every married woman carrying on
a trade separately from her husband shall, in respect of her

restrained, London and Provincial [ (c) 37 & 38 Vict. c. 50. ]

Bank . Bogle, 7 Ch . D. 773 ; ] but [ (a ) See Matthews v. Whittle, 13
the feme covert herself cannot be Ch . D. 811. The liability of the
made a bankrupt, Ex parte Holland, husband ceases on the death of the
9 L. R. Ch . App. 307, [ unless she be wife ; Bell v. Stocker, 10 Q. B. D.
trading separately from her husband, 129. ]
45 & 46 Vict. c. 75, s. 1] . [ (b) 45 & 46 Vict. c. 75, s. 22. ]
1062
CH. XXVII . S. 6.] PROPERTY ACTS. *792

separate property, be subject to the bankruptcy laws as if

she were a feme sole (c) .
S. 3. That any money or other estate of the wife lent by
her to her husband shall be treated as assets of his estate in
case of his bankruptcy, she being entitled to a dividend as
a creditor for the amount or value of such money or estate
after all claims of the other creditors for valuable considera
tion have been satisfied.
S. 6. That all deposits in any post office or other savings
bank, or in any other bank, all annuities granted by the
Commissioners for the Reduction of the National Debt or by
any other person, and all sums forming part of the public
stocks or funds, or of any other stocks or funds transferable
in the books of the Governor and Company of the Bank of
England, or of any other bank, which, at the commencement
of the Act (1st January, 1883 ) , are standing in the sole
name of a married woman, and all shares, stock, debentures,
debenture stock, or other interests of or in any corporation,
company, or public body, municipal, commercial , or other
wise, or of or in any industrial, provident, friendly, benefit,
building, or loan society, which at the commencement of the
Act are standing in her name (d) , shall be deemed, unless
and until the contrary be shown, to be the separate property
of such married woman ; and the fact that such property
is standing in the sole name of a married woman
* shall be sufficient prima facie evidence that she is [ * 792 ]
beneficially entitled thereto for her separate use, so
as to empower her to receive or transfer the same, and to
receive the dividends, interest, and profits thereof, without
the concurrence of her husband, and to indemnify persons
mentioned in the Act in respect thereof.
S. 7. That all such deposits, annuities, sums, shares, stock,
debentures, debenture stock, and other interests as referred
to in the last section, which after the commencement of the
Act shall be allotted to or made to stand in the sole name of

[(c) As to the position before the [(d) This is apparently an error

Act of a married woman in regard to for " sole name."]
the bankrupt law ; see Ex parte Jones,
12 Ch. D. 484.]
1063
*792 MARRIED WOMEN'S [CH. XXVII. S. 6.

a married woman shall be deemed, unless and until the con

trary be shown, to be her separate property, in respect of
which so far as any liability may be incident thereto her
separate estate shall alone be liable.
But nothing in the Act is to require or authorise any cor
poration or company to admit any married woman to be a
holder of any shares or stock therein , to which any liability
may be incident, contrary to the provisions of the instrument
regulating such corporation or company.
S. 8. That the provisions of sects . 6 and 7 shall apply, so
far as relates to the estate, right, title, or interest of the mar
ried woman, to any deposits , &c ., in the name of any married
woman jointly with any persons or person other than her
husband .
S. 9. That it shall not be necessary for the husband of any
married woman in respect of her interest to join in the trans
fer of any deposit, &c ., affected by the 6th , 7th, or 8th
sects.
S. 11. That a married woman may effect a policy upon
her own life or the life of her husband for her separate use.
And that a policy of assurance effected by any man on his
own life, and expressed to be for the benefit of his wife, or
of his children , or of his wife and children, or any of them,
or by any woman on her own life, and expressed to be for
the benefit of her husband, or of her children , or of her hus
band and children , or any of them, shall create a trust in
favour of the objects therein named. And that the insured
may by the policy, or by any memorandum, appoint a trus
tee or trustees of the monies payable under the policy, and
from time to time appoint a new trustee or new trustees
thereof, and may make provision for the appointment of a
new trustee or new trustees thereof, and for the investment
of the policy monies ; and that in default of any such ap
pointment such policy shall vest in the insured in trust for
the purposes aforesaid. If, at any time, there shall be no
trustee, or it shall be expedient to appoint a new trustee or
new trustees the appointment may be made by any Court
having jurisdiction under the Trustee Act, 1850, or the Acts
amending the same.
1064
CH. XXVII . S. 6. ] PROPERTY ACTS. *793

* S. 13. That a woman after her marriage shall [ * 793 ]

continue liable to the extent of her separate estate
for her ante-nuptial debts, contracts, or wrongs, and may be
sued accordingly, and all sums recovered against her shall be
payable out of her separate property, and as between her and
her husband, unless there be any contract between them to
the contrary, her separate property shall be primarily liable.¹
S. 14. That a husband shall be liable for his wife's ante
nuptial debts, contracts and wrongs, to the extent of her
property which he shall have acquired or become entitled to,
from or through his wife, after deducting payments made by
him, and sums for which judgment may have been recovered
against him, in respect of such debts, contracts, or wrongs (a) .
S. 15. That a husband and wife may be jointly sued in
respect of any such debt or liability if the plaintiff shall seek
to establish his claim against both of them.
S. 21. That a married woman having separate property
shall be subject to all such liability for the maintenance of
her children and grandchildren (b) as the husband is now by
law subject to for the maintenance of her children and grand
children provided that nothing in the Act shall relieve her
husband from any liability imposed upon him by law to
maintain her children or grandchildren .
Various other important provisions of the Act are incorpo
rated into this work in places which seemed convenient. For
the provisions of minor importance the Act should be re
ferred to.
74. Agricultural Holdings Act. ――― The Agricultural Hold
ings (England) Act, 1883 (c), enacts in sect. 26, that " a
woman married before the commencement of the Married

[(a ) It will be observed that the [ (b) The corresponding section in

language of the 14th section , the effect the Act of 1870 , did not include grand
of which is given shortly in the text, children, Coleman v. Overseers of
differs materially from that of the Birmingham , 6 Q. B. D. 615.]
Act of 1874, and Matthews v. Whit [(c) 46 & 47 Vict. c. 61.]
tle, 13 Ch. D. 811, has no application
to a case under the Act of 1882. ]

1 Under this section a husband cannot maintain an action against his wife
for money lent to her or money paid for her before their marriage at her
request. Butler v. Butler, 14 Q. B. D. 831 .
1065
*794 JUDGMENTS AGAINST [CH. XXVII . S. 7.

Women's Property Act, 1882, entitled for her separate use

to land, her title to which accrued before such commence
ment as aforesaid, and not restrained from anticipation , shall
for the purposes of this Act be in respect of land as if
she were unmarried." And that " where any other woman
married before the commencement of the Married Women's
Property Act, 1882, is desirous of doing any act under this
Act in respect of land, her title to which accrued before such
commencement as aforesaid, her husband's concurrence shall
be requisite," and she is to be separately examined by the
County Court, or by the Judge of the County Court, for the
place, where she for the time being is.
[*794] * The words " any other woman " here used are in
accurate, but are apparently intended to apply to a
woman who does not under the preceding clause acquire the
powers of an unmarried woman . It is, however, conceived
that there is nothing in the section empowering a married
woman whose anticipation is restrained to bind her interest.
By the same section the County Court is empowered to
appoint, and change or remove any next friend of a married
woman required for the purposes of the Act (a) . ]

SECTION VII.

OF JUDGMENTS AGAINST THE CESTUI QUE TRUST.

Writs of execution at common law. - Before entering upon

this topic, it may be useful to notice briefly how legal inter
ests stand affected by judgments .
1. At common law the plaintiff in the action had only two
writs of execution open to him against the property of the
defendant : the fieri facias, to levy the debt de bonis et catal
lis ; and the levari facias, to levy it de terris et catallis (b) .
The execution under the latter writ, however, embraced no
interest in land of a higher description than a mere chattel
interest, and affected not the possession of the lands (e) , but
merely enabled the sheriff, besides taking the chattels , to

[ (a) 46 & 47 Vict. c. 61 , s. 26. ] (c) Ib.; Sir E. Coke's case, Godb.
(b) Finch's Law, 471 . 290.
1066
CH. XXVII . S. 7. ] CESTUI QUE TRUST. *795

levy the debt from the present profits, as from the rents
payable by the tenants ( d) , and the emblements ( e) , that
is, the corn and other crops at the time growing on the
lands (ƒ) . If the sheriff, when he made his return , had
not levied the full amount of the debt, a new levari facias
might have issued, to be executed by the sheriff in like
manner (g) (1 ) .
* 2. Statute of Westminster. — In order to provide [ * 795 ]
for the creditor a more effectual remedy, the Statute
of Westminster (a) introduced the writ of elegit, and en
acted, that when the debt was recovered or knowledged, or
damages awarded , the suitor should at his choice (whence
the term elegit) have a writ of fieri facias ( b) , from the debt
or's lands and chattels, or that the sheriff should deliver to
him all the chattels of the debtor, except his oxen and beasts
of the plough, and one-half of his land, until the debt should
be levied upon a reasonable price or extent. It was by virtue
of this statute that judgment creditors were first enabled to
sue execution of one moiety of the debtor's lands, whether

(d) Finch's Law, 472 ; Davy v. (g) F. N. B. 265.

Pepys, Plowd. 441 . (a) 13 Ed. 1 , st . 1 , c. 18.
(e) 4 Com. Ab. 118. (b) This includes the writ of levari
(f) Harbert's case, 3 Rep. 11 b.; facias ; 2 inst. 395.
2 Inst. 304 ; 2 Bac. Ab. Execution
(C) 4, note (b) .

(1) There was also another species of levari facias, of which the plaintiff
might under particular circumstances, have indirectly availed himself. In
case the defendant was outlawed in the action, the sheriff, on the issuing of the
capias utlagatum, took an inquisition of the lands of the debtor, and extended
their value, and made his return to the Exchequer. A levari facias from the
Crown then followed, commanding the sheriff to levy the extended value de
exitibus, from the issues of the lands, till the plaintiff should be satisfied his
debt. These issues were defined to be the " rents and revenues of the land,
corn in the grange, and all moveables, except horses, harness, and household
stuff ; " 13 Ed. 1 , c . 39 , st . 1 ; 2 Inst. 453. The sheriff might have agisted or
mown the grass ; Britten v. Cole, 5 Mod . 118, per Lord Holt. But if at the
date of the inquisition , the agistment was already let, the money agreed to be
paid was a sum in gross, and was not subject to the levari facias ; S. C. 1
Raym . 307, per eundem . The cattle of a stranger, if levant and couchant on the
land, were seizable under the writ, as included in the word " issues " ; S. C. Ib.
305. The lands were bound by the levari facias from the date of the writ,
so that any subsequent disposition, though it served to pass the freehold and
possession, yet did not interrupt the king's title to the profits ; Ib . 307, per
Lord Holt
1067
*796 JUDGMENTS AGAINST [CH. XXVII. S. 7.

vested in him at the time of the judgment or subsequently

acquired.
――――――――― Now by
[ Levari facias abolished in civil proceedings .
the Bankruptcy Act, 1883 (c) , it is enacted that (1 ), The
sheriff shall not under a writ of elegit deliver the goods of a
debtor nor shall a writ of elegit extend to goods ; and (2 ) ,
No writ of levari facias shall hereafter be issued in any civil
proceeding. ]
We now come to the inquiry, what is the effect of judg
ments upon equitable interests .
1. Fieri facias as regards trusts . - With respect to the
fieri facias, it is clear that under the system of uses no relief
could have been granted ; for the creditor, coming in by op
eration of law did not possess that privity of estate which
could alone confer upon him the right to sue a subpæna.
During the earlier period of trusts the same technical notions
prevailed ; but Lord Nottingham introduced more liberal
principles, and established, what is now law, that a creditor
who is prevented from executing the legal process by the
interposition of a trust, may come into Chancery, and prose
cute an equitable fieri facias (d) .
2. Trusts not bound by it before execution sued out. - But,
as the analogy to law must be strictly pursued, the trust
of a chattel could never have been attached in equity
[* 796 ] until the writ of execution was actually sued out ;
for till that time there was no lien upon the debtor's
effects, which was the very ground of the application (a) .
3. Nor where the legal estate is not liable . -- And as equity
only follows, and does not enlarge the law, the judgment
creditor has no title to relief where the chattel of which the
trust has been created, is not in itself amenable to any legal
process. An opinion , indeed, is subjoined to the case of

[ (c) 46 & 47 Vict. c. 52, s . 146. ] 3 Drew. 326 ; Gore v. Bowser, 3 Sm.
(d) Pit v. Hunt, 2 Ch. Ca. 73 ; & G. 1 ; Smith v. Hurst, 1 Coll. 705 ;
Anon. case, cited 1 P. W. 445 ; and Partridge v. Foster, 34 Beav. 1 ; Hors
see Scott v. Scholey, 8 East, 485 ; ley v. Cox, 4 L. R. Ch. App. 92.
Estwick v. Caillaud, 5 T. R. 420 ; (a) Angell v. Draper, 1 Vern. 399 ;
Kirkby v. Dillon, C. P. Cooper's Rep. Shirley v. Watts, 3 Atk. 200 ; Smith
1837-38, 504 ; Simpson v. Taylor, 7 v. Hurst, 1 Coll. 705 ; Partridge v.
Ir. Eq. Rep. 182 ; Bennett v. Powell, Foster, 34 Beav. 1 .
1068
CH. XXVII. S. 7.] CESTUI QUE TRUST . *797

Horn v. Horn in Ambler ( 4) , that a trust of stock might,

before the late Act, have been taken by a judgment creditor
in equitable execution ; and Taylor v. Jones (c ) , before Sir
W. Fortescue , M. R., was even a decision to the same effect ;
but such a doctrine, inasmuch as stock could not have been
reached at law, was clearly contrary to all principle, and
afterwards incurred the express disapprobation of Lord
Thurlow (d) , Lord Manners (e) , Sir W. MacMahon (f) , Sir
Archibald Macdonald (g) , and Lord Eldon (h) ; Lord Thur
low observing, that the opinion in Horn v. Horn was so
anomalous and unfounded, that forty such would not satisfy
his mind ( ) . However, by the late Act (j) various descrip
tions of property, formerly exempt, are now liable to be
taken in execution, and the remedy of the creditor in equity
must be deemed to be enlarged accordingly (k) ; and the same
statute provides a special procedure for reaching a judgment
debtor's interest in stock, whether legal or equitable (1) .
4. Equity of redemption. The judgment creditor is en
titled to the like relief against the equity of redemption of
a chattel, as against any other equitable interest in a chat
tel (m).
5. Whether equity can adopt the elegit by analogy. ――――――― The
elegit owing its origin to a statute, a doubt may suggest itself
in limine, whether, when the legislature has passed an enact
ment against the legal estate, a Court of equity can consist
ently with its general principles , apply by analogy the same
provision to the case of a trust. A legal estate, for ex
ample, was by Act of Parliament made forfeitable without
inquest for treason, and, as the Statute enumerated
*
“uses," it was contended , and seems to be the better [ * 797 ]

(b) Amb. 79. (i) See 2 B. & B. 233.

(c) 2 Atk. 600. (j ) 1 & 2 Vict. c. 110, s . 12.
(d) Dundas v. Dutens, 2 Cox, 240 ; (k) See cases p . 80, note (b) ; and
and see a note of S. C. in Grogan v. see Stokoe v. Cowan, 29 Beav. 637.
Cooke, 2 B. & B. 233. (1) See infra, p. 806 .
(e) Grogan v. Cooke, 2 B. & B. (m) King v. Marissal, 3 Atk. 192 ;
233. Shirley v. Watts, Ib. 200 ; Burdon v .
(f) Plasket v. Dillon, 1 Hog. 328. Kennedy, Ib. 739 ; Thornton v. Finch,
(9) Caillaud v. Estwick, 2 Anst. 4 Giff. 515 ; and see King v . De la
384. Motte, For. 162.
(h) Rider v. Kidder, 10 Ves. 368.
1069
*797 JUDGMENTS AGAINST [CH. XXVII. S. 7.

opinion (a ) , that trusts also under that expression became

forfeitable to the Crown ; but it was never suggested that,
had " uses 99 not been inserted in the Act, a Court of equity
could have subjected trusts to forfeiture by any inherent
jurisdiction of its own. But the Act which originated the
elegit was, like the statute de donis, prior to the introduc
tion of the use ; and as equity, by analogy to the Statute
of Westminster, admitted entails and remainders of trusts,
why might it not, by analogy to another Act of the same
statute, allow equitable interests to be affected by judg
ments (b) ?
6. Trusts formerly not subject to elegit. Secus now. --It
would seem that in Lord Keeper Bridgman's time a trust
was not subject to an elegit (c). But it was long ago
established that a judgment creditor might redeem a mort
gage in fee (d), and it is now equally well settled that
he may prosecute his elegit against any other equitable
interest (e).
7. Land to be converted into personalty not bound by a
judgment. An estate given by A. to trustees upon trust to
convert into personalty for the benefit of B. has in equity all
the properties of personalty ; and even under the old law
therefore, a judgment against the person to whom the pro

(a) See infra, p . 818. 3 Keb. 307 ; Hatton v. Haywood, 9

(b) See Ryall v. Rolle , 1 Atk. L. R. Ch . App. 229.
184. (e) Tunstall v. Trappes, 3 Sim.
(c) See Pratt v. Colt, Freem. 286 ; Forth v . Duke of Norfolk, 4
139. Mad. 504, per Sir J. Leach ; Serj .
(d) Greswold v . Marsham, 2 Ch. Hill's opinion, Ib. 506, note (a) ;
Ca. 170 ; Crisp v. Heath, 7 Vin. Ab. Foster v. Blackstone, 1 M. & K. 311,
52. (The former case has been com per Sir J. Leach ; and see Lodge v.
pared with Reg. Lib. , A. 1685, f. 399, Lyseley, 4 Sim. 70 ; Kirby v. Dillon,
and the report appears substantially C. P. Cooper's Rep. 1837-38, 504 ;
correct the latter case has not been Neate v. Duke of Marlborough , 9
found . ) Plucknet v . Kirk , 1 Vern. Sim. 60, 3 M. & Cr. 407 ; Adams v.
411 ; Reg. Lib . 1686, B. fol. 181 , 184, Paynter, 1 Coll. 530 ; Lewis v . Lord
see infra; Sharpe v. Earl of Scar Zouche, 2 Sim. 388. Davidson v.
borough, 4 Ves. 538, and the cases Foley, 2 B. C. C. 203 ; 3 B. C. C. 598 ;
cited Ib. 541 ; Stileman v. Ashdown, and Plasket v. Dillon, 1 Hog. 324
2 Atk. 477 ; Fothergill v. Kendrick, (commonly cited upon this subject ) ,
2 Vern. 234 ; and see Steele v. Philips, were cases of a legal elegit, and the
1 Beat. 188 ; Forth v. Duke of Nor judgment creditor was seeking to
folk, 4 Mad . 503 ; King v. De la remove an impediment to the legal
Motte, Forr. 162 ; Freeman v . Taylor, execution of it.
1070
CH. XXVII. S. 7.] CESTUI QUE TRUST. *798

ceeds of the sale were directed to be paid conferred no lien

upon the proceeds (ƒ) .
8. Judgment against vendor, after contract to sell. —Whether
the same principle applied where a judgment was entered up
against a person after he had contracted to sell real estate
was much doubted.
Serjeant Hill's opinion. — Upon this subject we have the
following opinion of Mr. Serj. Hill : — H. A. S., seised in fee .
of an estate, subject to his mother's jointure and to younger
children's portions, contracted for the sale of the property
in lots to different purchasers . After the date of
* the contract, H. A. S. executed a conveyance to [ * 798 ]
trustees, upon trust to convey to the different pur
chasers, and to invest part of the purchase money in the
funds as an indemnity against the jointure and portions and
to pay the residue to himself. Subsequently to the deed of
trust H. A. S. acknowledged a judgment. Mr. Serj. Hill
was consulted on the part of the trustees, whether they
would be safe in paying the money to H. A. S., as against
the judgment of which they had notice, and also as against
judgments, if any, of which they had no notice. The opin
ion was as follows : " As to the judgment of which the trus
tees had notice, though, to many purposes, the estate agreed
to be sold is from the time of the contract the estate of the
purchaser ; yet I think the vendor is not before payment of
the money to be considered a mere trustee , for the estate
continues his at law, and even in equity he has a right to
detain it until payment of the purchase money ; and, there
fore, the judgment creditor hath a right to so much of the
purchase money as is sufficient to satisfy the judgment ; and
the trustees having notice of his right ought to pay it, if the
money is in their hands. As to the judgments, if any, of
which the trustees have no notice, I think a Court of equity
will not make them pay the money over again , if they apply
it according to the deed of trust, because I think equity in
the case of a judgment creditor and a bona fide purchaser or

(
f) Foster v. Blackstone, 1 M. & K. 297 ; and see Browne v. Cavendish,
1 Jon. & Lat. 633.
1071
*799 JUDGMENTS AGAINST [CH. XXVII. S. 7.

a trustee without notice, will not interpose on either side,

but will leave the law to take its course " (a).
Sir J. Leach's opinion. --And Sir J. Leach appears to have
concurred in this opinion , that the vendor's interest after the
contract was bound by a judgment ; for in Forth v. The Duke
of Norfolk (b), where a person had mortgaged an estate in
fee, and then contracted to sell, and afterwards , before the
conveyance, acknowledged a judgment, Sir J. Leach said,
" An assignee for valuable consideration is discharged of the
claim of the judgment creditor, unless he had notice of it
before the consideration was paid. If A., before the actual
conveyance to him, had received notice of the judgment,
then, being a purchaser of an equitable interest in a freehold
estate from the debtor, and not having paid his purchase
money, he would have been equally affected with the judg
ment as the debtor himself : and if he had afterwards paid
the whole purchase money to the debtor, he would have still
remained liable to the judgment creditor. "
[*799] * Dictum of Sir L. Shadwell. But in a subsequent
case Sir L. Shadwell said " he should not have given
the opinion which the learned Serjeant had done, for it
appeared to him that from the time H. A. S. entered into
binding contracts to sell the lands, he not having judgments
against him at that time, the purchasers had a right to file a
bill against him and have the legal estate conveyed " (a) .
And it may be argued that if the vendor die after the con
tract, but before the conveyance the purchase money would
go to the executor (b) ; and that if the contract work a
notional conversion of the land into money in respect of the
vendor's representatives, the same consequence ought to
follow in respect of the vendor's judgment creditors .
9. Whether in case of conveyance upon trust to sell or mort
gage, with power of sale , surplus proceeds are bound by a judg
ment. -The case became still more difficult where A. con

(a) Cited Forth v. Duke of Nor pear whether the judgments were
folk, 4 Mad. 506 , note (a). entered up before the actual sale or
(b) 4 Mad. 503. the decree for sale.
(a ) Lodge v. Lyseley, 4 Sim. 75 ; (b) See Farrar v. Winterton, 5
and see Craddock v. Piper, 14 Sim. Beav. 1 ; Curre v. Bowyer, Ib. 6, note.
310, where, however, it does not ap
1072
 CH. XXVII . S. 7. ] CESTUI QUE TRUST. *800

veyed to trustees upon trust to sell for the discharge of

incumbrances, and to pay the surplus to himself, and before
sale, a judgment was entered up against A. (c) ; or where a
mortgage was given with power of sale to the mortgagee and
a judgment was entered up against the mortgagor before
sale (d). It was clear that in either case the power of giving
receipts was binding as against the judgment creditor, so
that a purchaser from the trustee or mortgagee , was not
concerned to see that the judgments were satisfied (e) ;
but this still left open the question whether the judgment
was or not a lien or charge on the proceeds in the hands of
the mortgagee or trustee.
10. How much of the estate may be taken in execution .
The question whether under the old law, the lien of the judg
ment creditor extended to the whole or a moiety of the trust
estate was also one of considerable difficulty, and the authori
ties can only be reconciled by the aid of a somewhat subtle
distinction .
On what grounds a judgment creditor may apply to a Court of
equity. - A judgment creditor might have come into a Court
of equity upon two grounds. First, upon a legal title, where
he either sought to remove an impediment to the execution
of his legal elegit, or, after the death of the conusor, sued for
payment of his debt out of the conusor's personal assets , and ,
if they should be insufficient, then by sale (f) of the
real estate ; or, Secondly, upon an equitable * elegit, [ * 800 ]
on the ground that he had no legal lien, and there
fore could have no legal process (a) .
Execution of a moiety only of a trust estate . ――- As the extent

(c) See Bayden v. Watson, 7 Jur. wall v. Barnewall, 3 Ridg. 61 ; O'Fal

245 ; Re Underwood, 3 K. & J. 745. lon v. Dillon, 2 Sch. & Lef. 19 ;
(d) See Wright v. Rose , 2 S. & S. O'Gorman v. Comyn , Ib. 139 ; Stile
323, and Clarke v. Franklin , 4 K. & man v. Ashdown, 2 Atk. 610 ; but see
J. 260. Bedford v. Leigh, 2 Dick. 709 ; Neate
(e) Lodge v. Lyseley, 4 Sim. 75 ; v. Duke of Marlborough, 3 M. & Cr.
Alexander v. Crosbie, 6 Ir. Eq. Rep. 417.
513 ; Drummond v. Tracy, Johns. 608. (a ) These grounds of suit still
(f) An elegit would at law give subsist, in addition to that conferred
the possession of the lands till the by the 13th section of 1 & 2 Vict. c .
satisfaction of the debt, but equity 110, giving the judgment creditor a
assumes the jurisdiction of falicitat charge in equity. [ See Anglo -Italian
ing the remedy by a sale. See Barne Bank v. Davies, 9 Ch. D. 275. ]
1073
*800 JUDGMENTS AGAINST [CH. XXVII. S. 7.

of relief ought in both these cases to be the same, and the

Court never attempted to make a difference, the authorities
determined upon either head may be relied upon as applicable
to the other. The result of the cases upon this principle, not
withstanding an early authority to the contrary (b) , appears
to be that a judgment creditor could under the old law sue
an equitable elegit of a moiety only of a trust estate (c) .
11. Execution of the whole of an equity of redemption.— An
equity of redemption was, however, governed by a different
rule . If A., seised of an estate, mortgaged it to B. in fee,
and then confessed a judgment to C., it was clear that C. had
a lien which entitled him to redeem B. But should he redeem
the whole or a moiety ? So far as the judgment creditor had
any claim of his own, a moiety only ; but as B. could not be
compelled to part with the smallest fraction of the estate
until he had been satisfied his whole debt, C. was under the
necessity of redeeming the entirety. Again, when C. had
taken a transfer of the security, it followed, that as mort
gagee with a judgment against the mortgagor he had a right
to tack, and no one could redeem any part of the estate out
of his hands until payment, not only of the original mortgage
debt but also of the judgment. Thus it arose from a kind of
necessity, and not from any wanton violation of principle,
that in the instance of an equity of redemption the judgment
creditor was paid by a sale of the whole estate (d) (1 ) .

(b) Compton v. Compton, cited in & Lef. 137 ; Burroughs v. Elton, 11

Stileman v. Ashdown, Amb. 15 ; Reg. Ves. 33 ; Williamson v. Park, 2 Moll .
Lib. A. 1711 , f. 134. The authority 484 ; Armstrong v. Walker, Ib . In
of this case cannot, however, have O'Fallon v. Dillon , 2 Sch. & Lef. 13,
much weight, for, as was observed by the sale of the estate was not confined
Lord Hardwicke, ( Stileman v . Ash to a moiety ; but there the creditor
down, Amb. 17, ) the point whether had entered up two judgments the
the whole or a moiety should be sold same term, and then as both judg
appears not to have been discussed. ments were of the same date, the
(c) Stileman v. Ashdown, 2 Atk. creditor might at law have taken
477, 608 ; Rowe v . Bant, Dick. 150 ; both moieties in execution . See At
Reg. Lib. B. 1750, f. 427 ; Barnewall v. torney-General v. Andrew, Hard. 23.
Barnewall , 3 Ridg. P. C. 24 ; O'Dow (d) Stonehewer v. Thompson, 2
da v. O'Dowda , 2 Moll . 483 ; Anon Atk. 440 ; Sish v. Hopkins, Blunt's
case, Ib.; O'Gorman v. Comyn, 2 Sch. Amb. 793.

(1) It was ruled, upon a similar principle, that, where freeholds and copy
holds were blended in one mortgage , the equity of redemption of the whole
1074
CH. XXVII. S. 7. ] CESTUI QUE TRUST. *801

* In Stileman v. Ashdown ( a ) , Lord Hardwicke, at [* 801 ]

the same time that he gave a judgment creditor a
moiety only of the trust estate, ordered a sale of the whole of
the lands in mortgage (b) . So, where there were several in
cumbrancers by judgment upon an equity of redemption , and
the Court decreed a sale, the first judgment creditor was not
confined to a moiety of the estate, but the decree was, that
the incumbrancers should be paid their full demands out of
the proceeds of the sale, according to their priority (c) .
12. Case of a trust by way of mortgage. There was one
species of interest, which though bordering closely upon the
nature of an equity of redemption , yet should perhaps have
been distinguished from it. In Tunstall v . Trappes ( d) ,
Trappes, in 1811, appointed an estate to the use that Davis
might receive an annuity, and subject thereto, to the use of
Withy in fee upon trust, in case the annuity should be in
arrear for six months, to sell the premises, and out of the
proceeds to purchase an annuity of the same amount for
Davis, and pay the surplus , after discharging the existing
incumbrances, to Trappes ; provided, that in case Trappes
should be desirous of repurchasing the annuity, and should
pay the price to Davis, then the annuity should cease, and
Withy, the trustee , should reconvey. In 1812 Trappes con
fessed a judgment, and the question was, whether it should
affect the whole or only a moiety of the estate ; and Sir L.
Shadwell, on the ground that a judgment creditor might re
deem the entirety of lands in mortgage, held that the lien
should extend to the whole. Now, there appears to be this
distinction between an equity of redemption and the case
just mentioned. In the former, the whole interest is in the
mortgagee by non-fulfilment of the condition ; and if the judg
ment creditor redeem the mortgagee, and then the mortgagor
come to be relieved against the forfeiture, the Court will im
(a) 2 Atk. 477. (c ) Sharpe v. Earl of Scarborough,
(b) Sir A. Hart, not observing the 4 Ves. 538 ; the cases cited Ib. 541 ;
ground of the distinction, has charged and see Berrington v. Evans, 3 Y. &
Lord Hardwicke with inconsistency, C. 384.
Leahy v. Dancer, 1 Moll. 322. (d) 3 Sim. 286, see 300.
was liable as assets to a bond creditor, though copyholds by themselves were
not assets ; Acton v. Pierce, 2 Vern. 480.
1075
* 802 JUDGMENTS AGAINST [CH. XXVII. S. 7.

pose terms upon the mortgagor, and oblige him to discharge

every lien upon the estate before he can be permitted to re
deem the smallest part. But in Tunstall v. Trappes the
whole interest was never in the annuitant either at law or in
equity. The legal estate was limited to a third person in
fee, and the equitable interest to the extent of securing the
annuity only was in trust for the annuitant, but as to all
the residue was in trust for the grantor. There was nothing
to be redeemed, but merely a trust to be executed . The
judgment creditor might take an assignment of the
[* 802 ] annuity, but he had no right to tack the judgment :
the grantor could call for a reconveyance from the
trustee on payment of the price agreed upon for the an
nuity, and the Court could impose no terms , for no favour
was asked.
13. Execution of a trust estate by eligit at law, under Stat
ute of Frauds . - We come next to the provision in the 10th
section of the Statute of Frauds (a ), which enables a judg
ment creditor in certain cases to sue a writ of execution at
law against an equitable estate .
The 10th section enacts in substance that it " shall be law
ful for the sheriff to deliver execution unto the party suing
of all such lands and hereditaments as any other person may
be in any manner of wise seised or possessed in trust for the
party against whom execution is so sued, like as the sheriff
might or ought to have done, if the said party against whom
execution is so sued had been seised of such lands and here
ditaments of such estate as they are seised of in trust for him
at the time of the said execution sued."
14. Construction of the Statute . ―― - Upon the construction
of this section the following points have been resolved : -
a. As the statute, though using in one case the words
seised or possessed, speaks elsewhere only of lands, & c ., of
which others are seised in trust for the debtor , it does not ex
tend to trusts of chattels real of which the legal proprietor
is said not to be seised, but possessed (b) .

(a) 29 Car. 2, c. 3. Scholey, 8 East, 467 ; Metcalf v.

(b) Lyster v. Dolland, 3 B. C. C. Scholey, 2 Bos. & Pul. N. R. 461.
478 ; S. C. 1 Ves. jun. 431 ; Scott v.
1076
CH. XXVII. S. 7.] CESTUI QUE TRUST. *803

B. An equity of redemption is not within the terms of the

Act (c).
7. A bare and simple trust only is intended - not one of
a complicated nature, where the interests of other parties are
mixed up with the debtor's title (d) .
8. If after the judgment is entered up, but before actual
execution, the estate has been disposed of to a purchaser, so
that when execution is sued there is no trust for the debtor
in esse, in that case the words of the statute fail to provide a
remedy, and the judgment creditor cannot be put in posses
sion (e).
Whether equitable eligit may be had where no legal eligit of a
trust under the Statute. - The question has been much dis
cussed whether in the last case, though the judgment credi
tor could not prosecute a legal execution, he might not
subject the purchaser, if affected with notice, to an
* equitable elegit (a). It was said, that as there was [ * 803 ]
no execution at law, and equity followed the law, the
creditor was without redress ; but in this argument the prin
ciple that equity followed the law seems to be wrongly ap
plied. A judgment bound a legal estate, and, as equity fol
lowed the law, a judgment was therefore in equity a lien
upon the trust. The Statute of Frauds introduced an addi
tional remedy by enabling the judgment creditor, in certain
cases, to take legal execution of a trust. But affirmative
statutes do not abridge the common law (b) , and therefore
the creation of a legal remedy in certain cases provided for
by the Act could not preclude the judgment creditor from
prosecuting his equitable eligit in other cases for which the
statute had made no provision. The enactment was clearly
meant to be remedial, but the doctrine contended for would
impress on it a restrictive character, and covert it into a dis
abling statute. The difficulty in the way of the relief was

(c) Lyster v. Dolland, Scott v. (e) Hunt v. Coles, 1 Com. 226 ;

Scholey, Metcalf v. Scholey, ubi su Harris v. Pugh, 4 Bing. 335.
pra ; Burdon v. Kennedy, 3 Atk. 739. (a) See 2 Sugden's Vend. & Purch.
(d) Doe v. Greenhill, 4 B. & Ald. 386, 10th ed.; Coote on Mortg. 3d ed.
684 ; Harris v. Booker, 4 Bing. 96 ; p. 53 ; 2 Powell, Mortg. 606.
Forth v. Duke of Norfolk, 4 Mad. (b) Attorney-General v. Andrew,
504, per Sir J. Leach. Hard. 27 ; 2 Inst . 472.
1077
*804 JUDGMENTS AGAINST [CH. XXVII. S. 7.

said to be, that no instance of it could be found after the

most diligent search. The reason probably was, that judg
ments had only in modern times been held to bind equitable
interests at all ; the doctrine was certainly not established
before the Statute of Frauds. But the system of trusts had
from that period downwards been gradually maturing, and
the principles which governed uses, and were thence trans
ferred into trusts, had since, not indeed been abandoned , but
received a much more enlarged and liberal application, and
as judgments were acknowledged to be liens upon equitable
interests, the consequence necessarily followed that a pur
chaser was bound by notice of a judgment, as he would be
bound by notice of any other equitable incumbrance .
15. We now proceed to an examination of the more recent
statutes .
1 & 2 Vict. c . 110. - By the Act for extending the remedies
of creditors (1 & 2 Vict. c . 110) it is enacted (1. ) By sect.
11, That execution at law may be had under an eligit of the
whole lands freehold and copyhold, of which the debtor was
seised or possessed at law or in equity, or over which he had
a disposing power (c) , at or subsequently to the entering up of
thejudgment. (II. ) By section 13, That in equity a judgment
shall operate as a charge upon the whole of the lands
[ * 804 ] * freehold and copyhold of which the debtor was
seised or possessed at law or in equity, or over which
he had a disposing power, at or subsequently to the entering
up of the judgment, with a proviso that the creditor shall
not be entitled to proceed in equity to obtain the benefit of
such charge until after the expiration of a year from the date
of the judgment, and that the protection in equity of pur
chasers for valuable consideration without notice shall not be
disturbed. (III.) By sect. 18, That decrees and orders of
Courts of Equity, rules of Courts of Common Law, &c. ,
whereby any sum of money, or any costs, charges or ex

(c) A trust for the separate use defeat a voluntary settlement by

of a married woman is not an estate means of the 27 Eliz. c. 4, a disposing
over which she has a disposing power power within the Act of Vict.; Beav
within the meaning of the Act ; Dig an v. Earl of Oxford, 6 De G. M. &
by v. Irvine, 6 Ir. Eq. Rep. 149. Nei G. 507.
ther is the power of the settlor to
1078
CH. XXVII . S. 7. ] CESTUI QUE TRUST. *805

penses, shall be payable to any person, shall have the effect.

of judgments (a) . But, (IV.) By sect. 19, That no judg
ments, decrees, or orders, shall affect real estate by virtue of
the Act, unless and until they have been registered with the
senior master of the Court of Common Pleas.
16. Remarks on the Statute . - It is observable upon these
clauses, that an equitable estate, whether of freehold or copy
hold tenure, and whether of freehold or leasehold interest ,
and without any restriction to the time of execution sued, as
in the 10th section of the Statute of Frauds, is subjected by
the Act to execution at law by writ of elegit (s. 11 ) , and to
quasi execution in equity by way of charge (s . 13 ) . In the
latter case purchasers without notice are expressly protected
(s. 13) , but in the former case not : a purchaser, therefore,
even of an equitable interest, after the commencement of
the Act, was obliged by this statute to search the registry at
the Common Pleas for judgments entered up against the
vendor, and that whether before or subsequently to the Act,
for the time for entering up the judgments was immaterial,
provided they had been registered. It may been thought anom
alous and inconsistent that a purchaser should not be protected
at law by want of notice, while he was in equity ; but the
intention of the legislature probably was, in giving a remedy
both at law and in equity, not to disturb the principles upon
which the respective Courts acted, and therefore if the trust
was a plain one, and so amenable to a legal elegit, the judg
ment creditor might take the lands in execution even against
a purchaser without notice ; but if the trust was so compli
cated as to oblige him to apply to a Court of equity, and
treat the judgment as a charge, the Court by the
Act was not to disregard its established * rules, but, [ * 805 ]
as in all other cases, was to protect a purchaser with
out notice.
17. The following cases have been decided upon this Act.

(a) A decree for an account merely paid ; Jones v. Williams, 11 Ad. &
is not within the section ; Chadwick Ell. 175 ; Doe v. Amey, 8 M. & W.
v. Holt, 2 Jur. N. S. 918 ; [ Widgery 565 ; though, as respects costs, the
v. Tepper, 6 Ch . D. 364. ] Neither is case is different ; Jones v. Williams,
a rule of a Court of Common Law 8 M. & W. 349 ; Doe v. Barrell, 10 Q.
which does not specify the sum to be B. 531.
1079
*805 JUDGMENTS AGAINST [CH. XXVII. S. 7.

A. was entitled to an annuity secured by a covenant and an

assignment of leaseholds in trust to sell, and it was held that
A.'s interest under the deed might, under the Act, be made
available for payment of a judgment debt due from her (a) .
A testator gave real estate to trustees upon trust to levy and
raise, during the life of A., an annuity of 4001., and directed
the annuity to be held upon trust for the support, clothing,
and maintenance of A., and the Court, having previously
decided that the trust was one for the benefit of A. gener
ally (b), held that a judgment creditor of A. was entitled to
a charge on the annuity under the Act (c) . A person cove
nanted to pay A. 50007., and that the sum should be a charge
on certain land, and it was held that a judgment creditor of
A. was entitled to a charge on the land in respect of A.'s
interest therein (d) . A mortgage was executed with a
power of sale, and the surplus made payable to the mort
gagor, his heirs, appointees, or assigns, and before a sale
judgment was entered up against the mortgagor, who was
subsequently discharged under the Insolvent Act, and after
such discharge the mortgagee sold under the power of sale,
and it was held that the judgment creditor was entitled to
the surplus proceeds of sale (e). A. was tenant for life of
one-third of a trust fund, which at the time was invested on
real securities, and, it was held, though the trustees had a
power of varying the securities, that A.'s interest was bound
by the judgment (f) . Afeme, trustee for sale with a power
of signing receipts, married, and then with the concurrence
of her husband contracted to sell, and the purchaser objected
that, as the feme covert was beneficially entitled to one-third of
the produce, and the judgments were entered up, but after
the contract, against the husband, the wife could not make a
title ; however, the Court held that the judgments could not

(a ) Harris v. Davidson, 15 Sim. 15, s. 11 , when the mortgagee is paid

128. off, the judgment against him ceases
(b) Younghusband v. Gisborne, 1 to bind the land.
Coll. 400. (e) Robinson v. Hedger, 13 Jur.
(c) S. C. 1 De G. & Sm. 209. 846 ; 14 Jur. 784 ; 17 Sim . 183 ; and
(d) Russell v. M'Culloch, 1 K. & see Thornton v. Finch, 4 Giff. 515.
J. 313 ; and see Clare v. Wood, 4 (f) Avison v. Holmes, 1 J. & H.
Hare, 81. But by 18 & 19 Vict . c. 530.
1080
CH. XXVII . S. 7.] CESTUI QUE TRUST. *806

neutralise or prejudice the power of sale and signing re

ceipts (g) . Where a testator devised an estate to his wife for
life, with remainder upon trust to sell and divide the proceeds
amongst the testator's sons for life, of whom James
was one, it was held by V. C. Kindersley that the [ *806 ]
share of James was not " any estate or interest in
land " within the meaning of the statute (a) . But it is
observable, that of the several previous decisions one only
(Harris v. Davison ) appears to have been brought to the
attention of the Court.
18. Proviso against suing in equity until a year after judgment.
The object of the proviso in sect. 13, restraining the creditor
from suing for a year, is not obvious ; but most probably the
framers of the Act considered, that since he would obtain,
as incident to his charge, a right to a sale in equity, while
under the elegit he could only hold the land and take the
rents and profits, some delay might reasonably be interposed
before the exercise of the larger statutory remedy. At all
events it is settled, notwithstanding some conflict of opinion ,
that the proper remedy is by proceeding in equity for a
sale (b) . And, notwithstanding the proviso, it has been held
that the judgment creditor is entitled to have the interest of
his debtor at once secured for the creditor's protection (c) ;
and as between two judgment creditors the one who first ob
tains the charging order has priority (d) .
19. Consideration of the Charging Order provisions . ― The
14th section of the Act, which introduces a species of execu
tion against stock and shares in public funds and public com
panies, which before were not liable, deserves a separate con
sideration . By that section it is enacted that if any person
against whom any judgment (e ) shall have been entered up

(g) Drummond v. Tracy, Johns. (c) Yescombe v. Landor, 28 Beav.

608. 80 ; Partridge v. Foster, 34 Beav. 1 ;
(a) Thomas v. Cross, 2 Dr. & Sm. Tillett v. Pearson, 43 L. J. N. S. Ch .
423. 93. And see Smith v. Hurst, 1 Coll.
(b) Carlon v. Farlar, 8 Beav. 525 ; 705, and S. C. 10 Hare, 43 ; Mackin
Footner v. Sturgis, 5 De G. & Sm. non v. Stewart, 1 Sim. N. S. 76, 91.
736 ; Smith v. Hurst, 1 Coll . 705 ; 10 (d) Thomas v. Cross, 2 Dr. & Sm.
Hare, 30 ; Tuckley v. Thompson, 1 J. 423.
& H. 126, 130 ; but Jones v. Bailey, (e) Extended to Decrees, &c., by
17 Beav. 582, is contra. sect. 18 ; and by 3 & 4 Vict. c . 82,
1081
*807 JUDGMENTS AGAINST [CH. XXVII. S. 7.

in any of Her Majesty's superior Courts at Westminster,

shall have any Government stock, funds, or annuities, or any
stock or shares of or in any company in England , standing
in his name in his own right (ƒ) , or in the name of any per
son in trust for him, it shall be lawful for the Judge of one
of the superior Courts, on the application of any judgment
creditor, to order that such stock, &c., shall stand charged with
the payment of the amount for which judgment may
[ * 807 ] have been recovered * and such order shall entitle the
judgment creditor to all such remedies as he would
have been entitled to if such charges had been made in his
favour by the judgment debtor, provided that no proceedings
shall be taken to have the benefit of such charge until after
the expiration of six calendar months from the date of such
order ; and by the next following section of the Act it is pro
vided that the order of the Judge shall be ex parte in the
first instance, and, on notice to the Bank or Company, shall
operate as a distringas, and that no disposition of the judg
ment debtor in the meantime shall be valid as against the
judgment creditor, [ and that unless the judgment debtor
shall within a time to be mentioned in the order show cause,
the order shall be made absolute , but the Judge may upon
the application of the judgment debtor or any person inter
ested discharge or vary the order. ]
20. The leading points decided with reference to this new
species of execution are the following :
a. By whom charging order should be made. —[ Under the old
practice it was held that] in the ordinary case of a judgment
at law, the application for the charging order must be made
to one of the Common Law Judges, even though the stock
to be charged were standing in the name of the Paymaster

s. 1, the property intended to be be re-transferred to the father upon

embraced by this section is further request, it was held that the shares
defined, so as to include any interest were not standing in the son's name
(as a life estate ) in stock or shares. in his own right within the meaning
[(f) Where shares in a company of the Act ; Re Blakely Ordnance
had been transferred by a father Company, Frederick Coates's case,
without consideration into the name 46 L. J. N. S. Ch. 367 ; but see Jef
of his son in order to qualify the son fryes v. Reynolds, 52 L. J. N. S. C. L.
to be a director of the company, to 55 ; 48 L. T. N. S. 358. ]
1082
CH. XXVII. S. 7. ] CESTUI QUE TRUST. *808

General (a) . But where a charging order was to be made

in furtherance of a decree of the Court of Chancery, it could
properly be made by a Judge of the Court of Chancery (b) .
[But now the charging order may be made by any Divisional
Court or by any Judge ( c) . ] The charging order is made
ex parte and nisi in the first instance, but when confirmed
absolute it operates from the order nisi (d) .
B. Charging order will be made at law without deciding the
quantum of interest charged. --- Where stocks or funds are
vested in trustees, and a judgment debtor appears to be in
terested therein , the charging order will be made at law,
so as to affect the interest of the judgment debtor, whatever it
may be, leaving it to the trustees, if the precise amount of
the debtor's interest is not sufficiently defined, to say they
will not act except under the direction of the Court (e) .
[But a charging order cannot be made affecting stocks and
shares forming part of a residuary estate in which the debtor
is interested but which are meanwhile subject to a direction
for conversion (ƒ) . ]
* 7. Bank or public company bound to pay to trustee , [ * 808 ]
notwithstanding charging order on interest of cestui que
-
trust. — Where a charging order is made upon the partial in
terest of a cestui que trust in stock or shares standing in the
names of trustees, the Bank or public company whose stock
or shares are affected by the charging order, is not concerned
with questions arising between the judgment creditor and
other persons interested in the trust fund, but is bound, in
like manner as before the charging order, to pay the divi
dends to the trustees (a) .
[8. Judgment payable in futuro. A charging order may be

(a) Hulkes v. Day, 10 Sim. 41 . W. 57 ; Rogers v. Holloway, 5 M. &

(b) Stanley v. Bond, 7 Beav. 386 ; Gr. 292 ; Cragg v. Taylor, 12 Jur. N.
Westby v. Westby, 5 De G. & Sm. S. 320 ; 1 L. R. Ex. 148 ; 2 L. R. Ex.
516 ; Wells v. Gibbs, 22 Beav. 204. 131 ; [ South Western Loan Com
[ (c) See Order 46, R. 1 , of the pany v. Robertson, 8 Q. B. D. 17. ]
Rules of the Supreme Court.] [(f) Dixon v. Wrench, 4 L. R. Ex.
(d) Haly v . Barry, 3 L. R. Ch . 154.]
App. 452 ; [ Burns v. Irving, 3 Ch. D. (a) Churchill v. Bank of England,
291 ; and see Widgery v. Tepper, 6 11 M. & W. 323 ; [ South Western
Ch . D. 364. ] Loan Company v. Robertson, 8 Q. B.
(e) Fowler v. Churchill, 11 M. & D. 17.]
1083
*808 JUDGMENTS AGAINST [CH. XXVII. S. 7.

made in respect of a judgment made payable on a future

day (b) . ]
e. Proviso at the end of sect. 14 does not forbid suit for pro
tecting interest of judgment creditor. The proviso at the end
of the 14th section , forbidding proceedings until after six cal
endar months, applies only to proceedings for enforcing im
mediate payment of the debt by realising the security, and
does not prevent the judgment creditor from taking steps to
prevent the security given him by the statute from being in
the meantime defeated or diminished . Thus, where the
funds are standing in the name of the Paymaster- General,
the judgment creditor may, within the six months, apply for a
stop order to restrain the debtor from receiving dividends
accruing within the six months (c) .
s . As to effect of charging order in reference of other incum
brances. - It must be considered as now settled, notwith
standing a decision of the Court of Queen's Bench to the
contrary (d) , that a judgment creditor who obtains a charg
ing order against stock vested in a trustee is entitled to such
interest therein only, as the debtor has, and must take sub
ject to all specific charges, whether notice thereof may or not
have been given to the trustee before he has notice of the
charging order (e ) .
7. And a charging order has no greater effect than an in
strument of charge executed by the judgment debtor would
have had, so that, if the debts on which the judgment and
charging order were founded was void, the charging order is
inoperative (ƒ) .
[(b) Younghusband v. Gisborne, 1 (d) Watts v. Porter, 3 Ell. & Bl.
De G. & Sm. 209 ; Bagnall v. Carlton, 743 ; Erle, J., diss.
6 Ch. D. 130. ] (e) Beavan v. Earl of Oxford, 6
(c) Watts v. Jefferyes, 3 Mac. & De G. M. & G. 507 ; Kinderley v. Jer
G. 372 ; and see Bristed v. Wilkins, 3 vis, 22 Beav. 34 ; Scott v. Hastings,
Hare, 235. [ Under the new practice 4 K. & J. 633 ; [ Punchard v. Tomkins,
it is not necessary as a preliminary 31 W. R. 286, in which case a prior
to obtaining a stop order on a fund unregistered specific charge of lands
in Court to the credit of the Chancery in Middlesex , was held to have prior
Division by a person who has a judg ity over a subsequent general and
ment in an action in another Division roving charge.]
that he should obtain a charging (f) Re Onslow's Trusts, 20 L. R.
order in that Division ; Hopewell v. Eq. 677. It has been held under the
Barnes, 1 Ch. D. 630 ; Shaw v. Hud Irish Act that a conditional charging
son, 48 L. J. N. S. Ch. 689. ] order made ex parte can be served on
1084
 CH. XXVII. S. 7. ] CESTUI QUE TRUST. *809

-
*[(8.) Remedies under charging order. The judg- [ * 809 ]
ment creditor is entitled to the same remedies under
the charging order, as he would have had if the charge had
been created by contract between himself and the debtor ;
and must therefore, to enforce the charge, institute fresh
proceedings for foreclosure or sale, without which the Court
has no jurisdiction to order a sale of the shares (a) .
(1.) Order absolute cannot be discharged . ――― After the order
I
has been made absolute, it cannot be discharged, even upon
the application of a person who shows that the shares were
standing in the name of the judgment debtor as a mere
trustee for the applicant (b) . ]
21. 2 & 3 Vict. c. 11. - The 1 & 2 Vict. c . 110 , was soon fol
lowed by another statute (2 & 3 Vict. c. 11 ) , by which it was
enacted : - (1. ) By section 2 , that no judgment whatsoever
should affect any lands, tenements, or hereditaments as to pur
chasers , mortgagees, or creditors , unless previously registered
at the Common Pleas according to the provisions of the Act 1
&2 Vict. c. 110. (II.) By section 4, that all judgments, decrees,
rules, and orders registered , or to be registered , at the Common
Pleas, according to the provisions of the Act 1 & 2 Vict. c.
110, should, at the expiration of five years, be null and void
against lands, tenements, and hereditaments , as to purchas
ers, mortgagees, or creditors (e) , unless they should have again

a person out of the jurisdiction ; Re see Simpson v. Morley, 2 K. & J. 71 ;

Gethin, 9 Ir. Eq . 512. [ And see Re Benham v. Keane, 1 J. & H. 697. So
Blakely Ordnance Company , Fred where A., B., and C. were successive
erick Coates's case , 46 L. J. N. S. Ch . judgment creditors , and A. registered
367.1 his judgment on the 12th of March ,
[(a) Leggott v. Western, 12 Q. B. 1840, but never re-registered ; B.
D. 287.] registered his judgment in April ,
(b) Jeffryes v. Reynolds, 52 L. J. 1842, and re-registered in March,
N. S. C. L. 55 ; 48 L. T. N. S. 358. 1848 ; C. registered his judgment on
(c) These words mean purchasers, the 18th of March, 1845, and re
mortgagees, or creditors becoming such registered on the 16th of March, 1850,
after the omission to re- register, so it was held that C. was first entitled
that, if A. and B. be respectively first to take the amount due on A.'s judg
and second judgment creditors who ment, and then that B. was entitled
both duly register , A does not, by to be paid the full amount of his
subsequently omitting to re- register, judgment before C. took anything
lose his priority over B.; Beavan v. more in respect of his judgment. Re
Earl of Oxford, 6 De G. M. & G. 492 ; Lord Kensington, 29 Ch . D. 527.
Shaw v. Neale, 6 H. L. Cas. 581 ; and
1085
* 810 JUDGMENTS AGAINST [CH. XXVII . S. 7.

been registered in the Common Pleas within five years before

the right, title, estate, or interest of such purchasers, mort
gagees, or creditors accrued (d) . ( III. ) By section 5 , that
as against purchasers and mortgagees without notice, no judg
ment, decree, or order should have a greater effect than a
judgment would have had against such purchaser or mort
gagee before the passing of 1 & 2 Vict . c . 110. ( v. ) By
section 8, that judgments, statutes, and recognizances to the
Crown should not bind purchasers or mortgagees unless reg
istered as Crown debts at the Common Pleas ( e) .
[ * 810 ] By virtue of the above clauses the execution that
might under the former statute have been taken out
at law against an equitable interest in the hands of a pur
chaser for value without notice was, in common with every
other advantage given by the former statute against such
purchaser, recalled, and the purchaser was relieved from the
necessity of carrying his search back beyond the period of
five years ; except as regarded Crown debts, to which the en
actment requiring re-registration did not apply.
Old law still applicable in case of purchase for value without
notice. A singular result of the 5th section was, that in
the occasional, though rarely occurring case of a purchase or
mortgage without notice of a previously registered judgment,
the old law, as it existed before 1 & 2 Vict. c . 110 , was
resorted to for guidance. Thus, by 1 & 2 Vict . c. 110, judg
ments were a lien upon leaseholds, but by 2 & 3 Vict. c. 11,
s . 5, if a purchaser or mortgagee had no notice of a regis
tered judgment (for registration is not notice per se) , he was
not bound by the judgment unless at the time of the pur
chase or mortgage an elegit had been issued, for by the old
law a judgment became a lien only upon chattels upon the
writ of execution being lodged in the hands of the sheriff (a) .

(d) And see 18 & 19 Vict. c. 15, s . 6. spective, and therefore does not apply
(e) The Act speaks only of recog to recognizances entered up before
nizances to the Crown, and not of the passing of the Act, 29th July,
recognizances in general, as on re 1864. Recognizances to the Crown
ceiverships , which are also liens on are further provided for by 28 & 29
real property. The 27 & 28 Vict. c. Vict. c. 104, s . 48.
112, s. 1 , extends to recognizances (a) Westbrook v. Blythe, 3 Ell . &
generally ; but the Act is not retro Bl. 737.
1086
CH. XXVII. S. 7.] CESTUI QUE TRUST. *811

22. 3 & 4 Vict. c . 82. ――― This Act, however, still left open
the question whether, by analogy to the cases under the
Registry Acts, a purchaser, mortgagee, or creditor, if he had
actual notice of an unregistered judgment, was not bound
by it ; and a subsequent Act, 3 & 4 Vict. c . 82, was passed
to obviate this. It was thereby enacted, by the second sec
tion, that no judgment, decree, order, or rule (not mentioning
Crown debts ) should, by virtue of the said Act ( 1 & 2 Vict.
c. 110), affect any lands at law or in equity as to purchasers,
mortgagees, or creditors, until registration (b) under the
said Act at the Common Pleas, any notice of such judgment,
decree, order, or rule to any purchaser, mortgagee, or cred
itor, in anywise notwithstanding.
23. 18 & 19 Vict. c. 15. ―― It being, however, doubted
whether this Act protected a purchaser, mortgagee, or cred
itor from the effect of notice as to any remedy against him
which the judgment creditor had before, independently of 1
& 2 Vict. c. 110, or whether its effect was not limited to pro
tection against the additional remedy given to the judgment
creditor by that Act ( c ) , it was, in order to obviate
*
this inconvenience, enacted generally, by 18 & 19 [ * 811 ]
Vict. c. 15, s . 4, that no judgment, decree, order, or
rule (a) , which might be registered under 1 & 2 Vict. c. 110,
should affect any lands, &c ., at law or in equity, as to pur
chasers, mortgagees, or creditors, unless and until the mem
orandum, &c . should have been left with the proper officer,
any notice of any such judgment, decree, &c ., to any such
purchaser, mortgagee, or creditor, in anywise notwithstand
ing.
24. 22 & 23 Vict . c. 35. -The 22 & 23 Vict . c . 35 , s. 22,
puts Crown debts on the same footing as judgments as re
gards the necessity of re-registration from time to time, thus
reducing the period over which the search for Crown debts
should extend to five years, as in the case of judgments, &c .

(b) The framer of this Act appears with notice. This doubt is now set at
to have overlooked the intermediate rest by sect. 5 of 18 & 19 Vict. c. 15 .
Act of 2 & 3 Vict. c. 11 , and to have (c) See Beere v. Head, 3 Jon. &
left it doubtful whether re-registra Lat. 340.
tion within five years was necessary (a) N.B. - Not mentioning Crown
to exclude the title of a purchaser debts.
1087
*812 JUDGMENTS AGAINST [CH. XXVII. S. 7.

―
25. 23 & 24 Vict . c. 38. By the Law of Property Amend
ment Act, 23 & 24 Vict. c . 38 , s . 1 , freehold, copyhold and
leasehold estates, were, in respect of judgments (b), statutes
and recognizances, as against purchasers and mortgagees,
placed upon the same footing, and no such judgments, &c . ,
entered up after the date of the Act (23d July, 1860) , were
to affect lands in the hands of purchasers or mortgagees,
unless a writ of execution should have been issued and regis
tered before the conveyance or mortgage, and unless execu
tion should be put in force within three calendar months
from the registration . A purchaser, therefore, was thus pre
cluded from objecting to the title on the ground of his having
notice of a judgment entered up after the Act, and registered
at the Common Pleas, but upon which no execution had
been issued (c).
26. Who are purchasers . As to the meaning of the word
purchasers, it has been held that a wife and children are
purchasers under a marriage settlement of the interests
limited to them out of the husband's estate, but the husband
as to a life-interest limited to himself out of his own estate
is not a purchaser, and a judgment therefore would attach
upon it just as if it were not the subject of settlement (d) .
27. Construction of the Acts. ― And the construction of
the Acts extending the remedies of the judgment creditor,
is that as to equitable interests they are to receive the same
construction as the Statute of Frauds, and consequently that
simple trusts only can be taken in execution at law (e. )
28. 27 & 28 Vict. c. 112. ―-We now come to the
[* 812] more recent Act, 27 & 28 Vict. c . 112, * which enacts ,
by the first section, that no judgment, statute or recog
nizance to be entered up after 29th July, 1864, shall affect
any land until actual delivery of the land in execution by a
writ of elegit or other lawful authority. (a) . And by the

(b) This, by sect. 5 , includes de (d) Re Browne, 13 Ir. Ch. Rep. 283 .
crees, orders in equity and bank (e) Digby v. Irvine, 6 Ir. Eq. Rep.
ruptcy, and other orders having the 149.
operation of a judgment. (a) The provisions of this Act are
(c) Wallis v. Morris, 10 Jur. 740 ; by 28 & 29 Vict. c. 104, s. 48, ex
and see Thomas v. Cross, 2 Dr. & tended, as from 1st November, 1865,
Sm . 423. to Crown debts.
1088
CH. XXVII. S. 7.] CESTUI QUE TRUST. *812

third section , that every writ or other process of execution

must be registered in the name of the debtor. And by the
fourth section, that the creditor to whom any land shall have
been actually delivered in execution (b) , is entitled forth
with to obtain from the Court of Chancery, upon petition,
1
an order to be served upon the debtor only for the sale of the
debtor's interest in the land ; and thereupon inquiries are to
be directed as to the nature and particulars of such debtor's
interest (c). And by the fifth section, that if it be found
that the land is charged with any other debt due on any
judgment, statute or recognisance, whether prior or subse
quent to the charge of the petitioner, such other creditor is
to be served with notice of the order for sale, and is to be at
liberty to attend the proceedings ; and the proceeds of sale
are then to be distributed amongst the parties entitled
according to their priorities. It is to be noticed also that
judgments are made by the second section to comprise " reg
istered decrees, orders of the Courts of equity and bank
ruptcy, and other orders having the operation of a judg
ment."
29. The Act as affecting equitable interests. - This Act has
a most important bearing upon equitable interests . The
object of it, as expressed in the preamble, was " to assimilate
the law affecting freehold, leasehold , and copyhold estates to
that affecting pure personal estates," and it extends to land
" or any interests therein," and therefore comprises all equi
table interests . For the future, therefore, judgments are not
to affect any equitable interest " until actual delivery of the
land in execution by a writ of elegit or other lawful author
ity." But the words " actual delivery " are to be construed
in a liberal sense, for incorporeal hereditaments and equities
are not capable of manual delivery, and yet are included in
the Act. Indeed, as Lord Justice Mellish observed, " The
sheriff (as to a legal elegit) does not give the creditor actual

(b) As to the effect of these words, bour Company, W. N. 1866, p. 9 ; Re

see Re Cowbridge Railway Company , Hull & Hornsea Railway Company,
5 L. R. Eq . 413. 2 L. R. Eq. 262 ; Gardner v. London
(c) As to the inquiries which the Chatham and Dover Railway Com
Court directs, see Re Ventnor Har pany, 2 L. R. Ch . App . 385.
1089
*813 JUDGMENTS AGAINST [CH. XXVII . S. 7.

possession of the land itself, but the effect of his return is to

vest the legal estate in the creditor, who can then bring an
ejectment " (d) . The Act speaks of delivery of pos
[* 813 ] session, not only by * writ of elegit, but " by other
lawful authority," and this has been held to mean ,
" any lawful authority which could cause such a delivery in
execution as the subject matter is capable of, and where a
judgment creditor comes into equity to remove a legal im
pediment, the relief given is substantially a delivery in
possession whether in form it be a writ of assistance or of
sequestration, or the appointment of a receiver " (a).
Present state of the law. - A judgment creditor therefore
who comes under the operation of the Act may still institute
proceedings for equitable execution against an equitable in
terest, but the judgment forms no lien upon the equitable
interest until the creditor has reached some process in equity
corresponding to actual execution at law, such as sequestra
tion, or the appointment of a receiver, or an order of sale .
Thus a creditor having a judgment against a mortgagor may
bring an action against him for equitable execution by the
appointment of a receiver, subject to the right of the mort
gagee (b) , or he may take proceedings against the mortgagor
and mortgagee for redemption of the mortgage and fore
closure of the mortgagor (c) . [ So a judgment creditor may
obtain the appointment of a receiver of a reversionary interest
in a trust estate ( d) , or of a life interest in settled funds (e) ,
or of a debt or sum of money payable to the judgment
debtor to which garnishee proceedings are not applicable (f) ,
and the appointment of a receiver may be made ex parte
upon an interlocutory application immediately after the insti

(d) Hatton v. Haywood, 9 L. R. p. 21 ; Anglo-Italian Bank v. Davies,

Ch . App . 236. 9 Ch . D. 275. ]
(a) Hatton v. Haywood, 9 L. R. (c) Beckett v. Buckley, 17 L. R.
Ch. App. 235, per Lord Selborne ; Eq. 435.
[Anglo-Italian Bank v. Davies, 9 Ch. [(d) Fuggle v. Bland, 11 Q. B. D.
D. 275 ; Ex parte Evans, 11 Ch. D. 711.]
691 ; 13 Ch . D. 252 ; ] and see Re [(e) Oliver v . Lowther, 42 L. T. N.
Bailey's Trust, 38 L. J. N. S. Ch . S. 47 ; 28 W. R. 381. ]
237. [(f) Westhead v. Riley, 25 Ch. D.
(b) Wells v. Kilpin, 18 L. R. Eq . 413.]
298 ; [ Kidd v. Tallentire, W. N. 1877 ,
1090
CH. XXVII . S. 7.] CESTUI QUE TRUST . * 814

tution of the action (g) , or without the institution of a fresh

action on an interlocutory application in the action in which
the judgment was obtained ( h) ; and the appointment though
made conditional upon the receiver's giving security operates
as an immediate equitable execution (i) ; and if the property
is already in the hands of a receiver, the Court may appoint
another receiver but not to act until the earlier receiver has
been discharged, which would amount to equitable execu
tion ( ) ; and if the appointment of the receiver is
merely for the purpose of giving a charge * and it is [ * 814 ]
not intended that the receiver should go into posses
sion, the Court will make the appointment without security, on
the judgment creditor and the receiver undertaking that the
receiver shall not act without the leave of the Court (a) . ]
But should a judgment creditor without taking proceedings
for equitable execution present a petition in a summary way
under the Act for sale of the equitable interest, the petition
would be dismissed, as the creditor has no lien by virtue of
the judgment itself, and the Court has not yet awarded any
equitable execution (b) ; and so, if a creditor having a judg
ment against a mortgagor bring an action for execution
against the equity of redemption, and, before the Court has
made any order amounting to equitable execution, the mort
gagor becomes bankrupt, the action must be dismissed, for
no lien had attached previously to the bankruptcy which
vested the property in the trustees for the benefit of all the
creditors equally (c) .
-
Property not capable of actual delivery. Where the subject
matter is not in possession, and therefore is in its nature not
capable of actual delivery by the sheriff, as in the case of a
remainder expectant on a particular estate, there , although

[(g) Anglo-Italian Bank v. Davies, [ (a ) Hewett v. Murray, W. N.

9 Ch. D. 275 ; Ex parte Evans, 11 Ch. 1885, p . 53. ]
D. 691 ; 13 Ch. D. 252. ] (b) Re Duke of Newcastle, 8 L. R.
[ (h) Smith v. Cowell, 6 Q. B. D. Eq. 700 ; and see Re Cowbridge Rail
75 ; Fuggle v. Bland, 11 Q. B. D. way Company, 5 L. R. Eq . 413 ; Re
711 ; Salt v. Cooper, 16 Ch . D. 544. ] South, 9 L. R. Ch . App. 369.
[(i) Ex parte Evans , ubi supra.] (c) Hatton v. Haywood, 9 L. R.
[(j) Per Jessel, M. R., Salt v. Ch. App . 229.
Cooper, 16 Ch . D. 544. ]
1091
*815 JUDGMENTS AGAINST [CH. XXVII. S. 7.

the sheriff may have made a return of actual delivery, yet,

as such return is false in law and therefore null, a petition
for sale under the Act founded upon such return cannot be
sustained (d).
30. Whether an elegit must be actually sued out. The
mode of proceeding in equity appears to be this : if the cred
itor seek to remove some impediment to the legal execution
of the judgment, he must lay a foundation for the interfer
ence of equity [by shewing that the legal remedies have
been exhausted. For this purpose it was, prior to the Judi
cature Act, necessary for the creditor to sue ] out an elegit
at law (e) ; and the same rule prevailed where the judgment
was merely an equitable lien (f) ; but the elegit need not
have been returned (g) ; and where the trust estates were
in three counties an elegit in one was held to be sufficient (h) .
[ But since the Judicature Act it is not necessary to sue out
an elegit if it can be otherwise shown that there is
[ * 815 ] no * property of the debtor against which the elegit
could be issued for the purpose of satisfying the
judgment, and where an affidavit to that effect was made by
the creditor, a receiver was appointed although no elegit had
issued (a) ; and a judgment creditor may in the same action
establish a charge and enforce it (b) . ]
Fi. fa. sufficient in case of equitable chattel real. ――― When the
interest sought to be affected is an equitable chattel real, it is
sufficient to sue out a writ of fieri facias (c) . And when
the assistance of the Court is sought in favour of a County

(d) Re South, 9 L. R. Ch. App. (g) Dillon v. Plasket, 2 Bligh, N.

369. S. 239; and see Campbell v. Ferrall,
(e) See Dillon v. Plasket, 2 Bligh, Rep. t. Plunket, 388 ; [ Anglo- Italian
N. S. 239 ; Neate v. Duke of Marl Bank v. Davies, 9 Ch. D. 275.]
borough, 3 M. & Cr . 407 ; Mitford on (h) Dillon v. Plasket, 2 Bligh, N.
Plead. 126, 4th edit. S. 239.
(f) Neate v. Duke of Marlbor [(a) Ex parte Evans, 11 Ch. D.
ough, 9 Sim . 60 ; 3 M. & Cr. 407 ; 691 ; 13 Ch . D. 252 ; Anglo-Italian
Godfrey v . Tucker, 33 Beav. 280 ; Bank v. Davies, 9 Ch . D. 275.]
Imperial Mercantile Credit Associa [ (b) Beckett v. Buckley, 17 L. R.
tion v . Newry and Armagh Railway Eq . 435.]
Company, 2 Ir. Rep. Eq. 23, per Cur.; (c) Gore v. Bowser, 3 Sm. & G. 1 ;
but see Tunstall v. Trappes, 3 Sim. Smith v. Hurst, 10 Hare , 30 ; Smith
286 ; Rolleston v. Morton, 1 Conn. & v. Hurst, 1 Coll. 705 ; Partridge v.
Laws. 257. Foster, 34 Beav. 1.
1092
CH. XXVII. S. 7. ] CESTUI QUE TRUST. * 816 .

Court judgment against an equitable chattel real, it is suffi

cient to pursue the analogous step of placing a writ of exe
cution in the hands of the high bailiff, pursuant to the
County Court Act (d).
Redemption of a mortgage. — A judgment creditor may re
deem a mortgage without suing out an elegit ; for inasmuch
as the Court finds the creditor in a condition to acquire a
power over the estate by suing out the writ, it gives to the
party the right to come in and redeem other incumbrancers
upon the property (e) .
Proceedings in equity of judgment creditor after death of
conusor. Whether the judgment be legal or equitable, if the
creditor take proceedings in equity after the death of the conu
sor for satisfaction of his claim out of the personal assets ,
and in case of their deficiency, by a sale of the real estate, an
actual elegit is not an essential requisite (ƒ) .
[31. Attachment under Order 45. ➖➖➖➖- In order to found an
attachment under Order 45 of the Rules of the Supreme
Court, there must be an actual debt at the time , although it
need not be then due. Therefore, where a judgment debtor
was entitled for life to the income of a trust fund payable
half-yearly, and the trustees had duly made the last half
yearly payment and had no money representing income in .
their hands it was held that there was nothing to attach.
The proper course in such a case is to obtain equitable exe
cution by the appointment of a receiver (g) . ]
――― A creditor who has issued ex
[ 32. Effect of bankruptcy.
ecution against the goods or lands of a debtor, or has at
tached any debt due to him, is not entitled to retain the
benefit of the execution or attachment against the trustee
in bankruptcy of the debtor, unless he has completed
the execution * or attachment before the date of the [ * 816 ]
receiving order, and before notice of the presentation
of any bankruptcy petition by or against the debtor, or of

(d) Bennett v. Powell, 3 Drew. 326. Ridg. P. C. 24. See the observations
(e) Neate v . Duke of Marlborough, of Lord Fitzgibbon, p . 61 ; Neate v.
3 M. & Cr. 416, per Lord Cottonham ; Duke of Marlborough , 3 M. & Cr. 416.
and see Godfrey v. Tucker, 33 Beav. [(g) Webb v. Stenton, 11 Q. B. D.
284. 518 ; see Re Cowan's Estate, 14 Ch.
(ƒ) Barnewall v. Barnewall, 3 D. 638. ]
1093
* 816 JUDGMENTS AGAINST. [CH. XXVII. S. 7.

the commission of any available act of bankruptcy by the

debtor. And an ' execution against goods is completed by
seizure and sale ; an attachment of a debt by receipt of the
debt ; and an execution against land by seizure , or, in the
case of an equitable interest, by the appointment of a re
ceiver (a) . ]

33. Case of lands lying in a register county. - The law as to

priority of judgments in the case of lands lying in a register
county is as to judgments entered up on or before 29th July,
1864 (the date of the last Act) , by the combined effect of
the County Register Acts and of the Acts of the Queen be
fore referred to , in a singular position .
Judgment postponed to subsequent purchase or mortgage with
out notice , unless registered both in County Register and at the
Common Pleas . It is clearly settled that the County Regis
ter Acts are still in force, and consequently that, in order to
give a locus standi to a judgment creditor over a subsequent
purchaser or mortgagee without notice, his judgment must be
registered both in the County Register and in the Common
Pleas, before the completion of the purchase or mort
gage (b) .
34. Rights of two judgment creditors inter se. - But the
doctrine of notice does not apply as between two judgment
creditors ; and therefore a judgment creditor, who, by first
registering in Middlesex , has gained priority at law over a
judgment of previous date duly registered in the Common
Pleas, but not in Middlesex, will not be postponed in equity
because he had at the time of so registering notice of the
prior judgment (c) . And, therefore, generally, as between
two judgment creditors, the one who first registers in the
County Register obtains precedence over one who registers
afterwards in the County Register, though he may not have
registered first at the Common Pleas (d) .

[ (a) 46 & 47 Vict. c. 52 , s. 45. ] 685 ; and on appeal, 3 De G. F. & J.

(b) Westbrook v. Blythe, 3 Ell. & 318 .
Bl . 737. (d) Hughes v. Lumley, 4 Ell. & Bl.
(c) Benham v. Keane, 1 J. & H. 274 ; Neve v. Flood, 33 Beav. 666.
1094
CH. XXVII . S. 8. ] EXTENTS FROM THE CROWN. *817

35. Case where subsequent purchaser or mortgagee has no

tice. - Where the subsequent purchaser or mortgagee has
notice of a prior judgment, the question is, whether the judg
ment was registered at the Common Pleas before the com
pletion of the purchase or mortgage, since, as we have before
seen, unless so registered it cannot bind, notwithstanding the
notice. But if duly registered in the Common Pleas, then
notice to the purchaser or mortgagee will , in equity, though
not in law, supply the want of registration in the
county (e).
* 36. 27 & 28 Vict. c. 112. ――― As to judgments en- [ * 817 ]
tered up since 27 & 28 Vict. c. 112 (29th July, 1864) ,
there must now be not only registration at the Common
Pleas, in addition to the County Registry, but also actual
delivery of the land in execution under the writ (a) .

SECTION VIII .

OF EXTENTS FROM THE CROWN.

1. Extent binds trust. The equitable interest of a term ,

or of a freehold held in trust, is liable to an extent from the
Crown (b) ; and this not by the effect of any legislative
enactment, but per cursum scaccarii at common law ( c) .
The words of the writ issued to the sheriff are to hold in
quest of the lands whereof the debtor, not seisitus fuit, but
habuit vel seisitus fuit, and a person may be said to have
lands, when by subpoena in Chancery he may exercise any
dominion over them (d).
2. Sale of the lands extended . ―― At common law the ex
tent of the Crown did not authorize a sale of the lands, but

(e) Benham v. Keane, 1 J. & H. case, Godb. 293 ; the cases cited Id .
685 ; Tunstall v. Trappes, 3 Sim . 302 ; 294 ; Id. 298 ; Babington's case, cited
Davis v. Earl of Strathmore, 16 Ves. Id. 299 ; King v. Smith, Sugd. Vend.
427. & Purch. Append . No. xv. 11th edit.
(a) See Re Bailey's Trusts, 38 L. J. per Ch. Baron Macdonald.
N. S. Ch. 237. (c) Attorney General v. Sands,
(b) King v. Lambe , M'Clel. 422, Hard. 495, per Lord Hale.
per Sir W. Alexander ; Chirton's case, (d) See Sir E. Coke's case, Godb.
Dyer, 160, a ; S. C. cited Sir E. Coke's 294.
1095
*818 FORFEITURE OF A TRUST. [CH. XXVII. S. 9.

only the perception of the rents and profits, until the amount
of the debt was levied (e) . This defect was supplied par
tially by a statute of Elizabeth (f) , and more effectually by
25 G. 3, c. 35. It is by the latter statute enacted, that "it
shall be lawful for the Court of Exchequer, and the same
Court is thereby authorized, on the application of the Attor
ney-General (g) in a summary way by motion (h) to the
same Court, to order that the right, title, estate, and interest
of any debtor to the Crown, and the right, title , estate, and
interest of the heirs and assigns of such debtor, which have
been or shall be extended under or by virtue of any extent
or diem clausit extremum, shall be sold as the Court shall
direct, and the conveyance shall be made by the Remem
brancer in said Court of Exchequer or his deputy, under
the direction of the said Court, by a deed of bargain and
sale to be inrolled in the said Court."
[* 818] * 3. Equity of redemption. - By the effect of this
enactment, a trust or equity of redemption (a) of a
Crown debtor may now be sold upon summary application
to the Queen's Bench Division by motion .

SECTION IX.

OF FORFEITURE .

1. Trust not forfeitable at common law for attainder. --- A

trust of lands was never forfeitable at common law for at
tainder of either treason or felony (b) ; for forfeiture worked
only upon tenure, and a trust was holden of nobody. The
ground of the forfeiture at law was that all estates were held
upon condition of duty and fidelity to the lord, and upon
breach of allegiance they returned to the Crown, from whom
they originally proceeded (c) .

(e) Rex v. Blunt, 2 Y. & J. 122, (a) King v. De la Motte, Forr. 162.
per Baron Hullock. (b) Attorney - General v. Sands ,
( f ) 13 Eliz . c. 4 . Hard. 495, per Lord Hale ; 1 Hale's
(g) See Rex v. Bulkeley, 1 Y. & J. P. C. 247 ; Jenk. 190 .
256. (c) Gilb. on Uses, 38.
(h) See Rex v. Blunt, 2 Y. & J. 120.
1096
CH. XXVII. S. 9. ] FORFEITURE OF A TRUST. *819

2. 26 H. 8, c. 13. The exemption of the use from forfeit

ure was remedied in the case of treason, by 26 H. 8, c . 13, s .
5, whereby it was enacted, that, " every offender convicted .
of high treason by presentment, confession , or process of out
lawry, should forfeit to the King all such lands, &c., which
such offender should have of any estate of inheritance in
use or possession ."
-
3. 27 H. 8. The following year was passed the 27 H. 8,
by which uses were abolished, and, as the trust which grew
up in the place of the use was held to be an interest sui gen
eris, and not within reach of the statutes directed against
uses, the legislature was again called upon to interpose by
special enactment to remedy the defect.
4. 33 H. 8, c. 20. The 33 H. 8, c . 20, s . 2 , declared , that
"if any person or persons should be attainted of high trea
son by the course of the common laws or statutes of the realm,
every such attainder by the common law (d) should be of as
good strength, value, force, and effect, as if it had been done.
by authority of Parliament ; and that the King's Majesty,
his heirs and successors, should have as much benefit and
advantage by such attainder, as well of uses, rights, entries,
conditions, as possessions, reversions, remainders, and all
other things, as if it had been done and declared by author
ity of Parliament, and should be deemed and adjudged in
actual and real possession of the lands, tenements, heredita
ments, uses, goods, chattels, and all other things of
the offenders so attainted, which * his highness ought [ * 819]
lawfully to have, and which they, being so attainted ,
ought or might lawfully lose and forfeit, if the attainder had
been done by authority of Parliament, without any office or
""
inquisition to be found of the same."
5. King v . Daccombe. Notwithstanding this statute, it was
laid down extrajudicially in the reign of James I., and was
said to have been so resolved previously ( a) , that the trust
of a freehold was not forfeited upon attainder of treason ; and

(d) This includes the general (a) King v. Daccombe, Cro . Jac.
statutes of the realm, as opposed to a 512.
special Act attainting a particular
individual.
1097
*820 FORFEITURE OF A TRUST. [CH. XXVII. S. 9.

it has been remarked by the highest legal authority, that

this doctrine " may be thought to be founded on reason ,
because it is not pretended that the statute of 26 H. 8, can
embrace trusts which have succeeded to uses, and it does not
appear to have been the intention of the 33 H. 8, to create a
forfeiture of any equitable estate which has sprung up since
the former Act. The statute had other objects " (b) .
6. Construction of 33 H. 8. - To understand the scope of
the enactment it must be observed -1 . That previously to
33 H. 8, it was only in the case of a person attainted by Act
of Parliament, and then by a special proviso, that the King
was put in immediate possession of the offender's lands, for
in attainders by ordinary course of law, whether by common
law or under a statute , the King was not in possession until
office found. 2. That 26 H. 8, had extended the forfeiture to
lands in use or possession, but not to rights, entries, or condi
tions ; and now that 27 H. 8, had passed, the 26 H. 8, was
not even applicable to uses, or, as they were henceforth to be
called, trusts. 3. That 26 H. 8 , had embraced attainders by
presentment, confession, verdict, or process of outlawry, but had
omitted other cases, as where the offender stood mute . The
intention of the legislature, then, in passing 33 H. 8, was, as
resolved in Dowtie's case (c) , -1. To vest the actual posses
sion in the King by the attainder without office ; 2. To extend
the forfeiture to rights, entries, conditions, & c., which had
hitherto not been affected by attainder ; and, 3. To apply the
statutory provisions to all cases of attainder, including those
which 26 H. 8, had accidentally omitted.
Assuming the Act to have had a remedial scope, can it be
supposed that, when " rights, entries, and conditions " were ,
for the first time, made forfeitable by virtue of this enact
ment, the word " uses," which occupies the first place in the
series, should have been inserted as mere surplusage, remem
bering that uses, by having been turned into posses
[ * 820 ] sions by 27 H. 8 , had escaped the * forfeiture imposed
upon them by 26 H. 8 ? The insertion of the word

(b) Gilb. on Uses, by Lord St. Leo (c) 3 Rep. 9 , b.

nards, 78, note 9 ; and see Burgess v.
Wheate, 1 Eden , 221 .
1098
 CH. XXVII. S. 9.] FORFEITURE OF A TRUST . *820

66
uses " can be no argument that " trusts " were not intended,
for at that day both words were employed indifferently, as
terms perfectly synonymous .
In support of this reasoning may be cited the opinions
expressed by Baron Turner and Lord Hale, in the well
considered case of Attorney-General v . Sands (a) . And
Lord Hale afterwards recurs to the subject in his Pleas of
the Crown (6), and argues the point there with considerable
strength of reasoning : - " By the statute of 27 H. 8, " he
says, " all uses were drowned in the land ; but there have
succeeded certain equitable interests called trusts, which
differ not in substance from uses ; nay, by that very statute
they come under the same name - viz . uses or trusts . By
the statute 33 H. 8, there is a special clause that the person
attainted shall forfeit all uses ' ; and what other uses there
could be at the making of the statute 33 H. 8, but only
trusts such as are now in practice and retained in Chancery,
I know not . It was agreed in the Earl of Somerset's case,
and so resolved in Abington's case, that a trust of a freehold
was not forfeited by attainder of treason . But how this
resolution in Abington's case can stand with the statute of
33 H. 8, I see not ; for certainly the uses there mentioned
could be no other than trusts ; and therefore the equity or
trust itself, in cases of attainder of treason, seems forfeited
by the statute, though possibly the land itself be not in the
King " (c).
7. Whether equities of redemption subject to forfeiture .
Equities of redemption appear to have been made forfeitable
for attainder of treason by 33 H. 8, (d) ; for the statute enu
merates conditions, and the interest of the mortgagor is a
condition, which, though broken at law, is saved whole to
him in a Court of equity.
8. Trusts of chattels forfeitable upon conviction. - Trusts of

(a)FrHard
S. C. eem .. 1495
30. ; S. C. Nels . 131 ; the statute ; but according to Free
(b) 1 P. C. 21 8. man (p. 130 ) , that the estate was to
Attorney-General be executed in the King by a Court
(c ) In
it was laid down, accordingv.toSands, of equity, which seems the better
Nel
son's report (p. 131) , that the estate opinion.
was executed in the King by force of (d) Anon. case, cited Reeve v. At
torney- General, 2 Atk. 223.
1099
*821 FORFEITURE OF A TRUST . [CH. XXVII. S. 9.

chattels, whether real or personal, were always forfeitable to

the Crown upon conviction (e ) ; and if a term was in trust
for the wife of the felon, but not for her separate use , it
seems the trust was affected by the forfeiture of the
[* 821 ] husband (ƒ) . But * the wife would still be entitled
to a provision under her equity to a settlement (a) .
9. Crown entitled to subpœna. - In these cases the forfeit
ure did not reach the legal estate vested in the trustee, but
entitled the Crown to sue a subpoena in equity (b) .
10. No forfeiture of property to which a felon is entitled
only contingently. - If a felon at the time of his conviction
was only contingently entitled, and before the interest vested
he had undergone his punishment, no forfeiture accrued (c) .
But otherwise, if the interest vested before the term
imprisonment expired (d) . And it was held that where a
felon was entitled to a share of proceeds from the sale of
real estate, but the sale was not to be made till after the
death of A., and the felon had undergone his punishment in
the lifetime of A., in this case, as the Crown had no equity
during the life of A. to compel a conversion , the Crown was
not entitled ; otherwise where the time of sale had arrived
and the sale had been actually made before the felon had
suffered his punishment (e) . Money liable to be laid out in
the purchase of land was regarded as land and so protected
from being forfeited as personal estate (ƒ) .
11. 33 & 34 Vict. c. 23. ――― Now by 33 & 34 Vict. c . 23 , it is
enacted that " from and after the passing of the Act (4th
July, 1870 ) , no confession , verdict, inquest, conviction , or

(e) Wikes's case, Lane, 54, agreed ; 16 ; Attorney-General v. Sands, Hard .

King v. Daccombe, Cro . Jac. 512 ; 495, per Lord Hale ; and see Kildare
Jenk. 190, case 92 ; Attorney-General v. Eustace, 2 Ch. Ca. 188 ; S. C. 1
v. Sands, Hard. 405 ; Pawlett v. At Vern, 405, 419, 423, 428, 437 .
torney-General, Hard. 467 , per Lord (c) Stokes v. Holden, 1 Keen, 14 ;
Hale ; Sir J. Dack's case, cited Hol and see Gough v. Davies, 2 K. & J.
land's case, Aleyn, 16 ; Re Thomp 623 ; Re Bateman's Trust, 15 L. R.
son's Trusts, 22 Beav. 506. Eq. 355.
(f) Wikes's case, Lane, 54, per (d) Roberts v. Walker, 1 R. & M.
Barons Snig and Altham. 752.
(a) See ante, p . 746. (e ) Re Thompson's Trusts, 22
(b) Holland's case, Al. 14 ; Sir J. Beav. 506.
Dack's case, as cited by Rolle , J., Id . (f) Harrop's Estate, 3 Drew. 726.
1100
CH. XXVII. S. 10. ] ESCHEAT . * 822

judgment of or for any treason, or felony, or felo de se shall

cause any attainder or corruption of blood, or any forfeiture
or escheat ; provided that nothing in the Act shall affect the
law of forfeiture consequent upon outlawry " (g).
12. Of forfeiture by equitable tenant for life. - At law a ten
ant for life might, until a modern statute ( h) , by certain tor
tious acts, as by a feoffment of the fee-simple, have forfeited
his estate to the remainderman (i) ; but had an equitable
tenant for life affected to dispose of the equitable fee, no for
feiture would have accrued, for nothing passed beyond the
grantor's actual interest (j) . By the Act above referred to
all conveyances are now innocent, that is, they pass nothing
but what the grantor can lawfully part with.

* SECTION X. [* 822 ]

OF ESCHEAT.¹

1. Trust formerly not subject to escheat..―――――― [ Until the re

cent Act ( a) ] a trust in fee of lands was not subject to es
cheat (b) . This was determined in the great case of Burgess
v . Wheate (c ) , before Lord Northington, assisted by Lord
Mansfield and Sir T. Clarke . The arguments of these emi
nent judges will amply repay a very careful perusal . It may
be mentioned generally, that Sir T. Clarke and Lord Mans
field, while they pursued different lines of reasoning, carried
their principles to too great an excess . Sir Thomas Clarke
contended that trusts must be governed strictly by uses, and ,
therefore, as no escheat in equity was of a use, there could
be none of a trust. But this position is too large ; for trusts

(g) See supra, p. 28. [ (a) 47 & 48 Vict. c . 71. ]

(h) 8 & 9 Vict. c. 106, s . 4. (b) Attorney - General v. Sands ,
(i) See Co. Lit. 251 , a. Hard . 488 ; and see 1 Harg. Jurid .
(j) Lethieullier v . Tracy, 3 Atk. Exerc. 383.
728 , 730 ; Lady Whetstone v. Bury, (c) 1 Eden, 176 ; S. C. 1 W. Bl.
2 P. W. 146. 123.

1 Trustees hold either real or personal property subject to the State if the
cestuis que trust die leaving no heirs or relatives ; Crane v. Reeder, 21 Mich. 25 ;
Matthews v. Ward, 10 G. & J. 443 ; McCaw v. Galbraith, 7 Rich . L. 75 ; Re
Adams, 4 Chy. Chamb. 29.
1101
*823 ESCHEAT. [CH. XXVII. S. 10.

do not follow absolutely the law of uses : for then no curtesy

would be of a trust, the judgment creditor would have no
lien, and equitable interests would not be assets . Lord
Mansfield, on the other hand, advanced the doctrine that ,
as lands escheat at law, so trusts must escheat in equity :
that trusts, since the statute of H. 8, are not regulated by
uses, but the maxim is " Equity follows law," " The trust
is the estate." But to this it must be answered that a trust
has always been recognized as a thing sui generis, and not
as identical with the legal fee : it binds not, for instance, a
purchaser for valuable consideration without notice . The
intermediate opinions of Lord Northington are to be regarded
as those most in accordance with the general system : trusts ,
he thought, were to be administered on the footing of uses ;
but not, as Sir Thomas Clarke maintained, to the exclusion
of the improvements adopted subsequently to the statute of
H. 8 : he agreed with Lord Mansfield, that trusts imitated
the legal possession ; but he added the qualification , as be
tween the privies to the trust only, and not as respected stran
gers his objection to the claim of the lord was, that it was
for the execution of a trust that did not exist : where there
was a trust, it should be considered in that Court as the real
estate between the cestui que trust and the trustee, and all
claiming by or under them ; and the trustee should
[ * 823 ] take no * beneficial interest that the cestui que trust
could enjoy ; but he knew no instance where that
Court ever permitted the creation of a trust to affect the right
of a third person (a) .
2. Trustee retained the estate . - The result of the deter
mination in Burgess v. Wheate, as followed in more recent
cases, was, that where the owner of the equitable fee died
intestate without heirs the trustee retained the estate (b) .

(a) 1 Eden, 251. supra. And where a trust of real

(b) Taylor v. Haygarth, 14 Sim. estate was created in favour of an
16 ; Davall v. New River Company, alien, the Crown was entitled to the
3 De G. & Sem. 394 ; Cox v . Parker, benefit of the trust as against both
22 Beav. 168 ; [ Keogh v. M'Grath , 5 the trustee and the heir at law of the
L. R. Ir. 478 ; Re Mary Hudson's settlor ; Barrow v. Wadkin, 24 Beav.
Trusts, 52 L. J. N. S. Ch . 789 ] . As 1 ; and see p. 44, supra.
to estates pur autre vie, see p. 694,
1102
 CH. XXVII. S. 11. ] DESCENT OF A TRUST. * 823

3. Principle applied to equity of redemption . ―――― The same

principle was applied by Sir John Romilly , M. R. to an equity
of redemption ; and his Honour decided, that, where there
was a mortgage in fee and then the mortgagor died intes
tate without heirs , the equity of redemption did not escheat
to the Crown, but belonged to the mortgagee, subject to the
mortgagor's debts (c) .
[4. Trust estate now subject to escheat. --Now by " The
Intestates' Estates Act, 1884 " (d) , where a person dies with
out an heir and intestate as to any equitable estate or in
terest in any corporeal or incorporeal hereditament , whether
devised or not devised to trustees by the will of such person, the
law of escheat shall apply in the same manner as if the estate
or interest were a legal estate in corporeal hereditaments. ]

SECTION XI.

THE DESCENT OF THE TRUST.¹

1. Trust descends as the legal estate . - A trust is governed

by the same rules of descent as the legal estate is on which
the trust is engrafted, and that whether the legal estate de
scends according to the course of common law, or is subject
to a lex loci ..

2. Seisin ex parte maternă . --- If one seised of land ex parte

maternâ convey to a person in fee upon trust, and no trust
is expressed, the resulting interest is part of the original

(c) Beale v. Symonds, 16 Beav. [ (d) 47 & 48 Vict. c. 71, s. 4. ]

406

1 A trust estate may be devised, but an assignment for the benefit of cred
itors does not convey the trust estate ; Chace v . Chapin , 130 Mass . 128 ;
Kelly v. Scott, 49 N. Y. 595 ; Abbott, Petr. 55 Me. 580. A general devise of
real estate will pass property held in trust unless the intention plainly appears
to be to the contrary ; Ballard v. Carter, 5 Pick . 112 ; Richardson v . Wood
bury,
es tates43 Me.
; Ba ng206
s ; Hughes v. Caldwell , 11 Leigh, 342 ; as a devise of all my
v. Smith, 98 Mass . 273 ; Stone v. Hackett, 12 Gray, 237 ; Wil
lard v. Ware, 10 Allen, 263 ; mortgage estates will also pass ; Asay v. Hoover,
5 Barr, 35. In some states, trust property does not descend upon death or
be appointed
removal
will of trustee, but comes into
; McDougald v. Carey, 38 Ala.of320
the control the courts,v.and
; Clark Crego, trustees
new47 Barb.
599; Hook v. Dyer, 47 Mo. 214.

1103
*824 DESCENT OF A TRUST. [CH. XXVII. S. 11.

estate, and will descend in the maternal line, and, failing the
heirs on the part of the mother, will rather absolutely de
termine, than pass into the paternal line (e) . But
*
[ * 824 ] if one seised ex parte materna devise to A. and his
heirs upon trust for a person for life, and then in
trust to convey to the testator's heir at law, this breaks the
descent, and the heir ex parte paterna is entitled to the equi
table remainder (a).
3. Gavelkind . ―――― If the land be subject to gavelkind, borough
English, or other custom, the equitable interest will follow
the same course of inheritance (b) .
4. Copyholds . And a trust of copyholds as well as of
freeholds is governed by the descent of the legal estate (c) .
5. Possessio fratris . The analogy to law is so strictly
preserved, that, until a late Act, if the last cestui que trust
had no seisin of the equitable estate corresponding to pos
sessio fratris at law, the trust would have descended to
the brother of the half blood, not to the sister of the whole
blood (d) . By the late Act, the half blood is now in all
cases (but subject to the preferable claim of the whole blood)
capable of inheriting estates, whether legal or equitable (e) .
6. Proceeds from sale of gavelkind lands. - If a settlement
contain a power of sale with a trust to reinvest the proceeds
in a purchase to the same uses, and the lands are sold, but
the proceeds are not reinvested, though the bulk of the es
tate sold was of gavelkind tenure, yet if one of the uses
be to A. and his heirs , the proceeds of the sale will descend
to the heirs of A. at common law, and not to the heirs by the
custom of gavelkind (ƒ) .

(e) Burgess v. Wheate, 1 Eden, pl. 7 ; Buchanan v. Harrison , 1 J. &

177, see 186, 216, 256 ; Langley v. H. 662.
Sneyd, 1 Sim. & St. 45 ; Nanson v. (c) Trash v. Wood, 4 M. & Cr. 324.
Barnes, 7 L. R. Eq . 250. (d) Banks v. Sutton, 2 P. W. 713,
(a) Davis v . Kirk, 2 K. & J. 391 ; per Sir J. Jekyll ; Cowper v. Earl
[and see Re Douglas, 28 Ch . D. Cowper, Ib. 736, per eundem ; Cun
327.] ningham v. Moody, 1 Ves. 174 ; Co.
(b) Fawcet v. Lowther, 2 Ves . Sen. Lit. 14 b ; and see the cases cited,
304, per Lord Hardwicke ; Banks v . Casborne v. Scarfe, 1 Atk. 604.
Sutton, 2 P. W. 713, per Sir J. Jekyll ; (e) 3 & 4. W. 4, c . 106, s . 9.
Cowper v. Cowper, 2 P. W. 720 ; (f) Hougham v. Sandys, 2 Sim.
Jones v. Reasbie, 22 Vin. Ab. 185, 95, see 153.
1104
CH. XXVII. S. 12.] A TRUST AS ASSETS . *825

7. Limitation to heirs as purchasers . -And if gavelkind or

borough English lands (g) be limited to a person's heirs as
purchasers the common law heirs and not the customary heirs
are entitled ; as, where a testator directed trustees to stand
seised of gavelkind lands for the separate use of A. for life ,
and so as her husband should not intermeddle therewith, and
after her death upon trust to convey to the heirs of her body
forever, Lord Hardwicke held that the trust was executory,
and that the Court must therefore look to the intention,
which was to give a life-estate to A., and the re
mainder to the heirs as purchasers ( h) ; * for, as the [ * 825 ]
husband was not to intermeddle therewith, his cur
tesy was to be excluded, which would not be the case if A.
were tenant in tail. A conveyance of the legal estate was
therefore directed to the eldest son and the heirs of his body,
with remainder to the second son, and the heirs of his body,
&c. " Not," added Lord Hardwicke, " according to the
custom of gavelkind, because it must go according to the
rule of common law, being not a trust executed, but exec
utory " (a) .

SECTION XII .

OF ASSETS.¹

The general law relating to assets, as it stood previously

to the Statute of Frauds may be thus stated.
1. Legal assets . ――――― The executor or administrator of the
deceased was bound to apply his personal estate in payment

(g) Polley v. Polley (No. 2) , 31 tor's heirs, confers an estate by pur

Beav. 363 ; [ Garland v. Beverley, 9 chase.
Ch. D. 213. ] (a ) Roberts v. Dixwell, 1 Atk. 607 ;
(h) Now by 3 & 4 W. 4, c. 106, s . and see Thorp v . Owen, 2 Sm. & G.
3, a limitation in a deed to the settlor 90 ; Sladen v. Sladen, 2 J. & H. 369.
or his heirs, or in a will to the testa

1 If creditors assent to a trust set forth in a will, they cannot afterwards

resort to legal remedies ; Bank of United States v. Beverly, 1 How. 134 ; and
claims are barred by statute of limitations , just as they would be if no trust
existed ; Hall v . Bumstead, 20 Pick. 2 ; Steele v. Steele's Adm'r, 64 Ala. 460 ;
Bull v. Bull, 8 B. Mon. 332 ; Man e. Warner, 4 Whart. 455 ; Cornish v . Willson ,
6 Gill. 318 ; if a trust to pay debts is created , it will keep alive a judgment
1105
*825 A TRUST AS ASSETS . [ CH. XXVII. S. 12.

of his debts ; and this in the order of their legal priorities ,

as first of judgments, then of specialties, then of simple con
tract debts ; or, as it was expressed, the personal estate was
legal assets.
2. Assets by descent. - Again, where the deceased had
executed an instrument binding himself and his heirs, the
heir to the extent of the real estate (except copyholds )
which came to him, was bound to satisfy this obligation of
his ancestor, or, in other words, the lands so inherited were
assets by descent.

lien ; Pettingill v. Pettingill, 60 Me. 412 ; Trinity Church v. Watson, 50 Pa. St.
518 ; there is danger, that in providing for some debts, the liens of other cred
itors may be terminated ; Cadbury v. Duval, 10 Barr, 267 ; Gardner v. Gardner,
3 Mason, 178. Debts of an estate must be paid out of the personal property,
if it is sufficient for the purpose , and this applies to debts which are secured
by collateral ; Hewes v. Dehon, 3 Gray, 206 ; Hancock v. Minot, 8 Pick . 29 ;
Marsh v. Marsh, 10 B. Mon. 360 ; Lewis v. Thornton, 6 Munf. 87 ; Leavitt v.
Wooster, 14 N. H. 551 ; Schermerhorn v. Barhydt, 9 Paige, 29 ; Martin v .
Fry, 17 Serg. & R. 426 ; but this does not apply to an incumbrance on land
at the time of its purchase by the deceased ; Andrews v . Bishop, 5 Allen, 490 ;
Cumberland v. Codrington, 3 Johns. Ch. 229. As to priority of liability of
various parcels of real estate for debts, see Livingston v. Livingston, 3 Johns.
Ch. 148 ; Commonwealth v. Shelby, 13 Serg. & R. 348 ; Ruston v. Ruston, 2
Yeates, 54 ; Warley v. Warley, 1 Bail. Eq. 398 ; Plimpton v. Fuller, 11 Allen,
140 ; Stroud v. Barnett, 3 Dana, 394. The testator may provide for the pay
ment of all debts out of his realty ; see notes to Aldrich v. Cooper, 2 Lead. Cas .
Eq . 56, and Ancaster v. Mayer, 1 Lead . Cas. Eq . 505 ; in which case the heir or
devisee becomes a trustee for the payment of the debts ; Stevens v. Gregg, 10
G. & J. 143. The payment of legacies from the real or personal estate will
be controlled by language similar to that used in reference to the payment of
debts ; Sherman v . Sherman , 4 Allen , 392 ; it depending on the testator's in
tention, as shown by his language ; Gridley v. Andrews , 8 Conn. 1 ; Paxson v .
Potts, 2 Green, Ch . 322 ; Montgomery v. M'Elroy, 3 Watts & S. 370 ; Lupton
v. Lupton, 2 Johns . Ch . 618. Legacies to be payable from the real estate,
must have clear provision made to that effect ; Owings' Case, 1 Bland. 290 ;
Adams v. Brackett, 5 Met. 282 ; and the residuary clause usually includes
both real and personal ; Canfield v . Bostwick, 21 Conn . 550 ; Tracy v. Tracy,
15 Barb. 503. Ordinarily the real estate is to be used in payment of legacies
only after the personalty has been exhausted ; Lewis v. Darling, 16 How. 10 ;
Fenwick v. Chapman, 9 Pet. 466. If the debts are to be paid out of realty,
legatees will be paid out of personalty ; Bardwell v. Bardwell, 10 Pick. 19 ;
Smith v. Wyckoff, 11 Paige, 49 ; Miller v. Harwell, 3 Murph. 194. Where
realty is devised to executor or trustee to pay legacies, he becomes personally
liable for the payment ; Bugbee v. Sargent, 23 Me . 269 ; Dodge v. Manning,
11 Paige, 334 ; Larkin v. Mann, 53 Barb. 267 ; and the realty charged can be
followed by the devisees or legatees in case of non-payment to them ; Solliday
v. Gruver, 7 Pa. St. 452 ; Aston v . Galloway, 3 Ired . Eq. 126 ; Hallett v. Hallett,
2 Paige, 15.
1106
 CH. XXVII. S. 12. ] A TRUST AS ASSETS. *826

3. Equitable assets . The 32 Henry 8, c . 15, which first

gave the power of devising lands, inadvertently opened a
door to fraud, since it was held that if the owner of land
devised it away, a creditor claiming by bond or other in
strument binding the heir could not sue the devisee, and if
he sued the heir, the latter might plead he had no land by
descent. Where, however, the owner had by his will charged
his lands with or devised them subject to the payment of
debts, a Court of equity viewed the creditors as cestuis que
trust, and made the land available in satisfaction of the debts ;
and in doing this it paid all the creditors pari passu without
reference to their legal priorities, that is, the lands so charged
or devised were equitable assets.
-
4. Equitable interests . With these prefatory remarks we
proceed to the consideration of equitable interests as assets
before the Statute of Frauds.
* 5. Trusts of chattels are assets . ――― The trust of a [ * 826 ]
chattel was always accounted assets in equity (a) ;
by which is meant, not equitable assets, but assets for the due
application of which in payment of debts the personal repre
sentative was responsible in equity, if not at law.
6. Trusts of a freehold . - But whether the trust of a free
hold should be assets in the hands of the heir for payment
of debts by specialty was for a long time vexata quæstio. On
the one hand it was argued, that the trust ought to follow
the use, and that the use was not liable to a bond creditor ;
on the other hand it was said, that trusts since the Statute of
Uses had been conducted by the Courts on more liberal prin
ciples, and , as the legal fee was available to the discharge of
specialty debts at law, so a Court of equity ought to adopt
the same rule in the administration of trusts.
It was determined by Lord Hale, Chief Justice Hyde, and
Justice Windham , in the case of Bennet v . Box, that à trust
in fee should not be assets (b ) ; and Lord Keeper Bridgman
afterwards felt himself bound by the authority of this decis

Att ey-General v. Sands,

em. 131 orn
Fre(a) ; Barthr op v. West , 2 Ch. Rep. 33 ; Duke of Norfolk's case, 3
Ch. Ca. 10. See post, 827.
(b) 1 Ch. Ca. 13.
1107
*827 A TRUST AS ASSETS. [CH. XXVII . S. 12.

ion in respect of a trust ( c) , though he doubted somewhat

as to an equity of redemption (d) ; and so the law as to a
trust was laid down by Lord Hale in Attorney-General v.
Sands (e).
The question was renewed before Lord Nottingham in Grey
v. Colvile (ƒ) , when trust estates were declared to be assets in
equity. The case was afterwards reheard before Lord Guild
ford, and is reported by Vernon under the title of Creed v.
Colvile (g) , and his Lordship said, he " should be much gov
erned by the case of Bennet v . Box, unless they could show
that the latter precedents had been otherwise," and directed
them to attend him with precedents towards the latter end
of the term. The cause was brought on again the December
following, and the Court ordered that the parties should at
tend the two Chief Justices and the Lord Chief Baron, who
were desired to certify their opinion on the question (h) . In
Michaelmas term the next year, upon the motion of the de
fendants, it was ordered, that, unless plaintiffs , the creditors ,
procured the certificate of the Lords Chief Justices' and Lord
Chief Baron's opinion by the first day of the next term, the
bill should be dismissed without further motion (i) .
[ * 827 ] No further proceedings * appear in the case ; and,
therefore, it must be concluded that the bill was dis
missed . There can be no doubt, however, that Lord Not
tingham's decision was correct, and in Goffe v . Whalley (a )
the question was renewed, but the result does not appear, un
less the overruling of the heir at law's demurrer to the cred
itor's bill was on the ground that the Court held the trust to
be assets .
7. Statute of Frauds . ――――― Thus stood the law before the
Statute of Frauds (b) . By the 10th section of that Act a
trust in fee-simple was declared to be assets by descent. But
the enactment was taken to embrace simple trusts only, and

(c) Pratt v. Colt, 1 Ch. Ca. 128 ; (f) 2 Ch. Rep. 143.
S. C. Freem. 139 (g) 1 Vern. 172.
(d) Trevor v. Peryor, 1 Ch. Ca. (h) R. L. 1683, A. fol . 166.
148 . (i) R. L. 1684, A. fol. 210.
(e) Hard. 490 ; S. C. Freem. 131 ; (a) 1 Vern. 282, Raithby's edit.
S. C. Nels. 134. (b) 29 Car. 2, c. 3.
1108
CH. XXVII. S. 12.] A TRUST AS ASSETS . *828

not complicated trusts (e) , or equities of redemption ( d) , so

that the question still remained whether such interests as
were not within the statute might not still, upon the general
principles of equity, be treated as assets by analogy to law.
This was expressly so decided as to equities of redemption in
Plucknet v . Kirk (e) and other cases (f) ; and upon princi
ple, the rule governing equities of redemption ought equally
to be applied to every other equitable interest ,
8. 3 & 4 W. 4, c. 104. The question is now of little im
portance, as it was enacted by 3 & 4 W. 4, c . 104, that all a
person's " estate or interest " (which must include any trust)
in lands, tenements or hereditaments, corporeal or incor
poreal, or other real estate, whether freehold, customary
hold, or copyhold, should be assets for the payment of debts
as well on simple contract as on specialty.
9. Whether a trust is legal or equitable assets . ― There re
mains to be considered the question , whether a trust shall,
as to persons who died before 1st January, 1870 (g) , be ad
ministered as legal or equitable assets .
10. Trust of a chattel . — It has in some cases been consid
ered that the mere circumstance that property was equitable
at the testator's death, was sufficient to make it equitable
assets (h) , but this is clearly erroneous, the question being,
not whether the assets can be recovered at law or in equity,
but whether the creditor can obtain payment thereout only
from a Court of equity (i) . Now if an executor recover
money in that character under a trust or other equi
*
table right, the proceeds when actually come to his [ * 828 ]
hands, will be legal assets, even in a Court of law (a) ;

(c) The former part of the clause, ries' opinion in Solley v. Gower, 2
which enables the sheriff to take a Vern. 61.
trust in execution , was construed not (ƒ) Anon. Freem. 115 ; Acton v.
to include a complicated trust, and Peirce, 2 Vern. 480 ; Plunket v. Pen
therefore it is presumed the latter son, 2 Atk. 290.
part of the clause could not be differ (g) See post, 831.
ently interpreted . (h) Cox's case, 3 P. W. 341 , and
(d) Plunket v. Penson, 2 Atk. 293, note Ib.; Hartwell v. Chitters, Amb.
per Lord Hardwicke ; Solley v. Gower, 308 ; Clay v. Willis, 1 B. & C. 372.
2 Vern. 61, per Lord Jeffries. (i) Cook v. Gregson, 3 Drew. 549.
(e) 1 Vern. 411 ; Reg. Lib. 1686, (a) Hawkins v. Lawse, 1 Leon.
B. fol. 181 , 844 ; and see Lord Jeff 155, per Periam, J.; Anon . case, 1
1109
* 828 A TRUST AS ASSETS . [CH. XXVII . S. 12.

and it would be an inconsistency to say, that if the property

has been reduced into possession, a Court of equity shall
administer it as legal assets, but if it be outstanding at the
time when the creditor institutes proceedings in equity, it
shall be administered as equitable assets. Upon this princi
ple it has at length been established, after much fluctua
tion (b) , that equitable interests in personal estate are to be
distributed as legal assets (c) . " Whether," observed Sir R.
Kindersley, "the assets are such that the executor can re
cover them in a Court of law or in a Court of equity only is
immaterial. The true test is, whether he recovers them
"virtute officii." If the assets come to his hands as executor,
a Court of law would treat them as assets and they are to be
administered (in equity) as legal assets " (d) .
11. Trust in fee in the hands of the heir. - A trust in fee
stands in a very different light from the trust of a chattel in
the hands of the executor. As regards the inheritance, until
modern Acts (e) , it was only in respect of creditors by spe
cialty in which the heirs were bound, that the question of
legal or equitable assets could in fact have arisen , for special
ties in which the heirs were not bound, and simple-contract
debts, were not payable out of real estate , and statutes and
judgments though liens, to a partial extent, upon the equita
ble fee, were not payable as debts, but as incumbrances. In
respect then of specialties in which the heirs were bound, a
plain and simple trust was made assets in a Court of law in
the hands of the heir by the Statute of Frauds, and therefore
was legal assets in equity (ƒ) ; but complicated trusts, and
equities of redemption, were not touched by the statute ; and
it would seem, upon principle, that as equity subjected the
trust to specialty creditors by analogy only to law, the Court

Roll. Rep. 56 ; Harwood v. Wray Courtenay, 26 Beav. 140 ; and see

man, cited Ib.; S. C. reported Mo. Lovegrove v. Cooper, 2 Sm. & G. 271 ;
858. Mutlow v. Mutlow, 4 De G. & J. 539.
(b) See cases cited in note (h) p. (d) Cook v. Gregson, 3 Drew. 547.
827 ; and Morgan v. Sherrard , 1 Vern. (e) 47 G. 3, c. 74, Sess. 2, as to
293 ; Wilson v. Fielding , 10 Mod . 426 ; traders only ; and 3 & 4 Will . 4, c .
S. C. 2 Vern. 763 ; Sharpe v. Earl of 104, which will be noticed presently.
Scarborough, 4 Ves. 541 . (f) Plunket v. Penson, 2 Atk. 293,
(c) Cook v. Gregson, 3 Drew. 547 ; per Lord Hardwicke ; King v. Ballett,
Shee v. French, Ib. 716 ; Christy v. 2 Vern. 248.
1110
CH. XXVII. S. 12.] A TRUST AS ASSETS . * 829

ought, by observing the analogy throughout, to adopt the

legal course of administration.
In the case of Grey v. Colvile , before referred to , in which
bond-creditors, had , after the debtor's decease, entered up
judgments against the heir who took by descent ; it
appears to have been * assumed by the litigants, and [ * 829 ]
was decreed by Lord Nottingham, than whom no
Chancellor had a more just conception of the true nature of
trusts, that the creditors should be paid according to the pri
ority of their judgments out of a trust in fee ( a).
12. Whether trust in fee devised is legal or equitable assets.
-- In the case of the devise of a trust in fee, the analogy pre

sented by the case of the devise of a legal fee ought, it is

conceived, to be pursued. By 3 & 4 W. & M. c . 14, the
power of the owner of the land to devise it away in fraud of
his creditors (b) was first restrained, and a remedy was given
.
against the heir and devisee jointly, in respect of the prop
erty so devised. The statute, however, expressly excepted
from its operation , as do also the subsequent Acts enlarging
the creditors' remedies (e) , devises clothed with a trust or
charge for payment of debts . It is conceived, that the true
test whether an equitable estate in fee devised shall be legal
or equitable assets , is, whether the estate if legal and devised
in similar terms would have constituted legal or equitable
assets (d).
13. 3 & 4 W. 4, c. 104. - By 3 & 4 W. 4, c. 104, it was
enacted that when any person should die seised of or entitled
to any estate or interest in lands, tenements, or heredita
ments, corporeal or incorporeal, or other real estate, whether
freehold, customaryhold , or copyhold, which he should not by
his last will have charged with, or devised subject to the pay
ment of his debts, the same should be assets, to be admin
istered in Courts of equity for the payment of the just debts
of such person, as well debts due on simple contract as on

(a) Grey v. Colvile, 2 Ch . Rep. (c) 47 G. 3, c. 74, Sess. 3 ; 11 G. 4,

143 ; and see Morrice v. Bank of Eng & 1 W. 4, c. 47 ; 3 & 4 W. 4, c. 104.
land, 2 Sw. 585 ; Dollond v. Johnson, (d) See Plunket v. Penson, 2 Atk .
2 Sm. & G. 301. 51, 290 ; Sharpe v. Earl of Scarbor
(b) See p. 206, supra. ough, 4 Ves. 538 ; and the observa
tions on those cases in 3d edit. p . 690.
1111
*830 A TRUST AS ASSETS. [CH. XXVII. S. 12.

specialty ; and that the heir or heirs at law, customary heir

or heirs, devisee or devisees of such debtor, should be liable
to all the same suits in equity at the suit of any of the
creditors of such debtor, whether creditors by simple con
tract or by specialty, as the heir or heirs at law, devisee or
devisees of any person or persons, who died seised of freehold
estates, was or were before the passing of that Act liable to
in respect of such freehold estates, at the suit of creditors by
specialty in which the heirs were bound : provided always
that in the administration of assets under and by virtue of
that Act all creditors by specialty in which the heirs were
bound should be paid the full amount of the debts due to
them before any of the creditors, by simple contract, or by
specialty in which the heirs were not bound, should be paid
any of their demands.
[* 830] * Construction of the Act. -- Upon the construction
of this statute the following observations occur :
a. The Act creates a general charge on the estate for the
benefit of creditors (a) , subject only to the right of aliena
tion in the heir or devisee (b) .
B. The words " assets to be administered in equity " mean
only that the creditor's remedy shall be in equity, and not
that the estate shall be administered as equitable assets, and
therefore the estate is to be distributed as legal assets ( c) .
[y. But no right of retainer is given to the heir or devisee
for a debt due to him on simple contract. But it would
seem that there is such a right of retainer in respect of a
specialty debt (d) . ]

(a) Kinderley v. Jervis, 22 Beav. 1. tion of the rule, allowing the right of
(b) See cases, p. 249, note (g) . retainer out of the real estate to an
(c ) Foster v. Handley, 1 Sim. N. heir at law or devisee being a specialty
S. 200 ; more fully reported, 15 Jur. creditor, was, that he might not be
73 ; Re Burrell, 9 L. R. Eq . 443 ; [but under a disadvantage by not being
see Re Illidge, 24 Ch. D. 654, in which able to sue himself ; since, if he could
the earlier cases were not cited, where not retain, other creditors might have
it seems to have been assumed by obtained priority over him by suing
Chitty, J., that the assets were to be him. But a simple contract creditor
administered as equitable assets ; and could not get a judgment giving him
see S. C. on appeal, 27 Ch . D. 478. ] priority, and so the rule had no ap
[ (d) Re Illidge, 24 Ch . D. 654 ; 27 plication in his case. There appears
Ch. D. 478 ; explaining Ferguson v. to be nothing in 32 & 33 Vict. c. 46
Gibson, 14 L. R. Eq. 379. The founda to take away from a creditor by
1112
CH. XXVII. S. 12.] A TRUST AS ASSETS . *831

8. The express terms of the Act giving priority to credi

tors by specialty in which the heirs are bound over creditors
by specialty in which the heirs are not bound, have , as a
matter of course had full effect given to them (e).
Є. The Act makes no mention of debts by judgment or by
decree of a Court of equity, so that the remedies for the re
covery of these out of the real estate may perhaps be viewed
as still depending upon the general law (ƒ) .
* 14. 32 & 33 Vict. c. 46 . - As regards the admin- [ * 831 ]
istration of estates of persons who may have died on
or after 1st January, 1870, the legislature has now abolished

specialty in which the heir is bound, priority in the administration of his

the old right of action against the assets over other debts unless it was
heir or devisee, and it seems to follow docketed ; Hickey v. Hayter, 6 T. R.
that the statute , by making real estate 384 ; Landon v. Ferguson , 3 Russ. 349.
liable to be administered by Courts But when the docket was closed the
of equity, no more takes away the judgment had priority per se, and the
right of the heir or devisee to retain, executor or administrator was bound
than the power of Courts of equity by that priority though he had no
to administer personal estate takes notice, and no means of obtaining
away an executor's right of retainer ; notice of the judgments ; Fuller v.
Re Illidge, ubi supra.] Redman, 26 Beav. 600. To remedy
(e) Richardson v. Jenkins, 1 Drew. this inconvenience it was enacted by
477. Lord St. Leonards' Law of Property
(f) Judgments against the testator Amendment Act, 23 & 24 Vict. c. 38,
or intestate and decrees in equity ss. 3 , 4, that judgments should have
against the testator or intestate are no priority in the administration of
paid out of the personal estate pari assets unless they were registered.
passu. Decrees (if for payment of But the Act does not apply where
money or costs) were by 1 & 2 Vict. the judgment is recovered against
c. 110 , s. 18 (though they were not the executor or administrator, as in
formerly, Bligh v. Darnley, 2 P. W. that case the personal representative
619, Mildred v. Robinson, 19 Ves. has full notice necessarily, and no
585,) liens upon the real estate ; and remedy is required ; Jennings v. Rig
they always ranked as of equal degree by, 33 Beav. 198 ; Gaunt v. Taylor, 3
with judgments in the administration Man . & G. 886 , and 3 Scott (N. S.)
of personal estate, and therefore above 700 ; Re Williams' Estate , 15 L. R.
specialty or simple contract debts ; Eq . 270. And the Act is retrospec
Searle v. Lane, 2 Vern . 37 ; Foly's tive, so that an unregistered judg
case, 2 Eq. Ca. Ab . 459 ; Stasby v. ment, though entered up against a
Powell, 1 Freem. 333 ; Peploe v . Swin debtor living at the date of the Act
burn, Bumb. 48. Judgments and de has no preference ; Kemp v. Wad
crees against the personal representa dingham, 1 L. R. Q. B. 355. But
tive are paid out of legal assets in otherwise, where the debtor was dead
the order of their dates ; Dollond v. at the date of the Act, so that the
Johnson, 2 Sm. & G. 301 , and cases creditor had acquired a vested right ;
cited, Ib. When dockets were in use, Evans v. Williams, 2 Dr. & Sm. 324.
a judgment against a person had no
1113
* 832 A TRUST AS ASSETS . [CH. XXVII . S. 12.

the distinction between specialty and simple contract debts ,

and has directed all specialty and simple contract debts to be
paid pari passu (a) . [ But this does not interfere with or
enlarge the right of the retainer of the executor (b) .
15. Retainer by executor. - Where there are specialty
debts and simple contract debts, and the right of retainer of
the executor is in respect of a simple contract debt, the
assets should be apportioned on the footing of giving all
the creditors an equal dividend. The dividend in respect of
the specialty debts is payable to them in full, and out of the
residue of the assets the executor will retain his debt, and
the surplus, if any, is divisible ratably among the other sim
ple contract creditors (c) .
16. Administration in bankruptcy of estate of deceased
--
debtor . By the Bankruptcy Act, 1883 ( d) , sect. 125 , an or
der may be made in bankruptcy for the administration accord
ing to the law of bankruptcy of the estate of a deceased debtor ;
but the order is not to be made until the expiration of two
months from the date of the grant of probate or letters of
administration, unless with the concurrence of the legal per
sonal representative, or unless an act of bankruptcy is proved
to have been committed by the debtor within three months
prior to his decease. And even where proceedings for ad
ministration of the debtor's estate have been instituted in
another Court, such Court may, on the application of any
creditor having a qualifying debt, and on proof that
[ * 832 ] the estate is insufficient to pay its debts, transfer
the proceedings to the bankruptcy Court, and there
upon the bankruptcy Court can make an order for the ad
ministration of the estate according to the law of bankruptcy.
It is, however, in the discretion of the Court in which the
estate is being administered to retain the administration , and
where the estate was small, the number of creditors small,
and considerable expense had been incurred in the adminis

(a) 32 & 33 Vict. c. 46. [(c) Wilson v. Coxwell, 23 Ch. D.

[ (b) Re Williams' Estate, 15 L. R. 764. ]
Eq. 270 ; Crowder v. Stewart, 16 Ch. [ (d) 46 & 47 Vict. c. 52. ]
D. 368 ; Wilson v. Coxwell, 23 Ch . D.
764.]
1114
CH. XXVII . S. 12. ] A TRUST AS ASSETS . * 832

tration before the application for transfer was made, the

Court refused to order the transfer ; and expressed a doubt
whether a creditor who had not proved his debt had any
locus standi to apply for the transfer (a) . By sub-sect . (5) ,
upon an order being made for administration, the property
of the debtor vests in the official receiver as trustee, and he
is to realize and distribute it in accordance with the provis
ions of the Act. But by sub-sect . (7) he is to have regard
to any claim by the legal personal representative of the
deceased debtor to payment of the proper funeral and tes
tamentary expenses incurred by him, and such claims are to
be deemed a preferential debt, and paid in full out of the
debtor's estate, in priority to all other debts . By sub-sect. (8)
any surplus assets, after payment in full of all debts, costs of
administration , and interest, are to be paid over to the legal
personal representative of the debtor, or dealt with in such
other manner as may be prescribed. By sub-sect. ( 9) notice
to the legal personal representative of a deceased debtor of
the presentation by a creditor of a petition under the section ,
if an order for administration is made thereon, is to be
equivalent to notice of an act of bankruptcy, and after such
notice no payment or transfer of property made by the legal
personal representative is to operate as a discharge as be
tween himself and the official receiver, but save as aforesaid
nothing in the section is to invalidate any payment made or
any act or thing done in good faith by the legal personal rep
resentative before the date of the order for administration.
If an order for administration be made under this section,
the executor's right of retainer will, as from the time of his
receiving notice of the petition, cease so far as regards any
assets not actually retained at the date of the notice . ]

[(a) Re Weaver, 29 Ch . D. 236. ]

1115
[* 833 ] * CHAPTER XXVIII .

RELIEF OF THE CESTUI QUE TRUST AGAINST THE FAILURE

OF THE TRUSTEE.¹

We have now pointed out in what the estate of the cestui

que trust primarily consists. We have also examined what
are the incidents and properties of it by analogy to estates at
law or by statute. It follows next that we speak of certain
collateral or subsidiary rights, by which the cestui que trust is
supported in the enjoyment of his equitable interest against
the various accidents to which an estate, not direct, but
transmitted through the instrumentality of another, must
necessarily be exposed . In the present chapter we shall
consider the force of the maxim, " A trust shall not fail for
want of a trustee."

1 A trust will not be allowed to fail for want of a trustee, as if the trustee
dies, is disabled, or otherwise becomes unable to perform the duties of his
office ; Bundy v. Bundy, 38 N. Y. 410 ; Crocheron v. Jaques, 3 Edw. Ch. 207 ;
Vidal v. Girard, 2 How. 128 ; McCartney v . Bostwick, 32 N. Y. 53 ; the same
is true if there has never been a trustee, as the courts will appoint one ; Treat's
App . 30 Conn. 113 ; Gibbs v. Marsh, 2 Met . 243 ; Malin v. Malin, 1 Wend. 625 ;
King v. Donnelly, 5 Paige, 46. The person who chances to hold the legal title
may become a trustee ; Adams v. Adams, 21 Wall. 186. If a trustee is ille
gally appointed, the courts will appoint another ; Levy v. Levy, 40 Barb. 585 ;
Vidal v. Girard, 2 How. 188 ; Winslow v. Cummings, 3 Cush. 358 ; or if he
refuses to act ; De Peyster v. Clendining, 8 Paige, 295 ; Field v. Arrowsmith, 3
Humph. 442 ; Hawley v. James, 5 Paige, 318 ; likewise if the office in any way
becomes vacant ; Wilson v. Towle, 36 N. H. 129 ; White v. Hampton , 13 Ia.
259 ; Pool v. Cummings, 20 Ala. 563 ; Gibson's Case, 1 Bland, 138. One
sometimes becomes a trustee without an appointment, as if a husband conveys,
or attempts to convey, property directly to his wife, he becomes a trustee for
her ; Garner v. Garner, Busbee, Eq. 1 ; Huntly v. Huntly, 8 Ired . Eq. 250.
Courts will also aid in the execution of trusts ; Eldredge v. Heard , 106 Mass.
582 ; Greenough v. Welles, 10 Cush. 576 ; and in some cases where powers
partake strongly of the nature of trusts, they will also assist in their execu
tion ; Babbitt v. Babbitt, 26 N. J. Eq . 44 ; Erickson v. Willard, 1 N. H. 217 ;
Miller v. Meetch, 8 Barr, 417 ; Wilkinson v. Getty, 13 Ia. 157. If courts have
to restrain or remove trustees, they will provide for the vacancies ; Sloo v .
Law , 3 Blatchf. C. C. 459.
1116
CH. XXVIII. ] FAILURE OF THE TRUSTEE. *834

1. Trust follows the estate . - It is a general rule that,

whenever the intention of the settlor can be clearly collected,
and there is no want of consideration , the court will follow
the estate into the hands of the legal owner, not being a pur
chaser for value without notice, and compel him to give
effect to the trust by the execution of the proper assurance .
Trustee dying in testator's lifetime, or otherwise failing. -
Thus, if a devisor or settlor appoints a trustee, who either
dies in the testator's lifetime (a) , or disclaims (b) , or is in
capable of taking the estate (c), or if the trustee otherwise
fail (d) , the trust is not thereby defeated , but fastens on the
conscience of the person upon whom the legal estate has
devolved. " I take it," said Lord Chief Justice Wilmot, " to
be a first and fundamental principle in equity, that the trust
follows the legal estate wheresoever it goes, except it comes into
the hands of a purchaser for valuable consideration without
notice. A court of equity considers devises of trusts
as distinct substantive devises, standing on their [ * 834]
own basis, independent of the legal estate : and the
legal estate is nothing but the shadow which always follows the
trust estate in the eye of a court of equity " (a).
2. Direction to sell, and no person to sell named. — -If a tes
tator direct a sale of his lands for certain purposes, but omits
to name a person to sell, the trust attaches upon the con
science of the heir, and he is strictly bound in equity to give
effect to the intention (b).
3. Direction for separate use and no trustee appointed.
So, if [before the Married Women's Property Act, 1882, ]
the lands were devised (c) , or a sum of money was be
queathed (d) to a feme covert for her sole and separate use,

(a) Moggridge v. Thackwell, 3 B. (d) Attorney-General v. Stephens,

C. C. 528 ; S. C. 1 Ves. jun. 475 , per 3 M. & K. 347.
Lord Thurlow ; Attorney-General v. (a) Attorney- General v. Lady.
Downing, Amb. 552, admitted ; Tem Downing, Wilm . 21 , 22.
pest v. Lord Camoys, 35 Beav. 201. (b) First clearly settled in Pitt v.
(b) Backhouse v. Backhouse, V. Pelham, Freem . 134.
C. of Eng. 20 Dec. 1844. (c) Bennet v. Davis, 2 P. W. 316 ;
(c) Sonley v. Clockmakers' Com Major v. Lansley , 2 R. & M. 355.
pany, 1 B. C. C. 81 ; Anon. case, 2 (d) Rollfe v. Budder, Bumb. 187 ;
Vent. 349 ; White v. Baylor, 10 Ir. Tappenden v. Walsh, 1 Phillim. 352 ;
Eq. Rep. 53, 54. Prichard v. Ames, T. & R. 222 ; Par
1117
*835 FAILURE OF THE TRUSTEE. [ CH. XXVIII .

but without the interposition of a trustee, the property

vested at law in the husband, in her right, but in equity he
held upon trust for the separate use of the wife.
4. Failure of trustee of a power imperative. We have
seen, in a former chapter, that powers are distributable into
powers arbitrary and powers imperative, and that powers
imperative do in reality partake of the nature of trusts.
Upon this ground the court protects a cestui que trust from
the failure of the donee of a power imperative, as it would
do from the failure of any other trustee . " If," said Lord
Eldon, " the power be one which it is the duty of the party
to execute ―― made his duty by the requisition of the will
put upon him as such by the testator, who has given him an
interest extensive enough to enable him to discharge it, he is
a trustee for the exercise of the power, and not as having a dis
cretion whether he will exercise it or not ; and the court
adopts the principle as to trusts, and will not permit his
negligence, accident, or other circumstances to disappoint
the interests of those for whose benefit he is called upon to
execute it " (e) . " As to the objection," said Lord Chief
Justice Wilmot, " that these powers are personal to the trus
tees, and by their deaths become unexecutable, they are not
powers, but trusts, and there is a very essential difference
between them. Powers are never imperative — they leave
the act to be done at the will of the party to whom they are
given. Trusts are always imperative, and are obligatory
upon the conscience of the party intrusted . This court
supplies the defective execution of powers, but never
[ * 835] the * non-execution of them, for the powers are meant
to be optional. But the person who creates a trust
means it should at all events be executed . The individuals
named as trustees are only the nominal instruments to
execute that intention, and if they fail, either by death, or
by being under disability, or by refusing to act, the constitu
tion has provided a trustee. Where no trustees are ap

ker v . Brooke , 9 Ves. 583 ; and see was some doubt : Harvey v. Harvey,
Roberts v. Spicer, 5 Mad . 491 ; Wills 1 P. W. 125 ; Burton v. Pierpoint, 2
v. Sayers, 4 Mad. 409 ; Rich v. P. W. 78.
Cockell, 9 Ves. 375. At first there (e) Brown v. Higgs, 8 Ves. 574.
1118
CH. XXVIII.] FAILURE OF THE TRUSTEE. * 835

pointed at all, this court assumes the office . There is some

personality in every choice of trustees ; but this personality
is res unius ætatis, and, if the trust cannot be executed
through the medium which was in the primary view of the
testator, it must be executed through the medium which the
constitution has substituted in its place. A college was to
be founded under the eye of five trustees : that cannot be :
the death of the trustees frustrates that medium . What
then ? Must the end be lost because the means are by the
act of God become impossible ? Suppose the question had
been asked the testator, ' If the trustees die or refuse to act,
do you mean no college at all, and the heirs to take the
estate ? ' No : I trust them to execute my intention : I do
not put it into their power whether my intention shall ever
take place at all " (a) .
5. Trustee of a discretion dying in testator's lifetime, declin
ing office, & c. — If trustees, then, have an imperative power
committed to them, and they either die in the testator's life
time (b) , or decline the office (e) , or disagree among them
selves as to the mode of execution (d) , or do not declare
themselves before their death (e) , or if from any other cir
cumstance (f) , the exercise of the power by the party
intrusted with it becomes impossible, the Court will substi
tute itself in the place of the trustees, and will exercise the
power by the most reasonable rule. And the Court assumes
the jurisdiction of exercising the power retrospectively (g) ,
and will take up the trust, whatever difficulties or impracti

(a) Attorney-General v. Lady (e) Hewett v. Hewett, 2 Eden, 332 ;

Downing, Wilm. 23. Flanders v. Clark, 1 Ves. 10, per Lord
(b) Attorney-General v. Lady Hardwicke ; Harding v. Glyn, 1 Atk.
Downing, Wilm. 7 ; S. C. Amb. 550 ; 469 ; Ray v. Adams, 3 M. & K. 243,
Attorney-General v. Hickman, 2 Eq. per Sir J. Leach ; Grieveson v . Kir
Ca. Ab. 193 ; Maberly v. Turton , 14 sopp, 2 Keen, 653 ; Croft v. Adam,
Ves. 499. 12 Sim. 639 ; Re Hargrove's Trusts,
(c) Doyley v. Attorney-General, 2 8 Ir. Eq. 256.
Eq . Ca. Ab. 194 ; Gude v. Worthing (f) Attorney-General v. Stephens
ton, 3 De G. & Sm. 389 ; Izod r. Izod, 3 M. & K. 347 ; Re Richards, 8 L. R.
32 Beav. 242. Eq. 119.
(d) Moseley v. Moseley, Rep. t. (g) Edwards v. Grove, 2 De G. F.
Finch, 53 ; and see Wainwright v. & J. 222, per L. J. Turner ; Maberly
Waterman, 1 Ves . jun. 311. v. Turton, 14 Ves. 499.
1119
*836 FAILURE OF THE TRUSTEE. [CH. XXVIII.

cabilities may stand in the way (h) ; for , as Lord Kenyon

laid down the rule strongly, if the trust can by any
[ * 836 ] possibility be exercised by the * Court, the non-exe
cution by the trustee shall not prejudice the cestuis
que trust (a) .
6. Mode of execution. - In what mode the Court will exe
cute the power will vary according to the circumstances of
the case .
Where the settlor has prescribed a rule, the Court will adopt
it. - Where the discretion of the trustee is to be governed by
some rule, or to be measured by a state of facts, which the
Court can enquire into as effectually as a private person, then
the Court can " look with the eyes of trustees," and will
substitute its own judgment for that of the individual (b) .
Thus in Gower v. Mainwaring (c) , John Mainwaring exe
cuted a trust deed, by which the trustees were to give the
residue of the real and personal estate among the settlor's
relations where they should see most necessity, and as they
should think most equitable and just. Two of the trustees
died, and, the third refusing to act, it was discussed, how far
the discretion of the trustees could be vicariously exercised
by the Court. Lord Hardwicke said, " What differs it from
the cases mentioned is this, that here is a rule laid down for
the trust. Wherever there is a trust or power - for this is a
mixture of both -I do not know that the Court can put
itself in the place of those trustees, and exercise that discre
tion. Where trustees have power to distribute generally
according to their discretion without any object pointed out or
rule laid down, the Court interposes not ; unless in case of
a charity, which is different, the Court exercising a discretion
as having the general government and regulation of charity.
But here is a rule laid down : the trustees are to judge of such
necessity and occasions of the family : the Court can (d)
judge of the necessity : that is a judgment to be made of facts

(h) Pierson v. Garnet, 2 B. C. C. (c) 2 Ves. 87.

46, per Lord Kenyon. (d) In Mr. Belt's edition of Vesey
(a) Brown v. Higgs, 5 Ves. 505. there is the strange misprint of “ can
(b) Hewett v. Hewett, 2 Eden, 332 ; not judge."
Maberly v. Turton, 14 Ves. 499.
1120
CH. XXVIII. ] FAILURE OF THE TRUSTEE . *837

existing, so that the Court can make the judgment as well as

the trustees, and, when informed by evidence of the necessity,
can judge what is equitable and just on this necessity," and his
Lordship decreed a division among the relations (such rela
tions to be restricted to those within the Statute of Distribu
tions ) according to their necessities and circumstances, which
the Master should enquire into, and consider how it might
be most equitably and justly divided (e ) ( 1) .
* 7. How the Court will exercise the power where [ * 837 ]
the settlor has laid down no rule. Where the settlor
has given no rule or measure by which the discretion is to be
governed, the Court cannot in that case act upon mere
caprice, but will execute the power by the most reasonable
and intelligible rule that the circumstances of the case will
admit.
Equality is equity. - And upon ordinary occasions the
Court proceeds upon the maxim, that equality is equity (a) .

(e) 2 Ves . 110 ; and see Liley v. Broom, 7 Ves. 124 ; Salusbury v.
Hey, 1 Hare, 580. Denton, 3 K. & J. 536 ; Penny v.
(a) Doyley v. Attorney-General , Turner, 2 Ph. 493 ; Izod v. Izod, 32
2 Eq. Ca. Ab. 195 ; Fordyce v. Beav. 242 ; Gray v. Gray, 13 Ir. Ch.
Bridges, 2 Ph. 497 ; Longmore v. Rep. 404 .

(1 ) Construction of bequest to " poor relations." - The execution of

the power in this case in favor of the settlor's relations within the Statute of
Distributions, according to their necessities, leads us to observe upon the con
struction of a direct bequest to a person's " poor or necessitous relations." It
is commonly thought that the epithet " poor," " necessitous," or the like, is
merely nugatory ; but on examination there will appear to be considerable
authority in favor of the contrary doctrine. It is perfectly settled, notwith
standing a case in which Lord Hardwicke is said to have held otherwise,
(Attorney-General v . Buckland , cited 1 Ves . 231 , Amb. 71 , ) that " relations,"
though accompanied with the words " poor," " necessitous," or the like, will
be restricted to those within the Statute of Distributions. The only question ,
therefore, is whether as among those within the statute expressions of this kind
will not be allowed their effect. In a case reported by Peere Williams (Anon.
case, 1 P. W. 327 ) , the bequest was to " poor relations," and the Countess of
Winchelsea, one of the next of kin, was allowed a share, in regard the word
" poor " was frequently used as a term of endearment and compassion rather
than to signify indigence. It is evident that this case can have no application
where the word " poor " is not of doubtful meaning, but is clearly to be taken
in the sense of poverty and necessity. In Widmore v. Woodroffe, Amb . 636,
the testator had given a third of the residue to be distributed " amongst the
most necessitous of his relations ." There was only one relation within the Statute
of Distributions, and it was held that such relation was exclusively entitled .
The only point decided, therefore, was, that the addition of the term " neces
1121
* 838 FAILURE OF THE TRUSTEE . [CH . XXVIII .

Thus in Doyley v . Attorney-General (b) , a testator gave his

real and personal estate to trustees upon trust to dispose
thereof to such of his relations of his mother's side who
were most deserving, and in such manner as they should
think fit, and for such charitable uses and purposes
[ * 838 ] as they should also think * most proper and conven
ient and the power having devolved upon the
Court, Sir J. Jekyll directed that one moiety of the personal
estate should go to the relations of the testator on the
mother's side, and the other moiety to charitable uses , the
known rule that Equality is equity being, he said, the best
rule to go by. He had no rule of judging of the merits of
the testator's relations, and could not enter into spirits, and
therefore could not prefer the one to the other, but all
should come in without distinction .
8. Words of gift and words of power distinguished. - With
respect to the subject under consideration, the cases in which
the donor's intention is expressed in the form of a gift, may
admit of distinction from those in which it is expressed in
the form of a power.

(b) 2 Eq. Ca. Ab. 195. See Down and Doyley v. Attorney-General was
v. Worrall, 1 M. & K. 561 ; but there not cited : see V. C. Wood's observa
the two sets of objects were con tions, 3 K. & J. 538.
nected not by " and," but by "or; "
sitous " would not extend the construction of the word " relations " to those
out of the statute. Thus there appears to be no authority for holding the
words to be nugatory as among the relations within the statute, while on the con
trary side of the question there are, as we shall see, direct decisions. In
Brunsden v. Woolredge, Amb . 507, a testator gave 500l . to be distributed
amongst his mother's poor relations, and Sir T. Sewell directed the fund to be
distributed amongst the poor relations of the mother within the statute who
were objects of charity. In Mahon v. Savage, 1 Sch . & Lef. 111, a testator gave
10007. to be distributed amongst his poor relations, or such other objects of
charity as should be mentioned in his private instructions to his executors .
No instructions were left, and Lord Redesdale held , that Lynam, one of the
next ofkin within the statute, was not entitled to a share, unless he was a poor
person at the time of the payment of the legacy. We may also add the
dictum of Lord Thurlow in Green v. Howard, 1 B. C. C. 33 : — " The word
'relations ,"" he said, " must be confined to the statute, but not always in the
proportions of the statute : where the testator has said, to relations according
to their greater need, the Court has shown particular favor to one." The argu
ment that the Court cannot distinguish between the degrees of poverty as
amongst the relations within the statute is also answered by the case of
Gower v. Mainwairing , cited in the text, in which a direction for such a dis
tinction was actually made.
1122
CH. XXVIII . ] FAILURE OF THE TRUSTEE. *838

Upon trust for the children of A. as B. shall appoint. If a

fund be limited " upon trust for the children of A. as B.
shall appoint," the construction is that the children of A.
take a vested interest by the gift, subject to be divested by
the exercise of the power. Therefore, on failure of the
power, the children , who were the objects of the power, be
come absolutely entitled, just as if the discretion had never
been annexed (a) . But the gift is subject to the exercise
of the power, and, therefore, if the power be testamentary,
the donee of the power may well appoint in favour of those
who may be living at his death, to the exclusion of those
who may have predeceased him ( b) . [ And where the will
creating the power of appointment contained a recital that
the testator had already provided for his children (who were
the objects of the power), and did not intend thereby to make
any further provision for them, it was held that the power
was not a power coupled with a trust, and that the children
were not entitled in default of appointment (c) . ]
Upon trust to dispose amongst the children of A. - Where
an estate is vested in trustees " upon trust to dispose there
of among the children of A. ," in this case the children take
nothing by way of gift, but the transmission of their in
terest must be through the medium of the power. If the
trust be to distribute equally among the objects, the bequest,
though in the form of a power, must be tantamount to a
simple gift (d) ; and if the trustees be at liberty to distribute
unequally, and make no distribution, the Court itself exe
cutes the power, and divides the fund equally amongst the
objects of it (e) .

(a) Davy v. Hooper, 2 Vern . 665 ; (d) Phillips v. Garth, 3 B. C. C.

Fenwick v. Greenwell, 10 Beav. 412 ; 64 ; Rayner v. Mawbray, Ib . 234.
Madoc v . Jackson, 2 B. C. C. 588 ; (e ) Hands v. Hands, cited Swift v.
Hockley v. Mawbey, 1 Ves. jun. 143 , Gregson, 1 T. R. 437, note ; Pope v.
see 149, 150 ; Jones . Torin, 6 Sim. Whitcombe, 3 Mer. 689, corrected
255 ; Falkner v . Lord Wynford, 9 from Reg. Lib. 2 Sugd . Powers, 650,
Jur. 1006 . 6th ed.; Walsh v. Wallinger, R. &
(b) Woodcock v . Renneck, 4 Beav. M. 78 ; S. C. Taml. 425 ; Grieveson
196 ; 1 Ph. 72 ; and see Lambert v. v. Kirsopp, 2 Keen, 653 ; Brown v .
Thwaites, 2 L. R. Eq. 151. Pocock, 6 Sim. 257 ; Finch . Hol
[ (e) Carberry v. M'Carthy, 7 L. lingsworth, 21 Beav. 112 ; Re White's
R. Ir. 328.] Trusts, Johns. 656.
1123
*839 FAILURE OF THE TRUSTEE . [CH. XXVIII.

[ *839] * 9. Discretion as to objects of the power. — But,

further, a discretion may be given to the trustee, not
only in respect of the proportions to be appointed, but also in
respect of the objects to whom the appointment is to be made ;
as where a fund is bequeathed to trustees with a discretionary
power of distribution to such of a class as the trustees shall
think fit.
Whether to be regarded as a trust or power. - In the last
case the question first to be resolved is, Did the settlor in
tend to communicate a mere power or to create a trust ?
In Harding v. Glyn' (a) , a testator gave to Elizabeth his
wife a house and certain goods and chattels, " but desired
her at or before her death to give the same unto and among
such of the testator's relations as she should think most
deserving and approve of." The wife died without having
made any appointment, and the Court considered a trust was
created, and divided the estate equally amongst the testator's
relations living at the time of the wife's death.
In The Duke of Marlborough v . Lord Godolphin ( b) , Lord
Hardwicke held, in a similar case, that there was merely a
power and no trust.
In Brown v. Higgs (c) , on the contrary, where the intro
ductory words used were, " I authorise and empower," Lord
Alvanley decided that there was a trust. The cause was re
heard before his Lordship, and, after grave consideration on
the subject, he decreed as before (d) . The decree was after
wards affirmed on appeal by Lord Eldon (e) , and again
affirmed in the House of Lords (f) .
The doctrine of Harding v. Glyn now established . ― The
doctrine of Harding v. Glyn has since been affirmed by other
authorities (g) , and may be now viewed as established . The

(a) 1 Atk. 469, S. C. stated from 72 ; Penny v. Turner, 2 Ph . 493 ;

Reg. Lib. in Brown v. Higgs, 5 Ves. Walsh v. Wallinger, 2 R. & M. 78 ;
501 . Re Caplin, 11 Jur. N. S. 383, 2 Dr. &
(b) 2 Ves. sen. 61 . Sm. 527 ; and see Salusbury v. Den
(c) 4 Ves. 708. ton, 3 K. & J. 535 ; Re White's Trusts,
(d) 5 Ves. 495. Johns. 656 ; Re Eddowes, 1 Dr. &
(e ) 8 Ves . 561 , see p. 576. Sm. 395 ; [Pocock v . Attorney-Gen
(f) 18 Ves . 192 . eral, 3 Ch. D. 342 ; Wilson v. Duguid,
(g) Birch v. Wade, 3 V. & B. 198 ; 24 Ch. D. 244. ]
Burrough v. Philcox, 5 M. & Cr.
1124
CH. XXVIII .] FAILURE OF THE TRUSTEE . *840

rule has been thus laid down by Lord Cottenham: " When
there appears a general intention in favour of individuals of
a class to be selected by another person, and the particular
intention fails from that selection not being made, the Court
will carry into effect the general intention in favour of the
class " (h).
10. In favour of what objects the Court will exercise a power
imperative. - The question in favour of what objects a power
imperative, whether of distribution merely, or of
*
selection, will be executed by the Court, viz . , whether [ * 840 ]
in favour of those living at the death of the testator,
or those living at the death of the donee of the power, remains
to be considered ; and it is conceived that, in reference to
this question, the following results may be deduced from
the authorities :
Case where an immediate exercise of the power is contem
plated. — First. Where a testator bequeaths property with a
power imperative in favour of a class, whether of children ,
relations, or others, and it appears to be the intention that
the distribution or selection should take place as soon as con
veniently may be after the testator's death, then the Court
will execute the power in favour of the class as existing at
the date of the testator's death (a) .
Where an immediate exercise not contemplated . ― Secondly.
Where the frame of the will does not of necessity point to an
immediate exercise of the power, as where the donee of the
power takes a life estate expressly, or by implication , the
nature ofthe power given to the donee has to be taken into
consideration :
a. Where power testamentary. —If the devise or bequest
be in the form not of a gift, but of a power to be exercised
by will only, then, inasmuch as the objects of the power are
necessarily those only living at the death of the donee, the
Court executes the power in favour of those members of the

(h) Burrough v. Philcox, 5 M. & where a life estate being given to the
Cr. 92. donee of the power, the donee dies in
(a) Brown v. Higgs, 4 Ves. 708, the testator's lifetime ; see Penny v.
&c.; Longmore v. Broom, 7 Ves. 124 . Turner, 2 Ph. 493 ; Hutchinson v.
The result will, of course, be the same Hutchinson, 13 Ir. Eq. Rep. 332.
1125
* 841 FAILURE OF THE TRUSTEE. [CH. XXVIII .

class only who are in esse at the death of the donee ( b) . But
the rule applies only where the class take through the medium
of a power, for if there be a gift to them in the first instance,
in such shares, &c., as the donee of the power shall appoint
by will, then, in default of exercise of the power, the whole
class take, whether they survive the donee of the power or
not (c).
B. Where power not merely testamentary . ――― Where the
power given to the tenant for life is not merely testamentary,
but may be exercised either by deed or will, the question ,
whether the class to take is to be ascertained at the death of
the testator or of the donee of the power, is involved in still
further difficulty. The decisions which support an execu
tion of the power in favour of the class of objects as existing
at the death of the donee (d ) , and those which support
[* 841 ] an execution in favour * of the class as existing at
the death of the original testator (a) , are almost evenly
balanced ; but the apparent absence of any full consideration
of the question, and the circumstance that in some of the
cases the power, though not expressly limited to an exercise
by will, did not in terms authorise an execution by deed or
writing, and may perhaps have been viewed by the Court as
testamentary, detract from their value as authorities upon
this point .
Upon principle, too, as well as upon authority, the question
is attended with difficulty. On the one hand, the power
may be properly exercised by the donee at any time before
his death, and there is no obligation to exercise it earlier,
and if any members of the class die before the power is exer

(b) Cruwys v. Colman, 9 Ves . 319 ; (c) Lambert ". Thwaites, 2 L. R.

Birch v. Wade, 3 V. & B. 198 ; Walsh Eq. 151 .
v. Wallinger, 2 R. & M. 78 ; Brown v. (d) Doyley v. Attorney-General, 2
Pocock, 6 Sim. 257 ; Burrough v . Phil Eq. Ca. Ab. 195 ; Harding v . Glyn,
cox, 5 M. & Cr. 72 ; Bonser v. Kin 1 Atk. 469 ; Pope v. Whitcombe, 3
near, 2 Giff. 195 ; Re Caplin's Will, Mer. 689, corrected from Reg. Lib. 2
2 Dr. & Sm. 527 ; Freeland v . Pear Sugd. Pow. 650, 6th ed.
son, 3 L. R. Eq . 658 ; [ Sinnott v. (a) Hands v. Hands, cited 1 T. R.
Walsh, 5 L. R. Ir . 27 ; ] and see the 437, note ; Grieveson v. Kirsopp, 2
analogous cases of Woodcock v . Ren Keen, 653 ; [ Wilson v. Duguid, 24
neck, 4 Beav. 190 ; 1 Ph . 72 ; Finch Ch. D. 244. ]
v . Hollingsworth, 21 Beav. 112 .
1126
CH. XXVIII .] FAILURE OF THE TRUSTEE. *842

cised, they, according to the ordinary rule, cease to be ob

jects of it. The donee of the power has an undoubted right
to postpone the execution of it until the last moment of his
life, and the only default which the Court has to supply, is
the non-exercise just before the death, and that default must,
therefore, be supplied in favour of those who were objects at
the date of the death of the donee (b) . On the other hand,
the donee of the power may exercise it in favour of the class.
existing at the time of exercise, to the exclusion of those
who have died before, and, also, where the power is one of
selection to the exclusion of those who may come into esse
subsequently, but the Court cannot act arbitrarily, and can
not show any favour, but must observe equality towards all.
Who, then, are the objects of the power ? As it was not the
duty of the donee of the power to exercise it at one time
more than another, the only objects of the power must be all
those who might by possibility have taken a benefit under it,
that is, those living at the death of the testator, and those
who come into being during the continuance of the life es
tate (e) ; otherwise, should all the class predecease the ten
ant for life (an event not improbable, where children or some
limited class of relations are the objects ) , there would be a
power imperative which is construed as a trust, and no cestui
que trust, a result which, it is conceived, the Court would be
somewhat unwilling to adopt.
[In a recent case where there was a residuary bequest to
A. with a direction that " the whole principal at her
death was to be divided amongst her children , if [ * 842 ]
she had any, in such proportions as she should think
fit," the late M. R. held, ( 1 ) , that A. had a power of appoint
ment, either by instrument inter vivos, or by will ; and ( 2 ) , i
that, as she did not exercise the power, her surviving child
and the representatives of her children who had died in her
lifetime were entitled to participate in the property (a) . It

(b) See also observation by V. C. trustees, who both died before the
Wood in Re White's Trusts, Johns. tenant for life.
659, 660, a case different, however, [(c) See Wilson v. Duguid, ubi
from any of those discussed in the supra.]
text, the donees of the power being [ (a ) Re Jackson's Will, 13 Ch. D.
189.]
1127
* 842 FAILURE OF THE TRUSTEE . [CH. XXVIII.

is observable that the power in this case was only one of dis
tribution ; but in a still later case (b) , where the power was
one of selection and distribution, the objects who had died in
the lifetime of the donee of the power were held entitled to
participate ; but the decision in the latter case was also based
upon other grounds . The cases in which an intention ap
pears that there should be a personal enjoyment by the objects
of the power stand on a different footing, and in these cases
there is good ground for holding that the object must sur
vive the donee of the power in order to participate (e) ; but
apart from any such indication it is conceived that the true
principle is that all persons in whose favour the power could
at any time have been exercised are objects, and that they
all are equally entitled to participate . ]
y. Whole purview of instrument must be regarded. It is
clear that where the donee tenant for life may exercise the
power by deed or will, the members of the class in existence
at the date of the death of the donee will alone take, if, upon
the purview of the original instrument, they alone appear to
be the objects of the power (d) .
11. Construction of the word " relations ." .- - Power of selec
tion and power of distribution. Where there is a power of
appointment in favour of " relations," the donee of the dis
cretion, if he have a power of selection , may appoint to re
lations in any degree (e ) , and it is only in those cases where
he has a mere power of distribution that he must confine
himself to the relations within the Statute of Distribution
of Intestate's Estates (f) . But the Court, except where

[ (b) Wilson v. Duguid , 24 Ch. D. Biles, cited Swift v . Gregson, 1 T. R.

244.] 435, note (f) ; Salusbury v. Denton,
[(c) Re White's Trusts, Johns . 656 ; 3 K. & J. 536 ; Snow v . Teed , 9 L. R.
Re Phene's Trusts, 5 L. R. Eq. 346. ] Eq . 622. In Brunsden v. Woolredge,
(d) Winn v. Fenwick, 11 Beav. Amb . 507, Sir T. Sewell seems (con
438 ; and see Tiffin v. Longman, 15 trary to his opinion in Supple v .
Beav. 275. Lowson, ubi supra ) to have confined
(e ) Supple v. Lowson, Amb. 729 ; the trustees to relations within the
Grant v. Lynam, 4 Russ. 292 ; Hard statute .
ing v. Glyn, 1 Atk. 469 ; S. C. stated (f) Isaac v. Defriez, Amb. 595 ;
from Reg. Lib. , Brown v. Higgs, 5 but see the case cited from Reg. Lib.,
Ves. 501 ; Mahon v. Savage, 1 Sch. Attorney-General v. Price, 17 Ves.
& Lef. 111 ; Cruwys e. Colman, 9 Ves. 373, note (a) ; Carr v . Bedford, 2 Ch.
324, per Sir W. Grant ; Spring v. Rep. 146 ; Lawlor v. Henderson , 10
1128
CH. XXVIII.] FAILURE OF THE TRUSTEE . * 843

the bequest is for the benefit of poor relations by way [ * 843 ]

of founding a charity (a) , or the testator has fur
nished some intelligible rule by which the relations out of the
statute may be easily ascertained (b) , must in all cases ap
point to the relations within the statute ; for as on the one
hand the Court cannot act arbitrarily by selecting particu
lar objects , so on the other it cannot execute the power in
favour of relations in general, for this would lead ad infini
tum (c) .
12. Whether relations shall take per stirpes or per capita.
A further point open to discussion is , in what shares such
relations shall take, - whether those who in case of intestacy
would have claimed by representation shall under the exe
cution of the power by the Court take per stirpes or per
capita.
Now, the rule that those are deemed relations who would
take a distributive share under the statute was adopted on
the ground, that, unless some line were drawn for restricting
the meaning of the word, a bequest to relations would be
void for uncertainty. As this was the sole foundation for ap
pealing to the statute at all, it is evident the single enquiry
for the Court is, who would take a distributive share : in what
proportions they would take is wholly beside the question ,
and in fact beyond the Court's jurisdiction ; for , when the
class has been ascertained, the testator himself has deter

I. R. Eq. 150 ; Pope v. Whitcombe, 3 Biles, cited 1 T. R. 435 , note (ƒ) ;

Mer. 689. The last case , and Forbes Mahon v. Savage, 1 Sch. & Lef. 111 ;
v. Ball , 3 Mer. 437 , were both decided Salusbury v. Denton, 3 B. & J. 536.
by Sir W. Grant, but appear to be In the last two cases the words were
contradictory ; however, in the latter "amongst the relations ," but see Pope
case the question raised was, not v. Whitcombe, 3 Mer. 689, where the
whether the donee had exceeded her expression was similar.
power, but whether the discretion (a) See White . White, 7 Ves.
was a power or a trust ; for if a power, 423 ; Attorney-General v. Price , 17
and it had not been executed by the Ves. 371 ; Isaac v. De Friez, Ib . 373,
will, the fund would have sunk into note (a) ; and see Mahon v . Savage,
the residue, and the plaintiff have 1 Sch. & Lef. 111 .
been entitled as residuary legatee. (b) Bennett v. Honywood, Amb.
Note, a power of selection will be 708.
implied in a case of " relations," (c) Thus in Bennett v. Honywood,
where it would not have been implied ubi supra, 456 persons applied as rela
in the case of " children " ; Spring v . tions within two years.
1129
* 844 FAILURE OF THE TRUSTEE . [CH. XXVIII .

mined the proportions by devising to the objects in words

creating a joint tenantcy (d) . No distinction can be taken
between real and personal estate ; yet it could scarcely be
held, that if lands were devised to the testator's " relations,"
the kindred within the statute would take in unequal pro
portions .
Principle to be extracted from the cases . The result of
the authorities would seem to accord with what is correct
upon principle, viz., that in a gift to " relations " (whether the
testator has added the words " equally to be divided " or not),
the distribution among the relations within the statute must
be made per capita, and not per stirpes ( e) . The
[* 844 ] question can no longer arise where the gift is to
"next of kin :" for by decision of Elmsley v. Young,
upon appeal from Sir J. Leach to the Lord's Commis
sioners (a), the words " next of kin " must be construed to
mean 66 nearest of kin," to the exclusion of those who would
take under the statute by representation.
13. Subject of the gift incapable of division. _ We have
stated that, as a general principle , the Court will execute
the power among the objects equally ; but it sometimes hap
pens that the subject of the gift is incapable of division, or
the settlor has expressly directed the whole to be bestowed
on one object to be selected by the trustee. In such cases
the Court still acts upon the maxim, that, if by any possibility
the power can be executed the Court will do it.
In Moseley v. Moseley (b) , a very early case, an estate
was devised to trustees upon trust to settle on such (i.e. on
such one) of the sons of N. as the trustees should think fit .
The trustees having neglected to comply with the direction ,

(d) See Walker v. Maunde, 19 M. & K. 27 ; Withy v. Mangles, 4

Ves. 427 , 428. Beav. 358 ; 10 Cl . & Fin. 215 ; Fielden
(e) See Thomas v. Hole, Cas. t. v. Ashworth, 20 L. R. Eq . 410. The
Talb. 251 ; Stamp v. Cooke , 1 Cox, above cases are discussed in Append.
236 ; Phillips v . Garth , 3 B. C. C. 64 ; No. IX. to 3d edit.
Green v. Howard, 1 B. C. C. 33 ; Ray (a) 2 M. & K. 780 ; and see Withy
ner v. Mowbray, 3 B. C. C. 234, Reg. v. Mangles, 4 Beav. 358 ; 10 Cl. &
Lib. B. 1791, fol. 183 ; Pope v. Whit Fin. 215 .
combe, 3 Mer. 689, Reg. Lib. B. 1809, (b) Rep. t. Finch, 53 ; S. C. cited
fol. 1535 ; Hinckley v. Maclarens, 1 Clarke v. Turner, Freem. 199.
1130
CH. XXVIII .] FAILURE OF THE TRUSTEE . *845

the sons of N. filed a bill to have the benefit of the trust, and
the Court decreed the trustees, within a fortnight next after
the entry of the order, to nominate such one of the plaintiffs
as they should think fit, upon whom to settle the lands of
the testator ; and if the trustees should fail to nominate
within that time, or there should be any difference between
them concerning such nomination, then the Court would
nominate one of the plaintiffs , it being the testator's intent
that his estate should not be divided, but settled upon one
person.
In Richardson v. Chapman (c) , Dr. Potter, Archbishop of
Canterbury, gave all his options to trustees upon trust, that
in disposing thereof " regard should be had according to
their discretion to his eldest son , his sons in law, his present
and former chaplains, and others his domestics , particularly
Dr. T., his chaplain , and Dr. H., his librarian ; also to his
worthy, friends and acquaintance, particularly to Dr. Rich
ardson ." The trustee tried first to give the option in ques
tion to himself. He then fixed upon a person , with whom
he appeared to have made an underhand bargain. When
this failed , he, in breach of his duty, presented a Mr. Venner.
On a bill filed to set aside the presentation , Lord
Northington considered the trust to be of a kind [ * 845 ]
that the Court could not execute, and dismissed the
bill. Dr. Richardson appealed against this decision to the
House of Lords, and the other person, who stood prior to
him, not appearing, the House reversed the decree , and
ordered the presentation to be made to the appellant.
" This case," says Lord Alvanley, " shows, that however diffi
cult it may be to select the persons intended, and though it
must depend from the nature of the trust upon the opinion
of the trustees as to the merit of the persons who are the
objects, yet the Court will execute even a trust of that
nature, if the trustee shall either neglect to execute , or be
disabled from executing, or shows by his conduct any inten
tion not to execute it as the testator intended he should.
When one reads the nature of this trust, how difficult it was

(c) 7 B. P. C. 318 ; S. C. cited Brown v. Higgs, 5 Ves. 504, 505.

1131
*845 FAILURE OF THE TRUSTEE. [CH. XXVIII.

to make the selection , it is decisive to show the Court must

do it, though the trust is in its nature so discretionary " (a) .

(a) Brown v. Higgs, 5 Ves. 504. though he would not decide the point,
In this case (see 4 Ves. 718, 719 ; 5 that the children of Samuel Brown
Ves. 508) , an estate was devised "to could not establish a claim ; but the
one of the sons of Samuel Brown as ground of this opinion was not that
John Brown should direct by a con a trust had been created which the
veyance in his lifetime, or by his Court could not execute, but that the
last will and testament ; " and John intention of the testator as collected
Brown not having executed the power, from the will was to communicate a
Lord Alvanley was inclined to think, mere power.
1132
 * CHAPTER XXIX . [* 846 ]

THE RIGHTS OF A CESTUI QUE TRUST IN PREVENTION OF

BREACH OF TRUST.

As the estate of the cestui que trust depends for its continu
ance upon the faith and integrity of the trustee, it is reason
able that the cestui que trust, whose interest is thus materially
concerned, should be allowed by all practical means to secure
himself against the occurrence of any act of misconduct.
We shall, therefore, next consider the rights of the cestui que
trust that are calculated to arm him with this protection.¹

1 The removal of trustees . - The cestui que trust and all others in interest are
entitled to have the trust property in the hands of proper custodians, and to
have a sufficient number of them ; Cooper v. Day, 1 Rich. Eq. 26 ; Greene v.
Borland, 4 Met . 330 ; Dixon v. Homer, 12 Cush. 41 ; Hospital v . Amory, 12
Pick. 445 ; if a trustee moves away, or for any reason cannot continue to per
form his duties, he may be removed ; Curtis v. Smith, 60 Barb. 9 ; Lill v .
Neafie, 31 Ill . 101 ; Ketchum v. Railroad, 2 Woods, 532 ; Farmers' Loan &
Trust Co. v. Hughes, 11 Hun, 130 ; Dorsey v. Thompson, 37 Md . 25 ; Brown
v. Strickland, 28 Ga. 387 ; likewise if he is guilty of misconduct ; Thompson
v. Thompson, 2 B. Mon. 161 ; Re Wiggins, 29 Hun, 271 ; or conducts the
estate to his own profit ; Clemens c. Caldwell, 7 B. Mon. 171 ; or if a husband
as trustee is guilty of cruelty ; Smyth v. Oliver, 31 Ala . 39 ; Kraft v. Loh
man, 79 Ala. 323 ; but see Abernathy v. Abernathy, 8 Fla. 243 ; or if he be
comes a lunatic ; In re Wadsworth, 2 Barb. Ch . 381 ; or a drunkard ; Bayles
v. Staats, 1 Halst. Ch . 513 ; Fisk v. Stubbs, 30 Ala . 335 ; or if money is not
invested properly or as desired ; Deen v . Cozzens, 7 Rob. (N. Y. ) 178 ;
Lewis v . Cook, 18 Ala. 335 ; Cavender v. Cavender, 114 U. S. 464 ; or
if the trust property is endangered ; Matthews v. Murchison, 17 Fed . Rep.
766 ; Nickels v. Philips, 18 Fla. 732 ; Harper v. Straws, 14 B. Mon. 57 ;
Scott v. Rand, 118 Mass. 215 ; Sparhawk r. Sparhawk, 114 Mass. 358 ; in
most of these cases proper and regular proceedings for removal must be
taken, up to which time the trustee may continue to act ; Howard v . Waters ,
19 Md . 529 ; People v. Norton, 5 Seld . 176 ; Hodgdon v. Shannon, 44 N. H.
572. If a trustee is appointed for a certain time, his duties end with the
expiration of the time as a matter of course ; Webb v. Neal, 5 Allen , 575.
A mistake or misjudgment is insufficient ground for removal ; Lathrop v.
Smalley, 23 N. J. Eq . 192 ; In re Durfee, 4 R. I. 401 ; so is a disagreement
between the trustee and cestui que trust ; Gibbes v . Smith, 2 Rich. Eq . 131 ;
Clemens v. Caldwell, 7 B. Mon. 171. Courts will not discharge trustees
against the wishes of the cestui que trust when proceedings are pending to com
1133
*846 SUBSTITUTION OF TRUSTEES . [CH. XXIX.

Cestui que trust entitled to appointment of proper trustees .

First. The cestui que trust is entitled to have the custody

pel them to sell land ; Longstreth's Est. 12 Phila. 86 ; the calling in of funds
well invested by the trustee, that he may use them in his own business is not
sufficient unless mala fides is shown ; Massey v. Stout, 4 Del. Ch. 274 ; but a
refusal to join in a conveyance because it would interfere with his own
advantage to be derived therefrom is sufficient ; Re Frisbie, 3 Dema. ( N. Y.)
22 ; Re Morgan, 3 Dema. (N. Y. ) 612 ; a trustee appointed by the Court ex
parte may be removed on the application of an interested party ; Re Mayfield,
17 Mo. App . 684 ; in proceedings for removal, all the beneficiaries must be
made parties ; Bear v. American Rapid Tel. Co. 36 Hun, 400 ; one denying
that he is a trustee should be removed and a new one appointed ; Irvine v.
Dunham, 111 U. S. 327 ; a trustee may be removed for cause shown, and if
the trust estate is in jeopardy, no additional cause is necessary ; Hilles' Est.
13 Phila. (Pa . ) 402 ; a non-resident alien may be removed, though he never
signified his acceptance, nor assumed the duties of trustee ; Lane v. Lewis, 4
Dema. (N. Y. ) 468 ; charges against a testamentary trustee must be specific
and certain, not vague and indefinite, in order to remove him ; Ferris v. Ferris,
2 Dema. (N. Y. ) 336 ; a trustee may be removed for neglect ; Stevens v. El
dridge, 4 Cliff. C. C. 348 ; a trustee may be removed because of waste ;
Mandel v. Peay, 20 Atk. 325 ; Lucich v . Medin, 3 Nev. 93 ; if a trustee is
incapable of acting, an enabling act might be passed ; Fellows v . Miner, 119
Mass. 541 ; Williams's App . 73 Pa. St. 249 ; incompetency or dishonesty is
sufficient ground for removal ; Savage v. Gould , 60 How. Pr. 234 ; ill-will and
unnatural dislike may be ; McPherson v. Cox, 96 U. S. 404 ; a trustee may
not, without his consent, be removed from the management of a part of the
trust property only ; Sturges v. Knapp, 31 Vt. 1. Removal of trustee is in
discretion of the Court when the cestui que trust requests it ; Ward v. Dortch,
69 N. C. 279 ; good cause must be shown ; Stevenson's App . 68 Pa. St. 101 ;
refusal of trustee to exercise his discretionary powers may be a ground for
removal ; Atty.-Gen . v. Garrison, 101 Mass . 223 ; illiteracy, poverty, immoral
conduct, and misunderstanding are not ; Emerson v . Bowers, 14 N. Y. 449 ;
Stephenson v. Stephenson, 4 Jones, L. 472 ; Berry v. Hamilton, 12 B. Mon.
191 ; Fairbairn v. Fisher, 4 Jones, Eq . 390 ; Gregg v. Wilson, 24 Ind . 227 ;
neither is the non-residence of the trustee ; Cutler v . Howard, 9 Wis. 309 ;
Jones v. Jones, 12 Rich. 623 ; Ex parte Barker, 2 Leigh, 719 ; but see Max
well . Finnie, 6 Cold . 434 ; costs of proceedings to remove on account of
trustees leaving the state are to be paid out of the trust estate ; Bloomer's
App. 83 Pa. St. 45. A trustee may not be removed for a breach of trust or
failure to do his duty, if the trust property is not thereby endangered ;
Lathrop v. Smalley, 23 N. J. Eq. 192 ; especially if the cestuis que trust do not
wish it ; Berry v. Williamson, 11 B. Mon. 245. Trustee may not remove
from the state without accounting ; Harris v. Dillard , 31 Ala. 191. There
are numerous other causes for removal ; Quackenboss v . Southwick, 41 N. Y.
117 ; Preston v. Wilcox, 38 Mich . 578 ; Holcomb v. Coryell, 12 N. J. Eq . 289 ;
Re Clute, 80 N. Y. 651 ; Belknap v. Belknap, 5 Allen, 468 ; Johnson's App.
9 Barr, 416 ; Cooper v. Day, 1 Rich. Ch . 26 ; Piper's App . 20 Pa. St. 67.
Bankruptcy of trustees. The bankruptcy or insolvency of a trustee does
not ordinarily interfere with his fiduciary relation ; Belknap v. Belknap, 5
Allen , 468 ; Shryock v. Waggoner, 28 Pa . St. 430 ; Cooper v. Cooper, 5 N. J.
Eq . 9 ; Dwight v. Simon, 4 La. Ann. 490.
1134
CH. XXIX .] SUBSTITUTION OF TRUSTEES . *846

and administration of the estate confided to the care both of

proper persons and of a proper number of such persons.

Resignation oftrustee. - Generally trustees should have some good reason

for relinquishing their trusts ; Jones v. Stockett, 2 Bland, 409 ; Cruger v.
Halliday, 11 Paige, 314 ; Craig v. Craig, 3 Barb. Ch . 76 ; but if they are
serving for no limited period and without pay they may retire at any time
when the duties become burdensome or inconvenient ; Bogle v. Bogle, 3
Allen, 158 ; if a trustee resign for his own convenience he should bear the
expense of the change ; In re Jones, 4 Sandf. Ch . 615. The appointment, re
moval or substitution of a trustee will come under the jurisdiction of courts of
equity in some cases, in others under that of probate courts ; In re Eastern
R. R. 120 Mass. 412 ; Bowditch v. Banuelos, 1 Gray, 220 ; De Peyster v.
Clendining, 8 Paige, 295 ; if he be an executor, the latter will, of course, have
special jurisdiction ; Quackenboss v . Southwick, 41 N. Y. 117 ; Leggett v.
Hunter, 25 Barb. 81.
Substitution oftrustees. - Proceedings may be begun by parties in interest
upon notice to all other interested parties ; Bradstreet v. Butterfield, 129
Mass. 339 ; Abbott, Petr. 55 Me . 580 ; Re Ballou, Petr . 11 R. I. 360 ; Guion v .
Melvin, 69 N. C. 242 ; Re Livingston, 34 N. Y. 567 ; Hawley v. Ross , 7
Paige, 103 ; Howard v. Gilbert, 39 Ala . 726 ; in some cases the trust property
vests in the trustee without a direct conveyance to him ; Webster Bank v .
Eldridge, 115 Mass . 424 ; Ellis r. Boston H. & E. R. R. 107 Mass. 1 ; Gibbs
v. Marsh, 2 Met. 243 ; Burdick v . Goddard, 11 R. I. 516 ; in others such a con
veyance is necessary ; Crosby v. Huston, 1 Tex. 203 ; Foster v. Goree, 4 Ala.
440. If any of the interested parties are not sui juris a decree of court is
absolutely necessary in substituting trustees unless the trust instrument pro
vides for it ; Cruger v. Halliday, 11 Paige , 314.
Power ofappointment. This cannot be exercised except by those to whom
it is directly given, or by the courts ; Wilson v . Towle, 36 N. H. 129 ; Shea v.
Dulin, 3 MacArthur, 339 ; if given to a particular class of persons, it can be
exercised by the survivors of the class ; McKim v . Handy, 4 Md . Ch . 230 ;
Davoue v . Fanning, 2 Johns . Ch . 252. If the appointment is left to the dis
cretion of any persons, the courts will not interfere ; Bowditch v. Banuelos , 1
Gray, 220 ; the cestui que trust should be consulted in making appointments ;
Naglee's Est. 52 Pa . St. 154 ; a woman may appoint her own husband as a
trustee ; Tweedy v. Urquhart, 30 Ga. 446.
Number of trustees. — If retiring trustees have a power of appointment, they
should not appoint one trustee merely, but as many as there are vacancies in
the original number ; Mass. Gen. Hosp . v . Amory, 12 Pick. 445 ; but the
power may allow them the privilege of determining the number of new
trustees ; Hammond v . Granger, 128 Mass . 272 ; Atty.-Gen. v. Barbour, 121
Mass. 568 ; Greene v. Borland, 4 Met. 330.
In the provinces. The court will not without some special reason appoint
one trustee in the place of three ; Kingsmill v. Miller, 15 Chy. 171 ; where
the court appoints a new trustee it will be satisfied with one ; In re Dillon's
Trusts, 3 L. J. N. S. 126 Chy.; a release by an executor does not release him
as trustee ; Berringer v. Hiscote , 60 S. 23 ; if a master favored reducing num
ber of trustees , he should so report to the court ; Proudfoot v . Tiffany, 11
Chy. 461 ; see also in reference to the appointment of new trustees, Lyon v.
Radenhurst, 5 Chy. 544 ; In re De Laronde, 19 Chy. 119 ; Pegley v. Atkinson ,
20 Chy. 383 ; In re Halliwell's Trusts, 21 Chy. 346 ; Lucas v. Hamilton Real
1135
*847 SUBSTITUTION OF TRUSTEES . [CH. XXIX.

1. Trustee dying in testator's lifetime. ―――― Thus, if the trustee

originally appointed by a will happen to die in the testator's
lifetime, the cestui que trust, where such a course would be
for his interest, may have the property better secured by a
conveyance to an express trustee for himself ; and where a
testator did not appoint a trustee at all , but only appointed
executors, the Court asserted an inherent jurisdiction of its
own to appoint trustees to take charge of the fund (a) .
-
2. Death of trustees after having acted . So, where the origi
nal number of trustees has become reduced by deaths , the
cestui que trust may restore the property to its original security
by calling for the appointment of new trustees in the place of
the trustees deceased (b) ; and even a cestui que trust in re
mainder may take proceedings to have the proper number
of trustees filled up (c) , and under the new practice the
Court has appointed new trustees upon an action by
*
[* 847 ] infant cestuis que trust without any statement of

(a) Dodkin v. Brunt, 6 L. R. Eq . (b) Buchanan v. Hamilton , 5 Ves.

580 ; [and see Appendix, post, sect. 9 722 ; Hibbard v. Lamb, Amb. 309.
of the Trustee Extension Act, and (c) Finley v. Howard, 2 Dru. &
the cases cited in the note thereto.] War. 490.

Est. Asso . 26 Chy. 384 ; Magee v. Osborne, 7 O. R. 297 ; Wright v. Robertson,

3 Kerr (N. B. ) 78 ; Moffatt v. Thompson, 1 P. B. (N. B.) 516.
Where one trustee died, and another was removed for misconduct, it was
held that the remaining trustee was discharged ; Mitchell v. Richey, 13 Chy.
445 ; the insolvency of a trustee or his leaving in debt to reside abroad,
is a sufficient ground to remove him from the trust ; Gray v. Hatch, 18
Chy. 72 .
Rights ofcestui que trust. — He may proceed against the trustee directly if
he chooses ; Calhoun v. Burnett, 40 Miss. 599 ; Freeman v. Cook, 6 Ired. Eq .
379 ; Roberts v. Mansfield, 38 Ga. 452 ; yet he must elect to proceed against
the trustee or the property if the latter can be traced ; Baker v. Disbrow, 3
Redf. 348 ; Barker v. Barker, 14 Wis. 131. Ordinarily the remedy is an
equitable one ; Brooks v. Brooks, 11 Cush. 18 ; Hearne v . Hearne, 55 Me . 445 ;
Dorsey v. Garey, 30 Md. 489 ; Dill v . McGehee, 34 Ga. 438 ; but actions at
law will lie in some instances ; Prescott v. Ward, 10 Allen, 203 ; New York
Ins. Co. v. Roulet, 24 Wend . 505 ; Hall v . Harris, 3 Ired . Eq . 389 ; Penobscot
R. R. Co. v. Mayo, 60 Me. 306 ; Catlin v . Birchard, 13 Mich. 110 ; Beaches v . Dor
win, 12 Vt. 139. If a trustee embezzle trust funds, he may be indicted there
for ; Shaw v. Spencer , 100 Mass . 388. Where a trustee sells improperly, he
may be held liable for the highest possible value of the property ; Melick v.
Voorhees, 2 N. J. Eq. 305 ; or the cestui que trust may compel him to pur
chase other property of equal value ; Norman v. Cunningham, 5 Gratt. 72 ;
Oliver v. Piatt, 3 How. 333.
1136
 CH. XXIX .] SUBSTITUTION OF TRUSTEES . *847

claim upon an admission in the statement of defence by the

sole trustee that she was willing to retire (a) .
3. Trustee refusing to act, becoming incapable, or miscon
ducting himself, &c. If a trustee refuse to act (b) , or be
come so circumstanced that he cannot effectually execute
the office (as where a trustee goes abroad to reside perma
nently (c) , or the trustees of a chapel entertain opinions con
trary to the founder's intention (d) ) , or if a trustee of money
become bankrupt (e) , or if a trustee misconduct himself in any
manner (f) (as by dealing with the trust property for his own
personal advancement (g) , by suffering a co-trustee to com
mit a breach of trust (h) , or by absconding on a charge of
forgery (i)) ; in these and the like cases the cestui que trust
may have the old trustee removed, and a new trustee ap

(a) Mooney v. Summerlin, W. N. is more likely to be tempted to mis

1876, p . 90. appropriate than one who is wealthy ;
(b) Maggeridge v. Grey, Nels. 42 ; and, besides, a man who has not
Travell v. Danvers, Rep. t . Finch, shown prudence in managing his own
380 ; Wood v. Stane, 8 Price, 613 ; affairs, is not likely to be successful
Anon. 4 Ir. Eq. Rep. 700. in managing those of other people."
(c) O'Reilly v. Alderson, 8 Hare, An exception to the general rule was
101 ; Re Ledwich, 6 Ir. Eq . Rep. 561 ; made in Re Bridgman, 1 Dr. & Sm.
Commissioners of Charitable Dona 164, where a trustee became bankrupt,
tions v. Archbold , 11 Ir. Eq . Rep. 187. but without any imputation on his
(d) Attorney-General v. Pearson, moral character, and had been hon
7 Sim. 290, see 309 ; Attorney-Gen orably unfortunate, and but for an
eral v. Shore, Ib. 309 , see 317. accident would have been solvent, and
(e) Bainbrigge v. Blair, 1 Beav. had been treated by all parties since
495 ; Re Roche, 1 Conn. & Laws. 306 ; his bankruptcy as a proper person to
Commissioners of Charitable Dona manage the trust. If the trustee com
tions v. Archbold, 11 Ir. Eq. Rep. pound with his creditors, the same
187 ; Harris v. Harris (No. 1) , 29 rule applies as in bankruptcy, for the
Beav. 107 ; Re Barker's Trusts, 1 Ch. cestuis que trust have equally a right to
D. 43, in which case M. R. observed : have the administration of the trust
"It is the duty of the Court to re estate committed to responsible per
move a bankrupt who has trust money sons ; [Re Adams' Trust, 12 Ch. D.
to receive or deal with, so that he can 634 ; and see Re Hopkins, 19 Ch . D.
misappropriate it. There may be ex 61. ]
ceptions under special circumstances (f) Mayor of Coventry v. Attor
to that general rule. And it may also ney-General , 7 B. P. C. 235 ; Buck
be, that where a trustee has no money eridge v. Glasse, Cr. & Ph. 126, see
!
to receive, he ought not to be re 131.
moved merely because he has become (g) Ex parte Phelps, 9 Mod . 357 .
bankrupt, but I consider the general (h) Ex parte Reynolds, 5 Ves. 707.
rule to be as I have stated . The rea (i) Millard v. Eyre , 2 Ves. jun.
son is obvious. A necessitous man 94.
1137
*848 SUBSTITUTION OF TRUSTEES. [CH. XXIX .

pointed in his room. And in such a suit it will not be scan

dalous or impertinent to challenge a trustee for misconduct,
or to impute to him any corrupt or improper motive in the
execution of the trust, or to allege that his behaviour is the
vindictive consequence of some act on the part of the cestui
que trust, or of some change in his situation ; but it will be
impertinent, and may be scandalous, to state circumstances
of general malice or personal hostility (j) . And if the old
trustee be removed on the ground of misconduct, he
[ * 848 ] must bear the expense of the appointment of a new
trustee, as an act necessitated by himself (a) . But
where the instrument creating the trust contemplates the pos
sibility of a single trustee being appointed to act alone, and
the power of appointing new trustees is given to the trustees
or trustee for the time being, it is not a breach of trust in
the last surviving trustee to refuse to appoint another trustee
to act with himself, and an action to compel him to do so, if
not sustainable on other grounds, will be dismissed with
costs.1
[ 4. Trustee removed where it is to the advantage of the
trust. The jurisdiction of a Court of equity to remove a
trustee is ancillary to its principal duty, to see that the trusts
are properly executed. And therefore, though charges of
misconduct are not made out, or are greatly exaggerated, the
Court may, if satisfied that the continuance of the trustee
would prevent the trusts being properly executed, remove
the trustee, as the trustees exist for the benefit of those to
whom the creator of the trust has given the trust estate (b ) . ]
5. Trust property under administration by the Court. - If
the trust property be under administration by the Court, and
the surviving trustee dies, the appointment of other trustees
is not matter of course, but rests in the discretion of the
Court, having regard to the state of the trust at the time (c) ;
and if liberty has been given by a former order to apply at

(j) Earl of Portsmouth v. Fellows, [ (b) Letterstedt v. Broers, 9 App .

5 Mad. 450. Cas . 371 , 386. ]
(a) Ex parte Greenhouse, 1 Mad. (c) Ryan v. Stockdale, W. N. 1875,
92. p. 106.
¹ Peacock v. Colling, 33 W. R. 528, 54 L. J. Ch . 743 , C. A.
1138
CH. XXIX . ] SUBSTITUTION OF TRUSTEES . *849

chambers, and the parties present a petition instead of apply

ing at chambers for the appointment of new trustees, the
petitioners will be disallowed their costs (d) .
6. Trustees required to be " inhabitants ." - If the settlement
require the trustees of a charity to be inhabitants of a partic
ular place, it is irregular to appoint persons trustees who do
not answer that description, provided at the time of the elec
tion there be any inhabitants proper to be trustees (e) . But
where it has been the custom to appoint trustees not being
inhabitants, the Court will not remove the existing trustees,
though it will take care that the founder's directions shall be
better observed for the future (ƒ ) ; and generally, though
trustees may have been appointed irregularly in the first in
stance, their removal cannot be demanded after acquiescence
for a great number of years (g) . And in the selection of
trustees of charities the Court enquires whether the parties
proposed are proper persons, not whether they are the most
proper that could be found (h) .
[ 7. Where the administration of a charity had been com
mitted by the settlor to the lord provost and town council of
Edinburgh and the ministers of the burgh, but for
a long period the administration had been solely in [ * 849 ]
the hands of the provost and council, it was held
that, notwithstanding the length of time during which a con
trary practice had prevailed , the ministers must in future be
admitted as joint administrators of the charity (a) . ]
8. Trustee not to be dismissed from caprice. The Court
will not dismiss a trustee for the mere caprice of the cestui
que trust without any reasonable cause shown ( b ) , or because
the trustee has refused from honest motives to exercise a

(d) Bund v. Green, W. N. 1875, (g) Attorney- General v. Cuming, 2

p. 213. Y. & C. C. C. 139 , see 150 .
(e) Attorney-General v. Cowper, 1 (h) Lancester Charities, 7 Jur. N.
B. C. C. 439. As to the force of the S. 96.
word " residence," see Blackwell v . [ (a ) The Lord Provost, &c. of
England, 3 Jur. N. S. 1302 ; Attenbo Edinburgh v. The Lord Advocate, 4
rough v. Thompson, 2 H. & N. 559. App. Cas. 823. ]
(f) Attorney-General v . Stamford, (b) O'Keefe v. Calthorpe, 1 Atk.
1 Ph . 737 ; Attorney-General v. Clif 18 ; and see Pepper v. Tuckey, 2 Jon.
ton, 32 Beav. 596 ; Attorney- General & Lat. 95.
v. Daugars, 33 Beav. 621 .
1139
*849 SUBSTITUTION OF TRUSTEES. [CH . XXIX .

power at the request of a tenant for life (c), or because a

dissension has arisen between the trustee and one of the
cestuis que trust (d) , or because a cestui que trust puts forward
a claim which may be unfounded that property of the trus
tee ought to be brought into the settlement (e) , or because
the trustee has transgressed the strict line of his duty, pro
vided there was no wilful default, but merely a misunder
standing (f) . Where, however, a trustee pertinaciously
insisted on being continued in the office, though his co
trustees were unwilling to act with him, Lord Nottingham
said, " He liked not that a man should be ambitious of a
trust when he could get nothing but trouble by it," and
without any reflection on the conduct of the trustee, de
clared he should meddle no further in the trust (g) .
9. In appointing new trustees the Court will not give them
a power of appointing other trustees . As the substitution of
a trustee by the Court proceeds upon a full consideration of
the case, and is never made unless the Court is satisfied as
to the fitness of the person proposed, it cannot be expected
that the Court should, when appointing new trustees and
directing the trust property to be conveyed to them, author
ize the insertion of a power in the conveyance, enabling the
new trustees to nominate other trustees in their stead as often
as occasion may require : this would plainly be an abandon
ment by the Court of its own jurisdiction — a delegation of
it to the care and judgment of individuals. Accordingly,
notwithstanding some previous fluctuation in the prac
tice (h) , it is now settled that, except in charity cases (i) ,
the Court will not authorise the insertion of such a power
in the deed of conveyance (j) .

(c) Lee v. Young, 2 Y. & C. C. C. 532. (i) Attorney-General v. Hurst, M.

(d) Forster v. Davies, 4 De G. F. R. Dec. 2 , 1791 , Reg. Lib. A. 1791 ,
& J. 133. f. 487 ; see the decree, stated Seton's
(e) S. C. Dec. 4th ed. p. 585 ; In the matter of 52
(f) See Attorney-General v. Coop G. 3, c. 101 , 12 Sim. 262 ; Re Lovett's
ers' Company, 19 Ves. 192 ; Attorney Exhibition , Sidn. Suss. Coll. Camb.
General v. Caius College, 2 Keen, 150. cor. V.C. Knight Bruce , Dec. 20, 1849.
(g) Uvedale v. Ettrick, 2 Ch. Ca. (j) Bayley v. Mansell, 4 Madd.
130. 226 ; Brown v. Brown, 3 Y. & C. 395 ;
(h) Joyce v. Joyce, 2 Moll . 276 ; Southwell v. Ward, Taml. 314 ; Bowles
White v. White, 5 Beav. 221. v. Weeks, 14 Sim. 591 ; Oglander v.
1140
CH. XXIX . SUBSTITUTION OF TRUSTEES. *850

* 10. Rules for selecting new trustees . - In appoint- [ * 850 ]

ing new trustees the Court does not act arbitrarily,
but upon certain general principles . First, the Court has
regard to the wishes of the author of the trust, whether actu
ally expressed in the instrument, or plainly deducible from
it ; and if he has declared a particular person not fit to be
appointed a trustee, the Court will refrain from appointing
him. Secondly, the Court will not appoint a new trustee.
with a view to the interest of some of the parties beneficially
interested, in opposition to the wishes of others ; for a trus
tee ought to hold an even hand as between all parties, and
not favour a particular class . And, thirdly, the Court has
regard to the nature of the trust, and the question by whose
instrumentality it can best be carried into execution (a).
11. Statutory powers . ― The exercise by the cestui que
trust of his right to have the custody of the trust estate con
fided to a proper number of duly qualified trustees has been
greatly facilitated by various statutes enabling him to obtain,
in certain cases, the removal of unfit trustees , and the ap
pointment of others in their room, and also the appoint
ment of new trustees where the office is merely vacant ;
and this by a cheaper and more summary proceeding than
by action .
-
[12. 46 & 47 Vict. c. 147. - By the last Bankruptcy Act,
46 & 47 Vict. c . 52 , s . 147 , which in substance re-enacted
the 117th section of the Bankruptcy Act, 1869, it is enacted,
that " where a bankrupt is a trustee within the Trustee Act,
1850 , sect. 32 of that Act shall have effect so as to authorise
the appointment of a new trustee in substitution for the
bankrupt (whether voluntarily resigning or not) if it appears
expedient so to do " (b) . Under this section the Court
will, as a general rule, remove a trustee where the bank
ruptcy is recent, and it is not shown that the bankrupt is

Oglander, 2 De G. & Sm. 381 ; Holder (a) Re Tempest, 1 L. R. Ch. App.

v. Durbin, 11 Beav . 594, in which last 485 ; 12 Jur . N. S. 539.
case Lord Langdale, M.R., in defer (b) For the law under the previous
ence to the views of the other judges, Bankruptcy Act, 12 & 13 Vict. c. 106,
declined to follow his own previous repealed by 32 & 33 Vict. c. 83, s. 20,
decision in White v. White. see the 5th edition of the Law of
Trusts , p . 607.
1141
*851 SUBSTITUTION OF TRUSTEES. [CH. XXIX .

of good character, and has since his bankruptcy acquired

means (c) . ]
13. 2 W. 4, c. 57, s. 3. By 2 Wm. 4, c . 57 , s . 3, it was
enacted that in case of the death of the trustee in whom any
real property might have been vested in trust for any charity,
the Court of Chancery might upon petition appoint new
trustees, and direct the estate to be vested in them upon the
charitable trusts .
- By 5 & 6 Wm. 4,
* 14. 5 & 6 W. 4, c. 76, s . 71. —
[* 851 ]
c. 76, s . 71 (the Municipal Corporations Act), it was
enacted that in every borough in which the body corporate,
or any one or more of the members of such body corporate
in his or their corporate capacity then stood solely or together
with any person or persons elected solely by such body cor
porate, or by any members thereof, seised or possessed for any
estate or interest whatsoever of any hereditaments or personal
estate whatsoever, in whole or in part, in trust for any chari
table trusts, all the estate and interest, and all the powers
of such body corporate or of such members thereof, should,
from and after the 1st day of August, 1836, utterly cease ;
with a proviso that if Parliament should not otherwise direct,
on or before the said 1st day of August, 1836 (which was
not done) , the Lord Chancellor should make such orders as
he should see fit for the administration of such trust estates.
Jurisdiction of the Court of Chancery under 5 & 6 W. 4, c.
76, s. 71. ――――――
- Under the authority " to make orders," the Court
of Chancery from time to time, for the due management of
the charity property, appointed trustees in the place of the
corporation . The jurisdiction of the Court, however, was
held not to apply to a case where no estate was vested in the
old corporation, but the charity property was vested in trus
tees, and the corporation was merely the visitor with powers
of nomination (a) . Where there was a charity corporation
substantially, though not identically, the same in its compo

[ (c) Re Adams' Trust, 12 Ch . D. (a) Attorney-General v. Newbury

634 ; a case under the Bankruptcy Corporation, C. P. Coop. Rep. 1837
Act, 1869, of a compounding creditor ; 38, 72 ; Christ's Hospital v. Grainger,
and see Coombes v. Brookes , 12 L. 16 Sim . 102.
R. Eq. 61. ]
1142
CH. XXIX . ] SUBSTITUTION OF TRUSTEES. *852

nent parts as the municipal corporation, the case was held to

be within the spirit if not the letter of the section above
referred to ( b).
Legal estate. - The appointment of trustees by the Court
under this Act, though it made them custodiers of the prop
erty, could not of course transfer to them the legal estate,
which notwithstanding the strong negative words used in the
statute, it was decided, remained in the corporation (e) .
15. 16 & 17 Vict. c. 137, s . 65. - But by 16 & 17 Vict. c .
137, s . 65, the legal estate was vested without any actual
conveyance in the trustees appointed by the Court, and upon
the death, resignation or removal, of any of the trustees, and
the appointment of any new trustee or trustees, the legal
estate transferred itself to the trustees for the time being
without any conveyance .
16. Petitions for appointment of new trustees of chari
ties. ―――― [ It was held that ] petitions for filling up vacancies in
the number of trustees of charities, in substitution for a cor
poration, ought to be presented under Sir S. Romilly's Act
(52 Geo. 3, c. 101 ) , as well as the Municipal Corpo
rations Act (d) , and that the * Attorney-General's [ * 852 ]
fiat should be obtained to such a petition (a) ; though
this rule does not appear to have been uniformly adhered
to (b).
[17. 45 & 46 Vict. c. 50, s. 133. -By the Municipal Corpo
rations Act, 1882 (c) , which repealed the previous Municipal
Corporations Act, and 16 & 17 Vict. c. 137, s . 65, without
prejudice to anything done under those Acts respectively,
the provision for the transfer of the legal estate without con
veyance on the appointment of new trustees is, by sect.
133, re-enacted. It is to be observed that the section does
not continue the power to make orders for the administra
tion of trust estates, but the appointment of trustees can still

(b) Attorney-General v. Mayor, &c. South Coast Railway Company, 18

of Exeter, 2 De G. M. & G. 507. Beav. 608 .
(c) Doe v. Norton, 11 M. & W. 913. (b) Re Nightingale's Charity, 3
(d) Re Warwick Charities, 1 Ph. Hare, 336 ; Re Belke's Charity, 13
559. Jur. 317.
(a) Re Rolle's Charity, 3 De G. M. [ (c) 45 & 46 Vict. c. 50. ]
& G. 153 ; Re London, Brighton and
1143
*853 SUBSTITUTION OF TRUSTEES . [CH. XXIX .

be made under Sir S. Romilly's Act, though it will seldom be

necessary to resort to it for the purpose. ]
18. Appointment of trustees of charities under the Charitable
Trusts Act. ― By the Charitable Trusts Act (16 & 17 Vict.
c. 137, s . 28 ) , new trustees of any charity the gross annual
income whereof exceeds 301. (d) may be appointed by one of
the equity judges in chambers, and the Court has power at the
same time to make an order under the Trustee Act, without
petition, vesting the estates in the new trustees (e) .
But the
sanction of the Charity Commissioners, under the 17th sec
tion, must first be obtained . And by a more recent Act still
(23 & 24 Vict. c. 136, s. 2) , the Charity Commissioners are
empowered upon the application of the trustees or a majority
of them, under their hands or common seal, to make the like
orders for the appointment of new trustees of charities as could
have been made by a judge at chambers ; and this power ex
tends even to contentious cases (ƒ) .
19. Peto's Act. ――― By 13 & 14 Vict. c. 28, " Wherever free
hold, leasehold, copyhold, or customary property in England
or Wales, has been or shall be acquired by any congregation ,
or society, or body of persons associated for religious purposes
or for the promotion of education, as a chapel, meeting-house ,"
&c., " and wherever the conveyance, assignment, or other
assurance of such property has been or may be taken " to
trustees duly appointed, such conveyance, assignment, or
other assurance shall not only vest the property in
[ * 853 ] * the parties named , but also in their successors from
time to time, and where there is no power to appoint
new trustees, the society may, for the purpose of vesting the
estate, appoint new trustees ; [ but every ] such appointment
[whether under a power in the trust deed or by virtue of the
Act] must be evidenced by deed under the hand and seal of

(d) By s. 32, where the income is Methodist Chapel, 1 Jur. N. S. 1011,

below 301. (since extended by 23 & 24 V. C. Stuart does not appear to have
Vict. c. 136, s. 11 , to an income not had his attention drawn to the pre
exceeding 507. ), the District Courts vious decision of Lord Cranworth in
of Bankruptcy and County Courts Davenport's Charity.
have jurisdiction. (f) Re Burnham National Schools,
(e) Re Davenport's Charity, 4 De 17 L. R. Eq. 241 .
G. M. & G. 839. In Lincoln Primitive
1144
CH. XXIX.] TRUSTEE COMPELLABLE TO PERFORM DUTY. * 853

the chairman and attested by two witnesses. The primary,

if not the only object of this enactment obviously was to
make the trust estate devolve upon the trustees of the so
ciety from time to time without conveyance , and it is doubt
ful whether the new trustees to be thus appointed by the
society [ in the absence of any special direction in the trust
deed] succeed generally to all the powers of the old trustees,
or take the legal estate only (a) .
20. 13 & 14 Vict. c. 60. - Amongst the various provisions
of the Trustee Act, 1850 , ( 13 & 14 Vict. c . 60) it is enacted
(by s. 32) that whenever it shall be expedient to appoint a
new trustee or trustees, and it shall be found inexpedient,
difficult, or impracticable, so to do without the assistance of
the Court, the Court may appoint a new trustee or trustees ,
either in substitution for or in addition to any existing
trustee or trustees (b) . The effect of this section will be
considered more particularly in the Appendix, in treating
of the provisions of the Act generally.

Trustee may be compelled to any act of duty . ―― Secondly,

The cestui que trust is entitled to bring an action against his
trustee, and compel him to the execution of any particular act
of duty.
1. Maintenance of right at law. ―――― Thus, if the legal estate
in the hands of the trustee be disturbed by a stranger, the
cestui que trust, though he may not institute legal pro
ceedings in the name of a trustee without his authority (c) ,
may oblige the trustee, on giving him a proper indemnity,
to lend his name for asserting the legal right (d) . If the
trustee of a covenant, even a voluntary one, will not sue

(a) See as to the construction of tlement, 4 N. R. 636 ; [ Re Combs, 51

the Act, Re Houghton's Chapel, 2 W. L. T. N. S. 45. ] See the Act with
R. 631 . notes in the Appendix .
(b) Notwithstanding the very large (c) See Crossley v. Crowther, 9
terms of this enactment, it does not Hare, 386.
authorize the Court to remove a trustee (d) Foley v. Burnell, 1 B. C. C.
who is willing to act : Re Hodson's 277, per Lord Thurlow ; Cary, 14 ; and
Settlement, 9 Hare, 118 ; Re Hadley, see Kirby v. Mash, 3 Y & C. 295 ; Ma
5 De G. & Sm . 67 ; Re Blanchard, 3 lone v. Geraghty, 2 Conn. & Laws.
De G. F. & J. 131 ; 7 Jur. N. S. 505 ; 251.
Re Mais, 16 Jur. 608 ; Re Garty's Set
1145
*854 TRUSTEE COMPELLABLE [CH. XXIX .

upon it, the cestui que trust may compel the trustee on a
proper indemnity to lend his name to the cestui que trust, to
enable him to sue (e) . Otherwise, should the trust
[* 854 ] property be lost, and the trustee himself become
insolvent, the cestui que trust's equitable interest
would be absolutely destroyed .
2. Tenant for life of renewable leaseholds neglecting to
renew . - If a tenant for life of leaseholds be bound to
renew, and by his threats or acts manifest an intention not
to renew, the remainderman may institute proceedings and
have a receiver appointed for the purpose of providing the
renewal fine out of the rents and profits of the estate ; and
if the period of renewal has already expired, a receiver may
be appointed on proof of the tenant for life's default (a) .
3. Trustee giving security. -— In one case, where a suspicion
was entertained that the trustee would not fairly execute
his trust, the Court required of him, if he continued in the
office , to enter into securities for his good faith (b) .
4. Cestui que trust may have a contingent interest secured.
And generally a cestui que trust, who can allege an existing
interest, however minute or remote, may, upon reasonable
cause shown, apply to the Court to have his interest properly
secured.
5. Possibility upon a possibility. ― But a distinction must
be taken between an existing interest, whether vested or
contingent, and the mere possibility of a future event, which,
if it occurs, may give birth to an interest. Thus where a one
fifteenth share of a residue was bequeathed to Isaac for life,
if he married Esther, and after his death for Isaac's eldest
or only child living at his decease, and who should attain
twenty-one, with a gift over in case Isaac should not marry
Esther, and Isaac married Isabella while Esther was still
living, it was held by M. R. (e) , and affirmed by Lord West
bury (d), that the eldest child of Isaac, an infant, as his

(e) See Fletcher v. Fletcher, 4 (b) Keeling v. Child, Rep. t. Finch,

Hare, 78 ; Jerdein v. Bright, 2 J. & 360.
H. 325. (c) Davis v. Angel, 31 Beav. 223.
(a) See Bennett v. Colley, 5 Sim. (d) 10 W. R. 723.
192 ; S. C. 2 M. & K. 233.
1146
 CH. XXIX.] TO PERFORM HIS DUTY. *855

interest was preceded by the condition that Isaac should sur

vive his present wife and then marry Esther, a possibility
upon a possibility, could not sustain a suit for having his
interest secured. Had Isaac survived his wife and then
married Esther, the interest of the child would still have
been contingent, and in that case M. R. appears to have
thought that the child would have had no locus standi in
Court, but L. C. was of a different opinion . And in another
case, where a house was devised to trustees in trust for A.
for life, and after his decease for the children of A. then
living, and the issue of such of them as should be dead, and
failing such children and issue in trust for a class, and some
of the class presented a petition for the appointment of new
trustees, on the footing that they were " persons beneficially
interested " under the 37th section of the Trustee
Act, 1850, M. R. dismissed the petition with [ * 855 ]
costs (a ) , but on appeal the order below was reversed,
and the L. JJ. held that the petitioners were persons bene
ficially interested (b) .
Truste
e may be restrai from violatin his duty . --
n ed g Thi
rdly.
As the cestui que trust may compel the trustee to the ob
servanc of his duty , so , on the other hand , if the cestui que
e
tr
thus t rh ave reason to suppose , and can satisfy the Court, that
et us tee is about to procee to an act not authori b
d sed y
the Ctrue
rtstcoopreesotf the trust , he may obtai an injun from
th e o rain the trustee from sucnh a wantocntieoxnercise
of his legal powe (c).
r

Though
the1.cestui quethe damage would not be irreparable. -It is clear
trust would be entitled to an injunction where

the act in contemplation would, if done, be irremediable (d) ;

(a) Re Sheppard's Trusts , 10 W.
R. 704 . shelter himself under a clause in the
mortgage deed exempting the pur
(b) 1 N. R. 76 ; 4 De G. F. & J. 423. chaser from the necessity of seeing to
(c) Balls
So a mortg v. Strutt,
w i t a 1o Hare,
p wer o f 146
s a l
. the validity of the sale ; Jenkins v.
will proc ageae hi hpe t s t
e Jones, 2 Giff. 99.
mort ee t s ril o ell he
gage dest af (d) See Corporation of Ludlow v.
d ate ter tender of prin
a
cipal nd intere , tho c o b n Greenhouse, 1 Bligh. N. S. 57 ; Re
inclu st ug s ts e o t
ded, if the secur hbe suffi Chertsey Market, 6 Price , 279 , 281 ;
ity cient ; Attorney- General . Foundling Hos
and a purch
aser with notice cannot pital, 2 Ves . jun. 42.
1147
*856 TRUSTEE COMPELLABLE [CH. XXIX .

but in Pechel v . Fowler (e) , a case in the Exchequer while a

Court of equity, it is said to have been held, that a cestui que
trust could not restrain an improvident sale by the trustee ,
because the cestui que trust might proceed against the trustee
for the consequential damage to the trust estate, and so the
injury was not irreparable ; but Sir J. Leach, under similar
circumstances, granted an injunction (ƒ) ; and other author
ities are not wanting in support of so just and reasonable a
right, which may now be considered as established (g) .
2. Partial owner may obtain injunction. - And not only a
person exclusively interested in a trust fund, and therefore
the absolute owner, may obtain an injunction against the dis
position of it, which is almost matter of course ; but one who
has only a common interest with others, in the trust estate,
is entitled on behalf of himself and those others to have the
property secured (h) . ·
3. Injunction against bankrupt or insolvent trustee. An
injunction against the disposition of the fund may be ob
tained against an insolvent trustee (i) and à fortiori
[ * 856 ] against one who is actually a bankrupt (a), but the
Court will not interpose because an executor is
merely poor (b) ; but the Court will grant an injunction
against the administration of the assets by an executor who
is proved to be of bad character, drunken habits, and great
poverty (c), [and the Court will in a creditors' action ap
point a receiver against an executor if there is any danger
of his exercising his legal right to pay any creditor in
full (d) .

(e) 2 Anst. 549. (i) Mansfield v . Shaw, 3 Mad. 100 ;

(f) Anon. case, 6 Mad . 10. Scott v. Becher, 4 Price, 346 ; Taylor
(g) See Webb v. Earl of Shaftes v. Allen, 2 Atk. 213.
bury, 7 Ves . 487, 488 ; Reeve v. Par (a) Gladdon v. Stoneman, 1 Mad .
kins, 2 J. & W. 390 ; Milligan v. 143, note.
Mitchell , 1 M. & K. 446 ; Attorney (b) Howard v. Papera, 1 Mad. 143 ;
General v. Mayor of Liverpool, 1 M. Hathornthwaite v. Russel, 2 Atk . 126 ;
& Cr. 210 ; Vann v. Barnett, 2 B. C. S. C. Barn. 334.
C. 157 ; Dance v. Goldingham, 8 L. R. (c) Everett v. Prythergch, 12 Sim.
Ch. App. 902. 365.
(h) Scott v. Becher, 4 Price, 346 ; [ (d) Re Radcliffe, 7 Ch . D. 733. ]
Dance v. Goldingham, 8 L. R. Ch .
App . 902.
1148
CH. XXIX. ] TO PERFORM HIS DUTY. *856

4. Solicitor buying up mortgages by his client. ――――- If a solic

itor buy up mortgages created by his client in order to re
lieve the client from embarrassment, and afterwards refuses
to give information as to the securities and threatens to sell
the property, he will be restrained from selling upon the
terms of the client paying into Court such a sum as the
Court considers sufficient to cover the amount actually paid
by the solicitor ( e ) . ]

[ (e) Macleod v. Jones, 24 Ch. D. 289.]

1149
[* 857] * CHAPTER XXX .

THE REMEDIES OF THE CESTUI QUE TRUST IN THE EVENT

OF A BREACH OF TRUST .

UPON the subject of the cestui que trust's remedies for a

breach of trust, we shall consider, First. The right of the
cestui que trust to follow the specific estate into the hands
of a stranger, to whom it has been tortiously conveyed ;
Secondly. The right of attaching the property into which
the trust estate has been wrongfully converted ; Thirdly. The
remedy against the trustee personally, by way of compensa
tion for the mischievous consequences of the act ; and
Fourthly. The mode and extent of redress in breaches of trust
committed by trustees of charities .

SECTION I.

OF FOLLOWING THE ESTATE INTO THE HANDS OF A STRANGER.

The questions that suggest themselves upon this subject

are, First. Into whose hands the estate may be followed ;
Secondly, Within what limits of time ; Thirdly, What ac
count the Court will direct of the mesne rents and profits .

First. Into whose hands the estate may be followed.¹

1. Where alienee is a volunteer estate may be followed. ―
If the alienee be a volunteer, then (subject to any bar arising
out of the Statute of Limitations) the estate may be fol

The cestui que trust may follow the trust property into the possession of a
holder for value, if he had notice of it ; Jones v. Shaddock, 41 Ala . 262 ; McLeod
v. Bank, 42 Miss. 99 ; and into the hands of a volunteer, without notice ; Ly
ford v. Thurston, 16 N. H. 399 ; Barr v . Cubbage, 52 Mo. 404 ; as to what is
sufficient notice, see Gunnell v. Cockerill , 79 Ill. 79. The cestui que trust may
follow property which is not transferable into the hands of a purchaser, and
charge the property with all the equities attaching to it ; Gray v. Ulrich, 8
Kan. 112 ; Lathrop v. Bampton, 31 Cal. 17 ; trustees not having any right to
1150
CH. XXX . S. 1.] FOLLOWING THE ESTATE. *858

lowed into his hands, whether he had notice of the trust (a) ,
or not (b) ; for though he had no actual notice, yet
*
the Court will imply it against him where he paid [ * 858 ]
no consideration . But if the alienee be a purchaser
of the estate at its full value, then (subject as aforesaid ) if
he take with notice of the trust, whether the notice be actual
or constructive (a) , he is bound to the same extent and in
the same manner as the person of whom he purchased (b) ,
even though the conveyance was made to him by fine with
non-claim (e) ; for, knowing another's right to the property,

(a) Mansell v. Mansell, 2 P. W. 262, per Lord Redesdale ; Wigg v.

678 ; and see Saunders v. Dehew, 2 Wigg, 1 Atk. 382 ; Mead v. Lord
Vern. 271 ; S.C. 2 Freem . 123 ; Lang Orrery, 3 Atk. 238, per Lord Hard
ton v. Astrey, 2 Ch. Rep . 30 ; S. C. wicke ; Mackreth v. Symmons, 15 Ves.
Nels . 126. 350, per Lord Eldon ; Mansell v.
(b) Mansell v. Mansell, 2 P. W. Mansell, 2 P. W. 681 , per Cur.; Will
681 , per Cur.; Bell v. Bell, Ll. & G. t. oughby v . Willoughby, 1 T. R. 771 ,
Plunket, 58, per Cur.; Pye v. George, per Lord Hardwicke ; Verney v.
2 Salk. 680, per Lord Harcourt ; and Carding, cited Joy v. Campbell, 1 Sch.
see 1 Rep. 122 b ; Burgess v. Wheate, & Lef. 345 ; Flemming v. Page, Rep.
1 Eden, 219 ; Spurgeon v. Collier, 1 t. Finch, 320 ; Powell v. Price , 2 P.
Eden, 55 ; Cole v . Moore, Mo. 806 . W. 539, admitted ; Backhouse v . Mid
(a ) Boursot v. Savage, 2 L. R. Eq. dleton, 1 Ch . Ca. 173 ; S. C. Id . 208 ;
134. And see Hartford v. Power, 2 Ir. Walley v. Walley, 1 Vern. 484 ;
Rep . Eq . 204. Pearce v. Newlyn, 3 Mad. 186 ; Slat
(b) Dunbar v. Tredennick, 2 B. & tery v. Axton, W. N. 1866, p . 113 ;
B. 319, per Lord Manners ; Pawlett v. Macbryde v. Eykyn, W. N. 1867 , p .
Attorney-General, Hard . 469, per Lord 306 ; Heath v. Crealock, 18 L. R. Eq.
Hale ; Burgess v. Wheate, 1 Eden , 195 ; 215, 10 L. R. Ch . App. 22 .
per Sir T. Clarke ; Bovey v. Smith, 1 (c) Kennedy v. Daly, 1 Sch. & Lef.
Vern. 149 ; Phayre v. Peree, 3 Dow, 355 ; and see Bell v. Bell, Ll. & G. t.
129 ; Adair v. Shaw, 1 Sch. & Lef. Plunket, 44.

go beyond the authority necessarily given them ; Vernon v. Board of Police,

47 Miss. 181. The cestui que trust may follow the trust property so long as he can
identify it or its equivalent ; Yerger v . Jones, 16 How. 36 ; Turner v. Peti
grew, 6 Humph. 438 ; Bailey v. Inglee, 2 Paige, 278 ; Bomar v. Mullins, 4
Rich . Eq. 80 ; Bazemore v . Davis, 55 Ga. 504 ; Garrett v. Garrett, 1 Strob. Eq.
96. Unless trust funds can be clearly traced and identified , the cestui que trust
can have no claim upon them ; Pharis v . Leachman, 20 Ala. 663 ; if a trustee
sell the trust estate and purchase another, it will be presumed he did it with the
trust funds ; Yerger v . Jones, 16 How. 36 ; the rights of remainder men apply
to the original estate only ; Noble v. Andrews, 37 Conn . 346. The cestui que
trust may elect between the trust fund and the land purchased with it ; Kauf
man v. Crawford, 9 W. & S. 134 ; Murray v. Lylburn, 2 Johns. Ch. 441 ; if the
trustee has used the trust funds to pay his own debts, the cestui que trust can
have no lien on the original claims of the creditors ; Winder v. Diffenderffer,
2 Bland, 198.
1151
*859 FOLLOWING THE ESTATE. [CH. XXX . S. 1 .

he throws away his money voluntarily, and of his own free

will (d) . And the rule applies not only to the case of a
trust, properly so called, but to purchasers with notice of
any equitable incumbrance, as of a covenant or agreement
affecting the estate (e ) , or a lien for purchase-money (ƒ) .
But, if a bona fide purchaser have not notice, either expressly
or constructively, he then merits the full protection of the
Court, and his title , even in equity, cannot be impeached (g) .
2. Purchaser without notice cannot protect himself by getting
in legal estate from an express trustee. - -If the purchaser have
no notice of the trust at the time of the purchase, but after
wards discovers the trust and obtains a conveyance from the
trustee, he cannot protect himself by taking shelter under
the legal estate ; for this is not like getting in a first mort
gage, which the first mortgagee has a right to trans
[ * 859 ] fer to * whomsoever he will (a) ; but here notice of
the trust converts the purchaser into a trustee, and
he must not, to get a plank to save himself, be guilty of a
breach of trust (b) . A purchaser taking the legal estate

(d) Mead v. Lord Orrery, 3 Atk. Dunbar v. Tredennick, 2 B. & B. 318,

238, per Lord Hardwicke. per Lord Manners ; Trevor v. Trevor,
(e) Daniels v. Davison, 16 Ves . 249 ; 1 P. W. 633 ; Harding v. Hardrett,
Earl Brook v. Bulkeley, 2 Ves . 498 ; Rep. t . Finch, 9 ; Cole v. Moore, Mo.
Taylor v. Stibbert, 2 Ves . jun. 437 ; 806, per Cur.; Jones v. Powles, 3 M.
Winged v. Lefebury, 2 Eq. Ca. Ab. & K. 581 ; Payne v. Compton, 2 Y. &
32 ; Ferrars v. Cherry, 2 Vern. 384 ; C. 457 ; Thorndike v. Hunt, 3 De G.
Jackson's case, Lane, 60 ; Crofton v . & J. 563 : Heath v. Crealock, 18 L. R.
Ormsby, 2 Sch. & Lef. 583 ; Kennedy Eq . 215, 10 L. R. Ch. App. 22 ; Waldy
v. Daly, 1 Sch. & Lef. 355 . v. Gray, 20 L. R. Eq . 238.
(f) Mackreth v. Symmons, 15 Ves. (a) Bates v . Johnson , Johns. 304 ;
329 ; Walker v. Preswick, 2 Ves. 622, Baillie . M'Kewan, 35 Beav. 177 ;
per Lord Hardwicke ; Cator v. Pem Joyce v. Rawlins, 11 L. R. Eq . 53 ;
broke, 1 B. C. C. 302, per Lord Lough Mumford v. Stohwasser, 18 L. R. Eq.
borough ; Gibbons v. Baddall, 2 Eq . 556.
Ca. Ab. 682 , note ( b ) ; Elliot v. Ed (b) Saunders v. Dehew, 2 Verr.
wards, 3 B. & P. 181 ; and see Grant 271 ; S. C. 2 Freem. 123 ; Langton v.
v. Mills, 2 V. & B. 306 ; Dunbar v. Astrey, 2 Ch. Rep. 30 ; S. C. Nels.
Tredennick, 2 B. & B. 320. 126 ; Carter v. Carter, 3 K. & J. 617 ;
(g ) Burgess v. Wheate, 1 Eden, Sharples v. Adams, 32 Beav. 213 ;
195, per Sir T. Clarke ; Id . 246, per Collier v. McBean, 34 Beav . 426 ; Jus
Lord Henley ; Millard's case, 2 Freem. tice v. Wynne, 10 Ir. Ch . Rep. 489 ; 12
43 ; Mansell v. Mansell, 2 P. W. 681 , Ir. Ch. Rep. 289 ; Prosser v. Rice, 28
per Cur.; Willoughby v . Willoughby, Beav. 68 ; Heath v. Crealock, 10 L. R.
1 T. R. 771 , per Lord Hardwicke ; Ch . App . 22 .
1152
CH. XXX . S. 1.] FOLLOWING THE ESTATE. *859

without actual notice of the trust, but taking it from a per

son in whom it vested by an instrument which disclosed the
trust, but of which instrument the purchaser was ignorant at
the time of purchase, can still protect himself as a purchaser
without notice (c) .
Shares in a company. - Where a trustee of shares of a
company within the Companies ' Clauses Consolidation Act
transferred them to a stranger without notice, but who had
notice before the transfer was registered, the purchaser was
protected ; for he had no notice when he paid his money,
and it was like a conveyance where the legal estate was to
become vested on the performance of some condition , such as
making a demand or the like, and the registration involved
no breach of trust by the trustee (d) . A trustee who has
the legal estate and takes from his cestui que trust an assign
ment of the equitable interest by way of security for money
advanced to the cestui que trust, can avail himself of the
legal estate as a protection against a prior incumbrance of
which he had no notice.¹
3. Purchaser without notice from purchaser with notice. - A
purchaser without notice from a purchaser with notice is not
liable, for his own bona fides is a good defence in itself, and
the mala fides of the vendor ought not to invalidate it (e) .
But the rule does not apply to the case of a charitable use,
for it has been ruled that a purchaser without notice from a
purchaser with notice shall be bound by the claim of a
charity (f) . In other respects the principles of equity as
to the doctrine of notice are applicable to charities in the
same manner as between private persons (g) .

(c) Pilcher v. Rawlins, 7 L. R. Ch . Edelph, Tothill, 164 ; Salsbury v. Bag

App. 259, overruling Carter v. Carter, ott, 2 Sw. 608.
3 K. & J. 617. (f) East Greenstead's case , Duke,
(d) Dodds v. Hills , 2 H. & M. 424 ; 65 ; Sutton Colefield case , Id . 68 ; and
[and see France v. Clark, 22 Ch. D. see Id. 94, 173 ; see Commissioners of
830 ; 26 Ch. D. 257.] Charitable Donations v. Wybrants , 2
(e) Mertins v. Jolliffe, Amb. 313, Jon. & Lat. 194.
per Lord Hardwicke ; Ferrars v. (g) See Sugd. Vend. & Pur. 722,
Cherry, 2 Vern. 384 ; see Pitts v. 14th edit.

¹ Newman v. Newman, 28 Ch . D. 674.

1153
098*
FOLLOWING THE ESTATE. [CH. XXX. S. 1.

4. Purchaser with notice from purchaser without notice.

A purchaser with notice from a purchaser without notice is
exempt from the trust, not from the merits of the second
purchaser, but of the first ; for if an innocent purchaser were
prevented from disposing of the beneficial interest, the
necessary result would be a stagnation of property (h) . But
if the trustee sell the lands to a bona fide purchaser
[* 860 ] without notice, and afterwards himself become * the
owner of the lands, though for a good and valuable
consideration, the trust as to him revives again , and he shall
restore the land to the trust (a) ; and in this respect equity
follows the law ; for, if a trespasser of goods sell them in the
market overt, the owner's title is barred ; but if they come
to the trespasser again, the owner may seize them (b) .
[" The only exception to the rule which protects a purchaser
with notice taking from a purchaser without notice is that
which prevents a trustee buying back trust property which
he has sold, or a fraudulent man who has acquired property
by fraud saying he sold it to a bona fide purchaser without
notice, and has got it back again " (c) .]
5. How far purchaser bound by notice of a doubtful equity.
- Upon the question , how far a purchaser will be bound by
notice of a doubtful equity, Lord Northington said, in Cord
well v. Mackrill (d) , “ A man must take notice of a deed on
which an equity, supported by precedents the justice of which
every one acknowledges, arises, but not the mere construction of
words, which are uncertain in themselves, and the meaning of
which often depends on their locality." And Sir W. Grant
observed, " There may be such a doubtful equity that a pur
chaser is not to be taken to know what will be the decision, and

(h) Harrison v . Forth , Pr. Ch . 51 ; Salsbury v . Bagott, 2 Sw. 608, per Cur.;
Bradwell v. Catchpole, stated Walker [ Re Barrow's case, 14 Ch. D. 432. ]
v. Symonds, 3 Sw. 78, note ( a ) ; Mer (a) Bovy v. Smith, 2 Ch. Ca. 124 ;
tins v. Joliffe, Amb. 313, per Lord S. C. 1 Vern. 60, 84, 144 ; Kennedy v.
Hardwicke ; Brandlyn v. Ord, 1 Atk. Daly, 1 Sch . & Lef. 379, per Lord
571 , per eundem ; Sweet v . Southcote, Redesdale.
2 B. C. C. 66 ; M'Queen v. Farquhar, (b) See Bovy v. Smith, 2 Ch. Ca.
11 Ves. 478, per Lord Eldon ; Lowther 126.
v. Carlton, 2 Atk. 242 ; S. C. 3 Barn. [(c) Per Jessel, M. R. Re Barrow's
358 ; S. C. For. 187 ; Andrew v. case, 14 Ch. D. 445. ]
Wrigley, 4 B. C. C. 136, per Cur.; (d) 2 Eden, 347 ; S. C. Amb. 516.
1154
CH. XXX. S. 1.] FOLLOWING THE ESTATE. *861

that is all Lord Camden (e ) means ; but in this case the

equity is clear " (f) .
6. Notice of " heirs of the body." ―――――-The rule , that " heirs
of the body " in articles shall be construed " first and other
sons," does not appear to have been fully established till
about the year 1720 (g) : Lord Hardwicke therefore said,
that notice of ancient articles, that is, of articles before the
doctrine was well settled, should not bind a bona fide pur
chaser (h) .And afterwards, in a case of both articles and
settlement before marriage, the settlement reciting the arti
cles, Lord Hardwicke thought that, as the equity in this
instance rested upon a single authority (i) , and that one in
which the question arose between the parties and
their representatives and mere volunteers, the * pur- [ * 861 ]
chaser ought not to be bound by the claim of the
issue (a) . But notice of modern articles, that is , of articles
entered into since the clear establishment of the rule , will
affect a purchaser ( b) ; but, even then , the articles them
selves must be produced, that the Court may judge from
the whole instrument ; for the true construction depends
upon the words, and other parts of the deed may be material
to find out their meaning ( c) .
Lord St. Leonards' observations on Cordwell v. Mackrill.
Lord St. Leonards observed, that Cordwell v. Mackrill was
of no great authority, though decided by a great Judge ; and
conceived the true rule to be that, where upon the whole
article it is plain what construction the Court would have
put upon them, had it been called upon to execute them at
the time they were made, they should be enforced however
difficult the construction might be, even as against a purchaser
with notice, but not after a lapse of time where there was

(e ) Sir W. Grant appears to have (i) West v. Errissey, 2 P. W. 349.

supposed that the decision was by (a) Warrick v . Warrick, 3 Atk.
Lord Camden. 291.
(f) Parker v. Brooke, 9 Ves . 588. (b) Senhouse v. Earle, Amb . 288,
(g) By Trevor v. Trevor, 1 P. W. per Lord Hardwicke ; Davies ?'.
622. Davies, 4 Beav. 54 ; and see Parker
(h) Senhouse v . Earle, Amb. 288 ; v. Brooke, 9 Ves. 587.
and accordingly relief not asked (c) Cordwell v. Mackrill, Amb.
against purchasers in West v. Erris 515 ; S. C. 2 Eden, 344.
sey, 2 P. W. 349.
1155
*862 FOLLOWING THE ESTATE. [CH. XXX. S. 1 .

anything so equivocal or ambiguous in them as to render it

doubtful how they ought to be effectuated (d).
7. Title long neglected . — In a case where a residuary lega
tee had enjoyed for nineteen years a copyhold estate , which
had been mortgaged to the testator in fee, and then the
heir of the testator recovered the land by ejectment and
mortgaged it, and the residuary legatee, having neglected
to assert his title to the possession for nine years, at the end
of that period filed a bill in Chancery and established his
claim , it was determined that the mortgagee of the heir
after the ejectment was not called upon to notice the right
of the residuary legatee ; for it was not that “ clear, broad,
plain equity " which should affect a purchaser (e) .
8. Separate use. -- A testator had given a leasehold estate
to his daughter to her sole and separate use, but without the
interposition of a trustee (ƒ) , and the husband, supposing
himself absolutely entitled, entered into possession, and after
wards mortgaged the premises ; and it was held that the
mortgagee was bound to notice the equitable construction
of the will, as a doctrine well understood (g) ; and, the hus
band having obtained a revisionary lease and mortgaged it,
the mortgagee was of course held cognisant of the rule, that
leases obtained under cover of the tenant right would be
subject to the equity of the original term (h) .
[* 862 ] * 9. Choses en action . ― As regards choses en action,
and other personal estate not transferable at law,
which may have been purchased from a trustee, the purchaser,
whatever amount may have been paid by him , cannot stand
on a better footing than the person of whom he purchases ,
but must (in conformity with the established rule governing
assignments of choses en action ) hold them subject to the
same equities to which the trustee held them (a) .

(d) Thompson v. Simpson, 1 Dru. (a) Ord v. White, 3 Beav. 357 ;

& War. 491 . Cockell v. Taylor, 15 Beav. 103 ;
(e) Hardy v. Reeves, 4 Ves. 466 ; Clack v. Holland, 19 Beav. 262 ;
S. C. 5 Ves. 426. Barnard v . Hunter, 2 Jur. N. S. 1213 ;
(f) See supra, p. 754. Mangles v. Dixon, 1 Mac. & G. 437 , 3
(g) Parker v. Brooke, 9 Ves . 583. H. L. Ca. 702 ; Athenæum , & c . Soci
(h) And see Coppin v. Fernyhough, ety v. Pooley, 3 De G. & J. 294.
2 B. C. C. 291.
1156
CH. XXX . S. 1.] FOLLOWING THE ESTATE. *862

10. Equitable mortgage by trustee. So a trustee who has

the legal estate cannot without a transfer of the legal estate
create an equity, in breach of his duty ; as if a trustee hold
ing a mortgage were wrongfully to deposit the deeds by way
of security, the depositee could not hold the deeds as
against the cestuis que trust, for the transaction being inequi
table in itself could not give birth to an equity (b) .
[ 11. So, where trust money was improperly laid out in
the purchase of an estate , which was conveyed to A. and
mortgaged by him to several persons in succession without
notice of the breach of trust, of whom the first only had the
legal estate, it was held that the claim of the cestuis que trust
against the property was an equitable estate of the same
quality as the estates of the equitable mortgagees, and had
priority over them as being prior in time (c) . So, where a
lease was surrendered by an executor, and a new lease in
cluding additional property was taken by him in his own
name and at an increased rent, and was deposited by him
as a security for an advance made to him, it was held that
the cestuis que trust had priority over the equitable mort
gagee (d).]
12. Improper loans of trust money. -- And if a trustee in
breach of his duty lend trust money, and the borrower, with
notice of the trust, applies it to his own use, the conscience
of the latter is affected, and he cannot separate the loan from
the trust, and insist that, when the loan would as a loan have
been barred, the trust is barred (e) .
13. General rule. -____ And it may be laid down generally
that the rules of the Court are the rules of honesty and fair
dealing, and that no party to an illegal or fraudulent con
tract can derive any benefit from it, and that all persons
who obtain possession of trust funds with a knowledge that
their title is derived from a breach of trust, will be compelled
to restore such trust funds (ƒ) .

(b) Newton v. Newton, 6 L. R. Eq. [ (d) Re Morgan, 18 Ch . D. 93. ]

135, 4 L. R. Ch . App. 143 ; see Joyce (e) Ernest v. Croysdill, 2 De G. F.
v. De Moleyns, 2 Jon. & Lat. 374 . & J. 198, per L. J. Turner.
[(c) Cave v. Cave, 15 Ch . D. 639; (f) Gray v. Lewis, 8 L. R. Eq.
and see Rice v. Rice, 2 Drew. 73. ] 526 ; see p. 543.
1157
*863 STATUTE OF LIMITATIONS . [CH. XXX . S. 1.

[* 863 ] * 14. By 37 & 38 Vict. c . 78, s. 7, no priority or

protection by reason of the legal estate was allowed
even to a purchaser for value without notice ; but any
priority or protection so acquired before the commencement
of the Act was not to be taken away ; and the Act was not
to apply to Scotland . But the 7th section of the Act has
since been repealed by 38 & 39 Vict. c . 87 , s . 129.

Secondly. Within what limits of time the suit must be

instituted.¹
1. Time no bar in a direct trust, otherwise in a constructive
trust. It is a well-known rule, that, as between cestuis que

1 Statute of Limitations. — Time does not bar a direct trust, but if there has
been extreme laches, equity might refuse to render any assistance ; Hallett v .
Collins, 10 How. 174 ; Powell v. Murray , 2 Edw. Ch. 644 ; Anderson v. Bur
well, 6 Gratt. 405 ; Chicago & East . Ill . R. R. Co. v. Hay, 119 Ill . 493 ; Mc
Callam v. Carswell, 75 Ga. 25 ; University v. Bank, 96 N. C. 280 ; Churchman
v . City of Indianapolis, 110 Ind . 259 ; Thompson v. Lyon , 20 Mo. 155 ; 61 Am.
Dec. 599 ; Presley v. Davis, 7 Rich. Eq. 105 ; 62 Am. Dec. 396 ; Tarleton v.
Goldthwaite's Heirs, 23 Ala . 346 ; 58 Am. Dec. 296 ; Gordon v. Small , 53 Md.
550. Rights of cestui que trust under express trust, cannot be barred so long as
the trust exists ; Pratt v. Thornton, 28 Me. 355 ; Commonwealth v. Moltz, 10
Pa. St. 527 ; 51 Am. Dec. 499 ; Railroad Co. v. Durant, 95 U. S. 576 ; Lewis v .
Hawkins, 23 Wall . 119 ; Haynie v. Hall's Ex'r, 5 Humph. 290 ; 42 Am. Dec.
427. If the statute runs against and bars the trustee, it will also bar the
cestui que trust ; Clayton v. Cagle, 97 N. C. 300 ; Williams v. Otey, 8 Humph.
563 ; 47 Am. Dec. 632 ; Bryan v. Weems, 29 Ala. 423. When the possession
of the trustee becomes adverse to the cestui que trust, the statute will begin to
run; Edwards v. University, 1 Dev. & Bat. Eq . 325 ; 30 Am. Dec. 170 ; Speidel
v. Henrici, 120 U. S. 377 ; Bacon v. Rives, 106 U. S. 99 ; Boone v. Chiles,
10 Pet. 177 ; Robinson v. Hook, 4 Mason, 139 ; Hill v . Bailey, 8 Mo. App.
85 ; Davis v. Coburn, 128 Mass. 377 ; Hubbell v . Medbury, 53 N. Y. 98.
" The trusts intended by courts of equity not to be reached by the stat
ute of limitations, are those technical and continuing trusts which are not
at all cognizable at law, but fall within the proper, peculiar, and exclu
sive jurisdiction of this court " ; Kane v. Bloodgood, 7 Johns. Ch. 90 ; 11
Am. Dec. 417. Trustees' right of action may be barred, though the cestui que
trust is an infant, and this also defeats the infant's rights ; Coleman v. Walker,
3 Met. (Ky. ) 65 ; 77 Am. Dec. 163 ; but see Auding v . Davis, 38 Miss. 574 ; 77
Am. Dec. 658. Directors of corporations are not such trustees as are debarred
from setting up the statute ; Baxter v. Moses, 77 Me. 465 ; 52 Am. Rep. 783 .
Statute does not apply to lands held by city in trust for benefit of the public,
where city holds under limited and defined trusts ; City of Alton v. Ill . Transp.
Co. 12 Ill. 38 ; 52 Am. Dec. 479 ; Logan Co. v. Lincoln , 81 Ill. 156. Implied
trusts are barred by lapse of time ; Speidel v . Henrici, 120 U. S. 377 ; they
are not ; Astor v. L'Amoreux, 4 Sandf. 524 ; constructive trusts and all save
purely equitable or express trusts, are subject in equity to the statute of limi
tations ; Wood, Limitations , 2258, 215 ; Prevost v. Gratz , 6 Wheat. 481 ;
1158
CH. XXX. S. 1. ] STATUTE OF LIMITATIONS . *863

trust and trustee in the case of a direct trust, no length of

time is a bar ; for, from the privity existing between them,
the possession of the one is the possession of the other, and
there is no adverse title (a) . It has hence been argued, that

(a) See Chalmer v. Bradley, 1 J. Vent. 345 ; Earl of Pomfret v. Wind

& W. 67 ; Bennett v. Colley, 2 M. & sor, 2 Ves . 484 ; Hargreaves v . Mich
K. 232 ; Llevellyn v. Mackworth , ell, 6 Mad. 326 ; Nevarre v. Rutton ,
Barn. 449 ; Wilson v. Moore, 1 M. & 1 Vin. Ab . 185 ; Shields v . Atkins,
K. 146 ; Townshend . Townshend, 3 Atk. 563 ; Phillipo v. Munnings, 2
1 B. C. C. 554 ; Hamond v. Hicks , 1 M. & Cr. 309 ; Ward v. Arch, 12 Sim.
Vern . 432 ; Norton v. Turvill , 2 P. W. 472 ; Young v. Waterpark, 13 Sim.
144; Bell v. Bell, Ll . & G. t. Plunkett, 204 ; Gough v. Bult, 16 Sim. 323 ;
66; Attorney-General v. Mayor of Massy v. O'Dell, 10 Ir. Ch. Rep. 22 ;
Exeter, Jac. 448 ; Heath v. Henly, 1 Crawford . Crawford , 1 Ir. Rep .
Ch. Ca. 26 ; Wedderburn v. Wedder Eq. 436 ; [ Foxton v. Manchester, &c .
burn, 2 Keen, 749 ; 2 M. & Cr. 41 ; Banking Company, 44 L. T. N. S.
22 Beav. 84 ; Smith v. Acton, 26 406. ] See post, p . 881.
Beav. 210 ; Lord Hollis's case, 2

McClane v. Shepherd, 21 N. J. Eq . 76 ; Howell v . Howell, 15 Wis . 55 ; Davis v.

Cotten, 2 Jones, Eq. 430 ; one who is not actually a trustee, but upon whom
that character is forced by a court of equity, only for the purpose of a remedy,
may avail himself of the statute ; Peabody v. Flint, 6 Allen, 52 ; Baker v.
Bank, 9 Met. 182 ; Carroll v. Green, 92 U. S. 509 ; Smith v . Poor, 40 Me. 415.
No exact time can be mentioned within which the laches will not be too great
and relief will be given, but there have been a variety of decisions bearing
upon it ; Norris's App. 71 Pa. St. 124 ; Powell v. Murray, 10 Paige, 256 ;
Philips v . Belden, 2 Edw. Ch. 1 ; Hayes v. Goode, 7 Leigh, 486 ; Pas
chall . Hinderer, 28 Ohio St. 568 ; Maxwell v. Kennedy, 8 How. 210 ;
Rhinelander v . Barrow, 17 Johns. 538 ; Anderson v. Burwell, 6 Gratt. 405 ;
Prevost v. Gratz, 6 Wheat. 481. Yet it will be seen that although laches
is a bar, the statute does not absolutely control in reference to time ;
Juzan v . Toulmin , 9 Ala. 662 ; Pilcher v. Flinn, 30 Ind . 202 ; Ashhurst's App .
60 Pa. St. 290 ; Field v. Wilson, 6 B. Mon. 479 ; Phalen v. Clark, 19
Conn. 421 ; Henry Co. v. Winnebago , &c . 52 Ill . 299. In general it may
be said that if there is a bar at law, there is also a bar in equity ; Dodge
v. Essex Ins. Co., 12 Gray, 71 ; Phillips v. Rogers, 12 Met. 405 ; Hum
bert v. Trinity Church, 24 Wend. 587 ; Hayden v . Bucklin, 9 Paige, 512 ;
Barnes v. Taylor, 27 N. J. Eq. 265 ; Reeves v. Dougherty, 7 Yerg. 222. If
both the trustee and cestui que trust are out of possession , the statute may run
against both ; Crook v. Glenn, 30 Md . 55 ; Mason v. Mason, 33 Ga . 435 ; Flem
ing v. Gilmer, 35 Ala. 62. As to a statute bar, see Atty.-Gen. v. Meeting
House, 3 Gray, 1 ; Merriam v. Hassam, 14 Allen, 520 ; at any rate the statute
will not begin to run while the cestui que trust is laboring under any disability
or before his rights vest ; Price's App. 54 Pa. St. 472. The statute has no
effect where a fraud has been perpetrated ; Martin v . Smith, 1 Dill. 95 ; Pilcher
v. Flinn, 30 Ind . 202 ; until the fraud is known ; Currey v. Allen, 34 Cal. 254 ;
Relf v. Eberly, 23 Ia. 467. As between trustee and cestui que trust the statute
is no bar in case of express trusts ; Kimball v. Ives, 17 Vt. 430 ; Norton v.
Ladd, 22 Conn. 203 ; Creigh v. Henson, 10 Gratt. 231 ; Farnam v. Brooks, 9
1159
* 864 STATUTE OF LIMITATIONS . [CH. XXX . S. 1 .

as the person into whose hands the estate is followed is also

by construction of law a trustee , the cestui que trust is enti
tled to the benefit of the rule, and is not precluded by mere
lapse of time from establishing his claim. But the authori
ties show that this doctrine cannot be maintained (b) .
" It is certainly true," said Sir W. Grant, " that no time
bars a direct trust ; but if it is meant to be asserted that a
Court of equity allows a man to make out a case of construc
tive trust at any distance of time after the facts and circum
stances happened out of which it arises, I am not aware that
there is any ground for a doctrine so fatal to the security of
property as that would be : so far from it, that not only in
circumstances where the length of time would render it ex
tremely difficult to ascertain the true state of the fact, but,
where the true state of the fact is easily ascertained, and
[* 864 ] where * it is perfectly clear that relief would originally
have been given upon the ground of constructive trust, it
is refused to the party who, after long acquiescence, comes into
a Court of equity to seek that relief " (a) . And Lord Redes
dale observed, " The position that trust and fraud are not
within the statute must be thus qualified : that if a trustee is

(b) Townshend v . Townshend, 1 B. Wedderburn v. Wedderburn, 4 M.

C. C. 550, see 554 ; Bonney v. Rid & Cr. 53 ; but see Attorney-General
gard, 1 Cox, 145 ; Andrew v. Wrigley, v. Christ's Hospital, 3 M. & K. 344
4 B. C. C. 125 ; Collard v. Hare, 2 R. (the case of a charity) ; Rolfe v.
& M. 675 ; and see Cholmondeley v. Gregory, 11 Jur. N. S. 98 ; 4 De G.
Clinton, 2 J. & W. 190 ; S. C. affirmed, J. & S. 576. Sturgis . Morse, 3 De
4 Bligh, 4 ; Bell v. Bell, Rep. t. Plun G. & J. 1 .
ket, 66 ; Portlock v . Gardner, 1 Hare, (a) Beckford v. Wade, 17 Ves. 97 .
594 ; Ex parte Hasell, 3 Y. & C. 622 ;

Pick. 212 ; Glass v. Gilbert, 58 Pa. St. 266 ; Gay v. Edwards, 30 Miss. 218 ;
Weaver v. Leiman, 52 Md. 710 ; Manion v . Titsworth, 18 B. Mon. 582. Statute
running in favor of a purchaser without notice ; Merriam v. Hassam, 14 Allen,
516 ; when it does not run against a resulting trust ; Dow v. Jewell , 18 N. H.
340 ; when it does ; Brawner v . Staup, 21 Md . 328 ; what determines lapse of
time that will bar ; Dean v. Dean, 9 N. J. Eq. 425 ; Mumford v. Murray, 6
Johns. Ch. 1 ; Halsey v. Tate, 52 Pa . St. 311.
Presumption . - Certain acts are presumed to have been done after a great
lapse of time ; Bass v. Bass, 8 Pick. 187 ; Clemenston v . Williams, 8
Cranch, 72 ; Ashhurst's App. 60 Pa . St. 290 ; Hawkins v. Chapman, 36 Md.
100 ; it is presumed that a trustee holds for the advantage and benefit of his
cestui que trust ; Whiting v. Whiting, 4 Gray, 237 ; Colvin v. Menefee, 11
Gratt. 92.
1160
CH. XXX. S. 1.] STATUTE OF LIMITATIONS . *864

in possession, and does not execute his trust, the possession

of the trustee is the possession of the cestui que trust ; and if
the only circumstance is, that he does not perform his trust,
his possession operates nothing as a bar, because his possession
is according to his title. But the question of fraud is of a
very different description ; that is a case where a person who is
in possession by virtue of the fraud is not, in the ordinary sense
of the word, a trustee, but is to be constituted a trustee by a
decree of a Court of equity, founded on the fraud ; and his pos
session in the meantime is adverse to the title of the person who
impeaches a transaction on the ground offraud " (b) .
2. General operation of lapse of time. ― For more clearly
understanding how lapse of time operates in reference to the
remedy of the cestui que trust in the event of a wrongful
alienation of the trust estate by the trustee, it may be useful
to consider the effect of lapse of time upon suits for equitable
relief generally.
Three bars to equitable relief. To claims in equity there
appear to be three bars arising from lapse of time : -I . A
statute of limitation ; II . The presumption of something done
which, if done, is subversive of the plaintiff's right ; III . The
ground of public policy or inconvenience of the relief.

I. Bar by analogy to a statute. ― Where there is a statuta

ble bar at law , the same period was always either by analogy,
or in obedience to the statute, adopted as a bar in equity in
reference to equitable claims (e) .
(1 ) . Lord Camden's views. — The language of Lord Camden
upon this subject has been admired as peculiarly energetic .
"As a Court of equity, " he said, " has no legislative author
ity, it cannot properly define the time of bar by a positive

(b) Hovenden v. Lord Annesley , Spence, 1 Eq . Ca. Ab. 315 ; Pearson

2 Sch. & Lef. 633. r. Pulley, 1 Ch. Ca. 102 ; Johnson v.
(c) See Ex parte Dewdney, 15 Ves. Smith , 2 Burr, 961 ; Attorney- General
496 ; Bonney v. Ridgard, Cox, 149 ; v. Mayor of Exeter, Jac. 448 ; Salter v.
Beckford v. Wade, 17 Ves . 97 ; Towns Cavanagh, 1 Dru . & Walsh, 668 ;
hend v. Townshend, 1 B. C. C. 554 ; Kingston v. Lorton, 2 Hog. 166 ; Foley
Aggas v. Pickerell, 3 Atk . 225 ; Belch v. Hill, 1 Ph. 399 ; Hamilton v. Grant,
v. Harvey, Appendix to Sugd. Vend. 3 Dow, 44 ; Marquis of Clanricarde
and Purch. No. xiv . 13th edit.; White v. Henning, 30 Beav. 175.
v. Ewer , 2 Vent . 340 ; Knowles .
1161
*865 STATUTE OF LIMITATIONS . [CH. XXX. S. 1.

rule to an hour, a minute, or a year : it is governed by cir

cumstances. But as often as Parliament has limited
[ * 865 ] the time * of actions and remedies to a certain period in
legal proceedings, the Court of Chancery has adopted
that rule, and applied it to similar cases in equity ; for when
the legislature has fixed a time at law, it would be prepos
terous for equity, which by its own proper authority always
maintained a limitation , to countenance laches beyond the
period that law is confined to by Parliament ; and therefore
in all cases, where the legal right has been barred by Parlia
ment, the equitable right to the same thing has been concluded by
the same bar " (a) .
Lord Redesdale's views. - Lord Redesdale, in a case before
him, observed, " It is said that Courts of equity are not with
in the statutes of limitations . This is true in one respect ;
they are not within the words of the statutes, because the
words apply to particular legal remedies ; but they are with
in the spirit and meaning of the statutes, and have been
always so considered. I think it is a mistake in point of
language to say that Courts of equity act merely by analogy
to the statutes ; they act in obedience to them " (b) . And
again, “ I think the statute must be taken virtually to include
Courts of equity ; for when the legislature has by statute
limited the proceedings at law in certain cases, and provided
no express limitation for proceedings in equity, it must be
taken to have contemplated that equity followed law ; and
therefore it must be taken to have virtually enacted in the
same cases a limitation for Courts of equity also " (e) . And
the same doctrines have been repeatedly recognised by the
highest authorities, amongst whom may be mentioned Lord
Manners (d) , Sir T. Plumer (e) , Lord Lyndhurst (ƒ) , and
Lord Westbury (g) .

(a ) Smith v. Clay, cited in note to D. 230 ; Gibbs v. Guild, 8 Q. B. D.

Deloraine v. Browne, 3 B.-C. C. 639. 296 ; 9 Q. B. D. 59. ]
(b) Hovenden v. Lord Annesley, 2 (d) Medlicott v. O'Donel, 1 B. &
Sch. & Lef. 630. B. 166 .
(c) Hovenden v. Lord Annesley, (e) Marquis of Cholmondeley v.
2 Sch. & Lef. 631 ; and see Marquis Lord Clinton, 2 J. & W. 151.
of Cholmondeley v. Lord Clinton, 2 (f) Foley v. Hill, 1 Ph . 405.
J. & W. 192 ; Bond v . Hopkins, 1 (g) See Knox v. Gye, 5 L. R. H.
Sch. & Lef. 429 ; [ Re Baker, 20 Ch. L. 674.
1162
 998*
CH. XXX. S. 1.] STATUTE OF LIMITATIONS.

(2) . Limitation of twenty years. - Upon these principles,

then, an equitable claim to lands could never have been en
forced after a lapse of twenty years ; for though to writs of
right and to formedons much longer periods were allowed at
law, yet equity always looked upon these as peculiar and
excepted cases, and guided itself rather by analogy to the
statute of James, which fixed the limitation to the prosecu
tion of rights of entry (h) .
(3 ) . Bills to redeem. At law the remainderman's
right always ran only from the determination of [ * 866 ]
the particular estate, but in the case of a bill to redeem
filed by the person entitled in remainder to the equity of
redemption, twenty years ' possession by the mortgagee with
out account or admission of title, though partly or wholly
during the lifetime of the tenant for life, barred the re
mainderman ; the ground for the distinction apparently be
ing, that the remainderman might have filed a bill to redeem
during a continuance of the life estate (a) . But where the
mortgagee is also tenant for life of the equity of redemption ,
the time does not run against the remainderman until the
death of the tenant for life (b) ; and the same rule applies
where the mortgagee is tenant in common with others of the
equity of redemption (e) .
(4) . Fine. ―――― Where a fine, with proclamations, was levied
by a person claiming adversely, through a volunteer, without
actual notice or other imputation of fraud, a constructive
trust was held to be barred after a lapse of five years (d).
(5) . Statutory bar not avoided by ignorance, poverty, &c.—
In the case of a statutory bar the limited period affords a
substantial insuperable obstacle to the plaintiff's claim, and
no plea of poverty, ignorance , or mistake, can be of any
avail. However clear and indisputable the title, could the

(h) Marquis of Cholmondeley v . (b) Raffety v . King, 1 Keen, 601,

Lord Clinton, 2 J. & W. 192. and cases there cited ; Burrell v.
(a) See Giffard v. Hort, 1 Sch. & Lord Egremont, 7 Beav. 205.
Lef. 407 , note ; Blake v. Foster, 4 (c) Wynne v . Styan, 2 Ph. 303.
Bligh, N. S. 140 ; Corbett v. Barker, (d) Bell v. Bell , Ll. & G. t. Plun
1 Anstr. 138, 3 Anstr. 755 ; Harrison ket, 44 ; and see 3 P. W. 310 , note
r. Hollins, 1 S. & S. 471 ; but see 2 (G).
Ph. 121.
1163
*867 STATUTE OF LIMITATIONS . [CH. XXX . S. 1.

merits be enquired into, the limited time has elapsed, and

the door of justice is closed (e) . If the Court could relieve
after twenty years on the ground of distress, or any similar
plea, so might it after thirty, forty, or fifty ; there would be
no limitation, and property would be thrown into confu
sion (ƒ) .
(6) . Effect of forbearance of the trustee to sue. Sir Joseph
Jekyll is reported on one occasion to have laid down the
rule that, " the forbearance of the trustees in not doing what
it was their office to have done should in no sort prejudice
the cestuis que trust " (g) ; and hence it has been inferred
that a right gained by a stranger through the neglect of the
trustee shall be no bar in equity to the claim of the cestui que
trust ; but this is not the case generally as regards the opera
tion of the Statutes of Limitations . "The rule, that the
Statute of Limitations does not bar a trust estate,"
[* 867 ] said Lord Hardwicke, " holds only as between * cestui
que trust and trustee, not as between cestui que trust
and trustee on the one side, and strangers on the other, for
that would make the statute of no force at all, because there
is hardly any estate of consequence without such trust, and
so the act would never take place . Therefore , where a
cestui que trust and his trustee are both out of possession for
the time limited, the party in possession has a good bar
against them both " (a) . “ A cestui que trust," said Lord
Redesdale, "is always barred by length of time operating
against the trustee. If the trustee does not enter, and the
cestui que trust does not compel him to enter, as to the per
son claiming paramount the cestui que trust is barred ” (b) .
And Lord Manners observed, " The opinion of Sir J. Jekyll,
if intended to apply to third persons, which I do not con
ceive it was, has often been denied, and is contrary to many

(e) Marquis of Cholmondeley v. (f) Hovenden v. Lord Annesley,

Lord Clinton, 2 J. & W. 139, per Sir 2 Sch. & Lef. 640.
T. Plumer ; Byrne v. Frere, 2 Moll. (g) Lechmere v. Earl of Carlisle,
171 , 178, per Sir. A. Hart ; Astley v. 3 P. W. 215.
Earl of Essex, 18 L. R. Eq . 290. But (a) Lewellin v. Mackworth, 2 Eq.
as to mistake, see Brooksbank v. Ca. Ab. 579 ; S. C. Barn . 445 .
Smith, 2 Y. & C. 58. (b) Hovenden v. Lord Annesley, 2
Sch. & Lef. 629.
1164
CH. XXX . S. 1. ] STATUTE OF LIMITATIONS . *868

decisions. If trustees neglect their duty, and suffer an

adverse possession of twenty years to be held , I apprehend
the Statute of Limitations is a bar to the cestui que trust " (c).
(7) . Case where cestui que trust is under disability, or is
entitled in remainder. ――― It results from the foregoing state
ments of the doctrine of the Court, that, as a general rule,
where both cestui que trust and trustee are out of possession
for the time prescribed by the Statutes of Limitations, the
former suffers for the neglect of the latter and is barred .
But the question still remains, whether in cases where the
cestui que trust would, if his title were legal, have more than
the ordinary time to sue (as where he is under disability or
entitled in remainder only) , he will be allowed the same
extended period for suing in equity, notwithstanding that
the trustee may be barred.
(8) . Where subject matter of trust is a debt. - Where the
subject matter of the trust is a debt, arising under a covenant or
contract, it seems difficult to avoid the conclusion , that when
the trustee is barred , the cestui que trust is barred also (d) .
But if the debtor borrowed the money as trust money, or
knowing it to be such, he cannot set up the statute (e) .
(9) . Where subject matter is land and possession is adverse.
-The same result would seem to follow where the sub
ject matter of the trust is land, and the possession has been
held adversely to both trustee and cestui que trust, without
any species of privity, as when the trustee is disseised.
Here there is generally no remedy in equity. The
proper course for the cestui que trust is to bring [ * 868 ]
ejectment in the name of the trustee . The rare
instance of a person entering without privity or authority
upon lands belonging in equity to an infant may perhaps
constitute an exception , the rule being that he who so enters
must, whether the infant is legally or equitably entitled, be

(c) Pentland v. Stokes, 2 B. & B. (e) Spickernell v. Hotham, Kay,

75. 669 ; Bridgman v. Gill, 24 Beav. 302 ;
(d) See Wych v. East India Com Ernest v. Croysdill , 2 De G. F. & J.
pany, 3 P. W. 309 ; Stone v . Stone, 5 175 ; 6 Jur. N. S. 740 ; and see Stone
L. R. Ch. App. 74 ; Hammond v. v. Stone, 5 L. R. Ch. App. 74.
Messenger, 9 Sim. 327 ; Bolton v.
Powell, 14 Beav. 275.
1165
698*
STATUTE OF LIMITATIONS. [CH. XXX. S. 1.

regarded as a bailiff or receiver for the infant (a) . But no

such exception can be maintained where the infant has never
been in possession by himself, his guardian, or agent, but the
title was adverse to those through whom he claims (b) .
And even the existence of the exception itself cannot be
viewed as free from doubt (c) .
(10) . Where trust is of land and party in possession claims
by conveyance from trustees. Where the subject matter of
the trust is land, and the person in possession claims by con
veyance from the trustee, here, unless the facts warrant the
defence of purchase for value without notice, the right of the
cestui que trust to fix the person in possession with the liabil
ity to perform the trust falls under an ordinary head of
equitable jurisdiction . The cestui que trust is clearly enti
tled to proceed in equity against the legal owner, and the
only question is within what time he must do so . In these
cases, it is conceived , the cestui que trust ( although the trus
tee may be barred from his action of ejectment) must, in the
absence of any express statutory enactment applicable to
the case (d) , be entitled to sue in equity within the same
extended period in reference to disability and accruer of
right, as if his title were legal (e) .
(11 ) . Fraud. - No time will cover a fraud so long as it
remains concealed ; for, until discovery (or at all events until
the fraud might with reasonable diligence have been dis
covered) , the title to avoid the transaction does not
[* 869 ] properly arise (f) . But, after discovery, the * de
fendant may avail himself of the statute, for he has

(a) See cases cited p. 886 , infra, (e ) See Scott v. Scott, 18 Jur. 755 ;
note (e). 4 H. L. Cas . 1065.
(b) Crowther v. Crowther, 23 Beav. (ƒ) Blair v. Bromley, 2 Ph. 354 ;
305. But see Quinton v. Frith, 2 I. Rolfe v. Gregory, 11 Jur. N. S. 97 ;
R. Eq. 414. S. C. 4 De G. J. & S. 576 ; Cotterell
(c) See Allen v. Sayer, 2 Vern . 368, v . Purchase, Cas. t. Talbot, 63, per
corrected from R. L. Treat. on Trusts, Lord Talbot ; Medlicott v. O'Donel , 1
3d edit. App. X., and the author's B. & B. 166, per Lord Manners ; Arran
remarks at p. 720 of the same edition ; v. Tyrawly, cited Ib. 170 ; Alden v.
Wych v. East India Company, 3 P. W. Gregory, 2 Eden, 280 ; Morse v . Royal,
309 ; The Earl . Countess of Hunting 12 Ves. 374, per Lord Erskine ; Bick
don, cited Ib. 310, note (G) ; Thomas nell v. Gough, 3 Atk. 558 ; South Sea
v. Thomas, 2 K. & J. 79. Company v. Wymondsell, 3 P. W. 143 ;
(d) See p. 876, infra. Booth v. Warrington, 4 B. P. C. 163 ;
1166
CH. XXX. S. 1.] BAR FROM PRESUMPTION . *869

a right to say, " You shall not bring this matter under dis
cussion at this distance of time ; it is entirely your own
neglect that you did not do so within the period limited by
the statute " (a) .
( 12) . How defendant may take advantage of the statute .
[ The defendant may avail himself of the Statute of Limita
tions, by pleading it himself (b) ; but, if he neglect to do so , ]
he cannot shelter himself under the statute at the time of
the hearing (e) ; though it seems the Court itself may still,
in its own discretion , refuse to grant relief after the limited
period (d).
―――――――――――
(13 ) . In cases of fraud. Even when the plaintiff charges
fraud, the defendant may plead [ the statute ] ( e ) . If the
plaintiff allege that he only discovered the fraud within the
period limited by the statute, the defendant must either
deny the fraud, or insist that the plaintiff had knowledge of
it (f) .

―
II. Bar from presumption . The Court, after great length
of time, will presume some act to have been done , which , if
done, is a bar to the demand (g) .

Pickering v. Lord Stamford, 2 Ves. Western v. Cartwright, Sel. Ch. Ca.

jun. 280, per Lord Alvanley ; Hoven 34; [Metropolitan Bank v. Heiron, 5
den v. Lord Annesley, 2 Sch. Lef. Ex. D. 319 ; ] and see Mulcahy v.
634 ; Roche v. O'Brien , 1 B. & B. 330 ; Kennedy, 1 Ridg. 337 .
Blennerhassett v. Day, 2 B. & B. 118, [ (b) Rules of the Supreme Court,
per Lord Manners ; Robertson v. Nor 1883, Ord . 19, R. 15. As to the right
ris, 1 Giff. 421 ; Whatton v. Toone, 5 under the old practice to raise the
Mad. 54 ; [ Metropolitan Bank v . Hei question by demurrer see the 7th
ron, 5 Ex. D. 319 ; Gibbs v. Guild, 8 Edition, p. 739, and cases there cited ;
Q. B. D. 296 ; 9 Q. B. D. 59 ; ] and and as to the present practice in lieu
see Whalley v. Whalley, 1 Mer. 436 ; of demurrer see Ord. 25. ]
Western v. Cartwright, Sel. Cas. Ch. (c) Prince v. Heylin, 1 Atk. 494 ;
34 ; Re Agriculturists' Cattle Insur Harrison v. Borwell, 10 Sim. 382 ;
ance Company, 3 L. R. Eq. 769 ; [ Bar Roch v. Callen, 6 Hare, 535 ; Sleight
ber v. Houston, 14 L. R. Ir. 273. ] But v. Lawson, 3 K. & J. 296.
Sir A. Hart thought time would run (d) Prince v. Heylin, ubi supra.
against fraud from the date of it, (e) South Sea Company v. Wy
though undiscovered, provided the mondsell, 3 P. W. 143. [ Gibbs v.
person entitled had knowledge of the Guild, 8 Q. B. D. 296 ; 9 Q. B. D.
fraud a reasonable time before the 59.1
expiration of the period ; Byrne v. (f) See Mitford on Pleading, 269,
Frere, 2 Moll. 157 . 4th edit. [ Gibbs v. Guild, 8 Q. B. D.
(a) Hovenden v. Lord Annesley, 2 296 ; 9 Q. B. D. 59. ]
Sch. & Lef. 634, per Lord Redesdale ; (g) Pattison v. Hawkesworth, 10
1167
*870 BAR FROM PRESUMPTION. [CH. XXX . S. 1.

(1). At what time presumption is raised . - The period at

which the Court raises the presumption depends upon the
circumstances of the case. As a general rule, the Court
presumes, after a lapse of twenty years (1) , but where there
is a statutable bar at law, and of a different period, the
Court will not entertain a presumption within a less time
than the period fixed by the statute (h) .
(2) . Ground of the presumption. - Presumptions
*
[ * 870 ] are made, not necessarily because the Court really
believes what is presumed, but in the absence of evi
dence, for the purpose of quieting the possession ( a ) . Lord
Erskine observed , " It is said you cannot presume unless you
believe. It is because there are no means of creating belief
or disbelief, that such general presumptions are raised " (b) .
Where positive evidence can be presented to the Court, the
fact may be presumed after a period much shorter than the
usual one . And, on the other hand, though the distance of
time may be far greater than the ordinary limit of presump
tion, yet if there appear any positive evidence to negative
the fact, the legal inference cannot be sustained, for the rule
is stabit præsumptio donec probetur in contrarium . But the
Court has judged it better for the ends of justice, that pre
sumptions should be favoured in law, and should not be
rebutted by slight evidence in contradiction (c) .
(3). Ignorance, mistake and distress . ― The Court cannot
presume a person to have abandoned his right so long as he
remains in ignorance of it, or labours under a mistake (d) ;
Beav. 375; and see Attorney-General and see Grenfell v. Girdlestone, 2 Y.
v. Moor, 20 Beav. 119 ; [but see & C. 662.
Thomson v. Eastwood, 2 App . Cas. (d) See Marquis Cholmondeley v.
215, 256 ]. Lord Clinton, 2 Mer. 362 ; Randall v.
(h) Eldridge v. Knott, Cowp. 214 . Errington, 10 Ves. 427 ; Roche v.
(a) Eldridge v. Knott, Cowp . 215, O'Brien, 1 B. & B. 330, see 342 ;
per Lord Mansfield ; and see Gren Pickering v. Stamford, 2 Ves. jun.
fell v. Girdlestone, 2 Y. & C. 682 ; 280, and following pages ; S. C. Ib.
Magdalen College v. Attorney-Gen 585 ; Chalmer v. Bradley, 1 J. & W.
eral, 3 Jur. N. S. 675. 65, and following pages ; Bennet v.
(b) Hillary v. Waller, 12 Ves. 266. Colley, 2 M. & K. 232 ; Stone v. 'God
(c) Jones v. Turberville, 2 Ves. frey, 5 De G. M. & G. 76.
jun. 13, per Lord Commissioner Eyre ;
(1 ) In Harwood v. Oglander, 6 Ves. 199, 8 Ves. 106 , the bill was filed after
a lapse of thirty-two years, yet neither Lord Alvanley nor Lord Eldon con
1168
CH. XXX . S. 1. ] BAR FROM PRESUMPTION . *871

and the distress of a person , so far as it accounts for his

laches will pro tanto weaken the foundation of the presump
tion (e) . So a release of right cannot with the same force
be presumed against a class of persons, as against an individ
ual ; for it is not likely that a person having only an aliquot
share in the property, should pursue his remedy with the
same spirit, as if he were the exclusive proprietor (ƒ) .

-
III. Bar from public or private inconvenience. Though
the plaintiff's demand cannot be met by an absolute bar, and
no release of right can be presumed ; yet, thirdly, relief will
not be granted where, if administered, it would lead to great
public or private inconvenience (g) .
―――
(1) . In action for account a settlement may be presumed.
Thus in an action for an account against an executor or
administrator, who is in equity a trustee, and was
formerly not * protected by any statute of limita- [ * 871 ]
tions (a) , though the presumption of a final settle
ment may be rebutted by positive evidence, the Court will
not open the account at any distance of time, when it is
probable that most of the parties are dead, and the vouchers.
and receipts are lost (b) .
(2 ) . Instances of great delay . Where a suit was prose
cuted after a delay of threescore and two years, Lord
Keeper Wright said, that " the cause being now within one
year of the grand climacteric, it was fit it should be at
rest " (e) . But bills have been dismissed at the end of

(e) See Roche v. O'Brien, 1 B. & Atk. 42 ; Hercy v. Dinwoody, 2 Ves.

B. 342 ; Hillary v. Waller, 12 Ves. jun. 87.
266 ; Gowland v. De Faria, 17 Ves . (g) See Attorney-General v . Mayor
25 ; Byrne v. Frere, 2 Moll . 171 , 178 . of Exeter, Jac. 448.
(f) See Whichcote v. Lawrence, (a) See now 3 & 4 W. 4, c . 27, s.
3 Ves. 752 ; Anon. case, cited Lister 40 ; 23 & 24 Vict. c. 38, s . 13.
v. Lister, 6 Ves . 632 ; Kidney v. (b) Hunton v. Davies, 2 Ch. Rep.
Coussmaker, 12 Ves. 158 ; Hardwick 44 ; Huet v. Fletcher, 1 Atk. 467 ;
v. Mynd, 1 Anst. 109 ; Attorney-Gen Pearson v. Belchier, 4 Ves. 627 ;
eral v. Lord Dudley, G. Coop. 146 ; Hercy v. Dinwoody, 2 Ves. jun. 87 .
[Boswell v. Coaks, 27 Ch. D. 425, (c) St. John v. Turner, 2 Vern.
457 ; ] but see Elliott v. Merriman, 2 418.

sidered the length of time to bar the plaintiff's demand ; but in this case the
parties were equitable tenants in common, and as between them the presumption
of ouster did not arise.
1169
* 872 BAR FROM PRESUMPTION. [CH. XXX. S. 1.

twenty-seven years (d) , and a much shorter period would

be a sufficient bar, should the Court see a difficulty in grant
ing the relief : every case must be determined with reference
to its own particular circumstances (e) .
(3) . In Pickering v. Lord Stamford (f) a testator gave
the residue of his personal estate to a charity, and thirty
five years after his decease , the next of kin filed their bill for
an account, and prayed that such part as consisted of money
upon mortgage or other real securities, might be declared a
void bequest, and distributable , subject to debts, &c ., among
the testator's next of kin . Lord Alvanley said : "
“ I know no
rule that has established that mere length of time will bar.
Therefore, that being the case, I am to say whether under
the circumstances a bar can be presumed " (g) . And for
facilitating the question of presumption, his Lordship di
rected certain previous enquiries by the Master ; and it ap
pearing from the report, that no release or assignment of
their interest by the next of kin for the purposes of the
charity could, under the circumstances, be presumed, his
Lordship then had recourse to the ground of Inconvenience.
The question, he observed, in all these cases is, whether
there are motives of public policy or private inconvenience ,
to induce the Court to say, the suit ought not to be enter
tained . " If," said his Lordship, " from the plaintiff's lying
by, it is impossible for the defendants to render the accounts
he calls for, or it will subject them to great inconvenience ,
he must suffer ; or the Court will oppose, what I think
the best ground, Public convenience. The plaintiffs are so
conscious of this, that they do not call on the trustees to
account for what has been disbursed before any de
[ * 872 ] mand * made . It appears that the trustees, who by
their conduct have done themselves great credit,
have kept such accounts that there is no difficulty in finding
the personal estate at the death of the testator. Therefore,
desiring to be understood by no means to give any counte

(d) Campbell v . Graham, 1 R. & jun. 93 ; Earl of Pomfret v. Lord

M. 453. Windsor, 2 Ves. 483.
(e) See Hercy v. Dinwoody, 2 Ves . (f) 2 Ves. jun. 272.
(g) 2 Ves. jun. 283.
1170
CH. XXX . S. 1. ] BAR TO RELIEF FROM TIME. *872

nance to these stale demands, but upon the circumstances that

there is nothing inducing great public or private inconven
ience, that the accounts are found, and that the trustees are
not called on to account for what has been disbursed, I am
bound to decide in favour of the plaintiffs " (a).
(4) . Bar from length of time. The doctrine laid down by
Lord Alvanley in the case referred to , that mere length of time
will not bar, requires some qualification. Lapse of time or
delay in suing, unaccounted for by disability or other cir
cumstances, constitutes per se in the eye of a Court of
equity, laches disentitling the plaintiff, in certain classes of
cases at least, to relief from the Court. Thus where a plain
tiff cestui que trust seeks to impeach a purchase by a trus
tee, a delay of less than twenty years may bar his title to
relief (b) . So where a plaintiff seeks to set aside a purchase
from him by his solicitor (c ) , or of a reversionary interest ( d) ,
or to affix a defendant with a constructive trust (e) , or to
call a person to account for acts of waste (ƒ) , or comes to .
a Court of equity alleging a case of fraud as a ground for
avoiding the operation of the Statute of Limitations (g) .
So where an account was sought by a surviving partner
against the estate of a deceased partner, the Court, even
assuming such case to fall within the exception as to mer
chants' accounts in the Statute of Limitations , refused its
aid after a delay of thirteen years (h) . And where the as
sistance of the Court is sought in a suit for specific perform
ance (i) , or in one partaking of that character (j ) , the rule

(a) 2 Ves. jun. 582, and following (f) Harcourt v. White, 28 Beav.
pages. 303.
(b) See the cases, p. 495, supra. (g) Blair v. Ormond, 1 De G. &
(c) See Gresley v. Mousley, 4 De Sm . 428.
G. & J. 78 ; and the cases there (h) Tatam v. Williams, 3 Hare,
cited ; and Lyddon v. Moss. Ib. 104. 347 ; and see Harcourt v. White , 28
(d) Roberts v. Tunstall, 4 Hare, Beav. 303.
257. (i) Southcomb v. Bishop of Exeter,
(e) Clegg v. Edmondson, 8 De G. 6 Hare, 213 ; Alloway v. Braine, 26
M. & G. 787 ; 3 Jur. N. S. 299 ; Isald Beav. 575 ; Sharp v. Wright, 28 Beav.
v. Fitzgerald, cited Amb. 735, 737 ; 150.
and see Pennell v. Home, 3 Drew. (j) Hope v. Corporation of Glou
337 ; Norris v. Le Neve, 3 Atk. 38 ; cester, 1 Jur. N. S. 320.
Jackson v. Welsh, Ll. & G. Rep. t.
Plunk. 346.
1171
* 873 LAPSE OF TIME---LACHES . [CH. XXX . S. 1.

is extremely strict. It is difficult to refer the refusal of the

relief by the Court, in the instances mentioned, to any one
general principle . In the cases of purchases by trustees, or
of claims founded upon constructive trust, the proba
[ * 873 ] bility of alteration of * circumstances in regard to
the property, and the unfairness of the plaintiff in
lying by, have weighed with the Court. Perhaps , the nearest
approach to general principle will be found under the head
of " Public Convenience " ; " Expedit Republicæ ut sit finis
litium "(a).
(5) . Bar from laches, where there is a Statute of Limitations.
It has been pointed out that in certain special cases a delay
of less than twenty years operates as a bar ; and the Court
in these instances departs still further from the analogy
offered by the Statute of Limitations, by taking into account
partly time which may have elapsed while the plaintiff's
interest was reversionary ( b) . The question remains whether,
in general, laches can be relied upon as a bar to a mere dry
equitable demand falling within the purview of some or one
of the Statutes of Limitations ; and it seems that, the legis
lature itself having prescribed a term of limitation which it
deems sufficiently short, the Court ought not further to
abridge that term (c) .
(6). Acquiescence. Besides the bars which have been
enumerated arising from the effect of time, a plaintiff may
also be precluded from relief on the ground of acquiescence.
This is of two kinds : ――― First, direct, where the Act com
plained of was done with a full knowledge and express
approbation of another, in which case a Court of equity will
not allow that other to seek relief against the very transac

(a) See Gresley v. Mousley, 4 De (c) See Rochdale Canal Company

G & J. 95 ; Carey v. Cuthbert, 7 I. R. v. King, 2 Sim . N. S. 89 ; Penny r.
Eq . 542 ; 9 I. R. Eq . 330 ; Payne v. Allen, 7 De G. M. & G. 426 ; Mehrtens
Evens, 18 L. R. Eq . 356. v. Andrews, 3 Beav. 76 ; Duke of
(b) Roberts v. Tunstall, 4 Hare, Leeds v. Earl of Amherst, 2 Ph. 117 ;
266 ; Browne v. Cross, 14 Beav. 105 ; Clarke v. Hart, 6 H. L. C. 633 ; Beau
but as to the latter case see observa dry v. Mayor, &c. of Montreal, 11
tions of Turner, L. J. in Life Associa Moore, P. C. C. 339 ; Story v. Gape,
tion of Scotland v. Siddal, 3 De G. F. 2 Jur. N. S. 706 ; [ Re Baker, 20 Ch.
& J. 73. D. 230.]
1172
CH. XXX . S. 1.] LAPSE OF TIME - LACHES . *874

tion to which he was himself a party (d) . Secondly, indirect,

where a person, having a right to set aside a transaction ,
stands by and sees another dealing with property in a man
ner inconsistent with that right, and makes no objection ;
when also a Court of equity will not relieve (e) . But in
the latter case, the Court not only looks to the conduct of
the person who stands by, but also considers how
* far the person in possession of the property has [ * 874 ]
any just claims to the protection of the Court .
Where, for instance, the possessor lays out his money, with
a full knowledge that the property which he improves be
longs to another, then it is .said he makes the outlay to his
own cost. " If," observed L. J. Turner, " a man places his
property on the land of another with full knowledge of that
person's title, how can the fact that the landowner assented
to its being placed there give an equity to have it restored ?
If it did, the doctrine would come to this, that whenever a
man lays out money on another person's land with the con
sent of the owner, he has an equity to have it repaid ” (a) .
[Where, however, the act complained of has been com
pleted without any knowledge or assent on the part of the
person seeking relief, there can be no acquiescence in the
strict sense of the word, which has been " defined as quies
cence under such circumstances as that assent may be reason
ably inferred from it," and is no more than an instance of the
law of estoppel by words or conduct. When once the act is
completed without any knowledge or assent upon the part
of the person whose right is infringed, a right of action has
vested in him, which at all events as a general rule cannot
be divested without accord and satisfaction or release under

(d) See Kent v. Jackson, 14 Beav. L. C. 185. [ It must however be

384 ; Styles v. Guy, 1 Mac. & G. 427 ; borne in mind that where there is a
1 Hall & Tw. 523 ; Ex parte Morgan, legal right to set aside a transaction,
1 Hall & Tw. 328 ; Graham v . Birken as for instance a fraudulent convey
head, &c. Railway Company, 2 Mac. & ance under 13 Eliz. c. 5, mere delay
G. 146. to enforce it, unless the delay is such
(e) Duke of Leeds v. Amherst, 2 as to cause a statutory bar, is no de
Ph. 123 ; Phillipson v. Gatty, 7 Hare, fence ; Re Maddever, 27 Ch. D. 523. ]
523 ; Stafford v. Stafford, 1 De G. & (a) Rennie v. Young, 2 De G. & J.
J. 202 ; [Simpson v. Simpson, 3 L. R. 136, see 142. See ante, p . 716.
Ir. 308 ;] and see Jorden v. Money, 5 H.
1173
*875 LATE LIMITATION ACTS . [CH. XXX. S. 1.

seal. Mere submission to the injury for any time short of

the period limited by statute for the enforcement of the
right of action cannot take away such right, although under
the name of laches it may afford a ground for refusing relief
under some particular circumstances (b ) . ]
Late Limitation Acts . We may now introduce the late
Acts for the limitation of actions and suits .
3. The 3 & 4 Will. 4, c . 27, enacts as follows :
Lands and rents. Sect. 24 : " No person claiming any

land or rent in equity shall bring any suit to recover the

same, but within the period, during which by virtue of the
provisions hereinbefore contained (e), he might have made
an entry or distress, or brought an action to recover the
same respectively, if he had been entitled at law to such
estate, interest, or right in or to the same as he shall claim
therein in equity " (d).
Express trusts . ―― Sect. 25 : " When any land or
*
[ * 875 ] rent shall be vested in a trustee upon any express
trust, the right of the cestui que trust, or any person
claiming through him, to bring a suit against the trustee, or
any person claiming through him (a), to recover such land or
rent, shall be deemed to have first accrued, according to the
meaning of the Act at, and not before, the time at which
such land or rent shall have been conveyed to a purchaser
for valuable consideration , and shall then be deemed to have
accrued only as against such purchaser, and any person
claiming through him ” (b) .
Fraud. - Sect. 26 : " In every case of a concealed fraud the
right of any person to bring a suit in equity for the recovery
of any land or rent of which he, or any person through whom

[ (b) Per L. J. Thesiger in deliver (a ) As to the meaning of these

ing the judgment of the Court of words, see Burroughs v. McCreight,
Appeal, De Bussche v. Alt, 8 Ch. D. 1 Jon. & Lat. 304.
286, 314 ; and see post, p. 922. ] (b) Sums of money and legacies
(c) See 37 & 38 Vict. c . 57 , s. 9, charged on land and secured by an
which from the commencement of the express trust, are as from 1st January,
Act ( 1st January, 1879) , varies the 1879, made only recoverable within
periods within which actions and the time allowed for recovery, had
suits may be brought. there been no express trust ; 37 & 38
(d) See Scott v. Scott, 18 Jur. Vict. c. 57, s. 10.
755 ; 4 H. L. Cas . 1065.
1174
CH. XXX . S. 1. ] LATE LIMITATION ACTS . *875

he claims, may have been deprived by such fraud, shall be

deemed to have first accrued at, and not before, the time at
which such fraud shall, or with reasonable diligence might,
have been first known or discovered " (c).
Acquiescence . - Sect. 27 : " Nothing in the Act contained
shall be deemed to interfere with any rule or jurisdiction of
Courts of equity in refusing relief, on the ground of acqui
escence or otherwise, to any person whose right to bring a
suit may not be barred by virtue of the Act."
Arrears of rent or intcrest. Sect. 42 : " No arrears of rent
or of interest in respect of any sum of money charged upon,
or payable out of, any land or rent, shall be recovered by
any action or suit, but within six years next after the same
shall have become due, or after an acknowledgment of the
same in writing shall have been given to the person entitled
thereto or his agent, signed by the person by whom the same
is payable or his agent."
―
4. 37 & 38 Vict. c. 57. And the Real Property Limitation
Act, 1874 ( 37 & 38 Vict. c . 57) , enacts, that from and after
1st January, 1879 :
Sect. 1. No action or suit shall be brought to recover any
land or rent but within twelve years from the time when the
right first accrued .
Sect. 2. The right, as to reversions, remainders, and future
estates shall be deemed to first accrue when they fall into
possession. But if the person entitled to the particular
estate on which the future estate was expectant shall not
have been in possession when his interest determined, the
action or suit must be brought within twelve years from the
time the first right accrued to the owner of the particular
estate, or within six years from the time when the estate of
the person becoming entitled in possession became vested in
possession whichever of those two periods shall be the longer.
Sect. 3. In cases of disability, six years from the cesser of
the disability or from the death of the person under disability
shall be allowed, notwithstanding the expiration of the twelve
years .
(c) See Manby v. Bewicke, 3 K. 371 ; Vane v. Vane, 8 L. R. Ch. App.
& J. 342 ; Petre v. Petre, 1 Drew. 383.
1175
*876 LATE LIMITATION ACTS. [CH. XXX. S. 1.

Sect. 4. No extension of time shall be allowed for absence

beyond seas.
[* 876 ] * Sect. 5. No action or suit to recover any land
shall be brought but within thirty years from the time
when the right first accrued, notwithstanding the existence
of any disability or succession of disabilities.
5. Result of the Acts. -- It results from these Acts that
since 1st January, 1879, twelve years' possession is made a
statutory bar to suits in equity in respect of equitable inter
ests, as in the case of actions at law upon legal rights (a) , but
in case of disability a term of six years is allowed next after
the cesser of the disability, subject to the proviso that no suit
is to be brought after the lapse of thirty years from the ac
cruer of the right, whatever disabilities may have existed .
6. In case of express trust time runs from conveyance for
value only . The effect of the 25th section of 3 & 4 Will. 4,
c. 27, is that, as between the trustee and any person claiming
through him , and the cestui que trust and any person claiming
through him, time does not run until there has been a con
veyance to a purchaser for valuable consideration . The
trust estate may, therefore, be followed by the cestui que
trust, notwithstanding acquiescence by him (b ) , not only as
against the trustee, but as against all volunteers claiming
under him (c) ; but so soon as the estate is conveyed to a
purchaser for valuable consideration (as if it be made the
subject of a marriage settlement) , the time begins to run (d) ;
and a lease for value is pro tanto a conveyance within the
meaning of the Act (e) . No possession, however, by a pur

[ (a) The existence of a trust term , 1 Dru. & Walsh , 668 ; Blair v. Nugent,
the trusts of which never actively 3 Jon. & Lat. 658, 9 Ir. Eq. Rep. 400 ;
arise, and under which possession is Ravenscroft v. Frisby, 2 Coll. 16 ;
never taken, cannot be set up by the Massy v. O'Dell, 10 Ir. Ch . Rep. 22 ;
person entitled subject to the term O'Reilly v. Walsh, 6 I. R. Eq . 555 ;
as an answer to a defence founded and see Dixon v. Gayfere , 17 Beav.
upon the statute ; Twaddle v. Mur 421 ; Mutlow v. Bigg, 18 L. R. Eq.
phy, 8 L. R. Ir. 123. ] 246.
(b) Browne v. Radford, W. N. (d) Petre v. Petre, 1 Drew. 371 .
1874, p . 124. (e) Attorney- General v. Davey, 4
(c) Sturgis v. Morse , 24 Beav. 541, De G. & J. 136 ; Attorney-General v.
3 De G. & J. 1 ; Heenan v. Berry, 2 Payne, 27 Beav. 168.
Jon. & Lat . 303 ; Salter v. Cavanagh,
1176
CH. XXX. S. 1. ] LATE LIMITATION ACTS . * 877

chaser for valuable consideration short of the statutory period

will be a bar (ƒ) .
7. And not even then as against persons under disability, & c.
- The question whether a lapse of the statutory period from
the time of a conveyance for value by a trustee will bar cestuis
que trust, who, by reason of disability or their rights being
reversionary, would otherwise be entitled to sue after such
period, is not free from difficulty. The 25th section of 3 & 4
W. 4, c. 27, enacts affirmatively that the right is to be
deemed to have accrued at the time of conveyance, and this,
in strict construction, would seem to work an independ
ent bar. But this section is merely a proviso on
* the 24th section , which is in effect an enactment [ * 877 ]
restraining the right to sue in equity within the limits
allowed for suits at law ; and the 25th section would appear
to be not a further restraint of the right to sue, but an en
largement, by way of modification of the restriction previously
introduced by the 24th section . The decisions and dicta
accord with this view and point to the conclusion that a
cestui que trust, who is a remainderman , or under disability,
is entitled to the full statutory period from the accruer of
the right in possession , or from the cesser of the disability, as
the case may be, notwithstanding the trustee may have con
veyed away the estate for value, and the twenty or twelve
years, as the case may be, may have elapsed from the date of
conveyance ,
but in no case must the period allowed now ex
ceed thirty years, from the accruer of the right in posses
sion (a).

8. Express trusts. The 25th section applies only to ex

press trusts ; it is therefore necessary to ascertain with pre
cision what is meant by this phrase. Trusts, as regards the
provisions of the statute, may be considered as divided into
express trusts and constructive trusts ; the former arising

(
ƒ
Hare Attorney-
,)147. General
But see Careyv. v.Flint,
Cuth 4 6 H. L. Cas . 189, see p. 215 ; Life
Association of Scotland v . Siddal, 3
bert, 7 I. R. Eq . 542 ; 9 I. R. Eq . De G. F. & J. 58 ; Shaw v . Keighron,
330.
3 I. R. Eq . 574 ; and see Butler v.
(a) Thompson v. Simp
& War. son , 1 Dru . Carter, 5 L. R. Eq . 276 ; Quinton v.
Magdale 489 ; Attorney-General v. Frith, 2 I. R. Eq. 396.
n College, 18 Beav . 239 , 250 ;

1177
*878 LATE LIMITATION ACTS . [CH. XXX. S. 1.

upon the language of some written instrument, and the lat

ter such as are elicited by the principles of a Court of equity
from the acts of parties.
9. Word " trust " not necessary to constitute an express trust.
It is not necessary to use the word trust in order to create
an express trust within the meaning of the statute (b) , but
any language that would in equity raise or imply a trust will
be deemed an express trust. If, therefore, land be devised
to a person upon trust to receive the rents and thereout to
pay certain annuities, the surplus rents result to the heir-at
law upon the face of the instrument, and this being an ex
press trust, the heir-at-law is not barred by any length of
possession by the trustee (c) .
10. Constructive trusts not saved . ――――― But trusts aris
[ * 878 ] ing by the construction of a Court of equity * from
the acts ofparties, or to be made out by circumstances,
or to be proved by evidence, will not be saved by the clause
relating to express trusts, as if the devisee for life of a lease
hold estate renew in his own name, the statute will begin to
run from the time of the renewal (a). So if a trust fund be
lent to A., and thereupon B. as surety with notice of the
trust gives a mortgage of his estate to secure the fund, here
B. is not an express trustee ; and if no interest be paid for
the statutable period, the cestui que trust is barred (b ) . [ So
where the first mortgagee of a ship sold the ship under the
power conferred by the Merchant Shipping Act ( 17 & 18
Vict. c . 104 ) , it was held that he was not an express trustee

(b) Commissioners of Charitable was not within the exception of the

Donations v. Wybrants, 2 Jon. & Lat. 25th section, but fell under the 40th
197. section, and that if there had been
(c) Salter v. Cavanagh, 1 Dru. & no subsequent acknowledgment of
Walsh, 668 ; and see Commissioners the debt, it could not have been re
of Charitable Donations v . Wybrants, covered. This , it is conceived, can
2 Jon. & Lat. 196 ; 7 Ir. Eq. Rep. not be maintained . However, it was
580 ; Mutlow v. Bigg, 18 L. R. Eq . a dictum only, as the bonds were
246, [ reversed on other grounds, 1 directed to be paid on the ground of
Ch. D. 385. ] In Lord St. John v. acknowledgment ; see Watson v . Saul,
Boughton, 9 Sim. 223, where there 1 Giff. 197.
was an express trust to sell and pay (a ) Petre v . Petre, 1 Drew. 371 ;
debts, the late V. C. E. thought that Re Scott, 8 Ir. Ch. Rep. 316 ; In the
as no part of the produce of the sale matter of P. Dane, 5 I. R. Eq . 498.
had been set apart for debts, the case (b) Re Scott, 8 Ir. Ch. Rep. 316.
1178
CH. XXX . S. 1. ] LATE LIMITATION ACTS. *879

of the surplus proceeds of sale for the subsequent mort

gagee (c) . ] But if there be an express trustee , and another
person with full knowledge of the trust and in collusion with
the trustee, and therefore by active fraud, appropriates the
property to his own use, he stands in the place of the trustee,
and while the fraud remains concealed the statute does not
run (d) . If a person act as the trustee of a settlement con
taining express trusts, though he assume the character by
mistake, he will be deemed, so far as he acts, an express
trustee (e).
11. Charges. Mere charges might have been held to fall
under the description of express trusts, but that they are
dealt with under a separate section, viz . , the 40th of 3 & 4
W. 4, c. 27 (for which as from 1st January , 1879, is now sub
stituted the 8th section of 37 & 38 Vict. c. 57) , a circum
stance which shows that they were meant to be distinguished
from express trusts. If, therefore , a testator, having two
properties , A. and B., charged all his real estate with his debts,
and devised estate A. to trustees upon trust to pay his debts ,
the statute as to estate B. [ was ] made a bar under 3 & 4
Will. 4, c. 27 , after twenty years , (and under 37 & 38 Vict.
c . 57, [ is a bar ] after twelve years ) , but as to estate A. it
[did ] not [before 1st January , 1879 ] begin to run until a
conveyance to a purchaser, for valuable consideration (ƒ) ;
[but by the 10th section of 37 & 38 Vict. c . 57 , the time for
recovering any money payable out of land is made the same,
whether it is secured by an express trust or not. ] So , if an
estate be devised to A., charged with 10007. in favour
of * B., or " A. paying 1000l . to B.," [or " on the con- [ * 879]
dition of A. well and truly paying £ 1000 to B." (a) ,]
although a suit may be sustained in equity to have the sum
raised on the footing of a trust, yet it is not an express trust
within the meaning of the statute, and [ will, therefore , inde
pendently of sect. 10 of 37 & 38 Vict . c. 57, ] be now barred.

[ (c ) Banner v. Berridge , 18 Ch . Smith v. Smith, 10 I. R. Eq . 273 ; 1

D. 254.] L. R. Ir. 206.
(d) Rolfe v. Gregory, 4 De. G. J. (f) Jacquet v. Jacquet, 27 Beav.
& S. 576. 332 ; Proud v. Proud, 32 Beav. 235.
(e) Life Association of Scotland [ (a) Cunningham v. Foot, 3 App
v. Siddal, 3 De G. F. & J. 58 ; and see Cas. 974. ]
1179
*879 LATE LIMITATION ACTS . [CH. XXX. S. 1 .

at the end of twelve years (b). And if a testator charge his

debts and direct his executors to raise them by mortgage or
otherwise, the direction adds nothing to the charge (which
per se authorised the raising of the debts by mortgage or
otherwise) , and no express trust, but only a charge , is cre
ated (c).
12. Charge coupled with a duty. ― But a charge in form
may be an express trust in fact. Thus where an estate in
Ireland was devised to trustees and their heirs, upon trust to
convey to J. W. for life charged with annuities to certain cor
porations for charitable purposes, although the corporations
were interposed as trustees, yet, as the devisees were bound
to execute a settlement, so as to secure the annuities and re
tain the legal estate in the meantime, they were, until the
settlement had been executed, trustees for the charity (d).
So, though a simple charge of the testator's debts fell within
the 40th section of 3 & 4 W. 4, c. 27, and the creditor was
barred after twenty years (e ) , yet, if the will was so worded
as to impose on the devisees subject to the charge the per
sonal obligation of exerting themselves actively in paying
the debts, it became an express trust and fell within the ex
ception of the 25th section (ƒ) .
13. Charge and express trust in same matter. - A charge
upon an estate may under the same instrument be a mere
charge as between some parties, while it is an express trust
within the 25th section as between other parties . If, for in
stance, an estate be devised to A. and his heirs , subject to a
charge of 500l . to B. and C. upon certain trusts , this, as be
tween A. and the two trustees, is a mere charge, and would

(b) Knox v. Kelly, Ir. Eq. Rep. Donations v. Wybrants, 2 Jon. & Lat.
279 ; Toft v. Stephenson, 7 Hare, 1 ; 182, 7 Ir. Eq. Rep. 580.
Hodge v. Churchward, 16 Sim. 71 ; (e) Dundas v. Blake, 12 Ir. Eq .
Francis v. Grover, 5 Hare, 39 ; Hughes Rep. 138, and cases there cited . The
v. Kelly, 3 Dru. & War. 482 ; [ Cun 40th section, as from 1st January,
ningham v. Foot, 3 App. Cas . 974 ; ] 1879, has been repealed by 37 & 38
and see Harrison v. Duignan , 2 Dru. Vict. c. 57, s . 9. See the 8th section
& War. 295. of the latter Act.
(c) Dickinson v . Teasdale, 31 Beav. (f) Hunt v. Bateman, 10 Ir. Eq.
511 ; 1 De G. J. & Sm. 52. Rep. 360, and cases there cited ; Wat
(d) Commissioners of Charitable son v. Saul, 1 Giff. 188 ; and see Bur
rowes v. Gore, 6 H. L. Cas. 907.
1180
CH. XXX. S. 1. ] LATE LIMITATION ACTS . *880

be barred after twenty or twelve years, as the case may be,

but, as between the two trustees and their cestuis que
trust, the charge when raised will be an express * trust, [ * 880]
and the time of the bar as between them will be ex
tended accordingly .
14. Case of charge secured by a term of years. ――-If a term
of years be limited to trustees for the purpose of securing
the charge, the rights of the cestui que trust will not be
barred so long as the term vested in their trustees remains
unbarred (a).
15. Mortgage by way of trust. A mortgage by way of trust
for sale is nothing more than a mortgage with a power of
sale, and does not come under the description of an express
trust within the meaning of the 25th section (b) . [ A mort
gagee, after his mortgage debt has been fully paid, is not
an express trustee of the mortgaged property until recon
veyance (c) .]
16. Charge must be presently raisable. To make the Act
operate as a bar to a charge there must be a hand to receive,
and capable of signing a receipt ; as if 4007. be charged by
deed on an estate, and by the same deed it is assigned to
trustees upon trust for A. and B. for their lives, and after
the death of the survivor for their children, but no power
of signing receipts is given to the trustees, and, on the
contrary, the Court collects the intention that the trustees
are not to raise the money till after the death of the surviv
ing tenant for life, the statute does not begin to run until
the latter period (d).
17. Persons claiming through the trustee. - It will be ob
served that, by the 25th section of 3 & 4 Will . 4, c . 27 , the
cestui que trust and any person claiming through him may

(a) Young v. Lord Waterpark, 13 (d) M'Carthy v. Daunt, 11 Ir. Eq.

Sim. 202 ; on appeal, 15 L. J. N. S. Ch. Rep . 29. Assuming that the trustees
63 ; Cox v. Dolman, 2 De G. M. & G. could not sign a receipt, the decision
592 ; and see Ward v . Arch, 12 Sim. was right ; but it was a bold step to
472. say that the trustees had not such a
(b) Locking v. Parker, 8 L. R. Ch . power. And see Attorney-General v.
App. 30 ; [ Re Alison , 11 Ch . D. 284. ] Persse, 2 Dru . & War. 67 ; Carroll v.
[ (c) Sands to Thompson, 22 Ch . Hargrave, 5 I. R. Eq . 123 ; and see
D. 614.] post, p. 885.
1181
* 881 LATE LIMITATION ACTS. [CH. XXX. S. 1.

enforce the trust against the trustee and any person claiming
through him (e), but both trustee and cestui que trust may be
ousted by the intrusion of a third title, and if so, the statute
will begin to run from the dispossession of the trustee and
cestui que trust. Thus, in 1810, a legal estate was vested in
trustees upon trust for five tenants in common , but from
1819 to the filing of the bill in 1842 , four of the tenants in
common received the rents to the exclusion of their co-tenant
and of the trustees, who never executed their duty ; and it
was held that there had been an ouster of both trustees and
cestui que trust, and that the right of such cestui que trust
was barred by the statute (ƒ) .
[* 881 ] * 18. Possession by one of the cestuis que trust.
A cestui que trust in actual possession is tenant at will
to his trustee (a) , and the 7th section of the Act enacts that
" when any person shall be in possession as tenant at will, the
right of the person entitled subject thereto to make an entry
shall be deemed to have first accrued at the determination
of such tenancy, or at the expiration of one year from the
commencement of such tenancy. Provided that no cestui que
trust shall be deemed to be a tenant at will within the mean
ing of the clause to his trustee." The exception was intro
duced in relief of the trustee that he might not be obliged
to take active steps lest the tenancy at will should be deemed
to have expired, and so the statute should begin to run . In
other words, the tenancy should not be determined at the
end of one year (b) . The statute , therefore, does not run
against the trustee so long as the cestui que trust is in actual
possession. [A mortgagor, where the mortgage debt has
been fully paid but no reconveyance has been made, is
a tenant at will of the mortgagee, but is not a cestui
que trust of the mortgagee within the meaning of the pro
viso, and time therefore runs against the mortgagee, and

(e) See cases, p. 876 , note ( c ) , supra. Bermingham , 4 I. R. Eq . 187 ; Knight

(f) Burroughs v. M'Creight, 1 v. Bowyer, 2 De G. & J. 440.
Jon. & Lat. 290 , 7 Ir. Eq . Rep. 49 ; (a) See ante, Chap. xxvi. s . 1.
[ Bolling v. Hobday, 31 W. R. 9 ; ] and (b) See the observations of Wilde,
see Commissioners of Donations v. C. J., in Garrard v. Tuck, 13 Jur.
Wybrants, 2 Jon . & Lat. 198 ; Re 873.
1182
CH. XXX . S. 1.] LATE LIMITATION ACTS . *882

after more than thirteen years his legal estate will be ex

tinguished (c) . ]
And it has been laid down, that if the cestui que trust be
let into possession as tenant at will to the trustee , the
tenancy is not determined by the cestui que trust sub-letting
to an under-tenant, unless the trustee had notice of such
underletting, for, though the general rule is that a tenancy
at will is not assignable, yet the rule is subject to the quali
fication that a tenant at will cannot determine his tenancy
by transferring his interest to a third party without notice
to his landlord (d).
But if the cestui que trust be not the actual occupier, but
only in receipt of the rents and profits, he is not tenant at will
to the trustee, but the possession remains with the trustee,
and the cestui que trust is the trustee's bailiff or agent for
the management of the estate, and therefore if the cestui que
trust allow any tenant of the trust estate to hold for twelve
years , without paying rent or other acknowledgment of title,
the statute runs against the trustee through the default
of his bailiff or agent (e). The trustee, * there
fore, who puts a cestui que trust in receipt of the [ * 882 ]
rents and profits has still a duty to perform , and may
be held responsible for a loss accruing through neglect in
not looking after his bailiff or agent.
19. Cestui que trust in possession by mistake . ――――――- If actual
possession be held by the trustee of an express trust who has
the legal estate, but who mistakes his cestui que trust and
pays the rents to a wrong person , the possession of the
trustee is the possession of the rightful cestui que trust, and
the wrongful recipient of the rents does not acquire a title
by adverse possession under the statute ( a ) ; and this prin
ciple is of very extensive application, for, as we have seen ,
where a cestui que trust is put into receipt of the rents and

[ (c) Sands to Thompson, 22 Ch. edgment by them ; Doe d. Stanway

D. 614. ] v. Rock, 4 Man. & G. 30.
(d) Melling v. Leak, 1 Jur. N. S. (e) Melling v. Leak, 16 C. B. 652 ;
760, per Cresswell , J. The alienee 1 Jur. N. S. 759.
cannot be deemed tenant at will of (a) Lister v. Pickford, 34 Beav.
the trustees without some acknowl 576.
1183
*882 LATE LIMITATION ACTS. [CH. XXX. S. 1 .

profits, the possession is still that of the trustee , and the cestui
que trust is regarded in the light of the bailiff or agent of the
trustee. But it is always a question for the jury, or the
Court sitting as a jury, to say whether the cestui que trust
was in receipt of the rents as bailiff or agent of the trustee,
or was in receipt of the rents as claiming the beneficial owner
ship independently of the trustee . In the former case, the
statute of limitations would not run , but in the latter case it
would (b).
20. Disseisin by cestui que trust. If cestui que trust under
a will hold adverse possession of an estate supposed to pass,
but which did not in fact pass by the will to a trustee and
eventually the true owner is barred , the legal estate gained
by the disseisin vests in the trustee of the will, under colour
of which the possession was taken, and not in the cestui que
trust (c) .
21. 42d section. ―― The 42d section of the Act, limiting
the recovery of arrears of rent or interest to the last six years
only, has no application to cases of express trusts within the
25th section , but the cestui que trust could, prior to the 1st
of January, 1879, have recovered from his trustees the whole
arrearages from the commencement of the title (d) .
[ Subsisting term. ] - And where there was a subsisting
term not barred, upon which the trustee might obtain posses
sion, the whole arrearages [ could, prior to the 1st of January,
1879, have been] recovered (e) .

(b) As in Burroughs v . M'Creight, 187 ; Gough v. Bult, 16 Sim . 323 ;

1 Jon. & Lat. 290, where the statute Watson v. Saul, 1 Giff. 200 ; Sturgis
was effectually pleaded " not by per v. Morse, 3 De G. & J. 1 , 24 Beav.
sons who had placed themselves in 541 ; Gyles v. Gyles, 9 Ir. Ch . Rep.
the shoes of the trustees , but by per 135. And see Wright v. Chard, 4
sons who, in spite of the trustees , Drew. 680.
had received the rents for upwards (e ) Cox v. Dolman, 2 De G. M. &
of twenty years for their own benefit," G. 592 ; Snow v . Booth, 2 K. & J. 132 ;
Ib. 305 ; and see Cholmondeley v. 8 De G. M. & G. 69 ; Lewis v. Dun
Clinton, ante, p. 723 ; Parker v. Car combe (No. 2) , 29 Beav. 175 ; Lawton
ter, ante, p . 734. v. Ford, 2 L. R. Eq. 97 ; Earl of Mans
(c) Kernaghan v. M'Nally, 12 Ir. field . Ogle, 1 Jur. N. S. 414 ; Re
Ch. Rep. 89 ; Hawksbee v. Hawksbee, Wyse, 4 Ir. Ch. Rep. 297 ; Re Ber
11 Hare, 230 ; and see Paine v. Jones, mingham, 4 Ir. Rep. Eq. 187 , 9 I. R.
18 L. R. Eq . 320. Eq . 385 ; Re Murphy, 5 Ir. Rep. Eq.
(d) Playfair v. Cooper, 17 Beav. 147.
1184
CH. XXX . S. 1. ] LATE LIMITATION ACTS . *883

* Thus , in Cox v . Dolman (a) , a testator devised [ * 883 ]

his lands to the use of trustees for ninety-nine years
upon trust to pay certain annuities, and subject thereto to
the use of S. Cox for life , with remainder over ; and after
the death of S. Cox, one of the annuitants filed a bill to have
the arrears of the annuity raised out of the estate. The ex
ecutors of S. Cox pleaded the statute as a bar to more than
six years' arrears, but the Court held that it was the case of
an express trust, and that the tenant for life had taken pos
session subject to the trust, and that the term was a subsist
ing one, upon which the trustees might at any time have re
covered, and the plaintiff was declared entitled to the whole
arrears , which were to be paid out of the assets of the tenant
for life up to the day of his death, and since his death by the
remainderman . The direct remedy was, no doubt, to have
the whole arrears raised by sale or mortgage of the term, but
as the remainderman would be entitled to recover the arrears
that accrued in the lifetime of the tenant for life from his es
tate, the Court, to avoid circuity, decreed payment at once
out of the tenant for life's assets .
[ 23. 37 & 38 Vict. c. 57, s. 10. But under 37 & 38 Vict.
c. 57, s. 10, as from the 1st of January, 1879, no action, suit
or other proceeding may be brought to recover any arrears
of rent or of interest in respect of any sum of money or leg
acy charged upon or payable out of any land or rent, and se
cured by an express trust, or any damages in respect of such
arrears, except within the time within which the same would
be recoverable if there were not any such trust (b) . Thus
where an annuity which was secured by an express trust had
been unpaid for twenty-five years, and no claim of any sort
was made in respect of the annuity during that period, it was
held that no arrears of the annuity, accrued before a claim
for the annuity was made, could be recovered from the prop
erty charged ; for the remedy for the arrears was the same as
if there had been no express trust, in which case they would
have been irrecoverable ; but the section did not affect the
right to future payments of the annuity (c) . It may be
(a) 2 De G. M. & G. 592. [ (c) Hughes v. Coles, 27 Ch. D.
(b) See post, p. 885. 231. ]
1185
* 884 LATE LIMITATION ACTS . [ CH. XXX . S. 1.

doubted whether this was correctly decided , for the annuity

itself was admittedly still subsisting ; and by the 42d section
of 3 & 4 W. 4, c. 27 , six years ' arrears of such an annuity
are recoverable without any express trust ; and the 10th sec
tion of the Act of 1874, contemplates the existence
[ *884 ] of some period * during which the arrears could have
been recovered . The intention of the section seems
to have been to limit the period during which the arrears
are to be recoverable , and not to destroy the right to recover
any arrears, and it hardly seems to justify the argument that
as, in the absence of an express trust, the annuity itself would
have been barred by the statute, and therefore no arrears of
the annuity could in that case have been recoverable, no
arrears are recoverable though the annuity is still subsisting. ]
24. Charities . ――――- It was at first doubted whether charities
were not altogether unaffected by the Act of 3 and 4 W. 4,
c. 27 , inasmuch as, by a special exception in their favour,
Courts of equity did not oppose to charitable, as they did to
ordinary equitable claims, a bar by analogy to the old Stat
utes of Limitation , and the Act of W. 4, contained no express
mention of charities (a) ; but it was afterwards held that
they were within the operation of the 24th section, though
they might be protected by the 25th section relating to express
trusts (b) ; and the law was ultimately so settled in the case
of Attorney-General v . Magdalen College ( e) on appeal to the
House of Lords .
25. Legacy. - A legacy cannot be recovered under 37 & 38
Vict. c. 57 , after twelve years. But if the executor assent to
the legacy, he then becomes a trustee, and the statute does
not run (d) ; and à fortiori if the legacy be coupled with a
trust as for the separate use of a feme covert, the executor,
after assent to the trust, is converted into a trustee (e) ; and

(a) Incorporated Society v. Rich torney-General v. Payne, 27 Beav.

ards, 1 Dru. & War. 287, 288. 168.
(b) Commissioners of Charitable (d) Phillipo v. Munnings, 2 M. &
Donations v. Wybrants, 2 Jon . & Cr. 309 ; O'Reilly v. Walsh, 6 Ir. Eq.
Lat. 182 , 7 Ir. Eq. Rep. 580. 555.
(c) 18 Beav. 223 ; 6 H. L. Cas. (e) Hartford v. Power, 2 Ir. Rep.
189 ; Attorney-Genera! v. Davey, 19 Eq. 204.
Beav. 521 , 4 De G. & J. 136 ; At
1186
CH. XXX . S. 1.] LATE LIMITATION ACTS . *885

if a legacy be given to A. for life with remainder to his chil

dren, and the circumstances are such that during the life of
A. there is no hand entitled to receive it, the time does not
run against the children during the life of A. (ƒ) .
26. Residue or share of residue. - -The 8th section of 37
& 38 Vict. c. 57, is, as from 1st January, 1879 , substituted
for the 40th section of 3 & 4 W. 4, c. 27, and it is presumed
that under the substituted as under the original section the
limited period will by a liberal construction of the word
legacy be held to be a bar to suits also in respect of a residue.
or share of residue (g).
* 27. 23 & 24 Vict. c . 38, s. 13.-- -The 40th section [ * 885 ]
of 3 & 4 W. 4, c. 27 , did not extend to the case of
intestacy, and by 23 & 24 Vict. c . 38, s . 13, no suit or other
proceeding can be brought to recover personal estate or any
share thereof from the personal representative of any intes
tate but within twenty years after the accruer of the right,
unless there has been part payment or some acknowledgment
in writing. The 8th section of 37 and 38 Vict. c. 57, appears
not to extend to the case of an intestacy, and if so, a legatee
will under the latter section be barred after twelve years,
while the next of kin will not be barred until after twenty
years (a).
28. Assets subsequently received . - The right of the leg
atee or next of kin may be barred as to assets received more
than the prescribed period before the commencement of the
suit, but not barred as to assets received since (b) .
29. 36 & 37 Vict. c . 66, s. 25. -
- - By 36 & 37 Vict. c . 66, s .
25, subs. 2, it is enacted that " no claim of a cestui que trust
against his trustee (c) for any property held on an express

(ƒ) Carroll v. Hargrave, 5 I. R. (b) See Adams v. Barry, 2 Coll.

Eq. 123 ; see ante, p. 880, note (d ) . 290.
(g) Prior v. Horniblow, 2 Y. & C. [(c) In Seagram v. Tuck, 18 Ch.
201 ; Christian v. Devereux, 12 Sim. D. 296 , Kay, J. was of opinion that
264 ; [ Sutton v. Sutton , 22 Ch. D. a receiver appointed by the Court
511, 517 ; ] and see Payne v. Evens, was a trustee of money received by
18 L. R. Eq . 356 ; Carey v. Cuthbert, him so as not to be able to avail
7 I. R. Eq. 542. himself of the Statute of Limitations . ]
[(a) See Sutton v. Sutton, 22 Ch .
D. 511 , 517. ]
1187
*885 MESNE RENTS AND PROFITS . [CH. XXX. S. 1 .

trust, or in respect of any breach of such trust, shall be held to

be barred by any statute of limitations ."
37 & 38 Vict. c. 57, s . 10. — The 37 and 38 Vict. c . 57 , s . 10 ,
enacts that from 1st January, 1879, no money or legacy
charged on any land or rent shall, though secured by an
express trust, be recoverable, except within the time within
which it might have been recovered had there been no
express trust.
The former of these two Acts applies as between trustee
and cestui que trust, while the latter applies as between the
land charged (though secured by way of trust) and the per
sons entitled to the charge (d) .

Account of mesne rents and profits . ― Thirdly. We have

to enquire to what extent a Court of equity upon recovery of
the estate, will direct an account against the defendant of the
mesne rents and profits.¹

[ (d) Fearnside v. Flint, 22 Ch. D. 579 ; Hughes v. Coles, 27 Ch. D. 231. ]

1 Trustees cannot receive any personal gain nor advantage from the trust,
other than what they may be fairly entitled to as compensation for services,
it being their duty to give the cestuis que trust all the profits, benefits and in
come arising from the estate ; Sloo v. Law, 3 Blatchf. C. C. 457 ; Parshall's
App. 65 Pa. St. 233 ; Van Horne v. Fonda , 5 Johns. Ch . 388. The advantages
of any purchase result to the cestuis que trust ; King v . Cushman, 41 Ill. 31 ;
Quackenbush v. Leonard, 9 Paige, 334 ; Schoonmaker v . Van Wyck, 31 Barb.
457 ; Barksdale v. Finney, 14 Gratt. 338. The trustee must not make any
contract disadvantageous to the cestui que trust, nor receive presents from him ;
Green v . Winter, 1 Johns. Ch . 26 ; Andrews v . Hobson , 23 Ala . 219 ; unless
the dealings are clearly just and fair, the burden of proof being upon the
trustee ; Harrington v. Brown, 5 Pick. 519 ; Jones v. Smith, 33 Miss . 215 ;
Smith v. Isaac, 12 Mo. 106. The testui que trust is entitled to all profits aris
ing from any purchases made by his trustee ; Wiswall v . Stewart, 32 Ala. 433 ;
Mason v. Martin , 4 Md . 124 ; Smith v. Lansing, 22 N. Y. 530 ; Beeson v. Bee
son, 9 Barr, 279 ; if trustees trade or speculate, all the profits inure to the
cestuis que trust, but any losses must be borne by the trustees ; Penman v.
Slocum, 41 N. Y. 53 ; Brown v . Rickets, 4 Johns. Ch. 303 ; Durling r. Ham
mer, 5 C. E. Green, 220 ; Martin v. Raborn, 42 Ala. 648 ; Raynes v. Raynes,
54 N. H. 201. A trustee must account for all profits received by him ; Van
Epps . Van Epps , 9 Paige, 237 ; Richardson v. Spencer, 18 B. Mon. 450 ;
attorneys who are trustees can make no charges for professional services in
addition to their compensation as trustees, though they may employ other
attorneys at the expense of the estate ; Binsse v. Paige, 1 Keyes, 87 ; Morgan
v. Hannas, 49 N. Y. 667 ; but see Perkins's App. 108 Pa. St. 314 ; 56 Am. Rep.
208 ; one reason for this is that a trustee cannot make a contract with himself;
Jenkins v. Fickling, 4 Des. 470 ; Mayer v. Galluchat, 6 Rich. Eq . 2. A trus
1188
CH. XXX . S. 1. ] MESNE RENTS AND PROFITS . *886

The right of the cestui que trust to an account of mesne rents

and profits cannot very well be treated of without entering
generally into the principles upon which relief in a Court of
equity, in respect of mesne rents and profits, is founded.
An account of rents and profits may be sought in equity,
either (I. ) Independently of relief respecting the corpus of
the land, or ( II. ) As incident or collateral to it.

* First. Where the account is sought independ- [ * 886 ]

ently of other relief.
1. Account may be had against an express trustee without
reference to the Statutes of Limitation. - If the account be
sought against an express trustee, then, as the Statutes of
Limitation do not run between trustee and cestui que trust,
it will be directed from the time the rents were with
drawn (a).
2. Account in equity could not be had in respect of a legal
title, except the account were complicated, & c. ――― If the claim
to the rents rest upon a legal title, the plaintiff has then a
legal remedy, and under the old practice could not have
come into a Court of equity at all (b) ; except in cases where,
from the complicated nature of the accounts, or other partic
ular circumstances, a Court of law would have afforded very
inadequate relief (e) .
Or the plaintiff was an infant. — But an infant might have
filed a bill for an account upon a legal title (d) ; as every

(a ) See Attorney-General v . Brew (c) See O'Connor v. Spaight, 1

ers' Company, 1 Mer. 498 ; Mathew v. Sch. & Lef. 309 ; Corporation of Car
Brise, 14 Beav. 341. lisle v. Wilson, 13 Ves . 276.
(b) Jesus College v. Bloome, 3 (d) Gardiner v. Fell, 1 J. & W. 22 ;
Atk. 262 ; and see Dinwiddie v . Bailey, Roberdeau v. Rous , 1 Atk. 543 ; Yallop
6 Ves. 136 ; Taylor v. Crompton, v. Holworthy, 1 Eq. Ca. Ab. 7 ; New
Bunb. 95 ; Lansdown v. Lansdown , 1 burg v. Bickerstaffe, Vern. 295 ;
Mad . 137. Curtis v. Curtis, 2 B.C.C. 631 , per Cur.

tee cannot deny his title ; Von Hurter v. Spengeman, 2 Green, Ch . 185 ; nor
make any claim hostile to his cestui que trust ; Benjamin v. Gill , 45 Ga . 110 .
Trustees must account for all trust property which comes into their possession,
including the income or improvement ; King v. Wise, 43 Cal . 628 ; Carr v.
Houser, 46 Ga. 477. Any losses occurring when the trustee acts with the con
sent, and at the request of cestuis que trust who are sui juris, must be borne by
the estate ; Poole v. Munday, 103 Mass . 174.
1189
*887 MESNE RENTS AND PROFITS . [CH. XXX . S. 1.

person entering upon an infant's lands is regarded in the

light of a bailiff or receiver for the infant (e) ; but the rule
did not apply where the infant had never had possession, but
it had been held by an adverse party (f) . The jurisdiction
against a person entering during the infant's minority re
mained, though the bill were not filed until after the infant
attained twenty-one (g) . But after six years the Statute of
Limitations would be a bar (h) .
Or in the case of mines ; or timber. — And generally all
persons might have an account upon a legal title in respect
of mines, which are a species of trade (i) , but not of timber,
without praying an injunction (j) .
3. Whether after the death of the pernor an account might
be had in equity against his executor. — Although where a
remedy lay at law an account could not be had in equity
against the pernor of the profits himself, yet, after his decease,
the party entitled to the profits might have considered him
self a creditor, and have filed a bill in equity for an account
of the assets (k).
[* 887 ] * 4. The account in these cases confined to the legal
limit. - Where , as in the preceding cases, a Court of
equity assumed a concurrent jurisdiction with Courts of law ,
the account was not extended beyond the legal limit of six
years, provided the statute were pleaded : it was otherwise ,

(e) Dormer v . Fortescue, 3 Atk. 1 P. W. 406 ; and see Pulteney v.

130, per Lord Hardwicke ; Pulteney Warren, 6 Ves. 89 ; Lansdown v.
v. Warren, 6 Ves . 89, per Lord Eldon ; Lansdown, 1 Mad. 116 ; Parrott v.
Morgan v. Morgan, 1 Atk. 489 ; Lord Palmer, 3 M. & K. 632.
Falkland v. Bertie, 2 Vern. 342, per (j) Jesus College v. Bloome, 3 Atk.
Cur.; Doe v. Keen, 7 T. R. 390, per 262 ; Higginbotham v. Hawkins, 7
Lord Kenyon ; Hicks v. Sallitt, 3 De L. R. Ch. App. 676 ; and see Pulte
G. M. & G. 782 ; Pascoe v. Swan, 27 ney v. Warren, 6 Ves. 89 ; University
Beav. 508. of Oxford v. Richardson, Ib. 701 ;
(f) Crowther v. Crowther, 23 Grierson v. Eyre, 9 Ves. 346 ; but see
Beav. 305. But see the observations Garth v. Cotton, 1 Dick. 211 ; Lee v.
of V. C. in Quinton v. Frith, 2 I. R. Alston, 1 B. C. C. 194.
Eq . 414. (k) Monypenny v. Bristow, 2 R. &
(g) Blomfield v. Eyre, 8 Beav. 250 ; M. 117 (but the bill also prayed de
Hicks v. Sallitt, ubi supra. livery of title deeds) ; Gardiner v.
(h) Lockey v. Lockey, Pr. Ch . 518 ; Fell, 1 J. & W. 22 (but the plaintiff
and see Knox v. Gye, 5 L. R. H. L. was also an infant ) ; and see Thomas
674. v. Oakley, 18 Ves. 186 ; Lansdown v.
(i) Bishop of Winchester v. Knight, Lansdown, 1 Mad. 116.
1190
CH. XXX. S. 1.] MESNE RENTS AND PROFITS . * 887

if the defendant did not avail himself of the statute by de

murrer, plea, or answer (a) .
[5. Present Practice. Now, by the recent Judicature Acts
the several Divisions of the High Court of Justice have co
ordinate jurisdiction, and matters of account are assigned to
the Chancery Division of the Court (b), and it is conceived
that the same limit of time will apply to the account as for
merly prevailed in the Court of Chancery, and the statute of"
limitations cannot be relied upon unless pleaded by the de
fendant (c). ]
6. Where a legal remedy did exist but has expired, equity
will not assist. — It often happens that a legal remedy did
exist, but has since, by the death of a party or the determi
nation of the estate, become extinguished . In such a case,
as the right was not, but only is, without a remedy at law,
there seems no ground in general for the interference of a
Court of equity (d) .
7. Unless there be mistake. — But if the remedy was lost
through mistake, the Court upon that principle may inter
pose as where a lease was held for the lives of A. and his
two daughters B. and C., and A. afterwards married again,
and had another daughter, who was also named B., and the
landlord on the expiration of the lease by the death of the
real cestui que vie, did not enter ( B. the daughter by the sec
ond marriage being mistaken for B. the life named in the
lease) Lord Macclesfield said, " Where one has title of entry,
and neglects to enter or to bring his ejectment, but sleeps
upon it for several years, as he has no remedy at law for the
mesne profits, so neither has he in equity, for it was his own
fault he did not enter, and he shall never come into a Court
of equity for relief against his own negligence, or to make
the tenant in possession who held over his lease to be but his
bailiff or steward, whether he will or not ; but in the present

(a) See Monypenny v. Bristow, 2 Ridg. P. C. 71, per Lord Fitzgibbon ;

R. & M. 125. Hutton v . Simpson , 2 Vern . 722 ; Nor
[ (b) 36 & 37 Vict . c. 66, s . 34.] ton v. Frecker, 1 Atk. 525, 526, per
[ (c) See Rules of the Supreme Lord Hardwicke ; and see Pulteney
Court, 1883, Order 19, Rule 15. ] v. Warren, 6 Ves. 88.
(d) Barnewall v. Barnewall, 3
1191
*888 MESNE RENTS AND PROFITS . [ CH. XXX . S. 1 .

case, by reason of the circumstance of both daughters being of

the same name, and the mistake consequent thereon, the defend
ant must account for the mesne profits from the expiration of
the lease " (e) .
[ *888 ] * 8. Or fraud. So equity will relieve where the
remedy was prevented by fraud : as where A. was
entitled to a leasehold estate, but B., concealing the deeds,
femained in possession until the term had expired , Lord King
directed an account of the rents and profits from the time
that A.'s title accrued, on the ground that A. had been kept
in ignorance of his just rights through B.'s fraudulent con
cealment of the deed and counterpart (a) .
9. Or some default in the defendant. - And generally the
Court will in all cases lend its aid where the legal process
has been lost, not by any delay on the part of the plaintiff,
but through some default of the defendant (b) .

Secondly. An account may be sought as incident or col

lateral to the relief. The doctrines upon this subject were
very distinctly laid down by Lord Fitzgibbon , afterwards
Lord Clare, in Barnewall v. Barnewall (c) .
A.1 . Plaintiff recovering the estate on an equitable title.
" The general rule of equity," he said, " is , that if the suit
for recovery of possession be properly cognisable in a Court
of equity, and the plaintiff obtains a decree, the Court will
direct an account of rents and profits, as incident to such
relief."
2. Where cestui que trust follows trust estate into hands of
a volunteer claiming under a trustee. ― In the case of a cestui
que trust, who is following the trust estate into the hands of
a person claiming through the trustee, under such circumstances
that the defendant is himself to be regarded as a trustee , it

(e) Duke of Bolton v. Deane, Pr. Fitzgibbon, Barnewall v. Barnewall,

Ch. 516. (Note, in this case Lord 3 Ridg. P. C. 68.)
Hardwicke thought a remedy still ex (a) Bennett v. Whitehead , 2 P. W.
isted at law, Dormer v. Fortescue, 644 ; and see Duke of Bolton v.
Ridge. Rep. t . Hardwicke, 190 : but Deane, Pr. Ch. 516, and Barnewall v.
Lord Macclesfield was evidently of a Barnewall, 3 Ridg. P. C. 66.
different opinion, and so was Lord (b) Pulteney v. Warren, 6 Ves. 73.
(c) 3 Ridg. P. C. 66.
1192
CH. XXX . S. 1. ] MESNE RENTS AND PROFITS. *889

is clear that the cestui que trust, by establishing his claim to

the land, has thereby established a right to the mesne rents
and profits from the very commencement of his title (d) .
And à fortiori the rule is so where the plaintiff has been
under the disability of infancy during the possession of the
defendant, because then the latter is regarded as a bailiff or
trustee for the former (e) , or where there has been fraud or
suppression on the part of the defendant.
3. Where plaintiff comes as equitable owner against one in
bonâ fide adverse possession. ――――― Where the case is that of a
plaintiff coming forward not strictly as cestui que trust, but
still as equitable owner to recover the estate against one in
bona fide adverse possession , many of the older decisions and
dieta point to the conclusion that, in the absence of special
circumstances, the account will be directed from the
*
time of the accruer of the title (a) , subject only to [ * 889]
the qualification , that by analogy to the legal defence
upon the Statute of Limitations, the account will not be car
ried back beyond six years before the institution of the
suit (b) . The more recent authorities seem, however, to
establish that where there is no trust, no infancy, no fraud,
and no suppression , where, in short, there is a mere bona fide
adverse possession, the practice of the Court is not to carry
back the account beyond the institution of the suit (e) ;
unless at least there was a demand of possession by the
plaintiff or acts equivalent thereto before proceedings were

(d) Sturgis v. Morse, 3 De G. & J. Albans, 5 Ves. 439 ; Stackhouse v.

1 ; 24 Beav. 541 ; Wright v. Chard, Barnston, 10 Ves. 470.
4 Drew. 673 ; Kidney v. Coussmaker, (c) Pulteney v. Warren, 6 Ves. 93,
12 Ves. 158. per Lord Eldon ; Edwards v . Morgan,
(e ) Hicks v. Sallitt, 3 De G. M. & M'Clel. 541 , see 554, 555 ; Hicks v.
G. 782 ; Schroder v. Schroder, Kay, Sallitt, 3 De G. M. & G. 813 ; Thomas
591 ; Pascoe v. Swan, 27 Beav. 508 ; v. Thomas, 2 K. & J. 79 ; Morgan v .
and cases cited p . 886 , note (e) . Morgan, 10 L. R. Eq . 99 ; [but see
(a) Dormer v. Fortescue, Ridg. Hickman v . Upsall, 4 Ch . D. 144,
Rep. t . Hardwicke, 183 ; S. C. 3 Atk. where the Court of Appeal were of
130, per Lord Hardwicke ; Hobson v. opinion that in the absence of any
Trevor, 2 P. W. 191 ; Coventry v. special equitable considerations the
Hall, 2 Ch . Ca. 134 . account should by analogy to the
(b) Reade v. Reade, 5 Ves. 749, legal rule be carried back for such a
750 ; Harmood v. Oglander, 6 Ves. period as the Statute of Limitations
215 ; Drummond v. Duke of St. allowed.]
1193
*890 MESNE RENTS AND PROFITS . [CH. XXX. S. 1.

taken, in which case the account will be carried back to the

time of the demand or constructive demand (d) .
4. Where defendant ignorant of his true character of trustee.
-In one case, in which the plaintiff was an infant, and the
defendant in fact a trustee, but ignorant of his true character,
the account was limited to the filing of the bill, except as to
money which had been paid into Court (e ) , but the decision
is of doubtful authority (ƒ) .
5. Where there has been laches in suing. If the cestui que
trust or equitable owner be guilty of laches, the account will
not [generally ] be carried further back than to the time of
the institution of the suit, for it was the plaintiff's own fault
that he did not institute his suit at an earlier period (g) ;
and if it be a case of great laches, the Court will show its
displeasure by not directing an account beyond the date of
the decree (h) .
[But the Court will in its discretion allow the account to
be carried back, where the circumstances of the case justify
it, and the House of Lords has recently, in a case of great
laches, carried the account back for six years prior to the
institution of the suit (i) .]
[* 890] * 6. 3 & 4 W. 4, c. 27, not material. - It would seem
that 3 & 4 W. 4, c. 27, has no bearing upon the
question how far the account should be carried back, for the
suit in these cases is not one for recovery of rent within
the general purview of the Act (a) ; nor is it a suit within
the meaning of the 42d section for the recovery of arrears
of rent, which must mean arrears of some definite reserved
rent, and not mesne profits . If there be any Statute of

(d) Penny v. Allen, 7 De G. M. & v. East London Waterworks.Com

G. 409 ; and see Edwards v. Morgan, pany, 3 Mad. 375 ; Pickett v. Loggon,
M'Clel. 554. 14 Ves. 215 ; Schroder v. Schroder,
(e) Drummond v. Duke of St. Al Kay, 591 ; [ Smith v. Smith, 1 L. R.
bans, 5 Ves. 433, see 439. Ir. 206 ; ] see Kidney v. Coussmaker,
(f) See Hicks v. Sallitt, 3 De G. 12 Ves. 158.
M. & G. pp. 811 , 815. (h) Acherley v. Roe, 5 Ves. 565.
(g) Dormer v. Fortescue, Ridg. [ (i) Thomson v . Eastwood, 2 App.
Rep. t. Hardwicke, 183 ; S. C. 3 Atk. Cas . 215. ]
130, per Lord Hardwicke ; Cook v. (a) Grant v. Ellis, 9 M. & W.
Arnham, 2 Eq. Ca. Ab . 235 ; Petti 113.
ward v. Prescott, 7 Ves. 541 ; Bowes
1194
CH. XXX. S. 1. ] MESNE RENTS AND PROFITS. *890

Limitations applicable by analogy it must be 21 James 1 ,

cap. 16 (b).
7. How the order for an account is worded. - The order
to account for mesne rents and profits will not, except in a
case of gross fraud (e), contain the words, " which, without
neglect or default, the defendant might have received," and,
on the other hand, a direction to make just allowances in
taking the account will be inserted (d) .
8. Who is the person to account. ―――――――― The assignee who has
had the perception of the rents and profits will, in the first
instance, account for them, not, however, with interest (e) .
But if the assignee be insolvent, the trustee who tortiously
assigned will then be answerable for the mesne rents and
profits personally (f) . The Court has also allowed distinct
bills to be filed, first to recover the estate, and afterwards
the mesne profits (g) .
B. - 1 . If a person have a legal title he cannot sue in equity
either for the estate or the mesne rents and profits. " If a
man," continued Lord Fitzgibbon , “ have a mere legal title
to the possession , he has no right to come into equity for the
recovery of it ; and if he has originally recovered the posses
sion at law, he has no manner of right to proceed by bill for
an account of rents and profits : as his title to the possession
was at law, he must proceed for the whole there " (h).
2. Unless the plaintiff be a dowress, or an infant. -Upon
this rule it must be remarked , that a dowress (i) and infant (j)

(b) See observations of L. J. Tur Bridges, Pr. Ch. 252 ; Owen v. Aprice,
ner, Hicks v. Sallitt, 3 De G. M. & 1 Ch. Rep. 32 ; Anon . case, 1 Vern.
G. 816. 105, contradicted 3 Atk. 129.
(c) Stackpoole v. Davoren, 1 B. (i) Mundy v. Mundy, 2 Ves. jun.
P. C. 9. 122 ; D'Arcy v. Blake, 2 Sch. & Lef.
(d) Howell v. Howell, 2 M. & 387 ; Wild v. Wells, 1 Dick . 3 ; Meg
Cr. 478 . got v. Meggot, 2 Id . 794 ; Goodenough
(e) Macartney v. Blackwood, Ridg. v. Goodenough, 2 Id . 795 ; Curtis v.
Lapp. & Sch. 602. Curtis, 2 B. C. C. 620 ; Moor v. Black,
(f) Vandebende v. Levingston, 3 Cas. t. Talbot, 126 ; and see Dormer
Sw. 625. v. Fortescue, 3 Atk. 130 ; Pulteney v.
(9) Hall . Coventry, 2 Ch . Ca. Warren, 6 Ves. 89 ; Agar v. Fairfax,
134 ; Wright v. Chard, 4 Drew. 673. 17 Ves. 552.
(h) Barnewall v. Barnewall, 3 Ridg. (j) See Dormer v. Fortescue, 3
P. C. 66. See also Dormer v. Atk. 130 , 134 ; S. C. Ridg. Rep. t.
Fortescue, 3 Atk. 130 ; Tilly v. Hardwicke, 183, 191 ; Pulteney v.
1195
*891 MESNE RENTS AND PROFITS . [CH. XXX . S. 1 .

are allowed to proceed in equity upon their legal title, and

incidentally to the relief may pray an account of the mesne
rent and profits. But by 3 & 4 W. 4, c . 27, s . 41 ,
[* 891 ] the arrears of dower are recoverable for six years
only next preceding the commencement of the suit.
And the account of an infant will be barred, if he do not
institute a suit within six years after he has attained his
majority (a).
C. - 1 . If a person applied to equity to aid his action at law
he might have come back for an account. — " If a party," Lord
Fitzgibbon proceeded , " be obliged to come into a Court of
equity for aid to enable him to prosecute his title at law " (as
where he could not recover in a legal action by reason of an
outstanding term, or because the title deeds to the estate
were in the hands of the defendant) , " after possession re
covered at law, there may be cases in which he may come
back for an account of rents and profits in the suit depend
ing in equity " (b) .
Or being obliged to come to equity on one ground, he might
have obtained his whole relief there. - Or the plaintiff, being
obliged to resort to equity on one ground, might, to prevent
circuity, have asked complete relief in the first instance in
that Court ; and if his title were established, an account of
the rents and profits would have been consequential upon
the relief (c).
2. But the account in equity would be restricted to the legal
limit, or to the institution of the suit. -- In these cases the ac
count ought upon principle to be restricted to the same
period as that for which the mesne profits were recoverable
at law ; for the plaintiff recovers upon a legal title, and the
circumstance of his being obliged to sue in equity ought not
to vary his rights ; and there is authority to support this
view (d) ; but in a later case (e ) Vice-Chancellor Wood stated

Warren, 6 Ves . 89 ; Newburgh v . Bick (c) Townsend v. Ash, 3 Atk . 336 ;

erstaffe, 1 Vern. 295. Edwards v. Morgan, M'Clel. 541 ;
(a ) Lockey v. Lockey, Pr. Ch. 518; Reynolds v. Jones, 2 Sim. & St. 206.
and see Knox v. Gye, 5 L. R. H. L. 674. (d) Reynolds v. Jones, 2 Sim. & St.
(b) See Dormer v. Fortescue, 3 Atk. 206.
124 ; S. C. Ridg. Rep . t. Hardwicke, (e) Thomas v. Thomas, 3 K. & J.
176 ; Reade v. Reade, 5 Ves. 744. 85.
1196
CH. XXX . S. 2. ] CONVERSION OF TRUST PROPERTY. * 892

the rule to be, that in an adverse suit in the nature of an

ejectment suit the account is directed only from the filing of
the bill ; and there may be some difficulty in establishing
a distinction between cases where the plaintiff sues upon
a mere equitable title and cases where his title is rendered
partially equitable, so to speak, by the existence of outstand
ing terms or estates.
3. Unless the defendant be guilty of fraud. ――― If the plaintiff
has been kept out of the estate by the fraud, misrepresenta
tion, or concealment of the defendant, the Court will suppose
that, had the plaintiff known his just rights, he would have
commenced his action at law on the first accruer of his title,
and will then decree an account of the mesne rents and
profits against the defendant from that period (ƒ) .

* SECTION II. [* 892 ]

THE RIGHT OF ATTACHING THE PROPERTY INTO WHICH THE TRUST

ESTATE HAS WRONGFULLY BEEN CONVERTED.¹

1. General rule. - If the trust estate has been tortiously

disposed of by the trustee, the cestui que trust may attach and
follow the property that has been substituted in the place of
the trust estate, so long as the metamorphosis can be traced .
Tortious conversion. - In Taylor v. Plumer ( a ) it was
argued that although where the conversion was in pursuance
of the trust, the newly acquired property would be bound by
the original equity (b) ; yet where the conversion was tortious,
then, as the property purchased was not in a form consistent
with the trust, and the cestui que trust would be under no
obligation to accept it in lieu of the rightful property, the
cestui que trust should come in as a general creditor, and not
be permitted to assert a specific lien. But the distinction

(f) Dormer v. Fortescue, Ridg. Ryall v. Rolle, 1 Atk . 172 ; Ex parte

Rep. t. Hardwicke, 184 , 185 ; S. C. 3 Chion, 3 P. W. 187 , note (A) ; Waite
Atk. 130. v. Whorwood, 2 Atk. 159 ; Ex parte
(a) 3 M. & S. 562. Sayers, 5 Ves . 169 ; Anon . case, Sel.
(b) Burdett v. Willett, 2 Vern . 638 ; Ch. Ca. 57.

1 See note in reference to the following of the trust estate.

1197
*893 CONVERSION OF [CH. XXX. S. 2.

66
was disallowed (c) ; for " An abuse of trust," said Lord Ellen
borough, " can confer no rights on the party abusing it, nor
on those who claim in privity with him ” (d) .
2. 66 Money has no earmark." - Bank notes and negotiable
bills . It was said by Lord King that " money had no earmark,
insomuch that if a receiver of rents should lay out all the
money in the purchase of land, or if an executor should
realise all his testator's estate, and afterwards die insolvent,
yet a Court of equity could not charge or follow the
land " (e) ; and bank notes and negotiable bills, have been rep
resented as possessing the same quality. But the notion
seems to have originated from some misconception , and can
not be supported . Lord Mansfield observed, " It has been
quaintly said that the reason why money cannot be
[ * 893 ] * followed is because it has no earmark, but this is
not true. The true reason is upon account of the cur
rency of it - it cannot be recovered after it has passed in
currency. Thus, in the case of money stolen , the true
owner cannot recover it after it has been paid away fairly
and honestly upon a valuable and bona fide consideration :
but before the money has passed in currency an action may
be brought for the money itself. Apply this to the case of
a bank note — an action may lie against the finder, it is true,
but not after it has been paid away in currency " (a) . And
Lord Ellenborough observed, " The dictum that money has no
earmark must be understood as predicated only of an undi
vided and undistinguishable mass of current money ; but
money kept in a bag, or otherwise kept apart from other

(c) The same point has been viewed Joyce, 1 Jon. & Lat. 401 ; Trench v.
as not maintainable in several previous Harrison, 17 Sim . 111 ; Harford r.
cases, as in Whitecomb v. Jacob, 1 Lloyd, 20 Beav. 310 ; Frith v. Cart
Salk. 160 ; Lane v. Dighton, Amb. 409 ; land, 2 H. & M. 417.
Ryal v. Ryal, Ib. 413 ; Balgney v. (d) Taylor v. Plumer, 3 M. & S.
Hamilton, Ib. 414. N. B. Wilson v. 574.
Foreman, 2 Dick. 593 , is misreported ; (e) Deg v. Deg, 2 P. W. 414 ; and
see Lench v. Lench, 10 Ves, 519. The so his Lordship seems to have decided
subsequent cases are Lord Chedworth in Cox v. Bateman, 2 Ves. 19 ; and
v. Edwards, 8 Ves . 46 ; Greatley v. see Waite v. Whorwood, 2 Atk. 159 ;
Noble, 3 Mad. 79 ; Buckeridge v. Whitecomb r. Jacob, 1 Salk. 160.
Glasse, Cr. & Ph . 126 ; Murray e. Pink (a ) Miller v. Race, 1 Burr. 457,
ett, 12 Cl. & Fin. 784 ; Sheridan v. 459.
1198
CH. XXX. S. 2. ] THE TRUST PROPERTY. *894

money, guineas, or other coin marked (if the fact were so )

for the purpose of being distinguished, are so far earmarked
as to fall within the rule which applies to every other de
scription of personal property, whilst it remains in the hands
of the factor or his general legal representatives " (b) . The
only distinction, then, between money, notes, or bills, and
other chattels, appears to be this - that the former, for the
protection of commerce, cannot be pursued into the hands
of a bona fide holder, to whom they have passed in circu
lation (e), whilst other chattels can be recovered even from
a purchaser for valuable consideration, provided he did not
buy them in market overt . Money (d) , notes (e) , and
bills (f ) , may be followed by the rightful owner, where they
have not been circulated or negotiated , or if the person to
whom they passed had express notice of the trust (g) . And
the only difference to be taken between money on the one
hand, and notes and bills on the other, is that money is not
earmarked, and therefore cannot be traced except under par
ticular circumstances, but notes and bills, from carrying a
number or date, can in general be identified by the owner
without difficulty (h) .
3. Trust money mixed with the trustee's money.- We may
here put the case of trust money mixed in the same heap
with the trustee's money. It may be said, that the
trust * money has, like water, run into the general [ * 894 ]
mass, and become amalgamated, and therefore the
cestui que trust has no lien . But clearly this cannot be main
tained, for suppose a trustee, partly with his own money and

(b) Taylor v. Plumer, 3 M. & S. (f) Bennet v. Mayhew, cited Pul

575. teney v. Darlington, 1 B. C. C. 232,
[(c ) Collins v . Stimson , 11 Q. B. D. and Cator v. Earl of Pembroke , 2 B.
142. ] C. C. 287 ; Frith v. Cartland , 2 H. &
(d) See Taylor v. Plumer, 3 M. & M. 417 ; and see Ex parte Sayers, 5
S. 575 ; Miller v. Race, 1 Burr. 457 ; Ves. 169; Lord Chedworth v. Edwards,
Howard v. Jemmet, 3 Burr. 1369 ; 8 Ves. 46 ; Ryall v. Rolle, 1 Atk . 172 ;
King v. Eggington , 1 T. R. 370 ; Ryall Raphael v. Bank of England , 17 C. B.
v. Rolle, 1 Atk. 172. 161 .
(e) Anon. case, 1 Salk. 126 ; S. C. (g) Verney v. Carding, cited Joy
1 Raym. 738 ; Miller v. Race, 1 Burr. v. Campbell, 1 Sch. & Lef. 345.
457 ; Taylor v. Plumer, 3 M. & S. 562. (h) See Ford v. Hopkins, 1 Salk.
283.
1199
*894 CONVERSION OF [CH. XXX . S. 2.

partly out of the trust fund, to have purchased an estate.

It cannot be predicated of any particular part of the estate
that it was purchased with the cestui que trust's money, and
yet the cestui que trust has a lien upon the whole for the
amount that was misemployed (a) . And it follows in the
other case, that though the identical pieces of coin cannot
be ascertained, yet, as there is so much belonging to the trust
in the general heap, the cestui que trust is entitled to take so
much out (b).
4. Assets employed in trade. — Upon a similar principle, if
a surviving partner, being the executor of a deceased partner,
continue the testator's capital without authority in his trade,
though the capital may consist only of the stock and debts
of the partnership, and these may undergo a continual course
of change and fluctuation, yet the Court follows the trust
capital throughout all its ramifications, and gives to the bene
ficiaries of the deceased partner's estate the fruits derived
from that capital so continually altered and changed (c) .
5. Money followed through a bank. - And so if a trustee
pay trust money into a bank to the account of himself, not
in any way earmarked with the trust, and also keep private
monies of his own to the same account, the Court will dis
entangle the account, and separate the trust from the private
monies, and award the former specifically to the cestui que
trust (d). [And the same rule will apply equally in the case
of a person occupying a fiduciary position , although not an
express trustee, as a factor, or agent (e ) ; and has even been
applied to the case of a person borrowing money for a spe

(a) Lane v. Dighton, Amb. 409 ; Knight Bruce, p. 381 , are well worth
Lewis v. Madocks , 17 Ves. 57, 58 ; a careful perusal. [Re Hallett's
Price v. Blakemore, 6 Beav. 507 ; Estate, 13 Ch . D. 696 ; Birt v . Burt,
Hopper v. Conyers, 2 L. R. Eq. 549 . 11 Ch. D. 773, note ; and see Ex
(b) See Pennell v. Deffell , 4 De G. parte Hardcastle, 44 L. T. N. S. 523 ;
M. & G. 382 ; Ex parte Sayers, 5 Ves. 29 W. R. 615, where the case failed
169 ; Ernest v. Croysdill, 2 De G. F. on the identification of the trust
& J. 175 ; Frith v. Cartland, 2 H. & funds. ]
M. 417 ; [ Re Hallett's Estate, 13 Ch. [(e) Re Hallett's Estate, 13 Ch. D.
D. 696. ] 696, where the earlier cases are dis
(c) See pp. 277, 278, supra. cussed ; Birt v. Burt, 11 Ch. D. 773,
(d) Pennell v. Deffell , 4 De G. M. note.]
& G. 372. The observations of L. J.
1200
CH. XXX . S. 2. ] THE TRUST PROPERTY. *895

cific purpose and not applying it for the purpose for which it
was advanced (f) . It was formerly held that ] as against the
cestui que trust the general rule must prevail that the
sums drawn out must be attributed to the earliest [ * 895 ]
deposits, according to the order in which they were
paid in ( a) ; [ but, where the question is only between the
cestui que trust and the trustee, the rule has been modified,
and so long as the trustee has monies of his own standing to
the account, drawings by him for his private purposes will
be attributed to his private monies, leaving the trust monies
intact (b) . This follows from the general principle that
where a man does an act which may be rightfully performed,
he cannot say that that act was intentionally, and in fact,
done wrongly ; so far as possible the honest intention of
drawing out his own money must be attributed to the
trustee . Where, however, the trustee has exhausted his
own monies, and the account at the bank is composed of
monies belonging to different trusts, the general rule will
prevail, and the sums drawn out will, in the absence of
evidence to the contrary, be attributed to the earliest de
posits (c) . ] If trust money be paid into a bank to an ac
count headed in such a way that the banker cannot fail to
know, and must be taken to know that it was a trust account,
though the bankers are not bound to enquire into the pro
priety of the trustee's cheques upon that account, yet if the
trustee becomes bankrupt and has overdrawn his private
account, the bank cannot apply the credit of the trust account
by way of set-off against the debit of the private account (d) .
[But where a banking company were employed as agents to
collect money and to remit it to their employers, and they
received the money in cash and placed it with the other cash
of the bank, and informed their employers that the money

[(f) Gibert v. Gonard , 52 L. T. N. [ (b) Re Hallett's Estate, 13 Ch . D.

S. 54 ; 33 W. R. 302 ; 54 L. J. N. S. 696 ; overruling Pennell v. Deffell,
439 ; and see Harris v. Truman, 7 Q. ubi supra, and the other earlier cases . ]
B. D. 340 ; 9 Q. B. D. 264. ] [ (c ) Re Hallett's Estate , ubi
[(a ) Pennell v. Deffell, 4 De G .M. supra. ]
& G. 372 ; Frith v. Cartland, 2 H. & (d) Ex parte Kingston , 6 L. R. Ch.
M. 417 ; Brown v. Adams, 4 L. R. Ch. App . 632.
App. 764.]
1201
*896 CONVERSION OF [CH. XXX . S. 2.

had been remitted , but before it was actually remitted the

bank failed, it was held that the money was part of the gen
eral assets of the bank, and that the employers of the bank
had no priority over the other creditors ( e ) ; but this case
has been disapproved of by the Court of Appeal and cannot
be regarded as law (f) .
6. Different trust funds intermixed. ――- In a recent Scotch
case where the funds of two charities had been intermixed
and dealt with as a common fund, and part of the trust
funds which, however, could be traced as having originally
belonged to one of the charities had been invested in
[* 896 ] land which * subsequently increased very largely in
value, it was held that the profit must be taken to
have been made by the whole trust, and must be apportioned
between the charities in the proportions in which they were
originally entitled to the common fund (a) . ]
7. Following money into land with reference to the Statute
—
of Frauds. In tracing money into land, the principal diffi
culty in the old cases arose from the Statute of Frauds (b) ,
the 7th section enacting that all declarations of trusts of
land should be manifested and proved by some writing. It
was formerly held that parol evidence, to prove a state of
circumstances from which a Court of equity would elicit a
constructive trust, was inadmissible ( c ) ; but Lord Hard
wicke, on the ground that constructive trusts were excepted
out of the Statute of Frauds ( d) , ruled that parol evidence
might be given (e ) ; and Sir T. Clarke, in the leading case of
Lane v. Dighton (ƒ) (though had the point been res integra,
he should have thought the evidence not admissible within
the statute ) followed the authority of Lord Hardwicke ; and

[(e) Ex parte Dale and Company, Edinburgh v. The Lord Advocate, 4

11 Ch . D. 772 ; and see Whitecomb v. App. Cas . 823. ]
Jacob, 1 Salk. 160 ; Ryall v. Rolle, 1 (b) 29 Car. 2, c. 3.
Atk . 165, 172 ; Ex parte Dumas, 1 (c) See supra, Chap . ix. s. 2, p.
Atk . 232 ; Scott v. Surman Willes, 167.
400. ] (d) By the 8th section ; see p.
[ (f) Re Hallett's Estate, 13 Ch. 193, supra.
D. 696. ] (e) Ryal v. Ryal, Amb. 413 ; and
[ (a) The Lord Provost, &c ., of see Anon. case , Sel. Ch. Ca. 57.
(ƒ) Amb. 409.
1202
CH. XXX . S. 2. ] THE TRUST PROPERTY. *897

whatever doubts might formerly have been entertained upon

the subject the law is now settled (g) .
8. Trustee bound to invest a certain sum, and purchasing at
that price. ――― -The mere fact that a trustee has trust money in
his hands when he makes a purchase, is not sufficient to
attach the trust on lands bought by him (h) . But if a trus
tee who is under an obligation to lay out money on land,
purchase an estate at a price corresponding with the sum to
be invested, the Court , independently of positive evidence,
may presume the trust money to have been so applied (i) .
But no such presumption can be raised where it can be
shown that the trustee, though under such an obligation ,
was mistaken in the nature of the trust, and acted under a
different impression (j) . And where a tenant for life with
power to sell and invest in the purchase of other land , pur
chased lands with borrowed monies, and many years after
wards sold the settled estates, and applied the purchase
money partly in discharge of the debts thus contracted by
him, it was held that the purchased lands could not be
treated as liable to the trusts of the settled estates (k) .
9. Covenant to settle his whole personal estate and a subse
quent purchase is made. — In Lewis v. Madocks (1) , no
evidence to connect any particular * fund with the [* 897 ]
estate was necessary, for a person having covenanted
on his marriage to settle all the personalty he should acquire
upon certain trusts, and having afterwards invested parts of
his personalty on land, it was clear that the money expended
upon the estate was bound by the trust, and could therefore
be followed into the purchase.
10. Whether cestui que trust can take the land itself, or has
only a lien. Where a trust fund is traceable into land, and
the fund constitutes a part only of the money laid out in the
purchase, the Court has usually given a lien merely on the

(g) Lench v. Lench, 10 Ves . 517 ; 507 ; Mathias v. Mathias, 3 Sim. & G.
Hopper v. Conyers, 2 L. R. Eq. 549. 525.
(h) Sealy v. Stawell, 2 I. R. Eq. (j) Perry v. Phelips, 4 Ves. 108,
326. see 113, 117.
(i) See Anon. case, Sel. Ch. Ca. (k) Denton v. Davies , 18 Ves. 499.
57 ; Price v. Blakemore, 6 Beav. (1) 8 Ves. 150 ; S. C. 17 Ves . 48.
1203
*897 CONVERSION OF TRUST PROPERTY . [CH. XXX. S. 2.

land for the trust money and interest (a ) ; but where the
entire land is clearly the fruit of the trust fund, the cestuis
que trust must upon principle have a right to take the land
itself, whether the purchase was or not of the description
authorised by the trust (b).
[11. Trustee may follow trust money though he has concurred
in breach. ――― A trustee, who has himself concurred in a breach
of trust whereby the trust estate has been improperly spent
upon buildings upon his co-trustee's property, may, notwith
standing such concurrence , take proceedings against his co
trustee to follow the trust property ( c) . ]
12. Statute of Limitations . ― Where trust money is fol
lowed into the hands of a person who, as having received it
by collusion, or with express notice of the trust, becomes
himself a trustee, he is precluded from pleading the Statute
of Limitations (d) .
[ 13. Repayment of trust money not a fraudulent preference.
- It is not a fraudulent preference on the part of a trustee
who has misappropriated trust money to make it good on the
eve of bankruptcy (e) .
14. Money obtained by fraud cannot be followed into the
hands of persons who take it in satisfaction of a bona fide
debt without notice (f). ]

(a) Lane v . Dighton, Amb . 409 ; [ (c) Carson v. Sloane, 13 L. R. Ir.

Lewis v. Madocks , 8 Ves. 150 ; 17 139 ; Price v. Blakemore, 6 Beav. 507. ]
Ves. 48, see 57 ; Price v . Blakemore, (d) Ernest v. Croysdill, 3 De G. F.
6 Beav. 507 ; Scales v. Baker, 28 & J. 175 ; 6 Jur. N. S. 740 ; Rolfe v.
Beav. 91 ; Hopper v. Conyers, 2 L. R. Gregory, 11 Jur. N. S. 97 ; S. C. 4 De
Eq . 549. G. J. & S. 576 ; see post, p. 900.
(b) Trench v. Harrison, 17 Sim. [ (e) Ex parte Stubbins, 17 Ch.
111. Lord Manners, in Savage v. D. 58.]
Carroll, 1 B. & B. 265, see 284 , seems [(f) Northern Counties, &c. In
to have thought otherwise ; but this surance Company v . Whipp, 26 Ch.
was before Taylor v. Plumer, p . 892, D. 482 , 495. ]
supra.
1204
CH. XXX. S. 3. ] REMEDY FOR BREACH OF TRUST. *898

* SECTION III. [* 898]

OF THE REMEDY FOR A BREACH OF TRUST AGAINST THE TRUSTEE

PERSONALLY.

1. Fraudulent Trustees' Punishment Act. We may remark

in limine that, by a modern statute ( a) , a breach of trust has
been made a criminal act, and that if a trustee of any prop
erty for the benefit of another person, or for any public or
charitable purpose, with intent to defraud, appropriates the
same to his own use or for any other purpose than the legiti
mate one, he is now to be deemed guilty of a misdemeanour
and be liable to be kept in penal servitude for any term not
exceeding seven years and not less than three years, or to be
imprisoned for any term not exceeding two years , with or
without hard labour, and with or without solitary confine
ment. But no prosecution is to be commenced without the
sanction of Her Majesty's Attorney-General, or, in the vacancy
of that office, of the Solicitor-General ; nor, where civil pro

(a) 24 & 25 Vict . c . 96, ss . 80, 86, Vict. c. 54, which had been repealed
re-enacting substantially 20 & 21 by 24 & 25 Vict. c. 94.

1 If the trustee has been guilty of a breach, the cestui que trust may proceed
against him personally, especially if the trust property cannot be traced ;
Roberts v. Mansfield, 38 Ga . 452 ; Freeman v. Cook, 6 Ired . Eq . 379 ; Calhoun
v. Burnett, 40 Miss . 599 ; Flagg v. Mann , 3 Sumn. 86 ; it may be that the
cestui que trust must elect whether he will proceed against the person or
the property ; Baker v. Disbrow, 18 Hun , 29 ; Barker v. Barker, 14 Wis. 131 ;
the cestui que trust may have an action at law against his trustee, if the latter
has been guilty of neglect ; Bennett v. Preston , 17 Ind . 291 ; likewise after an
accounting, though not before, for the balance ; Hall v . Harris , 13 Ired . Eq.
289 ; Prescott v. Ward, 10 Allen, 203 ; Dias v . Brunell , 24 Wend. 9 ; Under
hill v . Morgan, 33 Conn. 105 ; Penobscot R. R. Co. v. Mayo , 60 Me. 306 ; ordi
narily a resort should be had to equity, unless, as above, there is some legal
cause of action , Brooks v. Brooks, 11 Cush. 18 ; Dorsey v. Garey, 30 Md .
489 ; Hearne v. Hearne , 55 Me. 445 ; Hukill v . Page, 6 Biss. 183 ; Peabody v.
Harvard Coll. 10 Gray, 283. A legal action is proper to compel the payment
of money due ; Farrelly v. Ladd, 10 Allen, 127 ; Baker v. Biddle, Bald . 394 ;
Catlin v. Birchard , 13 Mich. 110. If a trustee sells at the wrong time, he is
liable for the most the estate could sell for ; Melick v. Voorhees, 24 N. J. Eq.
305 ; if a trustee sell, the cestui que trust may compel him to buy property
equivalent in value ; Norman v. Cunningham, 5 Gratt. 72 ; Freeman v. Cook,
6 Ired . Eq . 375 ; or to make the value of it as estimated when a bill was filed
against him ; Hart v. Ten Eyck, 2 Johns. Ch . 62 ; or the value at the time of
1205
*898 REMEDY FOR BREACH OF TRUST. [CH. XXX . S. 3.

ceedings have been taken, without the sanction of the Court

of civil judicature before which the same are pending (b) .
And no remedy at law or in equity is to be affected, nor is the
Act to prejudice any agreement entered into or security given
by any trustee, having for its object the restoration or repay
ment of any trust property misappropriated .
2. Effect of Act upon civil proceedings . This last men
tioned enactment of the statute leaves the remedy of the
cestui que trust in reference to civil proceedings exactly as it
stood before the Act. It relieves him from such obligation ,
if any, as the statute might have been held to impose of
prosecuting the fraudulent trustee before proceeding to
recover his property (e) ; and, notwithstanding the general
policy of the law ( d) , may perhaps be held to go so far as to
authorise an agreement for the restoration of the trust prop

(b) See Wadham v. Rigg, 1 Dr. & surance Company v. Smith, 6 Q. B.

Sm . 216. D. 561 ; Roope v. D'Avigdor, 10 Q.
( c) As to the necessity for prose B. D. 412. ]
cuting before taking civil proceedings (d) See Keir v. Leeman, 9 Q. B.
in cases of felony, see Cox v. Paxton, 371 ; [ Williams v. Bayley, 1 L. R. H.
17 Ves. 329 ; White v. Spettigue, 13 L. 200 ; Flower v. Sadler, 10 Q. B. D.
M. & W. 603 ; Scattergood v . Syl 572. ]
vester, 15 Q. B. 506 ; [ Midland In

sale ; Johnson v. Lewis, 2 Strob. Eq . 157 ; Norman v. Cunningham , Gratt.

64. If the trust property is destroyed in whole or in part, the trustee must
account for it ; Sanders v. Rogers, 1 S. C. 452 ; State v. Foy, 65 N. C. 265 ;
Howe v. School Dist. 43 Vt . 282. If a trustee embezzle the trust fund, he
may be indicted ; Shaw v . Spencer, 100 Mass . 388.
The trustee must put the cestui que trust in full possession of the condition
of affairs, or no agreement will bind him ; Diller v . Brubaker, 52 Pa . St. 498 ;
91 Am. Dec. 177. If the trustee do some open unequivocal act, which is in
reality a denial of the rights of the cestui que trust, he is guilty of a breach ;
Norris's App . 71 Pa . St. 124 ; if the trustee is guilty of loaning trust funds to
a third person, the latter must indemnify the trustee, and if he has the prop
erty in hand, equity will compel him to restore it ; Abbott's Ex'rs v. Reeves,
49 Pa . St. 494 ; 88 Am. Dec. 510. If an assignee of a mortgage is a party to
a fraud , he takes in trust for the cestui que trust ; Dey v. Dey, 26 N. J. Eq .
182 ; Ross v. Fitzgerald, 32 N. J. Eq . 838. If a trustee is guilty of breach, he
is not entitled to any commissions ; Singleton v. Lowndes, 9 S. C. 465. If a
trustee makes an unauthorized loan, he is guilty of a breach ; N. C. R. R. Co.
v. Wilson, 81 N. C. 223 ; likewise if he purchase at his own sale ; Yeackel v.
Litchfield, 13 Allen, 417. There is no sufficient remedy in quo warranto ;
Dart v. Houston, 22 Ga . 506. To apply property to support the preaching of
any other doctrine than that appointed, is a breach ; Combe v. Brazier, 2
Desau. 431 ; see also as to breach, Woodbury v. Bruce, 59 Vt. 624 ; Wilkinson
v. Dodd, 40 N. J. Eq. 123 ; Dodd v. Wilkinson, 41 N. J. Eq. 566.
1206
CH. XXX . S. 3.] REMEDY FOR BREACH OF TRUST. *899

erty even though the withdrawal of an indictment against

the trustee be one of the terms of the arrangement .
* 3. Where a solicitor is party to a breach of trust. [ * 899]
- A solicitor, who wilfully advises a breach of trust,
is liable to be struck off the roll (a) . And à fortiori a solicitor,
who, being a trustee, himself commits a wilful breach of trust,
is amenable to the same penalty (b) . But a solicitor is not
liable as a constructive trustee for the consequences of acts
done by such solicitor, pursuant to instructions from his cli
ents, who are trustees, and exercising their legal powers,
unless the solicitor either receive some part of the trust prop
erty or assist with knowledge in some dishonest and fraudu
lent design on the part of his clients (c) . Thus a testator
devised and bequeathed his residuary estate to Crush, Lugar,
and Addy, his three trustees and executors, upon trust for
his four children, viz. Ann (who married Barnes ), Susan
(who married the trustee, Addy) , and William and Mary.
The shares of Ann and Susan were to be held upon trust for
their separate use , respectively, without power of anticipa
tion, with remainder to their children ; and the will contained
a power of appointment of new trustees vested in the exec
utors, but there was no authority to diminish their number.
Crush renounced and disclaimed, and Clarke was appointed
in his place ; but Lugar and Clarke both died, and Addy be
came sole trustee of the trust fund. The shares of Susan
and William had been satisfied, and Mary's share was not in
question ; but as to the share of Ann, the wife of Barnes,
there being disputes between Addy, the trustee, and Barnes,
Addy instructed his solicitor, Duffield , to appoint Barnes sole
trustee in the place of Addy, so far as regarded the share of
Ann Barnes . Duffield represented the danger of placing the
fund under the power of a single trustee, and advised Addy
not to do it ; but, as he persisted , he advised him at all events
to take a deed of indemnity. Duffield afterwards declined
to proceed unless a separate solicitor acted for Mrs. Barnes

(a) Goodwin v. Gosnell, 2 Coll. (c ) Barnes v. Addy, 9 L. R. Ch .

457, see p. 462 . App. 251 , per Lord Selborne.
(b) Re Chandler, 22 Beav. 253 ;
Re Hall, 2 Jur. N. S. 633.
1207
*900 REMEDY FOR BREACH OF TRUST. [CH. XXX. S. 3.

and her children , and Preston was thereupon appointed such

solicitor, and he wrote to Ann Barnes a letter explanatory of
the risk, but nevertheless Ann Barnes wished it to be done.
The deed of appointment of Barnes as sole trustee, and the
deed of indemnity which had been proposed by Duffield ,
were then approved by Preston and executed ; and Addy
transferred the share of Ann Barnes (amounting, after certain
deductions, to 20741. consols ) , into the name of Barnes, who
the next day sold it out, and applied the proceeds in his bus
iness and became bankrupt. The fund having been lost, the
children of Ann Barnes filed their bill against the
[ * 900 ] * administratrix of Addy (then deceased) , and against
Duffield and Preston, to compel them to restore the
trust fund. Addy's estate was declared liable , but the bill
was dismissed as against Duffield and Preston . The plain
tiffs appealed from this dismissal, and rested their case on
the solicitors being parties to a threefold breach of trust, viz .,
first, the appointment of a single trustee ; secondly, the
transfer of the fund into the name of a sole trustee ; and,
thirdly, the division of the fund, so that there should be a
separate trustee of each part. There was no evidence that
either Duffield or Preston suspected, or had reason to sus
pect, the good faith of Barnes, and Lord Selborne and Lord
Justice James concurred in the principle above laid down ,
and dismissed the appeal with costs (a) .
―
4. Civil proceedings . As regards civil proceedings for
compensation against the trustee, the cestui que trust, in the
event of a breach of trust, is entitled to institute proceed
ings against the trustee to compel a compensation from him
personally for the loss which the trust estate has sustained ;
and if the plaintiff has a vested interest and has reason to
apprehend that the trustee is going abroad, he may obtain a
writ of ne exeat regno (b) . [ But the breach of trust must be

(a ) Barnes v. Addy, 9 L. R. Ch . default in payment of a trust fund

App . 244. which was in his hands, and was mis
(b) Hawkins v. Hawkins , 1 Dr. & applied, he can be attached, though
Sm. 75. As to the assignment of a he may have spent the money before
right to sue for redress in respect of the date of the order for payment,
a breach of trust, see Hill v. Boyle , 4 and is unable to pay, and such trustee
L. R. Eq. 260. If a trustee has made is within the third exception of the
1208
CH. XXX . S. 3. ] REMEDY FOR BREACH OF TRUST . *901

brought home to the trustee, and if there is a doubt whether

the trustee has acted honestly and bonâ fide in the discharge
of his duty, although he may have made mistakes, the
doubt should be determined in favour of the trustee (e) .]
5. Statute of Limitations . This right to sue is not af
fected by the Statute of Limitations (d) . And even
a trustee, who was also a cestui que trust in * remain- [ * 901 ]
der, and by whose neglect the tenant for life got
possession of the fund, has been allowed, notwithstanding
the statute, to recover it from the estate of the tenant for
life who wrongfully possessed himself of it ( a ) ; and an
agent who collects debts for his employer under a power of
attorney to collect debts and hold the proceeds upon certain
trusts, is regarded as a trustee, and cannot plead the stat
ute (b) . [So directors of a company who have improperly

Debtors' Act, 32 & 33 Vict. c . 62, s. 4 ; ropolitan Bank v. Heiron, 5 Ex. D.

Middleton v. Chichester, 6 L. R. Ch. 319. ] As to the cases of Dunne v.
App . 152. Doran, 13 Ir. Eq . R. 545 , and Brereton
[(c) Per Jessel , M. R.; Re Owens, v. Hutchinson, 3 Ir. Ch. Rep. 331 ;
47 L. T. N. S. 61. ] see Brittlebank v. Goodwin, 5 L. R.
(d) Phillipo v. Munnings, 2 M. & Eq . 551. But see Carroll v. Hargrave,
C. 309 ; Browne v. Radford, W. N. 5 I. R. Eq . 123. As to suits between
1874, p . 124 ; Milnes v. Cowley, 4 solicitor and client, see Re Hind
Price, 103 ; Cator v. Croydon Railway marsh, 1 Dr. & Sm . 129.
Company, 4 Y. & C. 405 ; Downes v. (a) Butler v. Carter, 5 L. R. Eq.
Bullock, 25 Beav. 61 ; Clark v. Hos 276.
kins, 36 L. J. N. S. Ch . 689 ; Butler (b) Burdick v. Garrick, 5 L. R. Ch.
v. Carter, 5 L. R. Eq. 276 ; Brittle App. 233. Solicitors receiving money
bank v. Goodwin , 5 L. R. Eq. 545 ; in the character of agents can in gen
Hartford v. Power, 2 Ir. Rep. Eq . eral plead the statute ; Re Hindmarsh,
204 ; Woodhouse v. Woodhouse, 8 1 Dr. & Sm. 129 ; Watson v. Wood
L. R. Eq . 514 ; Burdick v. Garrick, man, 20 L. R. Eq. 721 ; but not so
5 L. R. Ch. App . 233 ; Stone v. Stone, where they receive monies bound
5 L. R. Ch . App. 74 ; Mutlow v. Bigg, expressly by a particular trust of
18 L. R. Eq. 246, reversed on other which they are conusant ; see Bur
grounds, 1 Ch. D. 385 ; Watson v. dick v. Garrick, 5 L. R. Ch . App. 240 ;
Saul, 1 Giff. 188 ; Harris v . Harris [and see Power v. Power, 13 L. R. Ir.
(No. 2) , 29 Beav. 110 ; Ernest v. 281 , where the principle was laid
Croysdill, 2 De G. F. & J. 175 ; Rolfe down, that " where there is not merely
t. Gregory, 11 Jur. N. S. 98 ; S. C. 4 an agency between the parties, but
De G. J. & S. 576 ; and see Bright v. also a superadded fiduciary relation ,
Legerton, 2 De G. F. & J. 606 ; Tyson the remedy of the principal, who is
v. Jackson, 30 Beav. 384 ; Cresswell then also the cestui que trust, is not
r. Dewell, 4 Giff. 460 ; Burrowes v. one arising merely from contract, or
O'Brien, 15 Ir. Ch . Rep. 424 ; Bur duty springing from such contract,
rowes v. Gore, 6 H. L. C. 907 ; [ Met where a common law liability would
1209
*902 REMEDY FOR BREACH OF TRUST. [CH. XXX. S. 3.

paid dividends out of capital cannot plead the statute (c) . ]

And the personal representative of a deceased trustee who
has committed a breach of trust, or a legatee or next of kin
in possession of the assets, with notice of the breach of
trust (d), cannot plead the statute, but must be answerable
in the same way as the testator or intestate would have
been (e) . But though the statute cannot be pleaded in bar,
yet where the trust fund has no actual existence, but the
suit is for damages, gross laches will per cursum cancellariæ
disentitle a plaintiff to relief, the Statute of Limitations
leaving it open to a Court of equity to act upon its own
rule as to laches and acquiescence (ƒ) . [ And where a suit
is founded on a breach of duty or fraud committed by a per
son in the position of a trustee, as where a director receives
a bribe to neglect his duty, time will commence to run so
soon as the fraud has been discovered (g) . ]
6. 36 & 37 Vict. c. 66. By a recent statute , 36 & 37
Vict. c . 66 , s . 25, subs. 2, it is expressly enacted that no
claim by a cestui que trust against his trustee in respect of
any breach of an express trust, shall be barred by any stat
ute of limitations. But 37 & 38 Vict. c. 57 , s . 10 , enacts
that from 1st January, 1879, no money or legacy
[* 902 ] charged on any land * or rent shall, though secured
by an express trust, be recoverable but within the
time allowed for recovery had there been no express
trust (a).
7. Trust money taken by a firm. Where the trustee is one of
a firm, and trust money finds its way into the coffers of the
firm, with the sanction of the partners, and is misapplied, not
only the trustee but the partners also are liable ( b) . And if

alone exist, but is one to be dealt Dunne v. Doran, 13 Ir. Eq. Rep. 545 ;
with on the equitable relation of Brereton v. Hutchinson, 3 Ir. Ch. Rep.
trustee and cestui que trust."] 361 ; Carroll v. Hargrave, 5 I. R. Eq.
[(c ) Re Flitcroft's case, 21 Ch. D. 123.
519.] (f) Philips v. Pennefather, 8 I. R.
(d) Woodhouse v. Woodhouse , 8 Eq. 486, per Sir Jos. Napier, C. S.
L. R. Eq. 514 ; see p. 521 . [(g) Metropolitan Bank v. Heiron,
(e) Story v. Gape, 2 Jur. N. S. 5 Ex. D. 319. ]
706 ; Obee v. Bishop, 1 De G. F. & J. (a) See ante, p. 885.
137 ; Brittlebank v. Goodwin, 5 L. R. (b) Eager v. Barnes, 31 Beav. 579.
Eq. 545. But see the Irish cases ,
1210
CH. XXX . S 3. ] REMEDY FOR BREACH OF TRUST . *902

one of a firm of solicitors , in transacting business with trus

tees, practise a fraud upon the trustees, the co-partners are
liable (c) .
8. Corporation liable for breach of trust. ――――――― The remedy for
a breach of trust lies against a corporation as well as against
an individual ; and a municipal corporation since the Muni
cipal Corporation Act, is liable for a breach of trust com
mitted before the Act (d).
9. Land tortiously sold. - If a trustee dispose of the trust
estate to a purchaser for valuable consideration without notice,
the cestui que trust may compel the trustee to purchase other
lands of equal value to be settled upon the like trust (e) , or
the cestui que trust may at his option take the proceeds of
the sale, with interest, or the present estimated value of the
lands sold, after deducting any increase of price caused by
subsequent improvements (f) .
-
[ 10. Trustee allowing husband to misapply the fund. -If a
trustee for the separate use of a married woman for life
allow the husband to get possession of and misapply the
trust fund without the wife's knowledge , he is liable for the
income which would but for the breach of trust have accrued
on the fund, notwithstanding that the married woman had
acquiesced in the payment of the income prior to the breach
of trust to her husband, for in such a case no assent on her
part to the retainer by the husband of the subsequent income
can be presumed (g) . ]
11. Neglect to accumulate. -Where a testator had directed
an investment in Three per Cent. Consolidated Bank An
nuities and an accumulation of the dividends, the trustee was
decreed to purchase the sum of stock which the fund, if
regularly invested , would have produced, and to make good
the amount due in respect of subsequent accumulatio (h) .

(c) Sawyer v. Goodwin, 36 L. J. 303 ; Macnamara v. Carey, 1 Ir. R. Eq.

N. S. Ch. 578 ; Long v . Hay, W. N. 23 ; and see 37 & 38 Vict. c. 78.
1871 , p. 134. (f) See Attorney-General v. Bur
(d) Attorney-General v. Corpora gesses of East Retford , 2 M. & K. 35 ;
tion of Leicester, 9 Beav. 546. but see Denton v. Davies , 18 Ves. 504.
(e) See Mansell . Mansell, 2 P. [ (g) Dixon v. Dixon , 9 Ch . D. 587. ]
W. 681 ; Vernon v. Vaudrey, Barn. (h) Pride v. Fooks, 2 Beav. 430 ;
see Byrchall v. Bradford, 6 Mad. 13 ;
1211
*903 REMEDY FOR BREACH OF TRUST. [ CH. XXX. S. 3.

12. Covenant to transfer stock . If a settlement contain a

covenant for the transfer of stock, [ or the creation
[ * 903 ] of a charge upon property, ] and the trustee * neglects
to enforce the transfer (a) , [or the creation of the
charge (b) , ] he is liable for all the consequences.
13. Neglect to sell. - So if there be a trust for sale, and
the trustee neglects to sell for a great length of time, whereby
the property is deteriorated , he is answerable for the loss (e) .
14. Policy forfeited. — If a trustee suffer a policy of insur
ance to become forfeited through neglect to pay the premiums,
he is bound to make good the loss to the cestui que trust (d) ;
provided, that is, he had funds in hand for payment of the
premiums, for if he had none and could procure none, he
would be exempt from liability (e) . He may, however,
either advance money himself, or borrow it from another
on the security of the policy, and a lien on the policy will
be allowed (f) . If there be no means of keeping up the
policy the Court will direct it to be sold or surrendered (g) .
[ 15. Policy improperly given up to husband and surrendered
by his mortgagee . - In a recent case where a trustee had
neglected to give notice of a settlement affecting a policy to
the insurance office , and had , in contemplation of a breach
of trust, retired in favour of a single trustee, who allowed
the husband to get possession of the policy, whereupon he

S. C. Id. 235 ; and see ante, pp. 335 , monies secured by a policy can be
336. created in favour of a mere stranger,
(a) Fenwick v . Greenwell , 10 Beav. or a part owner by payment of pre
412. miums are the following : 1. By con
[(b) Cleary v. Fitzgerald, 7 L. R. tract with the beneficial owner of the
Ir. 229. ] property. 2. By reason of the right
(c) Devaynes v. Robinson, 24 of trustees to an indemnity out of
Beav. 86 ; Sculthorpe v. Tipper, 13 their trust property for money ex
L. R. Eq . 232. pended by them in its preservation.
(d) Marriott v. Kinnersley, Taml. 3. By subrogation to this right of
470. trustees of some person who has at
(e) Now so decided, Hobday v. their request advanced money for the
Peters (No. 3) , 28 Beav. 603. preservation of the property. 4. By
(f) Clack v. Holland, 19 Beav. reason of the right of a mortgagee to
273, 276, per Cur.; Ke . Layton's add to his charge any money paid by
Policy, W. N. 1873, p. 49 : and see him to preserve the property ; Re
Johnson v. Swire, 3 Giff. 194 ; Todd Leslie, 23 Ch . D. 552. ]
v. Moorhouse, 19 L. R. Eq. 69. [The (g) Hill v. Trenery, 23 Beav. 16 ;
only cases in which a lien upon the Beresford v. Beresford, Ib. 292.
1212
 CH. XXX. S. 3. ] REMEDY FOR BREACH OF TRUST . * 904

had received a bonus and mortgaged the policy, and the

mortgagee had surrendered it ; it was held that, although
there were no funds available for keeping up the policy, the
original trustee, inasmuch as there was a clear breach of
trust in neglecting to give notice to the office and in parting
with the possession of the policy, was liable for the amount
of the bonus and of the monies received on the surrender (h) .
16 . Director accepting shares from promoters. Where a
director of a company accepted fully paid up shares from
the promoters, under circumstances which were held to
amount to a misfeasance on his part, and the shares, which
at one time had been worth £ 80 a share, had become
*
so much depreciated as to be worth only £ 1 a share, [ * 904]
it was held that the director was a trustee of the
shares for the company, that restitution of the shares by the
director was not sufficient, but that the company might elect
to have the value of the shares, and that the value was to be
taken at £ 80 a share, which was to carry interest at £ 4 per
cent. from the date of the transfer to the director (a) . ]
17. Neglect to give notice of assignment . If the trustees
of a marriage settlement take by assignment choses en action
of the husband, and neglect to give notice of the settlement to
the persons in whom the choses en action are vested, and on
the bankruptcy of the husband the choses en action, as left in
his order and disposition with the consent of the true owner,
become forfeited in favour of the creditors, it is appre
hended that the trustees would be liable for their neglect of
duty in not having given notice of the settlement, so as to
take the property out of the order and disposition of the
settlor (b).
18. So if the trustee of a deed which re
Registration.
quires registration to protect the property neglect to register
it, he is answerable for the consequences (c) .

(h) Kingdon
J.N. S. Ch. 448. ]v. Castleman , 46 L. (b) As to what particulars are
(a ) Nant-y-G and Blaina Iron within the operation of the clause,
wo[
rks Company lo v. Grave , 12 Ch . D. see [ 46 & 47 Vict. c. 52, s. 44 ; and
738.] ante, p . 242.]
(c) Macnamara v. Carey, 1 Ir.
Rep. Eq. 9.
1213
*905 REMEDY FOR BREACH OF TRUST. [CH. XXX. S. 3.

19. Power imperative. - A trust is sometimes in the form of

a power imperative ; that is, a power which it is the bounden
duty of the trustee to execute, and if through his neglect to
execute it a loss arises he will be held responsible (d) .
20. Receipt by person not a trustee. but acting as such.
If a person has assumed to act as trustee, and having received
money in that character misapplies it, he is accountable for
the proceeds to the cestui que trust, and cannot defend him
self by showing that in fact he was not legally a trustee (e) ,
or that when he committed the breach he did not know who
his cestui que trust was (ƒ) . But the trustee of a devised
estate will not be accountable for property comprised in the
devise, but the existence of which did not come to his knowl
edge, and which he was not bound to have discovered (g) .
21. Wilful default. ――――――-If an action be brought for an
[ * 905 ] account and the plaintiff seeks relief against wilful
default, he must in his pleadings allege some specific
act of wilful default ( a) , and pray consequential relief ; and
at the hearing must prove some act of wilful default, or at
least establish a case for enquiry (b) ; and à fortiori where,
at the original hearing, the common accounts only were
directed, it is too late to ask relief on further directions
against any wilful act that may have transpired accidentally
in the course of other enquiries ( c) ; and a trustee cannot be
declared liable for wilful default upon a common order made
at chambers for the administration of the testator's estate (d) .
(d) Luther v. Bianconi, 10 Ir. Ch. (g) Youde v. Cloud, 18 L. R. Eq.
Rep. 194. 634.
(e) Rackham v. Siddal, 16 Sim. (a) Bond v. McWatty, 14 Ir. Ch.
297 ; affirmed on appeal to the extent Rep. 174 ; Wildes v. Dudlow, W. N.
of the interest of the plaintiff, the 1870, pp . 85 , 231 , [ and see Mayer v .
tenant for life, 1 Mac. & G. 607 ; Murray, 8 Ch . D. 424 ; Smith 2.
Pearce v. Pearce, 22 Beav . 248 ; and Armitage, 24 Ch . D. 727. ]
see Derbishire v. Home, 3 De G. M. (b) Sleight v. Johnson, 3 K. & J.
& G. 80 ; Hope v . Liddell, 21 Beav. 292.
183 ; Life Association of Scotland v. (c) Coope v. Carter, 2 De G. M. &
Siddal, 3 De G. F. & J. 58 ; Hennessey G. 292 ; Askew v. Woodhead ; 28 L.
v. Bray, 33 Beav . 96 ; Ex parte Norris, T. N. S. 465 ; 21 W. R. 573.
4 L. R. Ch . App . 280 ; Yardley v. (d) Re Fryer, 3 K. & J. 317 ; Par
Holland , 20 L. R. Eq. 428 ; Smith v. tington v. Reynolds, 4 Drew. 253 ; Re
Smith, 10 Ir. Rep. Eq . 273. Delevante, 6 Jur. N. S. 118 ; but see
(f) Ex parte Norris, 4 L. R. Ch. Brooker v. Brooker, 3 Sm. & G. 475.
App. 280.
1214
CH. XXX. S. 3.] REMEDY FOR BREACH OF TRUST. *906

But if the plaintiff pray an account with interest, and at the

original hearing an account is directed, and in the course of
the accounts improper balances appear to have been retained,
interest on the balances may be asked for at the hearing on
further directions (e ) . And if relief against a breach of
trust be prayed, and at the original hearing the usual ac
counts only are directed, but with an enquiry who are the
parties interested, it is not too late to ask relief against the
breach of trust on further directions, as before that time.
the Court was not in a condition to deal with the ques
tion (f) ; [and under the modern practice where the state
ment of claim alleges wilful default the Court may at any
stage of the proceedings direct accounts and enquiries upon
that footing (g) . But where there are allegations of wilful
default or improper conduct on the part of the defendants ,
it is the duty of the plaintiff to be ready at the hearing
to prove such allegations, and the Court will not, unless a
strong case is made out for so doing, postpone the enquiry
into the conduct of the trustees, where the plaintiff was not
in a position at the hearing to go into the charges ( h) . ]
And in a redemption suit it is not necessary that the plain
tiff should charge wilful default (i) ; nor is the case altered
if the deed though in substance a security, be in the form
of a deed of trust ( ) . And in a case under the old prac
tice it was held that where executors filed a bill for the
administration of their testator's estate, it was competent
to a defendant to allege by his answer a case of
* wilful default by the executors, and that on proof [ * 906 ]
of it at the hearing, the Court would give the neces
sary directions without obliging the defendant to file a cross
bill ( a ) . It is not competent to a remainderman to insti
tute proceedings for relief against wilful default in respect

(e) Shaw v. Turbett, 13 Ir. Ch. [ (h) Smith v. Armitage, 24 Ch . D.

Rep. 476 . 727.]
(f) Pattenden v. Hobson, 1 Eq. [ ( ) Mayer v. Murray, 8 Ch. D.
Rep . 28. 424.]
[ (g) Job v. Job, 6 Ch. D. 562 ; Re (j) O'Connell v . O'Callaghan, 15
Symons, 21 Ch . D. 757 ; Mayer v. Ir. Ch. Rep. 31.
Murray, 8 Ch . D. 424 ; and see (a) Harvey v. Bradley, 4 L. R. Eq.
Laming v. Gee, 10 Ch . D. 715.] 13.
1215
*906 REMEDY FOR BREACH OF TRUST . [CH. XXX. S. 3.

of the prior life estate, for he has no interest in the income,

but only in the corpus (b) .
22. Suit against trustee's personal representative. An ex
ecutor or administrator of a trustee will be answerable for a
breach of trust, though he may have distributed the assets
amongst the legatees or next of kin without previous notice
of the breach of trust (except it was done under the sanction
of the Court (c) , or under the provisions of Lord St. Leon
ards ' Act, 22 & 23 Vict. c . 35, s . 29) ; and the Statute of
Limitations affords him no protection ( d) : or the cestui que
trust, if he has not been lying by while the rights of the
defendants have been varied by lapse of time (e) , may re
cover the assets directly from the legatees or next of kin
amongst whom they have been distributed (ƒ) .
23. Breach of trust an equitable debt only . The debt con

stituted by a breach of trust is even after it has been estab

lished by a decree an equitable debt only, and until the
Bankruptcy Act , 1869 , would not have supported a petition
in bankruptcy (g) .
24. Breach of trust constitutes simple contract debt, unless
the trustee has covenanted . —The claim of the cestui que
trust is in general a simple contract debt, and therefore, until
the late Act, making a person's whole real and personal
estate liable to his simple contract debts, it was recoverable,
not from the real, but only from the personal estate . But .
if the trustee sign the trust deed and engage under his hand
and seal, by words that amount to a covenant at law, to exe
cute the trust, then the breach of trust becomes a specialty
debt (h) .

(b) Whitney v. Smith, 4 L. R. Ch. (ƒ) March v. Russell, 3 M. & Cr.

App. 513. 31 ; Knatchbull v. Fearnhead, 3 M. &
(c) Knatchbull v. Fearnhead , 3 M. Cr. 126 ; Underwood v. Hatton, 5 Beav.
& Cr. 122 ; March v. Russell, 3 M. & 38.
Cr. 31 ; Low v. Carter, 1 Beav. 423 ; (g) Ex parte Blencowe, 1 L. R. Ch.
Hill v. Gomme, Ib. 540 ; Underwood App. 393. See 32 & 33 Vict. c. 71 , s.
v. Hatton, 5 Beav. 39 ; Waller v. Bar 6, and Ex parte Sturt & Co. 13 L. R.
rett, 24 Beav. 413. Eq. 309 ; [and see now 46 & 47 Vict.
(d) See p. 897, ante. c. 52, s. 6 ; which although not
(e) Ridgway v. Newstead, 3 De G. specially mentioning equitable debts
F. & J. 474. includes them. ]
(h) See supra, pp. 205, 206.
1216
CH. XXX. S. 3. ] REMEDY FOR BREACH OF TRUST . *907

25. Retainer by personal representative of insolvent trustee.

-If a [sole ] trustee die insolvent and indebted to the trust
estate, the personal representative of the trustee has a right
of retainer in respect of the debt to the trust as against other
creditors, and on the cestuis que trust requiring him to exer
cise such right of retainer, he is bound to do so (i) .
* 26. Immaterial whether trustee was gainer or loser [ * 907 ]
――――-
by the breach of trust. In awarding compensation
to the cestui que trust against the trustee, the Court pays no
regard to the circumstance whether the trustee derived any
actual advantage or not, but proceeds upon the principle, that
a trustee, who deviates from the line of his duty, is under an
obligation to make good the loss to the cestui que trust (a)
and if a trustee be guilty of misconduct, and a loss follows,
the Court does not acquit him, because the loss was more
immediately caused by some event wholly beyond the con
trol of the trustee, such as fire, lightning, or other acci
66
dent (b) . Although," said Lord Cottenham , " a personal
representative acting strictly within the line of his duty, and
exercising reasonable care and diligence , will not be respon
sible for the failure or depreciation of the fund in which any
part of the estate may be invested, or for the insolvency or
misconduct of any person who may have possessed it ; yet if
that line of duty be not strictly pursued, and any part of
the property be invested by such personal representative in
funds, or upon securities, not authorised, or be put within
the control of persons who ought not to be entrusted with
it, and a loss be thereby eventually sustained , such personal
representative will be liable to make it good, however unex
pected the result, however little likely to arise from the

(i) Sander v. Heathfield, 19 L. R. 1 Sch. & Lef. 272 ; Lord Montford v.

Eq. 21 ; [ Crowder v. Stewart, 16 Ch. Lord Cadogan, 17 Ves . 489 ; Scurfield
D. 368 ; Re Dunning, 33 W. R. 760 ; v. Howes , 3 B. C. C. 90 ; but see At
54 L. J. Ch . 900. But see ante, p . 831, torney-General v. Greenhouse, 1 Bligh,
as to the right of the creditors to have N. S. 57-59.
the estate administered in Bank (b) See Caffrey v. Darby, 6 Ves.
ruptcy.] 496 ; Cocker v. Quayle, 1 R. & M.
(a) See Dornford v . Dornford, 12 535 ; Fyler v. Fyler, 3 Beav. 568 ;
Ves. 129 ; Raphael v. Boehm, 13 Ves. Kellaway . Johnson , 5 Beav. 324 ;
411 ; S. C. Ib. 590, 591 ; Moons v. De Munch v. Cockerell, 5 M. & Cr. 212 ;
Bernales, 1 Russ. 305 ; Adair v. Shaw, Gibbins v. Taylor, 22 Beav. 344.
1217
*908 REMEDY FOR BREACH OF TRUST . [CH. XXX . S. 3.

course adopted, and however free such conduct may have

been from any improper motive " (c) .
27. Case of trustee bringing a profit as well as a loss to the
trust. - And a trustee who is liable for a loss occasioned by
a breach of trust in respect of one portion of a trust fund,
cannot set off against his liability a gain which has accrued
to another portion of the trust fund through another distinct
and wholly unconnected breach of trust (d) ; and even in
the same matter, where executors were directed to convert
the testator's property and invest it in Government or real
securities, and they allowed the tenant for life for eleven
years to receive 10 per cent. on an Indian loan, and then
invested the capital in a purchase of Bank Annuities, and
the stock purchased was considerably more than could have
been purchased with the same capital at the end of one year
from the testator's death, they were not only made liable for
the excess of interest paid to the tenant for life, but
[* 908 ] were disallowed their claim * to set off against their
liability the accidental advantage accruing to the
trust from a purchase of a larger sum of Bank Annuities
than could otherwise have been purchased from their laches
in making the investment, and the depreciation of the funds
during the interim (a).
28. Trustee not chargeable with imaginary values . -A
defaulting trustee will not be charged with imaginary
values (b) ; and being regarded as a mere stakeholder, he
will not be liable for more than he has actually received (e),
except in cases of very supine negligence, or wilful de
fault (d).
[ 29. Liable for value of new allotted shares. - Where a
trustee neglected to get in certain gas shares which formed
part of the trust estate, and certain new shares were allotted
in respect of the old gas shares, and were taken up by the

(c) Clough v. Bond, 3 M. & Cr. (b) Palmer v. Jones, 1 Vern. 144.
496. (c) Harnard v. Webster, Sel. Ch.
(d) Wiles v. Gresham, 2 Drew. Ca. 53.
258 ; see p. 271. (d) Pybus v. Smith, 1 Ves. jun.
(a ) Dimes v. Scott, 4 Russ. 195 ; 193, per Lord Thurlow ; Palmer v.
and see Fletcher v. Green, 33 Beav. Jones, 1 Vern. 144, per Lord Notting
426. ham.
1218
CH. XXX. S. 3.] REMEDY FOR BREACH OF TRUST. *909

person who had been allowed to hold the original shares, it

was held that the trustee must make good the value of the
new shares, less the amount of calls paid upon them, for
they were an accretion to and, as such, part of the trust (e) .
――――――
30. Insufficient security. If trust money be advanced on
an insufficient security, the Court will not in an action .
instituted by one trustee against his co-trustees in the
absence of the cestuis que trust, order the securities to be
realised merely to ascertain the deficiency, for the cestuis que
trust may prefer either to retain the securities or proceed to
a foreclosure, and they cannot in their absence be deprived
of their rights (f) . ]
31. Co-trustees guilty of breach of trust are severally re
sponsible for the whole loss . Where co-trustees are jointly
implicated in a breach of trust, the cestui que trust, though
he obtains a decree against the trustees jointly, may have
process of execution against any one of them separately (g) ;
for as regards the remedy of the cestui que trust there is no
primary liability, but each trustee is responsible for the
entirety of the loss incurred (h) . However, where the
trustees are in pari delicto the decree is usually enforced
against the trustees equally (i) ; and in one case,
where a trustee had refused to accept * the office [ * 909]
unless another should be named with him, and the
trust money be divided between them, so that each might be
responsible for a moiety only, and this was accordingly done,
but the trust deed was drawn in the usual form as if they
were joint trustees of the whole sum, it was held, upon the
insolvency of one of the trustees, that the co-trustee should
not be answerable for more than the moiety paid to himself,

[(e) Briggs v. Massey, 50 L. J. N. parte Angle, Barn . 425 ; Re Chertsey

S. 747 ; varied on app. 51 L. J. N. S. Market, 6 Price, 278, 279 ; Ex parte
447.] Norris, 4 L. R. Ch . App . 280 ; [ Ex
[(f) Butler v. Butler, 5 Ch. D. parte Craven, W. N. 1885, p . 21.]
554 ; 7 Ch. D. 116. ] (h) See Wilson v . Moore, 1 M. &
(g) Ex parte Shakeshaft, 3 B. C. K. 146 ; Lyse v. Kingdon, 1 Coll. 188 ;
C. 197 ; Walker v . Symonds, 3 Sw. Richardson v. Jenkins, 1 Drew. 477 ;
74, 75 ; Attorney- General v. Wilson, Alleyne . Darcy, 4 Ir. Ch . Rep. 206 ;
Cr. & Ph. 28, per Lord Cottenham ; Jenkins . Robertson, 1 Eq. Rep. 123.
Taylor r. Tabrum , 6 Sim. 281 ; Fletch (i) Rehden v. Wesley, 29 Beav.
er v . Green, 33 Beav. 426 ; and see Ex 215, per M. R.
1219
*909 REMEDY FOR BREACH OF TRUST. [CH. XXX. S. 3.

the division of the trust money having been, Sir J. Leach

observed, " a term in the creation of the trust ” (a) .
[ 32. Joint judgment against partners no merger of separate
liability. Where trust property is misappropriated by a firm
so that the partners are jointly and severally liable to make
good the loss, and the firm is adjudicated bankrupt on a
judgment debt recovered against the firm by the owner of
the trust property, the several liability of the partners is not,
solely by reason of the creditor having recovered a joint
judgment, merged in such judgment so as to preclude proof
by the judgment creditor against the separate estates (b) . ]
33. Liability for the costs of suit. ―― Where the defendants
are involved in a breach of trust, the Court decrees costs
against them jointly, and does not distinguish between the
relative culpabilities of the defendants (e) . But where the
plaintiff in pursuance of the decree recovered all the costs
from a single co-defendant, the latter obtained an order in the
same cause upon a motion (which however was not opposed)
for contribution by the other defendants (d) .
34. Liability and contribution as between the trustees them
selves, or between them and other parties . Though, as re
spects the remedy of the cestui que trust, each trustee is
individually responsible for the whole amount of the loss,
whether he was the principal in the breach of trust , or was
merely a consenting party, yet, as between the trustees
themselves, the loss may be thrown upon the party on whom,
as recipient of the money or otherwise , the responsibility
ought in equity to fall, or if he be dead, upon his estate ;
and this claim of the innocent trustee (though formerly
only a simple contract debt as between himself and his co
trustee, even where the breach of trust as between them
and the cestuis que trust was a specialty debt ) , is now in such
cases by the effect of the Mercantile Law Amendment
Act (e) a specialty debt also (f) . If all the trustees be
(a ) Birls v. Betty, 6 Mad. 90. (e) 19 & 20 Vict. c. 97.
[(b) Re Davison, 13 Q. B. D. 50. ] (f) Lockhart v. Reilly, 1 De G.
(c) Lawrence v. Bowle, 2 Ph. 140 ; & J. 464 ; Priestman v. Tyndall, 24
1 C. P. Coop . t. Cott. 241. Beav. 244.
(d) Pitt v. Bonner, 1 Y. & C. C. C.
670.
1220
CH. XXX. S. 3. ] REMEDY FOR BREACH OF TRUST. * 910

equally guilty, then (unless the transaction was vitiated by

not only constructive but such actual fraud, that the
*
Court will hold itself entirely aloof (g) , ) an appor- [ * 910]
tionment or contribution amongst the trustees may
be compelled, which under the old practice was not allowed,
in the same suit, but on a bill filed for the purpose (a) .
And if in the suit for recovery of the trust fund any ben
efit, as a legacy , be coming in the same matter to one of two
defaulting trustees, the other trustee , if he pay the whole of
what is due to the cestuis que trust, will have a lien on the
legacy of the co-trustee for the amount of contribution he
ought to pay (b) .
[35. One of the trustees gaining by breach not primarily lia
ble. ―- If a breach of trust be committed from which one of
the trustees derives indirectly a personal benefit, the other
trustees who were parties to the breach have no equity
against the trustee deriving the benefit to make him prima
rily liable for the breach (c) . An executor who has been
decreed to make good the loss incurred by his wilful default
in not getting in part of the assets from the trustee of a set
tlement who has been allowed to retain and misappropriate
them, is not thereby precluded from subsequently recovering
from the trustee the amount misappropriated by him.¹]

(9) See Lingard v. Bromley, 1 V. Wilson v. Goodman, 4 Hare, 54 ;

& B. 114 ; Tarleton v. Hornby, 1 Y. & Paull v. Mortimer, W. N. 1873, p.
C. 336 ; Attorney-General v. Wilson, 199 ; Keogh v. Keogh, 8 I. R. Eq. 179.
Cr. & Ph. 28. But see now 36 & 37 Vict. c. 66, s. 24,
(a) Fletcher v. Green ( No. 2 ) , 33 subs. 3, and the 48th and following
Beav. 513 ; Attorney-General v. Dall rules, and rule 55 of the 16th Order
gars, 33 Beav. 624, per Cur.; Coppard of the Rules of the Supreme Court,
v. Allen, 2 De G. J. & S. 177, per L. 1883 ; [and Butler v. Butler, 14 Ch.
J. Turner ; Ex parte Shakeshaft, 3 D. 329 ; and Sawyer v. Sawyer, W.
B. C. C. 198, per Lord Thurlow ; Lin N. 1883, p. 212 ; where an enquiry
gard v. Bromley, 1 V. & B. 114 ; Perry was directed how and in what propor
v. Knott, 4 Beav. 180, per Lord Lang tions as between the trustees the sum
dale ; and see Knatchbull v. Fearn to be paid to the plaintiffs should be
head, 3 M. & Cr. 122 ; Pitt v. Bonner, borne and paid . ]
1 Y. & C. C. C. 670 ; Ex parte Burton, (b) Birks v. Micklethwait, 33 Beav.
3 M. D. & De G. 373 ; Baynard v. 409.
Woolley, 20 Beav. 583 ; Jesse v. Ben [(c) Butler v. Butler, 5 Ch . D. 554 ;
nett, 6 De G. M. & G. 609 ; and see 7 Ch. D. 116. ]

1 Scotney v. Lomer, 29 Ch . D. 535.

1221
* 911 REMEDY FOR BREACH OF TRUST. [CH. XXX. S. 3.

36. The gainer by the breach of trust is ultimately liable. -

As between the trustees and a third person who has reaped
the benefit of the breach of trust, though the trustees must
make the disbursement in the first instance to the injured
party, the loss will eventually be cast on the person who was
the gainer by the breach of trust (d) . But the circumstance
that the breach of trust was committed at the instance of a
cestui que trust will not per se impose upon him the obliga
tion of indemnifying the trustee generally. Thus in Raby
v. Ridehalgh (e) , where the cestuis que trust, the tenants for
life, had instigated the breach of trust, L. J. Turner asked ,
" Has the Court in a suit of this nature ever gone the length
of ordering the cestuis que trust personally to recoup the
trustee ? " and the Court directed the tenants for
[* 911 ] life to account to the trustee only for the monies
which had been received by them under the breach
of trust, and this has since been followed by other decis
ions (a) .
37. The interest of parties committing a breach of trust may
be stopped to compensate the trust. -If a cestui que trust
whether tenant for life, or other person having a partial
interest, be responsible for having joined in a breach of trust,
all the benefit that would have accrued to him, either directly
or derivatively (b) , either from that trust fund, or any other
estate comprised in the same settlement ( c), may be stopped
by the cestuis que trust, or other person having a similar

(d) Trafford v. Boehm , 3 Atk. 440 ; Rep. 351 ; Bently v. Robinson, 9 Ir.
Greenwood v. Wakeford, 1 Beav. 580 ; Ch. Rep. 479 ; and see Walsham v .
Booth v. Booth, 1 Beav. 125 ; Lord Stainton, 1 H. & M. 337 ; [ Butler
Montfort . Lord Cadogan, 17 Ves. v. Butler, 5 Ch. D. 554 ; 7 Ch . D.
485 ; 19 Ves . 635 ; S. C. 2 Mer. 3 ; 116. ]
Birks v. Micklethwait, 33 Beav. 409 ; (b) Jacubs v. Rylance, 17 L. R.
and see Howe v. Earl of Dartmouth, Eq . 341 .
7 Ves. 150 , 151 ; Jacob v. Lucas, 1 (c) Woodyatt v. Gresley, 8 Sim.
Beav. 436 ; Lincoln v. Wright, 4 Beav. 183 ; Ex parte Mitford, 1 B. C. C.
432 ; Tickner v. Old , 18 L. R. Eq. 398 ; see Priddy v. Rose, 3 Mer. 105 ;
422 ; Vaughan v. Vanderstegen, 2 Burridge v. Row, 1 Y. & C. C. C. 183,
Drew. 165, 363 ; Hobday v . Peters 583 ; Lincoln v. Wright, 4 Beav. 432,
(No. 2) , 28 Beav. 354 ; Fetherstone per Lord Langdale ; Fuller v . Knight,
v. West, 6 I. R. Eq . 86. 6 Beav. 205 ; M'Gachen v . Dew, 15
(e) 7 De G. M. & G. 108. Beav . 84 ; Vaughton v. Noble , 30
(a ) Brown v. Maunsell, 5 Ir. Ch. Beav. 34.
1222
 CH. XXX . S. 3. ] REMEDY FOR BREACH OF TRUST. *912

equity, as against him, his assignees in bankruptcy (d) , or

judgment creditors (e ) , or general creditors (f) ; and (except
so far as the defence of purchase for value without notice may
be applicable) against all who claim under him (g) , until the
1 amount impounded, with the accumulations thereon (h), has
compensated the trust estate for the loss for which that cestui
que trust is responsible. [ And even an estate legally vested
in the wrongdoer by the settlement (being an instrument
inter vivos) may by virtue of an implied contract be made
available for repairing the breach of trust (i) , but the doc
trine cannot be extended to a legal devisee as there no con
tract can be implied, and in the absence of contract a Court
of equity has no control over the estate (j) . ] And the rule
applies to a feme covert entitled to her separate use [with no
restraint on anticipation, if she had full knowledge of all the
circumstances and acted independently in the transactions
which constituted the breach of trust, but she will not be
held liable merely because she acquiesced in or approved of
the breach trust unless she took part in it (k) ; and she will not
be liable ] where her power of anticipation is restrained (1) ;
and if the cestui que trust be one of three trustees and
joined with the * co-trustees in a breach of trust, and [ * 912 ]
the co-trustees have been made to repair the breach
of trust, the co-trustees have a lien on the share of the cestui
que trust, who is also a trustee, for a contribution of one
third, but without interest, towards the amount paid by them
for clearing the joint breach of trust (a ) . It was contended
in one case, that where an estate was devised to a person who

(d) Ex parte Turpin, 1 D. & C. v. Muddle, 10 Hare, 186 ; and see

120 ; Ex parte Smith, 1 Deac. 143 ; Morris v. Livie, 1 Y. & C. C. C. 380.
Ex parte King, 2 M. & A. 410 ; Prime (h) Ex parte King, 2 M. & A. 410.
v. Savell, W. N. 1867 , p . 227 ; Jacubs [ Woodyatt v. Gresley, 8 Sim.
v. Rylance, 17 L. R. Eq . 341 ; see 180. ]
Smith v. Smith, 1 Y. & C. 338 ; Bur [ (j) Egbert v. Butter, 21 Beav.
ridge v. Row, 1 Y. & C. C. C. 183, 560 ; Fox v. Buckley, 3 Ch . D. 508 ;
583 ; [ Corr v. Corr, 3 L. R. Ir. 435. ] and see Ex parte Barff, De Gex, 613.]
(e) Kilworth v. Mountcashell, 15 [(k) Sawyer v. Sawyer, 28 Ch. D.
Ir. Ch. Rep. 565. 595 ; and see ante, p. 768. ]
(f) Williams v. Allen ( No. 2) , 32 (1) See pp. 759, 787, supra.
Beav. 650. (a) Prime v. Savell, W. N. 1867 ,
(9) Woodyatt v. Gresley, 8 Sim. p. 227.
180 ; Priddy v. Rose, 3 Mer. 86 ; Cole
1223
*912 BANKRUPTCY OF TRUSTEE. [ CH. XXX. S. 3.

was a debtor to the testator, the debt was a lien on the devised
estate, but the Court not finding any precedent did not allow
the claim (b).
38. Bankruptcy of the trustee . If the trustee become
bankrupt, the loss may be proved against his estate ( c) ,
and without proceeding in equity to establish the breach
of trust ( d) , and if interest would have been decreed in
equity against the trustee himself, it will constitute part of
the debt in the proof against his estate in the hands of his
trustee in bankruptcy (e) , and if the breach of trust was a
sale of stock, the cestui que trust may, at his option, prove for
the proceeds of the sale , or for the value of the stock at the
date of the bankruptcy (ƒ) , and if the bankrupt be a debtor
to the trust, and entitled himself to a reversionary interest
in the debt, the trustee may nevertheless prove for the whole
debt, without any set-off for the reversionary interest (g) .
And if a trustee prove for the whole debt he may still retain
any beneficial interest of the bankrupt in the trust estate by
way of lien or set-off in further discharge of the debt (h) ,
[ for the trustee cannot be allowed by an act of this kind to
prejudice the cestuis que trust (i ) . ] But if an executor who

(b) Ex parte Barff, De Gex, 613. (f) Ex parte Shakeshaft, 3 B. C. C

(c) Keble v. Thompson, 3 B. C. C. 197 ; Ex parte Gurner, 1 M. D. & De
112 ; Moons v. De Bernales, 1 Russ. G. 497 ; and see Ex parte Moody, 2
301 ; Dornford v. Dornford, 12 Ves. Rose, 413 ; Ex parte Stutely, 1 M. D.
127 ; Ex parte Shakeshaft, 3 B. C. C. & De G. 643.
197 ; Bick v. Motley, 2 M. & K. 312 ; (g) Ex parte Stone, 8 L. R. Ch .
Lincoln v. Wright, 4 Beav. 427 ; [ 46 App. 914.
& 47 Vict. c. 52, s . 37. ] (h) Ex parte Dicken , Buck, 115.
(d) Ex parte Norris, 4 L. R. Ch. [ (i) Per Lord Chelmsford, L. C.,
App. 280. Stammers v. Elliott, 3 L. R. Ch. App .
(e) Dornford v. Dornford, 12 Ves. 200.]
127 ; Bick v. Motley, 2 M. & K. 312 ;
Moons v. De Barnales, 1 Russ. 301 .

1 A bankrupt may be a trustee ; Blin v. Pierce, 20 Vt. 25 ; Butler v. Ins.

Co. , 14 Ala. 798 ; Wilhelm v. Folmer, 6 Barr, 296. Insolvency or bankruptcy
of the trustee does not disqualify him ; Shryock v . Waggoner, 28 Pa . St. 430 ;
Belknap v. Belknap, 5 Allen , 468. Trust property vested in a bankrupt does
not pass to his assignee ; Blin v. Pierce, 20 Vt . 25 ; Lounsbury v . Purdy, 11
Barb. 490 ; Kip v. Bank, 10 Johns. 63 ; Ludwig v. Highley, 5 Barr, 132. The
trustee merely holds the legal estate for the benefit of the cestui que trust, and
it is not affected by any embarrassments or liabilities of the trustee, and so is
not affected by the bankruptcy of the trustee ; Porter v . Bank, 19 Vt . 410 ;
Beaver v. Filson, 8 Barr, 327.
1224
CH. XXX . S. 3.] BANKRUPTCY OF TRUSTEE. *913

represents the absolute ownership of the personal estate

prove for the whole debt, it is deemed a waiver of any lien
which the executor might otherwise have had upon the
bankrupt's interest in such personal estate ( ) , and if the
bankrupt, in whose hands the trust fund was, be one of the
trustees, and indebted to the trust estate, and also have a
present beneficial interest in the trust, proof cannot be made
for the whole amount, but only for the balance, after setting
off the bankrupt's beneficial interest against the debt due
from him (k).
[*
* 39. Where one trustee a bankrupt but balance due [ * 913]
to the trustees on the accounts. - If one of two trus
tees becomes bankrupt and is a debtor to the trust estate,
and a balance is found due to the two trustees in taking
their accounts , the balance will not be set off against the
debt of the bankrupt trustee to the prejudice of the solvent
trustee, but an account will be directed, so as to ascertain
how much of the balance is due to the solvent trustee and
how much to the bankrupt trustee , and the set-off will be
confined to the latter account ( a) . ]
40. Trustee a partner and lending the trust money to the firm
with notice. If the trustee was one of a bankrupt firm, to
which the trust money had been lent, proof may be made
either against the joint estate of the firm, or the separate
estate of the bankrupt trustee, and of any other of the part
ners who may have constituted themselves trustees or taken
an active part in the breach of trust (b) ; but not against
both the joint and separate estates ( c) , and if the bankrupt
had laid out the trust money on a mortgage, the cestui que
trust is not put to his election whether he will prove for the
debt, and abandon the mortgage, or take the mortgage and
abandon the debt, but may prove for the debt, and have the

(j) Stammers v. Elliott, 3 L. R. Ex parte Watson, 2 V. & B. 414 ;

Ch . App. 195. Smith v. Jameson, 5 T. R. 601 ; Exparte
(k) Ex parte Turner, 2 De G. M. Bolland, 1 Mont. & Mac. 315 ; Ex
& G. 927 ; Ex parte Bishop, 8 L. parte Poulson, De Gex, 79 ; Ex parte
R. Ch. App . 768. Barnewall, 6 De G. M. & G. 801.
[ (a ) McEwan v. Crombie, 25 Ch. (c) Ex parte Barnewall, 6 De G.
D. 175.] M. & G. 795.
(b) Ex parte Heaton , Buck, 386 ;
1225
*914 BANKRUPTCY OF TRUSTEE . [ CH. XXX. S. 3.

benefit of the mortgage also (d) : and if the trust money had
been invested, but improperly, the cestui que trust has a right
to elect to prove for the money and interest, or for the value
of the securities and profits (e) .
41. Trustee not a partner and lending money to the firm or
the partners . - If the trustee was not one of the firm, but he
lent the trust fund to the bankrupt firm, proof can be made
as for an ordinary debt against the joint estate . If the trus
tee lent the money, not to the firm, but to one of the members
of the firm, and the partners had no notice of the source
from which it came, proof can only be made against the
separate estate of the partner who received, though the
money may, in fact, have been applied to partnership pur
poses (f) . But if the other partners had notice of the
source of the money, proof can be made against the joint
estate of the firm (g) , but not, it seems, against the separate
estate of each partner (h) , unless the firm by their dealings
with the cestuis que trust constituted themselves trustees
directly for them (i) . Nor can proof be made on
[ * 914 ] * the mere ground of notice for the profits made by
the use of the money, for the partners in the firm are
regarded not as actual but only as constructive trustees, that
is, having notice of the trust they are accountable for the
money, but not being clothed with any special duty, they do
not come within the rule that " a trustee shall not profit by
his trust " (a).
42. Apportionment between tenant for life and remaindermen
of amount recovered from bankrupt trustee. -It was held by
Lord Romilly, M. R. , that where a trustee had proved against
a bankrupt's estate for 69857. 19s. 7d. principal money made

(d) Ex parte Biddulph, 3 De G. & 364 ; Ex parte Bolland, 1 Mont. &

Sm. 587 ; Ex parte Geaves, 8 De G. Mac. 315.
M. & G. 291 ; 25 L. J. N. S. Bank. (h) Ex parte Beilby, 1 Gl . & J. 167 ;
53. and see Ex parte Burton, 3 M. D. &
(e) Re Montefiore, 9 Jur. 562. De G. 364 ; Ex parte Woodin, 3 M. D.
(f) Ex parte Apsey, 3 B. C. C. & De G. 399.
265 ; Ex parte Wheatley, Cooke's (i) Ex parte Woodin, 3 M. D. & De
Bankrupt Law, 534, 8th ed. G. 399.
(g) Ex parte Peele, 6 Ves. 602 ; Ex (a ) Stroud v. Gwyer, 28 Beav. 130 ;
parte Clowes, 2 B. C. C. 595 ; and see see 141 ; and see Ex parte Burton, 3
Ex parte Burton, 3 M. D. & De G. M. D. & De G. 364.
1226
 CH. XXX . S. 3. ] BANKRUPTCY OF TRUSTEE . *915

away with by the bankrupt, and for 27447. 98. 11d. interest
(which should have been paid to the tenant for life ) , making
together a sum total of 97301. 98. 6d., all dividends received
under the bankruptcy should first make up the lost capital,
and that the tenant for life had no lien for his lost income ,
but was entitled only to the interest of the capital sums
received by way of dividend under the bankruptcy (b) .
The natural course would have been to apportion the fund
as between the tenant for life and remaindermen according
to their respective losses, as otherwise it would work occa
sionally a great hardship . Suppose for instance the tenant
for life, though entitled for the last ten years, had received
nothing and then died before the dividend was paid. The
whole would go to the remainderman, and the executor of
the tenant for life would receive nothing, though a large
part of the dividend was recovered in respect of the life
estate (c) .
Since these remarks were written, the case has in effect
been overruled. In Cox v. Cox ( d) , A. covenanted on his
marriage that his executors, within three months after his
death should pay to the trustees a sum of 60007. with inter
est, from his death, at 4 per cent. , to be held in trust for his
widow for life, with remainder to the children . A. died in
1862, and his estate was administered by the Court. The
assets were insufficient to satisfy the principal and interest,
and the question was, how the amount recovered was to be
dealt with as between the tenant for life and the remainder
men, and V. C. Sir W. James said , " The true principle in
all these cases is, that neither the tenant for life nor the
remainderman is to gain an advantage over the other, neither
is to suffer more damage in proportion to his estate and in
terest than the other suffers from the default of the obligor.
Assuming that 55007. is the sum that will be recov
ered, a calculation must be made back. * What [*915]
principal, if invested on the day of the obligor's

(b) Re Grabowski's Settlement, 6 710, and Turner v. Newport, 2 Ph . 14,

L. R. Eq. 12. which were not cited to M. R.
(c) See Innes v. Mitchell, 1 Ph . (d) 8 L. R. Eq . 343 ; and see Re
Tinkler's Estate, 20 L. R. Eq. 456.
1227
*915 BANKRUPTCY OF TRUSTEE. [CH. XXX. S. 3.

death (the date from which interest was to run ) at 4 per

cent. would amount with interest to the sum so recovered ?
Interest at 4 per cent. on this principal, or in other words
the difference between the principal and the amount will
then go to the tenant for life, and the rest must be treated
as principal ."
[ of proceeds of sale of mortgaged property. — So where
money had been properly invested upon mortgage, but the
interest fell into arrear and the mortgaged property was
ultimately realised, and the proceeds were insufficient to
pay the principal and interest, it was held that the proceeds
were apportionable between capital and income in the ratios
of the capital sum originally invested and the actual arrears
of simple interest on the mortgage ( a) . ]
43. How far trust debt barred by the bankrupt's certificate.
-
The original trust debt was formerly barred by the certifi
cate of the bankrupt, though no proof was made, and the
cestui que trust did not know of the misapplication of the
trust fund (b) . But it was the duty of the trustee to see
that some person proved on behalf of the trust, and if he did
not, he was liable in equity for this neglect of duty : and
though he had obtained his certificate he was held responsi
ble personally for the amount that might have been received
by way of dividend ( c) . And a demand in respect of a
breach of trust was held to be equally barred by the trus
tee's discharge under the Insolvent Acts, provided the liabil
ity was duly mentioned in the schedule ( d) .
44. Proof where one of several trustees is bankrupt. ---If
the bankrupt was one of two co-trustees, who were jointly
implicated in a breach of trust, then proof may be made
against the bankrupt's estate for the whole money lost ,
though he was not the party benefited by the breach of
trust (e) ; and though the other trustee be living and sol
vent (f) . And the proof against the bankrupt will not be

[ (a) Re Moore, 54 L. J. N. S. Ch . (d) Thompson v. Finch, 22 Beav.

432. ] 316 ; on appeal, 8 De G. M. & G. 560.
(b) Ex parte Holt, 1 Deac. 248. (e) Ex parte Shakeshaft, 3 B. C. C.
(c) Orrett v. Corser, 21 Beav. 52 ; 197.
and see Woodhouse v. Woodhouse, 8 (f) Ex parte Beilby, 1 Gl. & J. 167.
L. R. Eq. 521 .
1228
 CH. XXX . S. 3.] BANKRUPTCY OF TRUSTEE . *916

precluded by a bond given not to sue the other trustee, re

serving the right against all other parties (g) , though a
release to the other trustee, being an extinguishment of the
debt, would prevent any subsequent proof (h ) .
45. Co-trustees bankrupts. ――― So if two co-trustees be bank
rupts, proof may be made against the estate of each (i) ; but
of course more than 20s. in the pound cannot be re
.
ceived in the whole ; or, at the same time that * proof [ * 916 ]
is made against the estate of one who is a bankrupt,
legal proceedings may be taken against the solvent trustee ;
for proof under a bankruptcy is not payment (a) .
46. Contribution. But where the whole debt is proved
against the estate of the bankrupt trustee, the trustee in
bankruptcy may afterwards take proceedings , and compel
contribution from the other trustee (b) , even where the bank
rupt trustee himself could not, from his fraudulent conduct,
have obtained such relief (e) .
47. Trust money authorised to be employed in trade. -
Where a testator has authorised the employment of his estate
in trade, if the firm in which it was employed become bank
rupt, proof cannot be made against the estate of the bank
rupts in respect of the money so employed ; for it is not a
debt of the firm, but merely capital brought into it : but ,
when the joint creditors have been satisfied, the trustee
member of the firm may, as one of the partners , establish a
balance, if there be one, against the separate estates of the
co-partners (d)..
-
48. 32 & 33 Vict. c. 71. By the Bankruptcy Act, 1869 (e) ,
a bankrupt after, and notwithstanding his order of discharge ,
remains liable to his cestui que trust for a breach of trust. But
as the breach of trust constitutes a debt, which may be proved

(g) Ib. (c) See Muckleston v. Brown, 6

(h) See Blackwood v. Borrowes, 2 Ves. 68 ; Joy v. Campbell, 1 Sch. &
Conn. & Laws. 478. Lef. 335, 339 ; Ottley v. Browne, 1 B.
(i) Keble v. Thompson, 3 B. C. C. & B. 360.
112 ; Ex parte Poulson, De Gex, 79. (d) Scott v. Izon , 34 Beav. 434 ;
(a) Ex parte King, 1 Deac. 164, &c. and see M'Neillie v. Acton, 2 Eq . Rep.
(b) See Ex parte Shakeshaft, 3 B. 21.
C. C. 197 ; Lingard v. Bromley, 1 V. (e) 32 & 33 Vict. c. 71, s. 49.
& B. 114.
1229
*917 BANKRUPTCY OF TRUSTEE . [CH. XXX. S. 3.

for in the bankruptcy, the debtor is protected from all other

proceedings against him for the breach of trust until after his
discharge, when the creditor may proceed either against him
personally or against his property, as if no bankruptcy had
intervened (ƒ ) . [ The section applies to the breach of a
constructive trust as well as that of an express trust (g) .
46 & 47 Vict. c. 52. By the Bankruptcy Act, 1883 ( h) ,
the liability of a bankrupt to his cestui que trust continues
after his discharge only in cases where the breach of trust is
fraudulent.]
49. The Debtors' Act, 1869. ―-The Debtors ' Act, 1869 (i) , ¸
abolishes arrest and imprisonment for debt, but excepts,
amongst other things, default by a trustee or person act
ing in a fiduciary capacity ( j) , and ordered to pay
[ * 917 ] by a * Court of equity (a ) any sum in his possession
or under his control. [ A trustee who has once had
trust funds in his possession is treated by a Court of equity
as still having them in his possession until he has properly
discharged himself, and it is not necessary, to bring a trustee
within the exception , that he should have the trust funds in
his actual possession, or under his control, at the time the
order is made. Thus if an order be made upon a trustee to
repay a sum which he had previously misappropriated and
spent, he may be attached for neglecting to obey the or
der (b) . So where two trustees , A. and B., received a sum
of money and placed it in a bank to their joint account, but
made payable to the cheque of A. alone, who drew it out and

(f) Cobham v. Dalton, 10 L. R. plaintiff or one of the plaintiffs in the

Ch . App . 655 ; [ Emma Silver Mining action in which the order for pay
Company . Grant, 17 Ch . D. 122 ; ment has been made ; Marris v. In
Cooper v. Prichard, 11 Q. B. D. 351 ; gram, 13 Ch. D. 338.]
and see Nowell v. Nowell, W. N. 1876, [(a) Under section 76 of the Judi
p. 248. ] cature Act, 1873, the words " the High
[ (9) Emma Silver Mining Company Court of Justice ," should be read in
v. Grant, 17 Ch. D. 122. ] substitution for the words " a Court
[ (h) 46 & 47 Vict. c. 52 , s . 30. ] of equity," Marris . Ingram, 13 Ch.
(i) 32 & 33 Vict. c . 62 , s. 4. D. 338. ]
[ ( ) The term " person acting in [(b) Middleton v. Chichester, 6 L.
a fiduciary capacity" means a per R. Ch. App . 152 ; Marris . Ingram,
son standing in a fiduciary relation 13 Ch . D. 338 ; Re Knowles, Doodson
towards any other person, whether r. Turner, 52 L. J. N. S. Ch . 685 ; 48
such other person is, or is not, the L. T. N. S. 760.]
1230
CH. XXX . S. 3.] BANKRUPTCY OF TRUSTEE . *918

misapplied it, and thereupon B. was ordered in a suit to

make it good, it was held that B. on non-payment was liable
to be attached and sent to prison (c). ] But a trustee who
had been ordered to pay a sum of money which he had
neglected only in breach of his duty to recover, was held not
to fall within the exception and could not therefore be ar
rested and imprisoned (d) .
[ 50. The Debtors' Act, 1878. — By a subsequent Act (41 &
42 Vict. c. 54 ) , the Court is empowered among other things
"to enquire into the case of a defaulting trustee, and to
grant or refuse, either absolutely or upon terms, any applica
tion for a writ of attachment, or other process, or order of
arrest or imprisonment, and any application to stay the oper
ation of any such writ, process , or order, or for discharge
from arrest or imprisonment thereunder." Under this section
the Court has refused to issue a writ of attachment against a
defaulting trustee, where it appeared that he was unable to
pay, and that no good purpose could be served by sending him
to prison (e) . But as the Debtors Act, 1869, while abolishing
the penalty of imprisonment for debt in the case of an hon
est debtor was intended for the punishment of a fraudulent or
dishonest debtor, and as it was not intended by the Amend
ment Act to get rid of the penal clauses of the previous Act,
but only to give the judges a judicial discretion to deal with
exceptional cases, the Court ought, in the case of a dishonest
debtor, to send him to prison, unless it is satisfied that he
has no means of satisfying the debt (ƒ) ; and in a
recent case in which the Court was not satisfied [ * 918 ]
that the debtor was unable to pay, Kay, J., observed,
"I think that this is a case in which the punishment ought
to be inflicted for the purpose of teaching this man that a
dishonest act of this kind will not be passed over with im
punity even though he is unable to pay, and for the purpose
of teaching other trustees the same lesson " (a) . But where

[(c) Evans v. Bear, 10 L. R. Ch. 286 n.; Barrett v. Hammond, 10 Ch.

App. 76. ] D. 285. ]
(d) Ferguson v. Ferguson, 10 L. R. [( ) Marris v. Ingram, 13 Ch. D.
Ch. App. 661 . 338. ]
[(e) Street v. Hope , 10 Ch. D. [(a) Re Knowles, Doodson v. Tur
1231
*918 CONCURRENCE IN BREACH OF TRUST . [ CH. XXX. S. 3.

there had been no actual fraud or embezzlement, but only an

erroneous application of the trust funds, the Court upon the
trustee undertaking to execute a charge upon all the prop
erty to which he was or might become entitled, declined to
attach him for having failed to comply with an order for pay
ment of the trust fund into Court (b) . ]

In assigning to the cestui que trust the foregoing remedies

against the trustee, it must be understood that the cestui que
trust has not himself concurred in the breach of duty, or sub
sequently acquiesced in it, and, à fortiori, has not executed a
formal release or confirmation.

I. Of concurrence.
1. Concurrence of the cestui que trust in the breach of trust.
-
— If a cestui que trust concur in the breach of trust he is for
ever estopped from proceeding against the trustee for the
consequences of the act (e) , and à fortiori a cestui que trust,
who is also a trustee , cannot hold his co-trustee responsible.
for any act in which they both joined (d) .
2. Ignorance. ― But persons cannot be held to have con
curred in a breach of trust who had not the means of know
ing that the acts to which they were parties involved a breach
of trust (e) .
3. Femes covert and infants cannot concur. ――――― And persons
cannot concur in a breach of trust, who, as femes covert (ƒ)

ner, 52 L. J. N. S. Ch. 685 ; 48 L. T. v. Carter, 1 Y. & C. 255 ; Byrchall v.

N. S. 60. ] Bradford, 6 Mad . 13 ; Morley v . Lord
[ (b) Holroyde v. Garnett, 20 Ch. Hawke, cited in Small v. Attwood, 2
D. 532. ] Y. & J. 520 ; Fyler v. Fyler, 3 Beav.
(c) Brice v. Stokes, 11 Ves. 319, and 550 ; Griffiths v. Porter, 25 Beav. 236 ;
Walker v. Symonds, 3 Sw. 64, per Life Association of Scotland v . Siddal,
Lord Eldon ; Wilkinson v. Parry, 4 3 De G. F. & J. 74 ; Ex parte Barne
Russ . 272 ; Cocker v. Quayle, 1. R. & wall, 6 De G. M. & G. 801 .
M. 535 ; Nail v. Punter, 5 Sim . 555 ; (d) Butler v. Carter, 5 L. R. Eq.
Newman v. Jones, Rep . t. Finch, 58 ; 281 , per Cur.
and see Fellows v. Mitchell, 1 P. W. (e) Buckeridge v. Glasse, Cr. & Ph.
81 ; Booth v . Booth, 1 Beav. 125 ; 135, per Lord Cottenham.
Langford v. Gascoyne, 11 Ves . 336 ; (f) Ryder v. Bickerton , cited
White v. White, 5 Ves . 555 ; Re Chert- Walker v. Symonds, 3 Sw. 80 ; Under
sey Market, 6 Price, 280, 284 ; Baker wood v. Stevens, 1 Mer. 717 ; Smith v.
1232
 CH. XXX . S. 3. ] CONCURRENCE IN BREACH OF TRUST. *919

and infants ( g) , have no legal capacity to consent to the

transaction .
* 4. Except guilty of actual fraud. ―――――――― But neither [ * 919]
coverture nor infancy will be a protection from a
charge of fraud, and therefore if a feme covert (a), or in
fant (b), draw in a trustee to commit a breach of trust, such
feme covert or infant cannot afterwards call the trustee to
account for having violated his duty.
5. Separate use. - A feme covert will be bound by her con
currence in a breach of trust as to any fund which is settled
to her separate use, where there is no restraint against antici
pation (c), and such feme covert, if she execute a deed, will
not be allowed to controvert the statements of facts con
tained in the, deed (d) . But she will not be estopped upon
the ground of concurrence where the act was not voluntary,
but her judgment was misled , or she was under undue influ
ence (e) . And a feme covert has no power to concur in any.
act as to a fund settled to her separate use where there is a
restraint against anticipation (f) .
Power of appointment . ―――― And her concurrence will not

French, 2 Atk. 243 ; Needler's case, hill v . Cahill, 8 App . Cas . 437 ; see S.
Hob. 225 ; Lench v. Lench, 10 Ves. 517, C. nom. Cahill v. Martin, 5 L. R. Ir.
per Sir W. Grant ; Lord Montford v. 227 ; 7 L. R. Ir. 361. ]
Lord Cadogan, 19 Ves. 639, 640, per (b) See the cases at note (h) p. 39,
Lord Eldon ; and see Parkes v. White, supra.
11 Ves . 221 ; Bateman v . Davis , 3 (c) See ante, p. 759.
Mad. 98 ; Cresswell v. Dewell, 4 Giff. (d) Keays v. Lane, 3 I. R. Eq . 8,
460. per Cur.
(g) See supra, pp. 37, 39 ; and Wil (e) Whistler v. Newman, 4 Ves.
kinson v. Parry, 4 Russ. 276. 129 ; Hughes v. Wells , 9 Hare , 773 ;
(a ) Ryder v. Bickerton, cited and see Walker v. Shore , 19 Ves.
Walker v. Symonds, 3 Sw. 82, per 393.
Lord Hardwicke ; and see Savage v. (ƒ) Cocker v. Quayle, 1 R. & M.
Foster, 9 Mod . 35 ; Lord Montford v. 535 ; Walrond v. Walrond , Johns. 24 ;
Lord Cadogan, 19 Ves. 640 ; Vande Leedham v. Chawner, 4 K. & J. 465 ;
bende v. Levingston, 3 Sw . 625 ; Evans Clive v. Carew, 1 J. & H. 199 ; Pem
v. Bicknell, 6 Ves . 181 ; Jones v. Kear berton v. McGill, 8 W. R. 290 ; Fletcher
ney, 1 Dru. & War. 166 ; Davies v. v. Green, 33 Beav. 426 ; Arnold v .
Hodgson, 25 Beav. 187 ; Sharpe v. Woodhams, 16 L. R. Eq. 29 ; [ Stanley
Foy, 4 L. R. Ch. App. 35 ; Re Lush's v. Stanley, 7 Ch . D. 589 ; Heath v.
Trusts, 4 L. R. Ch . App . 591 ; Green Wickham, 3 L. R. Ir. 376 ; 5 L. R. Ir.
v. Lyon, 21 W. R. 695, reversed on 285 ; ] and see Wilton v. Hill, 25 L. J.
the facts, Ib. 830 ; Arnold v. Wood N. S. Ch. 156 ; Derbishire v. Home, 3
hams, 16 L. R. Eq . 33, per Cur.; [ Ca De G. M. & G. 102 , 113.
1233
*920 CONCURRENCE IN BREACH OF TRUST. [CH. XXX . S. 3.

operate beyond the interest settled to her separate use,

though she have a power of appointment in addition ; as if a
feme be tenant for life to her separate use, with a power of
appointing the corpus by will, though her concurrence would
affect the life interest, it does not prevent the appointees
under the will from holding the trustees responsible (g) .
[But if the trustees are by reason of any engagement entered
into by the feme covert entitled to be indemnified out of her
estate it seems that under the principles established by the
recent authorities, to be presently mentioned, the trustees
could resort to the appointed fund as part of the feme's
assets for their indemnity (h) .
6. Property subject to power becomes assets on exercise
of power. The question whether property , subject to a
power of appointment in a married woman becomes, on her
exercising the power, assets available for the satisfac
[* 920 ] tion of her engagements has been * the subject of con
flicting opinions, and in Johnson v. Gallagher (a), was
treated by Turner, L. J., as an open question on the authori
ties, though a distinction was drawn where the feme covert
was guilty of fraud ; and it was held by V. C. Kindersley ,
who on the general question was of opinion that the ap
pointed funds were not assets (b) , that] if an estate were
settled to the separate use of a feme covert for life, with a
general power of appointment by will, and in default of ap
pointment to her in fee, and she suppressed her real name,
and holding herself out as a feme sole, mortgaged the estate ,
the mortgagee had a lien upon the estate as against the heir
or appointee (c) . [ The modern cases, however, seem to have
established, independently of the provision in the Married

(g) Kellaway v. Johnson , 5 Beav. v. Peters (No. 2) , 28 Beav . 354 ; Shat

319. tock v. Shattock, 2 L. R. Eq. 182 ;
[ (h) See Williams v. Lomas, 16 Sugd. on Powers, 8th ed. p. 476.]
Beav. 1. ] [ (b) Vaughan v. Vanderstegen, 2
[ (a) 3 De G. F. & J. 494 , 517 ; see Drew. 165 ; Blatchford v. Woolley, 2
Norton v. Turvill , 2 P. W. 144 ; Heat Dr. & Sm. 204.]
ley v. Thomas, 15 Ves. 596 ; Sockett (c) Vaughan v. Vanderstegen, 2
v. Wray, 4 B. C. C. 483 ; Hughes v. Drew. 363 ; and see Hobday v. Peters
Wells, 9 Hare, 749 ; Vaughan v . Van (No. 2) , 28 Beav. 354 ; [ Barrow v.
derstegen, 2 Drew. 165 ; Blatchford Manning, W. N. 1878, p. 122. ]
v. Woolley, 2 Dr. & Sm. 204 ; Hobday
1234
CH. XXX . S. 3.] CONCURRENCE IN BREACH OF TRUST . *921

Women's Property Act, 1882, that the property becomes ,

on her exercising the power, assets for the payment of her
debts as if it were her separate estate.
Whether property bound by general engagements where power
not executed . - Thus in a recent case in the Privy Council ]
where there was no fraud, and the feme covert had a general
power of appointment either by instrument inter vivos or by
will, [ which she exercised by will, it was ] held that the
general engagements of the wife were payable out of the
property so settled ( d) , and the Court went so far as to say,
in the broadest terms, that such a settlement amounts in
effect to what in common sense and to common apprehension
it would be , viz ., an absolute gift to the sole and separate use,
and that such a form of settlement on a married woman,
without restraint of anticipation, vests in equity the entire
corpus in her for all purposes as ' fully as a similar gift to a
man would vest it in him (e ) . The actual decision of the
case in which this general doctrine was laid down was clearly
supportable on the ground that there had been an imperfect
execution of the power, and there being valuable consid
eration equity would supply the defect ; and the Court did
not mean what the generality of the expressions would im
ply, that where the power is not executed the property is
available for the feme covert's engagements, for the Court
expressly approved the doctrine laid down by Sir G. Turner,
that where there is a limitation over in default of
*
appointment and the power has not been exercised , [ * 921 ]
the engagements of the married woman cannot pre
vail against the parties entitled in default of appointment (a) .
Nor did the Court decide even where the power is executed
that the settled property will be available for payment of
such general engagements as are merely verbal and not evi
denced by any written instrument, or appear by any writing
which is not an execution of the power at law, and would
not be aided in equity for want of sufficient consideration .

(d) London Chartered Bank of (e) London Chartered Bank of

Australia v. Lemprière, 4 L. R. P. C. Australia v. Lemprière, 4 L. R. P. C.
572, and see Brewer v. Swirles, 2 Sm. 595.
& G. 219. (a) S. C. 592.
1235
*921 CONCURRENCE FOR BREACH OF TRUST. [ CH. XXX . S. 3.

[ 7. However, in a later case, where personal property was

settled upon such trusts as a feme covert should during cov
erture by deed or will appoint, and, subject thereto, for her
separate use for life, and , if she survived her husband (an
event which happened) for her absolutely, and the feme
covert appointed the property by will, the late M. R. held
that the property was bound by the feme covert's general
engagements , and he observed, " The true view seems to be
this that for the purpose of giving effect to the general
engagements of a married woman, if property is settled upon
her for life, with power to dispose of it by deed or will , that
is her separate property, so as to be subject to her general
engagements " (b) . It is conceived that this proposition in
which no distinction is made between cases where the power
is executed, and those in which it is not executed and there
is a gift over in default of execution, cannot, consistently
with the earlier authorities (c) , be taken in its broadest sense,
and the question to what extent the general engagements of
a feme covert bind property settled upon her for life for her
separate use with a general power of appointment by deed
or will, and a gift over in default of appointment where the
power is not executed, must still be considered as governed by
the earlier authorities (d).
8. In a still later case, where the property was settled on
a feme covert for life for her separate use with a general
power of appointing by will, with a gift over in default of
appointment, V. C. Hall held that the property appointed by
her will was assets for the payment of her debts in the same
manner as if it had belonged to her for her separate use (e) ,
and this has since been acted upon (f).
9. Where a married woman was tenant for life for her

[ (b) Mayd v. Field, 3 Ch. D. 587, [ (e ) Re Harvey's Estate, 13 Ch.

593 ; Skinner v. Todd, 51 L. J. N. S. D. 216 ; see however the observations
Ch. 198. ] on this case by L. J. Cotton in Pike
[ (c) See Johnson v. Gallagher, 3 v. Fitzgibbon , 17 Ch . D. 466.]
De G. F. & J. 494, and the cases there [(f) Hodgson v. Williamson, 15
cited .] Ch. D. 87 ; Hodges v . Hodges, 20 Ch.
[ (d) See also Holmes v. Coghill, 7 D. 749.]
Ves. 499 ; 12 Ves. 206 ; Sugd. on
Powers, 8th ed. pp . 475, 477. ]
1236
CH. XXX. S. 3. ] ACQUIESCENCE IN BREACH OF TRUST. *922

separate use without power of anticipation, and [ * 922]

the trustees were " at her direction to direct repairs
and do all such acts as should be proper for that purpose,"
and the tenant for life herself ordered the repairs , the Court
gave effect to the particular engagement out of the particu
lar power to direct repairs and treated the power as being
in effect exercised, and directed the trustees to raise the
amount required for the repairs which had been executed,
and to pay the amount to the builder employed by the
tenant for life (a ) .
10. 45 & 46 Vict. C. 75, s. 4. ― Now by the Married
Women's Property Act, 1882 ( b ) , sect . 4, it is provided, that
the execution of a general power by will by a married woman
shall have the effect of making the property appointed liable
for her debts and other liabilities, in the same manner as her
separate estate is made liable under the Act. ]

II. Of acquiescence.¹
1. Acquiescence of cestui que trust. - Again, a cestui que
trust, though he did not concur at the time, may debar him
self from relief by having acquiesced (c) in the breach of
trust subsequently (d) .
2. Whether mere knowledge and abstinence from suing a bar
in cases of breach of trust. - How far the mere knowledge of
a right to sue in respect of a breach of trust, and the abstain

[(a ) Skinner v. Todd, 51 L. J. N. v. Stokes, 11 Ves . 326 ; Macdonnell v.

S. 198. ] Harding, 7 Sim. 190 ; Broadhurst v.
[ (b) 45 & 46 Vict. c. 75. ] Balguy, 1 Y. & C. C. C. 16 ; Lincoln
[(c) As to the meaning of acqui v. Wright, 4 Beav. 432 ; Blackwood
escence, see pp . 873, 874, supra. ] v. Borrowes, 2 Conn. & Laws. 459 ;
(d) Harden v. Parsons, 1 Eden, Farrant v. Blanchford, 1 De G. J. & S.
145 ; Thompson v. Finch, 22 Beav. 107 ; Rutherfoord v. Maziere , 13 Ir.
324, per M. R.; Griffiths v. Porter, 25 Ch. Rep. 204 ; Stevens v. Robertson,
Beav. 241 , per M. R.; Walker v. Sy 37 L. J. N. S. Ch. 499 ; Sleeman v.
monds, 3 Sw. 64, per Lord Eldon ; Wilson, 13 L. R. Eq. 36 ; Philips v.
Hope v. Liddell, 21 Beav. 183 ; Brice Pennefather, 8 I. R. Eq . 474.

¹ Acquiescence may prevent a cestui que trust from obtaining relief ; Villines
v. Norfleet, 2 Dev . Eq. 167 ; but there can be no technical acquiescence unless
the cestui que trust actually knows of the breach ; Beeson v. Beeson, 9 Barr,
300 ; Prevost v. Gratz, 6 Wheat. 487 ; and has possession of all the facts ;
Briers v. Hackney, 6 Ga . 419 ; Shartel's App. 64 Pa. St. 25 ; Maul v . Rider, 51
Pa . St. 377. The cestui que trust should have suitable advisors, especially if
1237
*923 ACQUIESCENCE IN BREACH OF TRUST . [ CH. XXX . S. 3.

ing to sue will, without any other act, constitute laches in

the eye of a Court of equity, and disentitle the plaintiff to
relief, as in the particular instances of purchases by trustees,
&c., above referred to (e), was until lately very uncertain ;
but it seems to be now settled that gross laches, as for twenty
years, will disentitle a cestui que trust to relief (f) . But of
course mere knowledge without suing for a few years, as for
three years (g) , [ four years (h) , ] or ten years ( ) , will not
destroy the right to impeach the transaction. And
[* 923 ] where there is an express trust for * successive incum
brancers, on a limited interest, as a life estate, the
subsequent incumbrancers are not chargeable with laches so
long as the whole beneficial interest is absorbed by the prior
incumbrancers (a).
3. No bar where notice of breach of trust is constructive
-
only. A cestui que trust, who does not actually know, is
not to be affected with knowledge of a breach of trust
because he might by enquiry have ascertained the fact, for it
is not his duty but that of the trustee to see that the trust
fund is in a proper state (b) .
4. Ward of Court. ――――――― A settlement by a ward of Court
under the direction of the Court, of funds stated to represent
the infant's fortune, will not operate as a confirmation of past
breaches of trust (c).

(e) See p. 873, supra. [ (h) Re Jackson, 44 L. T. N. S.

(f) Bright v. Legerton (No. 1 ), 467.]
29 Beav. 60 ; 2 G. F. & J. 606 ; Hodg (i) Farrant v. Blanchford, 11 W.
son v. Bibby, 32 Beav. 221 ; and see R. 178 ; [ Re Cross, 20 Ch. D. 109. ]
Browne v . Cross, 14 Beav. 105 ; Payne (a) Knight v. Bowyer, 2 De G. &
v . Evens, 18 L. R. Eq. 356 ; Re J. 421, see 443.
M'Kenna, 13 Ir. Ch . Rep . 239 ; Mar (b) Thompson v . Finch, 22 Beav.
quis of Clanricarde v. Henning, 30 325-327 ; 6 De G. M. & G. 560 ; Life
Beav. 175. But see Knight v. Bow Association of Scotland v. Siddal, 3
yer, 2 De G. & J. 443 ; [Thomson v. De G. F. & J. 73.
Eastwood, 2 App. Cas. 215. ] (c) Zambaco v. Cassavetti, 11 L.
(9) Hanchett v. Briscoe, 22 Beav. R. Eq. 439.
496.

he has but recently become sui juris ; Kirby v. Taylor, 6 Johns. Ch. 242 ;
Williams v. Powell, 1 Ired . Eq. 460 ; Waller v. Armistead, 2 Leigh, 11. Cred
itors may, on legal grounds, have their claims secured ; Iddings v. Bruen , 4
Sandf. Ch . 223 ; but the cestui que trust, who is sui juris , is the only one who
can concur or acquiesce in, or waive a breach of trust ; North Carolina R. R.
Co. v. Wilson, 81 N. C. 223 ; Wilson v. Troup, 2 Cow. 195.
1238
CH. XXX . S. 3.] ACQUIESCENCE IN BREACH OF TRUST. *924

5. Fluctuating body as parishioners or creditors. - It seems

that a public and fluctuating body, as parishioners, may be
bound by acquiescence (d). But it is almost unnecessary
to repeat, that acquiescence cannot be objected against a
class of persons, as parishioners or creditors , with the same
degree offorce as against a single individual (e) .
6. Satisfaction in part for a breach of trust. A cestui que
trust who, knowing that his trustee has committed a breach
of trust, gets what he can from the wreck of the property,
and with that view receives from the trustee part of the
relief to which he is entitled, does not thereby waive his right
to the full relief to which he is entitled (f) .
[ 7. Creditor's right not affected by not pressing for payment.
- A creditor who merely abstains from calling upon the
executors to realize the testator's estate for the purpose of
paying his debt is not thereby deprived of his right to sue
the executors for devastavit. To deprive him of his right,
he must, either by his conduct or by express authority, have
misled the executors into parting with the assets available
for payment of his claim (9) .]
8. Acquiescence by reversioner. —As to acquiescence by
cestui que trust while his interest is reversionary, L. J. Turner
observed : " Length of time, where it does not operate as
a statutory or positive bar, operates simply as evidence of
assent or acquiescence . The two propositions of a bar by
length of time and by acquiescence are not distinct proposi
tions . They constitute but one proposition , and that propo
sition is that the cestui que trust assented to the breach
of trust. A cestui que trust * whose interest is rever- [ * 924 ]
sionary is not bound to assert his title until it comes
into possession ; but the mere circumstance that he is not
bound to assert his title does not seem to me to bear upon
the question of his assent to a breach of trust. He is not, so

(d) See Corporation of Ludlow v. ney-General v. Cuming, 2 Y. & C. C.

Greenhouse, 1 Bligh, N. S. 92 ; Re C. 150.
Chertsey Market, 6 Price, 280, 284 ; (e) See supra, pp . 498, 870.
Edenborough v . Archbishop of Can (f) Thompson v. Finch, 22 Beav.
terbury, 2 Russ. 105 , 108 ; Attorney 316 ; 8 De G. M. & G. 560 ; [ Re Cross,
General v. Scott, 1 Ves. 415 ; Attor 20 Ch. D. 109, 122. ]
[ (g) Re Birch, 27 Ch . D. 622. ]
1239
*924 RELEASE AND CONFIRMATION. [CH. XXX. S. 3.

far as I can see, less capable of giving such assent when

his interest is in reversion than when it is in possession.
Whether he has done so or not is a question to be deter
mined on the facts of each particular case " (a) . But he
afterwards added that he was not prepared to say that,
where the trust was definite and clear, a breach of trust
could be held to have been sanctioned or concerned in by the
mere knowledge and non-interference of the cestui que trust
before his interest had come into possession (b) . The above
doctrines were approved by L. C. Campbell, with the further
remark that it was easy to conceive cases in which, from
great lapse of time, the facts from which the consent of the
cestuis que trust was to be inferred might and ought to be
presumed (c) .

III. Of Release and Confirmation.

1. Release and confirmation by cestui que trust. Lastly, a
cestui que trust may preclude himself from his remedy against
the trustee by executing a formal release of the breach of
trust, or giving validity to the transaction by an express con
firmation (d) . And if the cestui que trust release the principal
in a breach of trust or fraud, he cannot afterwards proceed
against the other parties who would have been secondarily
liable (e).
[Release in respect of a void transaction invalid . ――― But a re
lease in respect of a transaction which a Court of equity
would hold to be not merely voidable but void, will not bind
the cestui que trust executing the release. Thus where on the
footing of a supposed illegitimacy the title of the cestui que
trust to a legacy was disputed and denied by the trustee, and
the cestui que trust was thereby induced to accept from the
trustee a smaller sum than that to which he was entitled, and

(a) Life Association of Scotland son , 9 Ves . 103 ; Wilkinson v. Parry,

v. Siddal, 3 De G. F. & J. 72. 4 Russ. 272 ; Aylwin v. Bray, cited
(b ) Life Association of Scotland in Small v. Atwood, 2 Y. & J. 517 ;
v. Siddal, 3 De G. F. & J. 74. Cresswell v. Dewell, 4 Giff. 465, per
(c ) Ib. 77 ; and see Taylor v. Cart Cur.
wright, 14 L. R. Eq. 176. (e) Thompson v. Harrison , 2 B. C.
(d) Blackwood v . Borrowes, 2 C. 164 ; see Blackwood v. Borrowes,
Conn. & Laws. 459 ; French v. Hob 2 Conn. & Laws . 478.
1240
CH. XXX . S. 3. ] • RELEASE AND CONFIRMATION. *925

by deed to release the trustee from the payment of the leg

acy, it was held, that the question of the legitimacy of the
cestui que trust being entirely irrelevant, the transaction was
absolutely unmeaning and void, and the release was set aside
and relief granted after a long lapse of time (ƒ) . ]
2. Waiver. - Under the head of release, we may [ * 925 ]
notice the subject of waiver. " As to waiver," said Sir
W. Grant, " it is difficult to say precisely what is meant by that
term. With reference to the legal effect, a waiver is nothing
unless it amounts to a release. It is by a release, or some
thing equivalent only, that an equitable demand can be given
away. A mere waiver signifies nothing more than an expres
sion of intention not to insist upon the right, which in equity
will not without consideration bar the right any more than
at law an accord without satisfaction would be a plea . If
there be a consideration , however slight, I do not know that
the Court would not consider it a sufficient foundation for a
release, or what is equivalent to a release ” (a) .
It would seem, therefore , that waiver is some positive act
which, if supported by valuable consideration , though slight,
will be taken in equity to constitute a release ; but, if it be
merely an expression of intention not to insist on the right,
and there is an absence of consideration, it is no waiver in
the sense of a release (b) .
Requisites for valid acquiescence , release, or confirmation .
Acquiescence, and release and confirmation , to have the effect
we have mentioned, must be understood to be accompanied
with the following conditions :
a. As in the case of concurrence, the cestui que trust must
be sui juris, and not a feme covert or infant ; and, as regards
infants, the Court continues its protection even after they
have attained twenty-one till such time as they have acquired
all proper information (e) ; and infants on coming of age

[(ƒ) Thomson v . Eastwood, 2 App . 69 ; Hicks v. Hicks, 3 Atk. 274 ; Os

Cas. 215.] mond v. Fitzroy, 3 P. W. 131 ; Hylton
(a) Stackhouse v. Barnston, 10 v. Hylton, 2 Ves. 547 ; Kilbee v .
Ves. 466. Sneyd, 2 Moll . 233 ; March v. Russell,
(b) See Farrant v. Blanchford, 11 3 M. & Cr. 42, 44 ; Bateman v. Davis ,
W. R. 178. 3 Mad. 98 ; Wedderburn v. Wedder
(c) See Walker v. Symonds, 3 Sw. burn, 2 Keen, 722 , 4 M. & Cr. 41 ; Kay
1241
*926 RELEASE AND CONFIRMATION .. [ CH. XXX. S. 3.

must, in the case of a formal release being executed by them,

where it is required, have proper legal advice (d) . However,
a feme covert is clearly sui juris as regards property settled to
her separate use, [ or belonging to her as her separate property
under the Married Women's Property Acts, ] where there is
no restraint against anticipation (e ) . But where a feme covert
is entitled to separate estate with a clause against
[ * 926 ] * anticipation it is difficult to see how she can be af
fected by acquiescence. In a late case (a ) , however,
Lord Justice Turner intimated his leaning to be in favour of
the affirmative ; but the language of Lord Justice Knight
Bruce, in the case alluded to , was more guarded . The restraint
on anticipation can impose no fetter as respects income accrued
due before the acts of acquiescence relied upon (b) . If a suit
be instituted for relief against a breach of trust, the Court
has jurisdiction to sanction a compromise on behalf of a mar
ried woman even though her interest be reversionary (c) .
B. The cestui que trust must be fully cognisant of all the
facts and circumstances of the case (d) .

v. Smith, 21 Beav. 522 ; Aveline v. (c) Wall v. Rogers , 9 L. R. Eq . 58.

Melhuish, 2 De G. J. & S. 288 ; (d) Adams v. Clifton , 1 Russ. 297 ;
Chambers v. Crabbe, 34 Beav. 457 ; Walker v. Symonds, 3 Sw. 1 ; Ran
Sercombe v. Sanders , 34 Beav. 382 ; dall v. Errington , 10 Ves. 423 ; Buck
Kempson v. Ashbee, 10 L. R. Ch. eridge v. Glasse , Cr. & Ph . 126 ;
App. 15. Bennett v. Colley, 2 M. & K. 232, per
(d) Lloyd . Attwood, 3 De. G. & Lord Brougham ; Vyvyan v. Vyvyan.
J. 615. 30 Beav. 65 ; Eaves v. Hickson, 30
(e) See ante, 759 ; and Jones v. Beav. 142 ; Farrant v. Blanchford, 11
Higgins, 2 L. R. Eq. 538 ; Taylor v. W. R. 178, 1 De G. J. & S. 119 ; Life
Cartwright, 14 L. R. Eq. 175. The Association of Scotland v. Siddal, 3
dictum of Lord Hardwicke in Smith De G. F. & J. 74 ; Strange v. Fooks, 4
v. French, 2 Atk. 245, and the view Giff. 408 ; and see Earl of Chester
of Sir J. Romilly, M. R. in Davies v. field v. Janssen, 2 Ves. 146 , 149, 152,
Hodgson, 25 Beav. 187 , are opposed 158 ; Roche v. O'Brien, 1 B. & B.
to the current of authority. 339, and the cases there cited ; Bowes
(a) Derbishire v. Home, 3 De G. v. East London Water Works Com
M. & G. 80 ; and see Wilton . Hill, pany, 3 Mad. 375 ; M'Carthy v. De
25 L. J. N. S. Ch. 156 ; Davies v. caix, 2 R. & M. 615 ; Wedderburn .
Hodgson, 25 Beav. 186, 187 ; Clive v. Wedderburn, 2 Keen, 722 ; 4 M. &
Carew, 1 J. & H. 205 ; [ Heath v. Cr. 41 ; Munch v. Cockerell, 9 Sim.
Wickham, 3 L. R. Ir. 376, 390, where 339 ; 5 M. & Cr. 179 ; Broadhurst v.
the dictum of L. J. Turner was Balguy, 1 Y. & C. C. C. 16 ; Downes
doubted.] v. Bullock, 25 Beav. 62 ; Lloyd v.
(b) Rowley v. Unwin, 2 K. & J. Attwood, 3 De G. & J. 650.
138.
1242
CH. XXX. S. 4. ] STATUTE OF CHARITABLE USES . * 927

7. The cestui que trust must not only be acquainted with

the facts, but also to a certain extent apprised of the law, or
how those facts would be dealt with if brought before a
Court of equity (e).
8. The release must not be wrung from the cestui que trust
by distress or terror (f) .

* SECTION IV . [ * 927 ]

OF THE MODE AND EXTENT OF REDRESS IN BREACHES OF TRUST

COMMITTED BY TRUSTEES OF CHARITIES.

I. Of the mode of redress.1

1. Ordinary mode of redress in breach of trust by charitable
-
trustees . The regular and ordinary course of proceeding is
by way of information (1 ) in the name of the Attorney
General, the Queen is parens patria, and it is the duty of
the Crown officer, the Attorney-General, to see that justice

(e) Cockerell v. Cholmeley, 1 R. & but see Stafford v. Stafford, 1 De G.

M. 425, per Sir J. Leach ; M'Carthy v. & J. 202, and the observations at p.
Decaix, R. & M. 615 ; Marker v. 497 , supra.
Marker, 9 Hare , 16 ; Burrows v. Walls, (f) Bowles v. Stewart, 1 Sch. &
5 De G. M. & G. 254 ; Re Saxon Life Lef. 209, see 226 ; and see Earl of
Assurance Society, 2 J. & H. 412 ; Chesterfield v. Janssen, 2 Ves. 149,
Strange v. Fooks, 4 Giff. 408 ; Kemp 158.
son v. Ashbee, 10 L. R. Ch . App . 15 ;

(1) Where the management of no charity revenue is concerned, as in a suit

instituted by parishioners for the mere purpose of setting aside the nomination
of a clerk to the bishop by the trustees of the advowson, the Attorney-General
need not be a party ; it is the simple case of cestuis que trust calling upon the
trustees to exercise the legal right ; and [ under the old practice ] the suit was
not by information, but by bill : see Attorney-General v. Parker, 1 Ves . 43 ; S.
C. 3 Atk. 576 ; Attorney- General v. Forster, 10 Ves. 335 ; Attorney-General v.
Newcombe, 14 Ves. 1 ; Davis v. Jenkins, 3 V. & B. 151 ; Inhabitants of Clap
ham v. Hewer, 2 Vern. 387 ; Attorney-General v. Cuming , 2 Y. & C. C. C. 149.

1 If a charitable trust is so treated by the trustees that they are guilty of

a breach, the heirs or representatives are not the gainers ; Brown v. Baptist
Society, 9 R. I. 177 ; Dublin Case, 38 N. H. 459 ; Hadley v. Hopkins, Acad. 14
Pick. 241 ; Dutch Church v . Mott, 7 Paige, 77 ; Sanderson v. White, 18 Pick. 328 .
Redress for a breach may be had by information or bill ; Parker v. May,
5 Cush. 341 ; Att'y Gen. v . Garrison, 101 Mass . 223 ; by parties interested ;
Att'y Gen. v. Meeting House, 3 Gray, 1 ; Att'y Gen. v. Man'f'g Co. 14 Gray,
586 ; Brunnenmeyer v. Buhre, 32 Ill . 183 ; but not in all cases ; Ibid.
1243
*928 SIR S. ROMILLY'S ACT. [CH. XXX. S. 4.

is administered to every part of her Majesty's subjects.

Relators need not be personally interested ( a) . They are
required merely because the Attorney-General, prosecuting
a suit in the name of the Crown, would not be liable to costs,
and unless some person were made responsible, proceedings
might be instituted very oppressive to individuals (b) .
2. Statute of Charitable Uses. ――――― In the reign of Elizabeth
an Act was passed, commonly called the Statute of Charitable
Uses (c), by which the Court of Chancery was empowered
to issue commissions to certain persons, including the bishop
of the diocese, who were authorised , after summoning a jury
of the county where the property was situate, to enquire
into any abuse or misapplication of the trust estate . Many of
these proceedings were so little consonant with justice, and
on appeal to the Lord Chancellor, were found at once so
puzzling, and so far from accomplishing the object in view,
that at length the practice of issuing commissions fell into
disuse, and people again resorted to the original process by
way of information (d) .
3. 52 Geo. 3. c. 101, called Romilly's Act. After com
missions had ceased to be issued , the legislature endeavoured
to provide a remedy, not as before , by creating a new
[ * 928 ] * jurisdiction, but by giving liberty to proceed under
the old jurisdiction of Chancery in a summary mode.
The 52 Geo. 3, c . 101 , commonly called Sir Samuel Romilly's
Act, and intituled " An Act to provide a summary Remedy
in Cases of Abuses of Trusts created for Charitable Pur
poses," declared that " in every case of a breach of any trust
created for charitable purposes, or whenever the direction or
order of a Court of equity should be deemed necessary for the
administration of any trust for charitable purposes, it should
be lawful for any two or more persons to present a petition
to the Chancellor, Master of the Rolls, or the Court of Ex
chequer, praying such relief as the nature of the case might

(a) Attorney-General v. Vivian, 1 (c ) 43 Eliz. c. 4.

Russ. 226. (d) Corporation of Ludlow v .
(b) Corporation of Ludlow v. Greenhouse, 1 Bligh, N. S. 61 , 62, per
Greenhouse, 1 Bligh, N. S. 48, per Lord Redesdale.
Lord Redesdale.
1244
CH. XXX . S. 4. ] SIR S. ROMILLY'S ACT. *929

require, such petition to be heard in a summary way upon

affidavits or such other evidence as should be produced, the
order made thereon to be final and conclusive, unless ap
pealed against to the House of Lords within two years from
the entry thereof. ' And it was provided that " every peti
tion should be signed by the persons preferring the same in
the presence of and be attested by the solicitor or attorney
concerned for the petitioners , and should be allowed by his
Majesty's Attorney or Solicitor- General."
4. Strictures on the Act.
Act. These enactments, though
penned by a very able hand, have been strongly reprobated
as very loosely and obscurely worded - as tending rather to
increase than diminish the expense of the application - in
short, as having produced more mischief than benefit. "It
was a wise saying," observed Lord Redesdale, " that the
farthest way about was often the nearest way home, and he
believed that these summary proceedings would be not al
ways the nearest or at least not the best way home " (a) .
5. Construction of the Act. - Upon the construction of
-:
this statute the following points have been resolved :
a. Interest. ――― Although the Act authorises any two or
more persons to present the petition, the words must be
understood to mean any persons having an interest (b) : and
the Court is bound to see not only that the petitioners are
possessed of a clear interest, but that they prove themselves
to be possessed of the interest they allege in their peti
tion (c).
B. Breach of trust. - It has been said that the body of the
statute is to be governed by the preamble, and therefore that
the Act will not authorise a petition for any other
purpose than relief against a breach of trust ( a) . [ *929 ]
But this narrow construction gives no force to the
words of the Act, " or whenever the direction or order of a

(a) Corporation of Ludlow v . Greenhouse, 1 Bligh, N. S. 91 , per

Greenhouse, 1 Bligh, N. S. 49. Lord Eldon. •
(b) Re Bedford Charity, 2 Sw. 518, (a) Corporation of Ludlow v.
per Lord Eldon . Greenhouse, 1 Bligh, N. S. 66 , 67 , 81 ,
(c) Corporation of Ludlow v . per Lord Redesdale ; and see Re
Clarke's Charity, 8 Sim. 42.
1245
*929 SIR S. ROMILLY'S ACT. [ CH. XXX. S. 4.

Court of equity shall be deemed necessary for the adminis

tration of any trust for charitable purposes ; " and the doctrine
has since been called into question , and may be considered
as overruled (b) .
7. Plain and simple cases only within the Act. — The provis
ion extends only to plain and simple cases for the opinion
or direction of the Court (c) , not where a question is to be
discussed adversely who are to be intrusted with the ad
ministration of the charity estate ( d) , or who are entitled to
the benefit of it (e) , or whether the trustees or governors of
the charity have or not, by the constitution of it, a certain
authority, as of removing a master (f) , or where any stranger
is interested (g) (for the right of a third person cannot be
disposed of on petition (h ) ) , or where the relief which is
sought is directed against the assets of a deceased trustee (i) ,
or where the object of the application is not to have the ex
isting charity regulated, but to have the funds diverted to
some other charitable purpose (j ) . The Court has jurisdic
tion, however, under the Act, to settle a scheme of the

(b) Re Upton Warren, 1 M. & K. (f) Attorney- General v. Corpora

410 ; Re Parke's Charity, 12 Sim . 332 ; tion of Bristol, 14 Sim. 648 ; and see
Re Manchester New College, 16 Beav. Re Manchester New College, 16 Beav.
610 ; Re Hall's Charity, 14 Beav. 115 ; 610 ; Attorney-General v. East Ret
and see Re Slewringe's Charity, 3 Mer. ford Grammar School, 17 L. J. N. S.
707 ; Ex parte Rees, 3 V. & B. 12 ; Re Ch. 450 ; but see Re Fremington,
Clarke's Charity, 8 Sim. 34 ; Re Phil School, 10 Jur. 512 ; 11 Jur. 421 ; Re
lipott's Charity, 8 Sim. 381 ; and cases Phillip's Charity, 9 Jur. 959.
in note to Re Hall's Charity, 14 Beav. (g) Corporation of Ludlow v.
120. Greenhouse, 1 Bligh, N. S. 66 ; per
(c) Corporation of Ludlow v. Lord Redesdale ; Ex parte Rees, 3 V.
Greenhouse, 1 Mad. 92 , reversed in D. & B. 10 ; Re Manchester New College,
P. 1 Bligh, N. S. 17 , see 66, 81 , 89 ; Re 16 Beav. 610 ; but see Re Upton War
Phillipott's Charity, 8 Sim. 381 ; Ex ren, 1 M. & K. 410 ; [ Re Hospital for
parte Brown, G. Coop . 295 ; Ex parte Incurables, 13 L. R. Ir. 361 , where the
Skinner, 2 Mer. 456 , 457 , per Lord Court adjudicated on the conflicting
Eldon ; and see Re Chertsey Market, claims of two charities arising under
6 Price, 277. the same instrument. ]
(d) Re West Retford Church and (h) Corporation of Ludlow V.
Poor-lands, 10 Sim . 101 ; Re Philli Greenhouse, 1 Bligh, N. S. 93, per
pott's Charity, 8 Sim . 381 . Lord Eldon.
(e) Corporation of Ludlow v. (i) Ex parte Skinner, Wils. 15, per
Greenhouse, 1 Bligh, N. S. 66 ; Re Lord Eldon ; Re Saints Wenn's Char
Manchester New College, 16 Beav. ity, 2 S. & S. 66 .
610 ; Re Clarke's Charity, 8 Sim. 34. (j) Re Reading Dispensary, 10
Sim . 118.
1246
CH. XXX. S. 4. ] SIR S. ROMILLY'S ACT. *930

charity (k) , or to alter a scheme previously settled by

decree (1) , or to appoint new trustees (m ), or where
*
parishes have been divided to apportion the chari- [ * 930 ]
ties amongst the districts (a) , or to direct a sale of
the charity estate in a proper case (b) , and generally the
Court, as between the trustees, and cestuis que trust of the
charity, exercises a discretion as to whether it can put in
operation the powers given by the Act with benefit to the
charity (c) .
8. Allowance. - The allowance " by the Attorney or Solic
itor-General " must be construed with reference to the pre
vious law upon the subject, and must therefore be taken to
mean, not by the Attorney or Solicitor-General indiffer
ently, but by the Attorney-General, when there is such an
officer, and in the vacancy of that office by the Solicitor
General (d).
e. Want of signature. ― If the petition be not signed by
the Attorney-General or Solicitor- General, or if, after signa
ture, it be not duly served, an order made by the Court
under the Act will be an absolute nullity (e) , and the peti
tion may be taken off the file for irregularity (ƒ) .
s. Caution in signature. ――――――――― As the intention of the legisla
ture was to guard the charity fund from abuse, and with
that view to prevent proceedings from being instituted ,
as they frequently were before, for no other reason than

(k) Re Royston Free Grammar Charity, Jan. 26, 1849, before the V.
School, 2 Beav. 228 ; Re Berkham C. of England ( the case of a willing
stead Free School, 2 V. & B. 134 ; purchaser) ; Suir Island Female
Re Shrewsbury Grammar School , 1 Charity School , 3 Jon. & Lat. 171 .
Mac. & G. 324 ; 1 Hall & Tw. 401 . As to the jurisdiction of the Court
(1) Attorney-General v. Bishop of generally to sell charity lands, see
Worcester, 9 Hare, 328. supra, p. 539.
(m) Bignold v . Springfield , 7 Cl. & (c) Re Manchester New College,
Fin. 71 . 16 Beav. 610.
(a) Re West Ham Charities, 2 De (d) Corporation of Ludlow v .
G. & Sm. 218. Greenhouse, 1 Bligh, N. S. 51 , 52, 82,
(b) Re Parke's Charity, 12 Sim. per Lord Redesdale ; Ex parte Skin
329 ; Re Ashton Charity, 22 Beav. ner, 2 Mer. 456, per Lord Eldon .
288 ; Re Overseers of Ecclesall , 16 (e) Attorney-General v. Green, 1
Beav. 297 ; and see Re Lyfford's J. & W. 305.
Charity, Ib. note ; Re Alderman New (f) Re Dovenby Hospital, 1 M. &
ton's Charity , 12 Jur. 1011 ( the case Cr. 279.
of an exchange) ; Re Sowerby's
1247
*931 SIR S. ROMILLY'S ACT. [CH. XXX. S. 4.

because it was known that the costs would be paid out of

the charity estate, the Attorney-General, or, in the vacancy
of that office, the Solicitor-General, ought not to sanction
the petition with his signature but upon as much deliberation
as if the relief were sought by way of information (g) .
. Attorney-General must be a party. ― The Attorney
General by his allocatur, or allowance, of the petition , is not
functus officio, and precluded from all future control, but
must be made a party to any subsequent proceedings under
the petition, as he would have been to all proceedings by
way of information (h) .
7. May correct his judgment. — The Attorney-Gen
[ * 931 ] eral, as representing the person of the * Queen in
her character of parens patriæ, is bound to see justice
done, not only to the plaintiff in the petition, but also to
the trustees and other defendants, and therefore is not
estopped by his allocatur of the petition from afterwards cor
recting his judgment, but may support or oppose the views
of the petitioners, as in his discretion he may think fit (a) .
0. Motion. - When the jurisdiction of the Court has been
once attracted by the petition, a subsequent order may be
made upon motion without the expense of a further peti
tion (b).
6. Acts appointing Commissioners of enquiry.- Under powers
given by 58 Geo . 3, c. 91 , and 59 Geo. 3 , c . 81 , certain com
missioners of enquiry into charities were appointed, and by
59 Geo. 3, c. 91, it was enacted, that when it appeared to
such commissioners of enquiry that the directions or orders
of a Court of equity were requisite for remedying any neglect,
breach of trust, fraud, abuse, or misconduct in the manage
ment of any trust created for charitable purposes, & c ., it
should be lawful for the said commissioners to certify the

(g) Ex parte Skinner, Mer. 456, Attorney-General v. Haberdashers'

per Lord Eldon . Company, 15 Beav. 397.
(h) Corporation of Ludlow v . (a) Corporation of Ludlow v.
Greenhouse, 1 Bligh , N. S. 51 , 65 , 82, Greenhouse, 1 Bligh, N. S. 43-52.
83, per Lord Redesdale ; Attorney (b) Re Slewring's Charity, 3 Mer.
General v. Stamford, 1 Ph . 737 ; and 707 ; Ex parte Friendly Society, 10
sce Re Chertsey Market, 6 Price, 271 ; Ves. 287 ; Re Chipping Sodbury
School, 5 Sim. 410 .
1248
CH. XXX . S. 4. ] NEW JURISDICTION . *932

particulars of such case to his Majesty's Attorney-General.

The labours of these commissioners of enquiry proved very
valuable, and many informations were filed in consequence
of certificates made by them ; but their powers, after being
frequently continued , expired in 1837 .
7. 16 &. 17 Vict. c. 137. By the Charitable Trusts Act,
1853, great additional facilities have been afforded for de
tecting and remedying breaches of trust in charity matters .
Powers of enquiry. - Commissioners. are thereby ap
pointed (c) , to whom are confided powers of enquiry (d)
similar to those given to the commissioners appointed by
the Acts of George 3, and also a similar power of certifying
cases to the Attorney-General as fit for his interference (e) .
New jurisdiction at chambers. -- In cases of charities the
incomes of which exceed 30l. per annum, the same jurisdic
tion is given in charity cases (after the previous sanction of
the charity Commissioners) to the Chancery Judges at cham
bers as was before the Act exercisible by the Court of Chan
cery, or the Lord Chancellor entrusted with the custody of
lunatics, in a suit regularly constituted, or upon petition ;
but the Judge may direct a suit or petition to be instituted
or presented (f) . And the provisions of the Act in respect
of charities whose incomes exceed 30l . per annum, are ap
plicable to charities within the city of London, the income
whereof is less than 301. per annum (g) .
New jurisdiction of the Courts of Bankruptcy and [ * 932 ] '
County Courts. Where the incomes of charities do
not exceed 301. (since extended to 50l. (a ) ) per annum, the
District Courts of Bankruptcy and County Courts, with the
previous sanction of the Charity Commissioners, are armed
with the same jurisdiction as the Court of Chancery had (b) ;
and with the permission of the Commissioners to be applied
for within one month after the making of the order (e) , an
appeal was allowed to the Court of Chancery ( d) .

(c) 16 & 17 Vict . c. 137, s. 1. (a) 23 & 24 Vict. c . 136, s. 11.

(d) Ib. sects. 9 to 14. (b) 16 & 17 Vict. c. 137, s. 32.
(e) Ib . s. 20. (c) Ib. s. 39.
(ƒ) Ib. s. 28. (d) Ib. s. 40 .
(g) Ib. s. 30.
1249
*932 CHARITY COMMISSIONERS . [CH. XXX. S. 4.

Necessity for previous consent of Charity Commissioners be

-
fore taking proceedings . — The Act contains a special pro
vision that no suit or proceeding ( e) not being an application
" in any suit or matter actually pending," shall be commenced
or taken without an authority previously obtained from the
Charity Commissioners (f) . It was at first held that where
money had been paid into Court under the Trustee Relief
Act, 10 & 11 Vict. c . 96 (g) , or under a Railway Act (h) , no
such suit or matter was pending as to obviate the necessity
of previously obtaining the concurrence of the Charity Com
missioners. But it has since been decided by the Court of
Appeal, that in such cases the previous sanction of the
Charity Commissioners is unnecessary. The object of the
provision was merely to stop the enormous abuses in ref
erence to proceedings in charity matters, and the words
suit or matter actually pending mean pending at the time
of the application, and not at the passing of the Act ( i) .

[ (e ) The words suit or other pro Gregg, 21 Ch. D. 513 ; and see At
ceeding do not include an action at torney-General v. Sidney Sussex Col
law. Thus, the sanction of the lege, 15 W. R. 162 , 21 Ch. D. 514,
Charity Commissioners was held not note. The authority of the Com
to be requisite, where the Governors missioners must be given formally in
of an Endowed School commenced the manner directed by the Act, and
an action against the master to re a letter signed by the secretary of
strain him from presenting himself the board stating that "they were
at the school, or continuing to occupy prepared to issue their certificate
the schoolhouse, on the ground that authorising the proceedings ; " that
he had never been properly appointed " any difficulty in the application to
to the mastership, was unfit to fulfil the Court would probably be obviated
its duties, and had been removed by by the production of the letter," and
a resolution of the Governors, Holme that "the certificate would be pre
v. Guy, 5 Ch. D. 901. But they in pared and issued in due course," was
clude a mandamus to compel the held by Frye, J., in a pressing case
rendering of proper accounts ; At of an application for an injunction
torney-General v. Dean and Canons to be insufficient ; Thomas . Har
of Manchester, 18 Ch. D. 596. As to ford , 48 L. T. N. S. 262. ]
what cases fall within the section , (g) Re Markwell's Legacy, 17
see Brittain v. Overton, 25 Ch . D. 41 , Beav. 618 ; In re Skeetes, 1 Jur. N. S.
n.; Benthall v. Earl of Kilmorey, 25 1037 .
Ch. D. 39. ] (h) Re London, Brighton and
[ (f) But this provision does not South Coast Railway Company, 18
apply to the Charities exempted from Beav. 608.
the Act by sect. 62 ; or to Places of (i) Re Lister's Hospital, 6 De G.
Religious Worship falling under sect. M. & G. 184 ; Re St. Giles and St.
9, of 18 & 19 Vict. c. 81 , Glen v . George, Bloomsbury, 25 Beav. 313 ;
1250
 CH. XXX. S. 4.] CHARITABLE TRUSTS ACTS . *933

* It has, however, been held since the decision of the [ * 933 ]

Court of Appeal, that a petition for the appointment
of new trustees under a scheme previously settled by the
Court requires the sanction of the Commissioners (a) .
The Act contains other provisions (b) of a preventative
rather than a remedial kind .
Board authorised to give advice. By the 16th section, for
instance, the Board has power to entertain applications for
their opinion or advice, and persons acting in accordance
therewith are indemnified .

Provisions for vesting land, stock, & c. - By the 48th section,

lands belonging to any charity may be vested in the secretary
of the Board as a corporation sole by the name of the Treas
urer of Public Charities ; and by the 51st section, annuities ,
stocks , shares, or securities held for any charity may be
vested in the Official Trustees of charitable funds ; and by
the 54th and following sections, the Board have power when
the ordinary jurisdiction is insufficient for the purpose to
approve provisionally of new schemes of charities, varying
from the original endowment, but which are to be submitted
annually to Parliament for its ratification .
8.
Charitable Trusts Amendment Act. - — By the Amendment
Act, 18 & 19 Vict . c . 124, by the 15th section , the name of the
Treasurer of Public Charities is abolished, and the secretary
of the Board for the time being is styled the Official Trustee
of charity lands ; and by the 17th and 18th sections , the Act
provides for the appointment of the Official Trustees of
charitable funds, to consist of the secretary of the Board
Chancellor
for the time being, and such other persons as the Lord
may appoint, who are to have perpetual suc
cessi
on .
9.
Charitable Trusts Act, 1860 . --By “ The Charitable Trusts
Act, 1860 " (23 & 24 Vict . c . 136) , t he Charity Commiss
ioners

Braun
d v . Earl of Devon , 3 L. R. Ch.
App. 800 ; [Re Will Drew. 324 ; both, however, decided
iam of Kyngeston
Charit , 30 W. R. 78. ] previously to the appeal decisions in
y p. 932, note (i) .
(a ) Re Jarvis's Chari , 1 Dr. &
Sın. 97 ; ty (b) See pp. 540, 547, supra, for
2 D r e a s R B
w. 2n8d3 ; Ree Feord'nsglCehyarSicho,ol3,
e i powers of sale, leasing, &c. given by
ty the Acts.
1251
*934 ACCOUNT OF MESNE RENTS [CH. XXX. S. 4.

are enabled by s. 2 to make such orders as may be made "by

"
any Judge of the Court of Chancery sitting at Chambers (c) ,
or by any County Court or District Court of Bankruptcy (d),
for the appointment or removal of any schoolmaster or
schoolmistress or other officer thereof, or for or relating to
the assurance, transfer, or payment of any real or personal
estate," belonging to the charity, or for the establishment of
any scheme . But, by sect . 4, no such order is to be made
where the charity income exceeds 501. , except on the applica
tion of the majority of the trustees ; and no trustee
[ * 934 ] is to be removed on the ground only * of religious
belief; and by sect. 5, the Commissioners are not to
make orders in any case, which by reason of its contentious
character or otherwise may be considered by them more fit
to be heard by the judicial Courts (a) .

II. Of the extent of redress.

What account will be directed of mesne rents and profits.
Under this head we propose to enquire only within what
period of time the account of mesne rents and profits directed
against trustees of charities guilty of a breach of trust will be
restricted.
1. The account not affected by Statutes of Limitation . It is
clear that in informations against trustees of charities the old
Statutes of Limitation opposed no bar to the account, because
charities were held exempt from the purview of the Statutes,
and the claim was by cestui que trust against an express trus
tee (b) ; and although it was at one time considered that the
Statute might afford a good rule how far back to carry the
account (c) , this doctrine was afterwards overruled (d) . And
now, 3 & 4 W. 4, c . 27 , though applicable to charities (e ) ,

(c) See 16 & 17 Vict. c. 137, s . 28. pany, 1 Mer. 498, per Sir W. Grant ;
(d) Ib. s. 32. see Incorporated Society v. Richards,
(a) As to the effect of the 5th 1 Conn. & Laws. 58 ; 1 Dru. & War.
section, see Re Hackney Charities, 34 258.
L. J. N. S. Ch . 169 ; Re Burnham (c) Anon. case , 2 Eq . Ca. Ab. 12,
National Schools, 17 L. R. Eq. 241 . pl. 20 ; Love v. Eade, Rep. t. Finch,
(b) Attorney-General v. Mayor of 269.
Exeter, Jac. 448, per Sir T. Plumer ; (d) See cases in note (b).
Attorney-General v. Brewers' Com (e) See p. 884, ante.
1252
CH. XXX . S. 4. ] IN CHARITY CASES . *935

does not limit the liability of express trustees to account (ƒ) ;

so that charity trustees must as express trustees account
upon the same footing as before the Act.
2. Bar to the account from inconvenience of relief. But
the Court may set a limit to the account on the ground of
inconvenience. "It is the constant practice of Courts of
equity," said Sir Thomas Plumer, " to discourage stale de
mands ; and this principle has often been acted upon in cases
of charities. When there has been a long period, during
which a party has, under an innocent mistake, misapplied a
trust fund from the laches and neglect of others, that is, from
no one of the public setting him right, and when the accounts
have, in consequence, become entangled, the Court, under
its general discretion , considering the enormous expense of
the enquiries, and the great hardship of calling upon repre
sentatives to refund what families, acting on the notion of its
being their property, have spent, has been in the habit, while
giving relief, of fixing a period to the account " (g) .
3. Period to which account is carried back varies according
to circumstances. ― The period to which the account
has been carried back has varied according to the [ * 935 ]
circumstances presented to the consideration of the
Court. Where no inconvenience can be objected , the Court
will as a general rule carry back the account to the time of
commencement of the misapplication .
4. Thus in Attorney-General v. The Mayor of Exeter (a) ,
where the defendants admitted possession of the charity
estate for the last 200 years, and stated that they had always
been ready and willing to account for the rents, Sir W. Grant
ordered the defendants to account for the whole period , and
this decision was affirmed by Sir T. Plumer on a rehearing,
and by Lord Eldon on appeal.
5. In Attorney-General v. the Corporation of Stafford (b) ,
the trustees in their answer, filed in 1811 , had furnished ac
counts of the trust estate from the year 1791 , and Lord Gif

(f) Hicks v. Sallitt, 3 De G. M. & (a) Jac. 443 ; 2 Russ . 362.

G. 816. (b) 1 Russ. 547.
(9) Attorney-General v. Mayor of
Exeter, Jac. 448.
1253
*936 ACCOUNT OF MESNE RENTS [CH. XXX . S. 4.

ford saw no inconvenience in decreeing the account as far

back as the trustees themselves had stated it, but refused to
extend it farther.
6. In Attorney-General v. The Brewers' Company (e ) , Sir
W. Grant directed the trustees to account from the date of
a certain Act of Parliament, a period of about thirty years .
In a more recent suit against a corporation the account was
carried back to the last appointment of new trustees of the
corporation, a period short of ten years. And in another con
temporaneous suit against the same corporation, but where
the legal estate was not in trustees , but in the corporation
itself, the Court by analogy, and for want of another fixed
point, ordered the account to commence at the date of the
last appointment of new trustees in the first suit (d) .
7. Various other periods adopted. In other cases the ac
count has been carried back to the period when the corpora
tion was first informed of the misapplication (as by the
publication of the Charity Commissioners ' Report) ; in other
cases it has been directed from the time of filing the infor
mation, and in others from the date of the decree (e) .
8. Compromise with Attorney-General. - Occasionally, where
the defendant has been in strictness accountable for a very
long period, but the right, if enforced, would impose great
hardship, it has been referred to the Attorney- General, as
representing the charity, to certify whether under the cir
cumstances it might not be proper for the charity to accept
a less sum (f) .
[* 936 ] * 9. Trustees acting from mistake. - Where the
trustees have diverted the charity funds from their
proper channel through mistake, it is now settled, that the
Court will not call back any disbursements made before the
commencement of the proceedings (a ) , or before the trustees

(c) 1 Mer. 495. Sim. 279 ; Attorney-General v . Bret

(d) Attorney-General v. Mayor of tingham, 3 Beav. 91 ; Attorney- Gen
Newbury, 3 M. & K. 647. eral v. Pretyman, 4 Beav. 462.
(e) See Attorney-General v. Dra (a) Attorney-General v . Corpora
pers' Company, 6 Beav. 390. tion of Exeter, 2 Russ . 45 ; affirmed,
(f) Attorney-General v . Mayor of 3 Russ. 395 ; Attorney -General r.
Exeter, 2 Russ . 370 ; and see Attorney Dean of Christchurch, Jac. 474, 637 ;
General v. Corporation of Carlisle, 4 S. C. 2 Russ . 321 ; Attorney- General
1254
CH. XXX. S. 4. ] IN CHARITY CASES . *936

had notice that the propriety of such application would be

called into question (b) . The Court holds a strict hand
over trustees where there is any wilful misemployment ; but
where the Court sees nothing but mistake, while it gives
directions for the better management in future, it refuses to
visit with punishment what has been transacted in time past.
To carry back the account to the very commencement of the
misapplication would be the ruin of half the corporations in
the kingdom (c) ; besides, to act on such a principle would
be a great discouragement to undertake the office of trustees
of charities (d).
10. Distinctions between corporations and individuals. ――― If
an individual make an annual payment for a particular
purpose out of the profits of his estate, it is a reasonable
presumption, from the strong interest which he has to resist
an unfounded demand, that he has enquired into the origin
of the claim , and he is therefore fixed with implied notice of
all the circumstances that attend it ; but the same presump
tion cannot be applied to corporations, because, having no
immediate personal interest in the application of the profits
of the corporate property, they may, without the imputation
of culpable negligence, adopt and follow the practice of their
predecessors (e).
11. Breach of trust by a parish. - Where the charity fund
has been administered by a parish and misapplied, there, as
a parish is a fluctuating body, and the present ratepayers
ought not to pay for past defaults, no retrospective account
can be ordered (ƒ) .

v. Rigby, P. W. 145 ; Attorney- Gen (c) Attorney-General v. Burgesses

eral v . Caius College, 2 Keen, 150 ; of East Retford, 2 M. & K. 37, per
Attorney- General v. Drapers' Com Sir J. Leach.
pany, 4 Beav. 67 ; Attorney-General (d) Attorney-General v. Corpora
v. Christ's Hospital, Ib. 73 ; and see tion of Exeter, 2 Russ. 54, per Lord
Attorney-General v. Mayor of New Eldon.
bury, 3 M. & K. 650. (e) Attorney-General v. Burgesses
(b) Attorney - General . Burgesses of East Retford, 2 M. & K. 38, per
of East Retford, 2 M. & K. 35, see 37 ; Sir J. Leach.
and see Attorney - General v. Corpora (f) Ex parte Fowlser, 1 J. & W.
tion of Berwick-upon- Tweed , Taml. 70 ; and see cases cited Ib. 73, note (a) .
239 ; Attorney- General v. Caius Col
lege, 2 Keen, 150.
1255
*937 ACCOUNT OF MESNE RENTS. [CH. XXX. S. 4.

12. Mode of attaching the corporation property. - In the

East Retford case (g) , before Sir J. Leach, the Court, on
proof of a breach of trust by the corporation , directed an
enquiry by the Master of what property the corpora
[ * 937 ] tion was possessed not * devoted to special purposes,
with the view that compensation might be made to
the charity by an immediate sale ; but the case upon that
point was subsequently appealed against and reversed, as
contrary to principle ( a ) , and the plaintiff must now con
fine himself to a sequestration against the corporation in the
ordinary course .

(g) 2 M. & M. 35. ney-General v. Newark-upon-Trent, 1

(a) 3 M. & Cr. 484 ; and see Attor Hare, 395.
1256
 * CHAPTER XXXI . [* 938]

MAXIMS OF EQUITY FOR SUSTAINING THE TRUE CHARACTER

OF THE TRUST ESTATE AGAINST THE LACHES OR TORT
OF THE TRUSTEE .

BESIDES the several rights and remedies which have just

been the subject of discussion , the Court, with the view of
keeping the trust estate in its regular channel, and sustaining
its proper character, whether of realty or personalty, against
the laches or other misbehaviour of the trustee, has found it
necessary to establish two maxims, which we now proceed to
examine : viz ., First, What ought to be done should be con
sidered as done ( a ) ; and, Secondly, The act of the trustee
shall not alter the nature of the cestui que trust's estate (b) .

SECTION I.

WHAT OUGHT TO BE DONE SHALL BE CONSIDERED AS DONE .

1. General principle. "The forbearance of the trustees,"

said Sir J. Jekyll, " in not doing what it was their office to
have done, shall in no sort prejudice the cestuis que trust,
since at that rate it would be in the power of trustees,

(a) Walker v. Denne, 2 Ves. jun. 29, per Sir J. Leach ; Earl of Buck
183, per Lord Loughborough ; Foone ingham v. Drury, 2 Eden , 65, per
v. Blount, Cowp. 467 , per Lord Mans Lord Hardwicke ; Guidot v . Guidot,
field ; Holland v. Hughes, 16 Ves. 3 Atk. 256, per Lord Hardwicke ;
114, per Sir W. Grant ; Gaskell v. Crabtree v. Bramble, Ib. 687, per
Harman, 11 Ves. 507 , per Lord El eundem ; Trafford v . Boehm, Ib. 446,
don ; Stead v. Newdigate, 2 Mer. 530, per eundem ; Astley v . Earl of Essex,
per Sir W. Grant ; Pulteney v. Darl 6 L. R. Ch. App. 898 ; & c.
ington, 1 B. C. C. 237 , per Lord Thur (b) Philips v. Brydges, 3 Ves . 127,
low ; Burgess v. Wheate, 1 Eden, 186, per Lord Alvanley ; Earlom v. Saun
per Sir T. Clarke ; Lechmere v. Earl ders, Amb. 242, per Lord Hardwicke ;
of Carlisle, 3 P. W. 215, per Sir J. Selby v . Alston, 3 Ves. 341, per Sir
Jekyll ; Fitzgerald v. Jervoise , 5 Mad. R. P. Arden.
1257
*939 CONVERSION OF MONEY INTO LAND . [CH. XXXI . S. 1 .

[ * 939 ] either by doing or delaying to do their duty, to * affect

the right of other persons ; which can never be main
tained. Wherefore the rule in such cases is, that 'What
ought to have been done shall be taken as done,' and a rule so
powerful it is as to alter the very nature of things, to
make money land, and, on the contrary, to turn land into
money " (a). And Lord Macclesfield, in the case of a be
quest to a trustee for purchasing lands, observed, "If the
purchase had been made it must have gone to the heir, but
if the trustee, by delaying the purchase , might alter the right,
and give it to the executors, this would be to make it the will
of the trustee, and not the will of the testator, which would be
very unreasonable and inconvenient " (b).
2. Money to be laid out on land to be regarded as land.
Upon these grounds it is in equity a universal rule , that
money directed to be laid out in the purchase of land, or land
directed to be sold and turned into money, shall be considered
as that species of property into which it is directed to be con
verted ; ¹ and this, in whatever manner the direction is given,
whether by will, by way of contract, by marriage articles, by
settlement, or otherwise, and whether the money has been
actually deposited in the hands of trustees for the purpose,

(a) Lechmere v. Earl of Carlisle, 3 (b) Scudamore v. Scudamore, Pr.

P. W. 215. Ch. 543.

1 What powers a trustee is to have in respect to converting the trust estate,

must be determined from the language of the trust ; Hidden v . Hidden, 103
Mass. 59. If it appear that the particular property placed in trust, is to be
enjoyed by the cestui que trust, no conversion was intended ; Harrison v. Foster,
9 Ala. 955 ; Dunbar v . Woodcock, 10 Leigh, 628 ; and the remaindermen must
take it subject to whatever reasonable wear and tear it has undergone ; Ibid.;
yet it will be presumed, if possible, that the settlor intended to allow conver
sion ; Covenhoven v . Shuler, 2 Paige, 122 ; Smith v . Barham , 2 Dev. Eq. 420 ;
Cairns v. Chaubert, 9 Paige, 160 ; Henderson v. Vaulx, 10 Yerg. 30. If the
cestui que trust is to enjoy the specific property placed in trust, it would natu
rally follow that he should be put in possession ; Holman's App. 12 Harris,
178 ; Evans v. Inglehart, 6 Gill . & Johns. 171 ; and the remainderman will
take whatever is left ; Shaw v . Hussey, 41 Me. 495 ; Tyson v. Blake, 22 N. Y.
558 ; the trustee has a liability to protect the remainderman ; Wootten r .
Burch, 2 Md. Ch . 190 ; Williamson v . Williamson, 6 Paige, 298 ; Eischel
berger v. Barnetz, 17 Serg. & R. 293 ; that will vary according to circum
stances ; Spear v. Tinkham, 2 Barb. Ch . 211 ; Smith v . Barham, 2 Dev . Eq.
420.
1258
CH. XXXI . S. 1. ] CONVERSION OF MONEY INTO LAND. *940

or is only covenanted to be paid, and whether the land has

been actually conveyed, or is only agreed to be conveyed (e) .
-
3. Subject to curtesy . Thus, if money be stipulated to
be laid out in land to be settled on a feme covert in fee or in
tail, the husband of the feme is entitled to his curtesy, though
no purchase be actually made in the lifetime of the wife ;
and he will be decreed the interest of the money until a pur
chase can be found ; and when the investment has been made,
he will have a life estate in the lands ( ) .
4. Whether subject to dower. Whether under similar
circumstances a widow could, before the late Dower Act,
have established her title to dower, was much questioned .
It was admitted she was not dowable of a mere trust es
tate (e ) ; but, where money was to be converted into land,
and the interest was only prevented from being legal through
the forbearance of the trustee, it was contended that the
rights of parties ought not to be varied by the neglect of the
person who was merely the instrument for carrying out the
settlor's wishes.
Lord Hardwicke's opinion. ― The opinion of Lord
Hardwicke was on more than one occasion * expressed [ * 940 ]
adversely to the wife's claim ( a ) ; but there are several
authorities in favour of the right to dower (b) .
Late Dower Act. ―――――― By the late Act (except where the mar
riage was celebrated on or before the 1st day of January,
1834) , the Legislature has given dower out of every species of
trust estate in possession ; subject to be defeated, however, by
any declaration of intention on the part of the husband (c) .
[ 5. Letters of administration . - Money which has arisen
from settled land sold under the Settled Estates Acts and

(c) Fletcher v . Ashburner, 1 B. C. (b) Fletcher v. Robinson, cited

C. 499 ; and see Wheldale v . Part Dudley v. Dudley, Pr. Ch . 250 ; S. C.
ridge, 5 Ves. 396. stated from R. L. in Banks v. Sutton,
(d) Sweetapple v . Bindon , 2 Vern. 2 P. W. 709 ; Otway v. Hudson, 2
536 ; Cunningham v. Moody, 1 Ves . Vern. 583 ; Banks v. Sutton, 2 P. W.
174 ; Dodson v . Hay, 3 B. C. C. 405 . 700 ; Re Lord Lismore, 1 Hog. 177 ;
(e) Altered by the late Act, 3 & 4 and see the arguments of Sir J. Jekyll
W. 4, c. 105. in Banks v. Sutton , 2 P. W. pp . 704,
(a) See Cunningham v. Moody, 1 706.
Ves. 176; Crabtree v. Bramble , 3 Atk. (c) See p. 737, supra.
687.
1259
 * 941 CONVERSION OF MONEY INTO LAND . [ CH. XXXI . S. 1.

liable to be reinvested in land under those Acts is not a

proper subject for letters of administration , so as to give
jurisdiction to the Court to grant such letters (d) .]
6. Money to be laid out in land is not subject to escheat.
If money be articled, or directed, to be laid out in land to
1
be settled on a person in fee, and the cestui que trust dies
without heirs , there can, as a general rule , be no claim for
an escheat by any one, since until the land is actually pur
chased it is uncertain who will fill the character of lord (e) .
Cases might no doubt occur free from this element of un
certainty, as where the trust is to lay out money in the pur
chase of lands in the parish of A., all the lands in which are
held under the same lord ; but even in such a case the lord
would fail to establish his claim, for a lord by escheat comes
under no head of equity - is entirely a stranger to the trust,
claiming by title paramount of his own (ƒ) . The pretence
for his claim would be, that the operation of the rule so
absolutely converts the equitable into a legal estate, that all
the incidents, that would have belonged to the legal, must
be considered in equity as attaching to the equitable estate ;
but the rule was meant not to benefit third persons , but to
protect the interests of parties to the trust.
7. How affected by the cestui que trust's will. As money
to be laid out in land is regarded as land, it could not even
before the late Wills Act, have been devised by an infant,
though of sufficient age to bequeath personal estate (g) ;
and, for the same reason, it will pass by the cestui
[ * 941 ] que trust's will under the * general description of all
the testator's lands (a) , or of all his lands in the

[ (d) Re Goods of Lloyd, 9 P. D. the late Act, 7 W. 4, & 1 Vict. c. 26,

65. ] an infant cannot make a will even of
(e) This point escaped notice in personal estate.
Walker v. Denne, 2 Ves. jun. 170, and (a) Guidot v. Guidot, 3 Atk. 256,
it seems to have been assumed that per Lord Hardwicke ; Rashleigh v.
the Crown would be the lord. Master, 1 Ves. jun. 201 ; S. C. 3 B. C.
(f) Walker v. Denne, 2 Ves . jun. C. C. 99 ; Green v. Stephens, 17 Ves.
185, per Lord Loughborough ; Hench 77 ; Biddulph v. Biddulph, 12 Ves.
man . Attorney-General, 3 M. & K. 161 ; [ Chandler v. Pocock, 15 Ch . D.
494 , per Lord Brougham . 491 ; Re Greaves' Settlement Trusts,
(g) Carr v. Ellison , 2 B. C. C. 56 ; 23 Ch. D. 313. ]
Earlom e. Saunders, Amb. 241 . By
1260
CH. XXXI . S. 1. ] CONVERSION OF MONEY INTO LAND. *941

county of 1 or elsewh
ere (b), though in the latter case it
was very plausibly contended , that the testator could not
have referred to money , but must have alluded to something
that possessed a local character . [ But where the money is
subjec to a genera powe of appo tment by will, and there
t l r in
is no intermediate interest in any person who after the death
of the donee of the power would have a right to call for its
investment in land, and the donee has shown an intention in
his lifetime to make the money personal estate so far as he
can , it will pass under a general bequest by the donee of all
his personal estate (e) . ]
8. Is subject to judgments. ―― So money to be converted
into land was bound by a judgment (d) , and was never
accounted personal assets, and therefore was not until the
late Act (e) , liable to the payment of simple contract
debts (f).
9. Orphanage share. - So a gift by a parent (a freeman of
the city of London ) to a child, of money to be laid out in land
was considered a purchase by the father and a donation of the
estate, and consequently, under the law existing before the
late Act (g) , the child was not bound, before receiving his
orphanage share, to bring the purchase into hotch-pot (h) .
10. In what cases money to be laid out on land goes to the
______
heir. With respect to the heir of the person upon whom
the lands, when purchased, are directed or agreed to be set
tled, it is necessary, for ascertaining his rights, to distinguish
between the cases where the real representative claims as
against a stranger, and where he claims as against the exec
utor of his own ancestor.

(b) Lingen v. Sowray, 1 P. W. 172 ; 55 ; S. C. 2 Keb. 841 ; Fulham v.

Guidot v. Guidot, 3 Atk. 254. Jones, cited Pulteney v. Darlington,
[(c) Chandler v. Pocock, 15 Ch. D. 7 B. P. C. 550 ; Foone v. Blount,
491 ; 16 Ch. D. 648 ; and see Re Cowp. 467 , per Lord Mansfield . Money
Greaves' Settlement Trusts, 23 Ch. D. to be laid out on a purchase of land
313.] is not land for the purposes of the
(d) Frederick v. Aynscombe , 1 Stamp Acts, but pays legacy duty ;
Atk. 392. Re De Lancey , 4 L. R. Ex. 345 ; 5 L.
(e) 3 & 4 W. 4, c. 104. R. Ex . 102 .
(/) Whitwick v . Jermin, cited (g) 19 & 20 Vict. c. 94.
Baden v . Earl of Pembroke, 2 Vern. (h) Hume v. Edwards, 3 Atk. 450 ;
58; Lawrence v. Beverly, cited Ib. Annand v. Honeywood, 1 Vern. 345.
1261
*942 CONVERSION OF MONEY INTO LAND . [CH. XXXI. S. 1.

Case of the heir claiming against a stranger. - It appears to

be perfectly established 瘫 that the heir is entitled to the
money as land, if he seek to enforce his equity against a
stranger. Thus, 1. If a sum of money be bequeathed to be
laid out in a purchase of lands to be settled to the use of A.
and his heirs, and A. dies before a purchase has been
*
[* 942 ] obtained, the money is the property, not of the
executor, but of the heir of A. (a) . 2. If on the
marriage of A. money be actually deposited in the hands of
trustees, either by A. himself or by a stranger, to be laid out
in a purchase of lands to be settled to the use of A. for life,
remainder to his wife for life, remainder to the issue in tail,
remainder to A. in fee, and A. dies without issue, his heir,
and not his executor is entitled ( b) . 3. If on the marriage
of A. there be a covenant on the part of B. to lay out money
in a purchase of lands to the above uses, and A. dies with
out issue, his heir takes the benefit of the covenant (c) .
11. Case of the heir claiming against the executor of his own
ancestor. --But if the heir have to enforce his claim, not
against a stranger, but against the personal representative of
his own ancestor, as if A. on his marriage covenant to lay
out money in a purchase of lands to be settled to the use of
himself for life, remainder to his wife for life , remainder to
the issue in tail, remainder to his own right heirs, in this
instance the question whether the heir can call upon the
executor for the money must depend upon this further dis
tinction :
a. The heir has a right, if any person has an equitable inter
est. If at the death of A. there be an equitable interest in
(a) Scudamore v. Scudamore, Pr. queathed, subject to a discretion to
Ch . 543. Abbot v. Lee, 2 Vern. 284, lay out on land which was not exer
at first sight appears contra, but it cised, it belonged to the administrator
seems from the Registrar's book that of the legatee, as was decreed . The
the direction for conversion was not case is stated from Reg. Lib. in Ap
imperative, but to be at the discretion pendix No. II. to 3d edition of this
of the testator's executors . Had the Treatise.
money been absolutely converted into (b) Disher v. Disher, 1 P. W. 204 ;
land, the ultimate remainder would, Chaplin v. Horner, Ib. 483 ; Edwards
by failure of issue of the surviving v. Countess of Warwick, 2 P. W. 171 ;
daughter, have resulted as personal and see Lechmere v. Lechmere, Cas.
estate of the testator (see p. 152, ante) ; t. Talb. 90.
but being money absolutely be (c) Knights v. Atkyns, 2 Vern . 20.
1262
CH. XXXI. S. 1. ] CONVERSION OF MONEY INTO LAND. *943

the fund outstanding in another, as a life estate in the wife ,

[or a right in a jointress to have a rent-charge ( d) , ] or an
estate tail in the issue, then the real quality of the money is
sustained and continued by that right, and the heir of A. is
entitled to call upon A.'s executor to pay the money (e) ;
and if there be such an outstanding claim at the death of
the ancestor, the circumstance that the heir institutes his
suit during the subsistence of that claim, or after its deter
mination, seems to be immaterial (ƒ) .
Walker v . Denne. — In Walker v. Denne (g) , Lord Lough
borough expressed some doubt upon this doctrine .
"Between the heir and personal representative," [ * 943 ]
he said, " their rights are pure legal rights : chance
decides what shall be real, what personal ; neither has a
scintilla of equity to make the property that which it is not
in fact ." To this reasoning of Lord Loughborough it may
be replied, that, when it is said there is no equity between
the real and personal representatives, the meaning is no
more than this-- that what is real estate at the death of the
ancestor will go to the heir, and what is personal estate at
the death of the testator will go to the executor ; but, for
the purpose of determining what is real and what is personal
estate, the Court is guided , not by the legal nature of the
property at the death of the owner, but, as appears in
numerous instances, by the stamp and character impressed
upon it in consideration of a Court of equity. Thus if a
mortgagee in fee die, the mortgage being regarded as a mere
security for part of the mortgagee's personal estate , the
executor may call upon the heir for a conveyance of the
land (a ) . So , if the mortgagor die, the heir of the mort

[(d) Walrond v. Rosslyn, 11 Ch. t. Talbot, 89 ; Oldham v. Hughes, 2

D. 640. Semble, it would be other Atk. 452.
wise if the only right were that of (f) See Chaplin v. Horner, 1 P. W.
portionists to have their portions 483; Lechmere v. Lechmere, Cas. t.
raised , S. C. ] Talb. 80.
(e) Kettleby v. Atwood, 1 Vern. (g) 2 Ves. jun. 175 , 176, 183 ; and
298 ; re-heard, Ib. 471 ; Lancy v. see Oxenden v. Lord Compton, Ib. 70 ;
Fairechild, 2 Vern. 101 ; Chaplin v. Lord Compton v . Oxenden , Ib. 265.
Horner, 1 P. W. 483 ; Lechmere v. Earl [ (a ) Now by 44 & 45 Vict. c. 41 , s.
of Carlisle, 3 P. W. 211 ; affirmed Cas. 30, where the death has occurred since
1263
*944 CONVERSION OF MONEY INTO LAND. [CH. XXXI . S. 1.

gagor might until Locke King's Act have called on the

executor to discharge the incumbrance out of the personal
assets. So if a person contract for the sale of an estate, and
die before the completion of the sale, the legal fee descends
upon the heir (b ) , but the purchase-money passes to the
executor ; and on the other hand, if a person contract for
the purchase of an estate, and die, the executor must pay
the money, but the heir is entitled to the purchase (c) .
Thus, in the words of Lord Talbot, " Where the dispute is
between the two representatives of the deceased, the one of
his real, the other of his personal estate, the heir's being but
a volunteer in regard to his ancestor will not exclude him
from the aid of the Court, for though the question is
between two volunteers, the Court will determine which
66 I am
way the right is, and will decree accordingly " (d) . "
disposed," said Lord Eldon, " to say, notwithstanding the
opinion of Lord Rosslyn in Walker v. Denne, and some
other modern authorities, that if the instrument be taken
to impress a fund with real qualities immediately upon the
execution, in the question between the heir and executor,
the money being once clearly and plainly impressed
[ * 944 ] with real * uses as land, and one of those uses being
for the benefit of the heir, it will remain for his ben
efit, and it is not correct to say the Court does not interpose
between volunteers, if they give to the executor that money
which the instrument has given to the heir " (a) . And Sir
W. Grant to the same effect observed, " There is no weight
in the circumstance that the property is found in the shape
of money or land, for the character is to be found in the deed.
The opinion of Lord Rosslyn that property was to be taken

the 31st December, 1881 , the land de [(c) But since the recent Act the
volves upon the executor.] estate in the hands of the heir will be
[ (b) Now by 44 & 45 Vict. c. 41 , s . subject to the repayment to the exec
4, where the death has occurred since utor of the purchase-money paid by
the 31st December, 1881 , if the con him ; 40 & 41 Vict. c. 34 ; Re Cock
tract is enforceable against the heir croft, 24 Ch. D. 94. ]
or devisee of the vendor, his personal (d) Lechmere v. Lechmere, Cas. t.
representatives can convey the land Talb. 90.
for the purpose of giving effect to the (a) Wheldale v. Partridge, 8 Ves.
contract ; and see also sect . 30. ] 235.
1264
CH. XXXI. S. 1.] CONVERSION OF MONEY INTO LAND. * 944 .

as it happened to be at the death of the party from whom

the representatives claimed , was much doubted by Lord
Eldon, who held, in which I perfectly concur, that it must be
considered as being in the state in which it ought to be.
Lord Rosslyn's rule was new, and not according to prior
cases " (b) .
B. Heir has no right where the money is " at home." - But
if A. die, leaving neither wife nor issue, so that, to use the
technical expression, the money is " at home," that is A. at
the time of his death is the absolute and exclusive owner,
and there is no outstanding right in another person , in this
case the real quality of the money has become merged and
extinguished, and on the death of A. the heir has no equity
to call upon the executor. To keep on foot the notional con
version of money into land, it is evident there must be a
right in some one to insist upon the actual conversion ; but
if A. be in possession of 20,000l. upon trust to lay out in a
purchase of lands to be settled to the use of himself and his
heirs, the right and the thing both centering in the same per
son, there is nobody to sue, and it follows that the action is
extinguished (c) .
The decision in the much litigated case of Chichester v .
Bickerstaff (d) , amounted probably to no more than this.
On the marriage of Sir J. Chichester with the daughter of
Sir C. Bickerstaff, the latter agreed to pay 15007. by way of
portion, which, together with 15007. more to be advanced by
Sir John Chichester within three years after the marriage ,
was to be invested in lands to be settled on Sir John for life,
remainder to his wife for life , remainder to the issue in tail,
remainder to Sir John in fee . Sir John and his lady, within
one year after the marriage, both died without issue, the hus
band having survived . Sir John by his will made Sir C.
Bickerstaff his executor, and bequeathed the residue of his
personal estate, after payment of his debts, & c . , to Frances
Chichester, his sister. The heir at law of Sir John brought

(b) Thornton v. Hawley, 10 Ves. (d) 2 Vern. 295 ; S. C. cited Pulte

138 ; Kirkman v. Miles, 13 Ves . 339. ney v. Darlington, 7 B. P. C. 554.
(c) See Pulteney v . Darlington, 1
B. C. C. 237.
1265
#945 CONVERSION OF MONEY INTO LAND. [CH. XXXI . S. 1.

his bill against Sir Charles to compel him to pay the

*
[* 945 ] 15007. insisting that by virtue of the marriage arti
cles the money ought to be looked upon as land, and
therefore belonged to him as heir. Lord Somers said, " This
money, though once bound by the articles, yet when the wife
died without issue became free . again, and was under the
power and disposal of Sir John, as the land would likewise
have been in case a purchase had been made pursuant to the
articles, and therefore would have been assets to a creditor,
and must have gone to the executor or administrator of Sir
John ; and this is much stronger where there is a residuary
legatee ; " and his Lordship dismissed the bill. Then follows
what is apparently the note of the reporter, viz ., that " money
shall in many cases be considered as land when bound by
articles in order to a purchase, but whilst it remains still
money, and no purchase made, the same shall be deemed as
part of the personal estate of such person, who might have
aliened the land in case a purchase had been made.”
Errors respecting Chichester v . Bickerstaff. - In this case it
has been commonly, but surely without reason, supposed,
that the suit of the plaintiff was for the 15007. which Sir
Charles had articled to pay, and in consequence of this mis
conception, the authority of the decision has repeatedly been
called into question . Thus Sir J. Jekyll, overlooking the
very material circumstance that Sir Charles had been ap
pointed the executor of the testator, observes, " It is remark
able with respect to this case, that the wife died within three
years after the marriage, during which period the purchase
was to be made, so that the time was not come within which
the money was to be laid out ; and till then it continued
money ; and possibly the Court had some evidence to induce
them to believe that Sir John Chichester looked on the
money as personal estate ; and if this does not distinguish it
from other cases, I doubt, in opposition to so many decrees, the
resolution here given would hardly be maintainable ” (a) . And
Lord Talbot was apparently under the same misapprehension,
for he observes, " Had the money in the case before me been

(a) Lechmere v. Earl of Carlisle, 3 P. W. 221 .

1266
CH. XXXI . S. 1. ] CONVERSION OF MONEY INTO LAND. *946

deposited in the hands of trustees, it must have been looked

upon as real estate, and the heir have been entitled. This
seems to be granted, and no authority against it but what
has been collected from the case of Chichester v. Bickerstaff.
It is probable the Court went upon some reason, which in
duced it to think that Sir John looked upon that money as
personal estate, for otherwise the authority of that case is not
to be maintained, being contrary to all former resolutions ” (b) .
But Lord Thurlow viewed the case in a different
light, and evidently * considered the 15007. sought [ * 946 ]
by the bill of the plaintiff to be the 15007. articled
to be paid by the testator himself, and so payable out of
his assets in the hands of Sir Charles Bickerstaff, his execu
tor. 66 Where," said his Lordship, " a sum of money is in the
hands of one without any other use but for himself, it will be
money, and the heir cannot claim, like the case of Chichester
v. Bickerstaff, against which I think there is no judgment,
though there are a number of opinions . I know no better
authority than that case " (@) .
Facts from the Registrar's book . — The Registrar's book has
been searched, but no decree can be found. It appears, how
ever, from a motion in the cause for dissolving an injunction ,
that the circumstances of the case were as follows : - Sir
Charles Bickerstaff had brought an action at law against the
plaintiff, and had obtained a judgment for a certain sum upon
a balance of accounts. Upon this the plaintiff instituted a
suit in equity for staying the proceedings at law, alleging
that Sir Charles stood indebted to him in the sum of 30007.
to which the plaintiff was entitled as heir at law of Sir John ,
under Sir John's marriage articles . It was ordered by the
Court, that judgment should be entered up, but execution
should be stayed till the cause should be heard the Easter
term following . As Vernon, the reporter, speaks only of
one sum of 15007., to which the executor was declared en
titled, it is probable the other sum was adjudged to the heir,
a decision that would in every respect be conformable to
principle ; for while the 1500l . covenanted to be paid by Sir
(b) Lechmere v. Lechmere, Cas. t. (a) Pulteney v. Darlington, 1 B. C.
Talb. 90. C. 238.
1267
* 947 CONVERSION OF MONEY INTO LAND. [CH. XXXI. S. 1 .

John himself was, by the death of his wife without issue in

his lifetime, " at home," and therefore set free from the arti
cles, the other sum of 15007. which was covenanted to be
paid by Sir Charles, was outstanding in the hands of Sir
Charles as trustee, and would therefore retain the character
of real estate until some act by Sir John to remove that im
pression (b) .
12. Actual receipt of the money makes it " at home." ―――――――――― Of
course the money will be " at home " where the person abso
lutely entitled to the fund receives it from the trustee the
depositary of it, and that, whether the payment was made
with the sanction of the Court, or by the voluntary act of the
trustee himself (c) .
13. Voluntary covenant to lay out money on land. - Lord
Macclesfield advanced the position, that if a person volunta
rily and without consideration covenanted to lay out
[* 947 ] money in a purchase of land to be settled on him
self and his heirs, the Court would compel the exe
cution of such a contract, though merely voluntary ; for in
all cases where it was a measuring cast between an executor
and an heir, the latter should in equity have the prefer
ence (a ) . But the proposition that the heir is more favoured
than the executor, though often repeated (b) , and arising
perhaps from the leaning of the Court towards the heir in
respect of lands of which the ancestor was seised, does not
appear to be founded on any intelligible principle, and the
opinion expressed by Lord Macclesfield may be questioned.
14. Conversion must be absolute or imperative, not optional.
In the preceding observations it is assumed that the direc
tion or agreement for conversion is by the terms of the
instrument made absolute and imperative ; for where a mere

(b) To the principle under consid bury, 5 B. P. C. 144 ; Chaplin v. Hor

eration must be referred the case of ner, 1 P. W. 483, as to the 1350/.
Pulteney v. Darlington, 1 B. C. C. (a) Edwards v. Countess of War
223 ; affirmed in D. P. , see Wheldale wick, 2 P. W. 176 ; and see Lechmere
v. Partridge, 8 Ves. 235 ; and see 3d v. Lechmere, Cas . t. Talb. 90, 91 .
ed. p . 803. (b) See Crabtree v. Bramble, 3
(c) See Pulteney v. Darlington, 1 Atk. 689 ; Scudamore v. Scudamore,
B. C. C. 236 ; Bowes v. Earl of Shaftes Pr. Ch . 544 ; Haytor v. Rod, 1 P. W.
364 ; Wilson v. Beddard, 12 Sim. 32.
1268
CH. XXXI. S. 1. ] CONVERSION OF MONEY INTO LAND . *948

option is given, the original character of the property con

tinues until the discretion has been exercised, and the con
version actually effected ; as, if the direction or agreement
be to lay out money in " lands or securities " ( c) , in " free
holds or leaseholds " (d) , or if by any other mode of expres
sion an intention be manifested of not converting the prop
erty at all events (e) . [ But a direction to trustees to sell
"so soon as they shall see necessary for the benefit of the
cestuis que trust" (f) , or " whenever it shall appear to their
satisfaction that such sale will be for the benefit of the cestuis
que trust " (g) , amounts to an imperative direction to con
vert. ]
15. Of conversion, apparently optional, but where the uses
declared are exclusively applicable to real estate. Where the
uses declared are exclusively applicable to real estate, the direc
tion or agreement will be construed to be imperative, though
the direction or agreement be to lay out the money in “ free
holds, leaseholds, or copyholds " (h), or the instrument contains
an authority to invest the money upon securities until a pur
chase can be found (i) , or the fund being already out
upon security , a power is inserted to call it in, and [ * 948 ]
lay it out upon other securities (a) , or even though
the direction or agreement be to lay out the money on lands
or securities , the intention in the last case apparently being,
that the money shall be invested upon security until a suita
ble purchase can be found, and that the interest and dividends
in the meantime shall be paid to the person who would be
entitled to the rents (b) .

(c) Curling v. May, cited Guidot v . [(f) Doughty v. Bull, 2 P. Wms.

Guidot, 3 Atk. 255 ; Amler v . Amler, 320. ]
3 Ves. 583 ; [ Evans v . Ball , 30 W. R. [ (g) Re Raw, 26 Ch . D. 601 ; Rob
899 ; 47 L. T. N. S. 165 ; ] and see inson v. Robinson, 19 Beav. 494. ]
Van v. Barnett, 19 Ves. 102. (h) Hereford v. Ravenhill , 5 Beav.
(d) Walker v. Denne , 2 Ves. jun. 51 ; Re Whitty's Trust, 9 I. R. Eq . 41 .
170 ; Davies v. Goodhew, 6 Sim. (i) Edwards v. Countess of War
585. wick, 2 P. W. 171 ; Earlom v. Saun
(e) Wheldale v. Partridge, 5 Ves. ders , Amb. 241 ; and see Davies v.
388 ; S. C. 8 Ves. 227 ; and see Abbot Goodhew, 6 Sim . 585.
v. Lee, 2 Vern. 284 ; Davies v. Good (a) Thornton v. Hawley, 10 Ves.
hew, 6 Sim. 585 ; Polley v. Seymour, 129 ; and see Triquet v. Thornton, 13
2 Y. & C. 708 ; Clissold v. Cook, 27 Ves. 345.
L. T. N. S. 143 ; 20 W. R. 796. (b) Earlom v. Saunders, Amb. 241 ;
1269
*948 CONVERSION OF MONEY INTO LAND . [CH. XXXI. S. 1 .

16. Conversion at " the request " or " with the consent " of a
party. - And, where the uses are thus exclusively applicable
to real estate, the direction or agreement will be regarded as
imperative though the settlement require the purchase to be
made at the request of a person ( e) , for the insertion of such
a clause has been taken to mean, not that a conversion may
not be effected before but that it shall certainly be effected
after request (d) . And the construction is the same, though
the purchase be directed to be made with a person's consent
and approbation (e) ; for upon a convenient purchase being
proposed, the Court, said Sir J. Jekyll , will take upon itself
to judge thereof, and, without some reasonable objection
made, will order the money to be laid out in it, so that such
a proviso seems to be immaterial, and as if omitted (f) . But
of course the instrument may be so strongly expressed as to
show the intention of the parties, that the request or consent
of a particular person should be a substantial ingredient, and
that no conversion should take place unless it is given (g) .
[In all these cases the real question is whether it appears
from the whole tenor of the instrument that the intention
was that the personalty should be converted into realty, and
where such an intention appears a trust for conversion may
be implied (h) . But a mere gift of personalty with limita
tions appropriate to real estate, a great part of which limita
tions must necessarily fail as soon as the personalty vests in
any one who, if it had been real estate, would have taken an
estate tail, does not raise an implied trust for conversion into
realty (i) . ]

Cowley v. Hartstonge, 1 Dow. 361 ; right, according to Sir J. Jekyll, Lech

Johnson v. Arnold , 1 Ves. 169 ; Cook mere . Earl of Carlisle, 3 P. W. 220,
son v. Reay, 5 Beav. 22 ; 12 Cl. & Fin. and Lord Thurlow, Pulteney v. Darl
121 ; but see Atwell v. Atwell , 13 L. ington, 1 B. C. C. 238 ; but see Stead
R. Eq . 23 ; [ and see Evans v . Ball, 30 v. Newdigate, 2 Mer. 530.
W. R. 899 ; 47 L. T. N. S. 165. ] (f) Lechmere v. Earl of Carlisle,
(c) Thornton v. Hawley, 10 Ves. 3 P. W. 220, per Sir J. Jekyll ; and
129 ; Johnson v . Arnold, 1 Ves. 169. see Costello v. O'Rorke, 3 Ir. R. Eq.
(d) 10 Ves. 137 ; but see Stead v. 172.
Newdigate, 2 Mer. 530. (g) Davies v. Goodhew, 6 Sim. 585 ;
(e) Thornton v. Hawley, 10 Ves. and see Re Taylor's Trust , 9 Hare,
129 ; [ Batteste v. Maunsell , 10 I. R. 596 ; Sykes v. Sheard, 33 Beav. 114.
Eq . 97, 314. ] In Symons v. Rutter, [ (h) Evans v. Ball, ubi supra. ]
2 Vern. 227, Sir G. Hutchins was [ (i) Evans v. Ball , ubi supra. ]
1270
CH. XXXI . S. 1. ] CONVERSION OF MONEY INTO LAND. *949

* 17 . Land to be converted into money is regarded [ * 949 ]

as money . - As money to be converted into land is
considered as land so land to be converted into money is, upon
the same principle, invested with all the properties of money (a) .
Thus, if an estate be directed or agreed to be sold, and the
proceeds be made payable to A. , the property, though un
converted at A.'s decease, will pass by a general bequest of
all his personal estate (b) ; and upon A.'s death, will vest in
his personal representative (c ) , and will be liable to pro
bate (d), and legacy duty (e) . And the result will be the
same though the conversion is by the terms of the instrument
of trust not to take place until after A.'s death (ƒ) . [And
a will made by a married woman in exercise of a power and
appointing the property is entitled to probate, though the
property was unconverted at her death (g) . ]
18. As to rents before conversion. - But it has been held
as a rule of convenience that if a testator direct his real
estate to be sold, and the proceeds laid out and invested in
trust for A. for life with remainders over, the tenant for life
is entitled to the rents only of the estate from the testator's
decease (h) ; and so, if the sale be directed on the death of a
particular person the tenant for life is entitled only to the
rents from the death of that person (i) . But a tenant for

(a ) But a settlement of land so Gunn, 9 P. D. 242 ; Attorney- General

circumstanced is not a settlement of v. Marquess of Ailesbury, 14 Q. B. D.
a definite sum of money within the 895 ; ] and see Matson v. Swift, 8 Beav.
meaning of the Stamp Act ; Re Stuc 368 ; Custance v. Bradshaw, Hare,
ley's Settlement, 5 L. R. Ex. 85. 324.
(b) Stead v. Newdigate, 2 Mer. 521 . (e) Forbes v. Stevens , 10 L. R. Eq.
(c ) Ashby v. Palmer, 1 Mer. 296 ; 178 .
Biggs v. Andrews, 5 Sim. 424 ; Bay (f) Clarke v. Franklin , 4 K. & J.
den . Watson, 7 Jur. 245 ; Burton v. 257.
Hodsoll, 2 Sim. 24 ; Grieveson v. Kir [ (g) In the goods of Gunn, 9 P. D.
sopp, 2 Keen, 653 ; Griffith v . Ricketts, 242. ]
7 Hare, 299 ; Hardey v. Hawkshaw, 12 (h) Casamajor v. Strode, cited
Beav. 552 ; Simpson v. Blackburn, W. Walker v. Shore, 19 Ves. 390 ; Hutchin
N 1875, p. 157. v. Mannington, 1 Ves. jun. 367, per
(d) Attorney - General v . Brunning, Cur.
4 II. & N. 94 ; reversed on appeal, 8 (i) Fitzgerald v. Jervoise, 5 Mad .
II. L. Cas. 243 ; Attorney-General v. 25, the marginal note of which does
Lomas , 9 L. R. Ex . 29 ; [ Attorney not exactly accord with the report
General r . Hubbuck, 10 Q. B. D. 488 ; itself.
13 Q. B. D. 275; In the Goods of
1271
*950 CONVERSION OF MONEY INTO LAND [CH. XXXI. S. 1.

life without impeachment of waste of the estate to be pur

chased, though entitled to the rents and profits of the estate
to be sold, may not, as part of such profits cut timber on the
estate to be sold, for this would give him double waste (j) .
19. Next of kin have no right where land is at home. The
doctrine already explained with reference to the exclusion
of the claim of the heir where the money is at home must, it
is conceived, equally apply as against next of kin and residu
ary legatees in cases where the land may be said to
[ * 950 ] be at home . Thus, * if A. , being entitled to land,
covenant on the occasion of his marriage to convey it
to trustees, who are to sell and stand possessed of the pro
ceeds upon trusts for the benefit of A. and his wife and the
children of the marriage, with an ultimate trust for A. abso
lutely, here, if in A.'s lifetime and before any conveyance,
the wife dies without children, both the land and the benefit
of the ultimate trust are united in A., and the land is at
home, and upon A.'s death, no claim can, it is conceived, be
sustained by those entitled to his personal estate . But of
course the case would be different , if land had been actually
conveyed to the trustees upon trust for sale, since this would
be analogous to a deposit in the hands of trustees as above
supposed of money to be laid out in land (a) ; and conse
quently there would be a complete conversion, of which
those entitled to the personal estate of A. would reap the
benefit.
20. Alien may take proceeds of sale. - If the proceeds of
sale of real estate be given to an alien, the doctrine of con
version applies in his favour. He was always capable of
taking for his own benefit , and the Crown was excluded (b) .
21. Proceeds forfeitable for felony if land in fact sold, but not
otherwise. [Prior to the recent Act abolishing forfeitures
for felony it was held that ] if a share of proceeds was given
to a felon, and the time of sale had arrived, and the sale had

(j) Plymouth v . Archer, 1 B. C. C. St. Sauveur, 17 W. R. 1002 ; 20 L. T.

159 ; and see Burges v. Lamb, 16 Ves. N. S. 799, but overruled on another
180. ground, 7 L. R. Ch. App. 343. See
(a) See p. 942, supra. now as to aliens, 33 Vict. c. 14, and
(b) Du Hourmelin . Sheldon , 1 supra, p. 27 .
Beav. 79 ; 4 M. & Cr. 525 ; Sharp v.
1272
CH. XXXI . S. 1. ] CONVERSION OF MONEY INTO LAND. *951

been actually made before the felon had worked out his pun
ishment, the Crown was entitled (e) . But if the felon had
worked out his punishment before the time of sale had
arrived, there, as the Crown had no equity to compel the
conversion, the discharged felon and not the Crown was
entitled ( d ) . Money paid into Court as representing land
taken under the provisions of an Act of Parliament and
liable to be laid out again in the purchase of land retained ,
as against the Crown, its character of real estate, and was
therefore not forfeitable on conviction for felony (e).
22. Proceeds cannot be bequeathed to a charity . - It was at
one time held that if real estate was stamped with a trust
for conversion , and a portion of the proceeds of sale was
given to A., and A. died having by his will given his personal
estate to charity, his interest in the proceeds of sale was to
be regarded as pure personal estate, and the bequest
was good (f) ; but this doctrine has since been [ * 951 ]
overruled (a). And where a testator gave to A. a
legacy 30007., payable out of the testator's personal estate,
and the proceeds from the sale of his real estate , and A.
bequeathed the 30007. to a charity, it was ruled that the
whole bequest was void, and that the charity was not entitled
to claim so much of the 30007. as on an apportionment of
the original testator's real and personal estate would be
found payable out of the pure personalty (b) ; [ but in a
subsequent case, where a testator gave a share of his re
siduary personal estate to charity, and the residuary estate
consisted of pure personalty, and of a legacy from another
testator payable out of the proceeds of his real and per
sonal estate, an apportionment was directed, and the bequest
was held to fail only so far as it arose from the portion
of the legacy attributable to the realty, or to the person

(c) Re Thompson's Trusts, 22 ley, 5 Mad. 321 ; Shadbolt v. Thorn

Beav. 506. ton, 17 Sim. 49.
(d) Ibid. See now as to felons, 33 (a ) Brook v. Badley, 4 L. R. Eq.
& 34 Vict. c. 23 ; and supra, p. 28. 106 ; S. C. 3 L. R. Ch. App. 672 ;
(e) Re Harrop's Estate, 3 Drew. Lucas v. Jones, 4 L. R. Eq. 73.
726. (b) Brook v. Badley, 3 L. R. Ch.
(f) Marsh v. Attorney-General, 2 App. 672.
J. & H. 61 ; Attorney-General v . Har
1273
*952 CONVERSION OF MONEY INTO LAND. [ CH . XXXI. S. 1.

alty savouring of realty, of the testator who bequeathed the

legacy (c) . ]
23. Locke King's Act. - A share of the proceeds to arise
from a sale under a trust for conversion is not an interest in
land within Locke King's Act, and therefore a legatee of such
share , subject to a mortgage of it made by the testator, can
call for a discharge of the mortgage out of the general per
sonal estate (d).
24. The conversion must be imperative. ― If real and per
sonal estate be given to trustees upon trust for a class, with
a discretionary and not an imperative power to convert the
whole into personal estate, and if the trustees make a total
or partial conversion, the objects of the trust will take the
property as real or personal estate, according to the actual
condition in which it is found (e) . [ But if the power be
discretionary, and an order be made in an administration
action directing a sale absolutely, the property is converted
as from the date of the order (ƒ) .
A mere declaration in a will that the residuary real estate
shall for the purpose of transmission be impressed with the
quality of personal estate from the time of the testa
[* 952 ] tor's death does not amount to a conversion of the
real estate into personalty, but the property will not
withstanding the direction devolve as realty (a) .]
25. Case of a sale by mortgagee. - So if a mortgage deed con
tain a power of sale with a direction that the surplus proceeds
shall be paid to the mortgagor, his heirs, executors , adminis
trators, and assigns, and the property is sold by the mort

[(c) Re Hill's Trusts, 16 Ch. D. 378 ; Bourne v. Bourne, 2 Hare, 35 ;

173. ] Lucas ». Brandreth ( No. 1) , 28 Beav.
(d) Lewis v. Lewis, 13 L. R. Eq . 273 ; Beecroft v. Wilkin , W. N. 1867,
218. p. 117 ; Re Ibbitson's Estate, 7 L. R.
(e) Walter v. Maunde , 19 Ves. Eq. 226 ; Miller v. Miller, 13 L. R.
424 ; Atwell . Atwell, 13 L. R. Eq . Eq . 263. Otherwise, where the power
23 ; Shipperdson v. Tower , 1 Y. & C. is imperative, Grieveson v. Kirsopp, 2
C. C. 441 ; Re Beaumont's Trusts , 32 Keen, 653.
Beav . 191 ; Polley v . Seymour, 2 Y. [(f) Hyett v. Mekin, 25 Ch. D.
& C. 708 ; Edwards v . Tuck, 23 Beav. 735. ]
268 ; Re Whitty's Trust , 9 I. R. Eq. [ (a ) Hyett v. Mekin, 26 Ch . D.
41 ; and see Yates v. Yates , 28 Beav. 735. ]
637 ; Cowley v. Hartstonge , 1 Dow,
1274
CH. XXXI . S. 1. ] CONVERSION OF MONEY INTO LAND. *952

gagee, the surplus will be personal or real estate of the mort

gagor, according as the sale takes place before or after his
death (b) .
--
Case of option of purchasing. - But where an option to pur
chase has been given to a lessee, and the option is exercised
after the lessor's death, such exercise has been held to effect
a retrospective conversion (c) . The difference is, that in the
case of a mortgage the mortgagor or his heir can redeem at
any time, and therefore the real character of the property
continues until the time of actual sale, when the proceeds
become the personal estate of the person then entitled to the
equity of redemption ; but in the option given to a lessee , the
lessor has parted with all control over the property and placed
it in the power of another to change the nature of it, and if
the power be exercised the conversion operates retrospec
tively and it becomes personal estate as between all who
claim under the lessor. [ But where the lessee dies without
having exercised the option , the beneficial interest in the
lease with the benefit of the option goes as part of his per
sonal estate, and no subsequent exercise of the option will
work a retrospective conversion as between the persons
entitled to his realty and personalty respectively (d) . ]
26. Where the mortgagee is a trustee for sale. ―― If, instead
of executing a mortgage, the debtor convey the estate to the
creditor upon trust to sell and pay himself and hand over the
balance to the debtor, his executors and administrators, and
a declaration is inserted in the deed that it is not to be con
sidered as in the nature of a mortgage, but as a conveyance

(b) Wright v. Rose, 2 Sim. & St. Y. & C. C. C. 580 ; Emuss v . Smith ,
323 ; and see Clarke v. Franklin, 4 2 De G. & Sm. 722. [This retrospec
K. & J. 260 ; Bourne v. Bourne, 2 tive conversion is, however, implied
Hare, 35 ; Re Cooper's Trust, 4 De G. only as between the real and personal
M. & G. 768. representatives of the person giving
(c) Lawes v. Bennett, 1 Cox, 167 ; the option, and does not apply as
Collingwood v. Row, 4 Jur. N. S. 785 ; between the vendor and the pur
Weeding v . Weeding, 1 J. & H. 424 ; chaser ; Edwards v. West, 7 Ch . D.
Whitmore v. Douglas, cited Ripley v. 858. ]
Waterworth, 7 Ves. 436 ; Townley v. [ (d) Re Adams and the Kensing
Bedwell, 14 Ves . 590 ; [ Re Adams ton Vestry, 24 Ch . D. 199 ; 27 Ch. D.
and the Kensington Vestry, 27 Ch. 394.]
D. 394 ; but see Drant v. Vause, 1
1275
*953 ELECTION. [ CH. XXXI. S. 1.

to become absolute , in equity as well as at law, immediately

after default in payment, here, though the sale is not
[ *953 ] made in the debtor's lifetime, * yet the property is
converted into personalty, and belongs, subject to the
charge, to the debtor's personal representative (a) .
27. Neither heir nor next of kin can claim under the will of
an ancestor by virtue of the doctrine of conversion. ―――――――― In the
above discussion of the doctrine of conversion, it may be
taken to be generally immaterial whether the instrument
which directs the money to be laid out in land or the land
to be converted into money, is a deed, or writing, or will.
But it may be useful to point out in reference to claims by
an heir at law or by next of kin, that where the instrument
effecting the conversion is a will, neither the testator's heir at
law as such, nor his next of kin as claiming under the intestacy,
can establish any right by virtue of the doctrine of conver
sion (b) . The conversion directed is a conversion for the pur
poses of the will only, and so far as the trusts declared by the
will respecting the property directed to be converted may
fail, the property devolves, according to its original character
of realty or personalty, in conformity with the principles
established by the decisions respecting resulting trusts ( c) .

28. But heir or next of kin may claim as persona designata . —

But of course either the heir at law or next of kin may claim
as persona designata . Thus, where a testator bequeathed a
sum of money to be laid out on lands to be settled to certain
uses , with the ultimate remainder to his own right heirs, and
the prior limitations failed, the heir, on a bill filed against the
executor of his ancestor, was held entitled to the money (d) ;
but here the title of the heir was not as heir, but as purchaser
under the will.

Election. In connection with the subject of conversion ,

it is to be observed that where land is to be converted into

(a) Re Underwood, 3 K. & J. 745. though the cases upon resulting

(b) This point seems to have es trusts were cited ; see Ib. p . 173.
caped Lord Loughborough's notice in (c) See pp. 149 et seq. ante.
Walker v. Denne, 2 Ves. jun. 170, (d) Robinson v. Knight, 2 Eden ,
155.
1276
CH. XXXI . S. 1.] ELECTION. *954

money, or money is to be converted into land, the notional

conversion will subsist only until some cestui que trust, who
is competent to elect,¹ intimates his intention to take the prop
erty in its original character (e) . The Court will not compel
a conversion against the will of the absolute owner ; for
should the conversion be made, he would immediately recon
vert it, and equity will do nothing in vain (ƒ) .
Upon this subject we shall consider : -I . What persons
are capable of electing ; and, II . How the act of election
may be manifested .

* Who may elect. -I. Who may elect. [* 954 ]

1. Infants, lunatics . In respect of personal inca
pacity, an infant ( a) , or lunatic (b ) , has no power to make
election.
2. Power of feme covert over money-land. ――――――― As regards a
feme covert, although she has no power to elect by act in
pais (c) like a person who is sui juris, yet she may, by exer
cise of the powers of disposition given her by law over money
to be laid out in land, or land directed to be turned into
money, alter the nature of the property, and so effect an
election.

(e) Harcourt v. Seymour, 2 Sim. (c) The election here treated of

N. S. 45 ; Cookson v. Reay, 5 Beav. must not be confounded with that
22 ; 12 Cl . & Fin . 121 ; Dixon v. Gay which a feme covert is bound to make
fere, 17 Beav. 433. under the general doctrine of elec
(f) Seely v. Jago, 1 P. W. 389. tion ; as to which, see Barrow v.
(a ) Carr v. Ellison , 2 B. C. C. 56 ; Barrow, 4 K. & J. 415, 419 ; Griggs
Earlom v . Saunders, Amb. 241 ; v. Gibson, 1 L. R. Eq . 685 ; Cooper v.
Thornton v . Hawley, 10 Ves . 129, Cooper, 7 L. R. H. L. 53 ; [ Smith v.
139 ; Van v. Barnett, 19 Ves . 102 ; Lucas, 18 Ch . D. 531 ; Wilder v.
Seeley v. Jago, 1 P. W. 389 ; Re Har Pigott, 22 Ch . D. 263 ; Re Wheatley,
rop's Estate, 3 Drew. 734 ; and see 27 Ch. D. 606 ; Re Vardon's Trusts,
Ashby v. Palmer, 1 Mer. 301 . 28 Ch. D. 124. ]
(b) Ashby v. Palmer, 1 Mer. 296.

1 The trust fund remains such so long as it can be identified ; McLarren v.

Brewer, 51 Me . 402 ; Overseers of Poor v. Bank, 2 Gratt. 544 ; but after the
identity is lost there are no preferences ; Thompson's App . 22 Pa . St. 16. The
cestui que trust may, if sui juris, elect to rely upon his lien on the trust prop
erty, or to hold the trustee personally responsible ; Wallace v. McCollough,
1 Rich. Eq. 426 ; Ensley v . Balentine, 4 Humph. 233 ; Wallace v. Duffield,
2 Serg. & R. 529 ; Hoffman v. Carow, 22 Wend . 285 ; Pascoag Bank v. Hunt,
3 Edw. Ch . 583 ; Bassett v. Spofford, 45 N. Y. 387 .
1277
*955 ELECTION. [CH. XXXI . S. 1 .

3. How feme covert might elect to take money-land under

the old law. " Although," said Lord Hardwicke, " a feme
covert cannot alter the nature of money to be laid out in land
by contract or deed, yet if the money be invested in land
(and sometimes sham purchases have been made for the pur
pose ( d) ) , she may then levy a fine on the land, and give it
to her husband, or any body else . There is a way, also , of
doing this without laying the money out in land, and that is,
by coming into a Court of equity, and consenting to take the
money as personal estate ; for upon her being present in
Court, and being examined (as a feme covert upon a fine is),
her consent binds the money articled to be laid out in land
as much as a fine at law would the land, and she may dispose
of it to the husband or any body else. And the reason of it
is, that at law, money so articled to be laid out in land is con
sidered barely as money until an actual investment, and the
equity of this Court alone views it in the light of real estate ;
and, therefore, this Court can act upon its own creature, and
do what a fine at common law can upon land ” (e) . And, at
a later date , Lord Hardwicke's views were ratified by express
decision ; for where money was devised to be laid out in
land, for a feme covert in tail with reversion to her in fee,
and a bill was filed by her, it was declared that she was enti
tled to the money, and a commission was ordered to be issued
to examine her separate and apart from her husband, touch
ing the disposition thereof (f) . [ So in a recent case,
[* 955 ] money in Court which had arisen from a sale under
the Partition Acts, and to shares in which married
women were entitled, was, upon their being separately exam
ined and consenting, distributed as personal estate (a) ; and
where the share of the married woman is less than 2007. the
Court will dispense with her separate examination (b) .]

(d) See Henley v. Webb, 5 Mad. to her husband ; and see Standering
407. v. Hall, 11 Ch. D. 652. ]
(e) Oldham v. Hughes, 2 Atk. 453. [(a ) Standering v . Hall, 11 Ch. D.
(f) Binford v. Bawden, 1 Ves. 652 ; see ante, p. 750. ]
jun. 512 ; [ and from a subsequent re [ (b) Wallace v. Greenwood, 16 Ch.
port of this case, 2 Ves. 38, it appears D. 362 ; but see Re Shaw, 49 L. J. N.
that the feme covert on being exam S. Ch. 213. ]
ined elected to have the money paid
1278
CH. XXXI. S. 1. ] ELECTION. *955

4. How she might elect to take land directed to be sold. -

Previously to the Fines and Recoveries Act, if a feme covert
was entitled to the proceeds of land directed to be sold, she
and her husband might have made a title to the proceeds of
sale by fine (e) ; and by the same method, as it would seem,
might have made themselves absolute owners , and have
called for a conveyance, and by this means have elected to
take the land .
5. Fines and Recoveries Act.— By 3 & 4 W. 4, c . 74, ss . 40,
71 ,.77 (d) , a married woman is enabled, with the concurrence
of her husband, and with the formalities required by the Act,
to dispose of any estate at law or in equity, or any interest,
charge, lien , or incumbrance in or upon lands, or money to
be laid out in a purchase of lands, or to relinquish or release
any power over the same, as if she were a feme sole ; so that
in the case of money liable to be laid out in land, a feme
covert can, through the medium of the power of disposition
conferred by the Act, virtually elect to take the money.
6. Special power of married women under Fines and Recov
eries Act, over money which is an interest in land. - - And the
Act enables a married woman not only to dispose of property
which, though personal estate in fact, is real estate in equity,
but also of property which is in equity personal estate, pro
vided only it be an interest in land ; and this , although
according to the ordinary doctrines of the Court the mar
ried woman would, by reason of her interest being rever
sionary, have no such power of disposition . Thus, where
real estate is devised upon trust for sale in terms amounting
to a conversion out and out, and a married woman takes a
share of the proceeds, she can, under the statute, dispose of
her share, even though reversionary, as being an interest in
land ( e) . And it is conceived that the same principle must
apply to the case of a reversionary money legacy raisable out
of land, notwithstanding the doubts entertained by Lord

(c) May v. Roper, 4 Sim. 360 ; Hare, 69 ; Tuer v. Turner, 20 Beav.

Forbes v. Adams, 9 Sim. 462. 560 ; Bowyer v. Woodman, 3 L. R.
(d) Extended to contingent in Eq . 313; [ Re Jakeman's Trusts , 23
terests by 8 and 9 Vict. c. 106, s . 6. Ch . D. 344 ; ] and see Franks v. Bol
(e) Briggs v. Chamberlain, 11 lans, 3 L. R. Ch. App . 717 .
1279
*956 ELECTION. [CH. XXXI. S. 1

Justice (then Vice-Chancellor) Knight Bruce, in the

[ * 956 ] case of Hobby v. Collins (f) . * But the Fines and
Recoveries Act ceases to apply when the money has
been actually raised (a ) .
[As a married woman has an absolute power of disposition
over property settled to her separate use, or belonging to her
as her separate property under the recent Act (b) , she can
elect to take it either as land or money as if she were sui
juris (c) . ]
7. A person may elect, subject to a charge. — If A. convey an
estate to a trustee in trust to sell and pay to the trustee a
certain amount, and to pay the balance to A., his executors,
administrators, and assigns as personalty, it is competent to
A., as the person entitled subject to the charge, to elect to
take it as realty ; and if he do so, and the trustee sells after
A.'s decease, the heir of A. will take the surplus (d) .
8. Remaindermen . How far a remainderman may elect,
has not been definitely settled. It seems clear, so far, that
the remainderman may elect for the purposes of disposition ;
that is, being absolutely entitled to the interest in remainder,
he may deal with it by act inter vivos, or by will, by any
denomination that he pleases ; and if, therefore , in the case
of money impressed with the character of land, he chooses
to call it personal estate, it will pass by his will under the
description of personal estate (e ) . But should the remain
derman declare an intention of taking the money as per
sonalty, and then die, in the lifetime of the tenant for life,
intestate, will the money devolve , as between the real and
personal representative, as realty or personalty ? If the
tenant for life call for a conversion, and the money is actu
ally laid out on a purchase of land, it is of course too late
then for the remainderman to elect to take it as money ; for,
as the property is now in the shape of land, the policy of the

(f) 4 De G. & Sm. 289 ; and see (d) Re Gardiner's Trust, 1 Eq.
observations of Lord St. Leonards in Rep. 57 ; Mutlow v. Bigg, 1 Ch . D.
his essay on the Real Property Sta 385 ; [Meek v. Devenish, 6 Ch. D.
tutes, 240. 566.1
(a) Re Alge, 2 I. R. Eq . 485. (e) Lingen v. Sowray, 1 P. Wms.
[ (b) 45 & 46 Vict. c. 75.] 172 ; Harcourt v . Seymour, 2 Sim. N.
[(c) Re Davidson, 11 Ch. D. 341. ] S. 12 ; Re Skeggs, 2 De G. J. & S. 533.
1280
CH. XXXI. S. 1.] ELECTION. *957

law will not allow him to impress upon it the character of

personalty. Supposing the remainderman to elect to take
the property as money, before the actual conversion , and then
to die intestate, and after his death the tenant for life calls
for a conversion, and the money is laid out in a purchase of
land accordingly, it is conceived, that, as the election was
made subject to another's right to call for a conversion ,
which right was exercised , the act of election is defeated,
and the property will devolve as land (f) . Should the
remainderman elect to take the money as such, and
then * die intestate , and the tenant for life never calls [ * 957 ]
for a conversion, it may be argued, that, as the remain
derman is absolutely entitled , subject to another's right to
require conversion which was never exercised, the money,
being still found in that shape, should be discharged from
the impress of realty, and be deemed to have that character
in which the remainderman was desirous of taking it (a).
Such a doctrine, however, is open to the objection that dur
ing the life of the tenant for life the nature of the remain
derman's interest, whether real or personal, would be uncer
tain, and dependent on the option of the tenant for life ;
and the principle acted upon in a recent case appears to be,
that there can be no election by a person whose interest is a
limited one or contingent at the time (b) .
[ 9. A person contingently entitled may elect. But in a
more recent case , where real estate was devised to trustees
upon trusts for sale , and the proceeds were, subject to a
charge, given in a contingent event to the testator's son
absolutely, it was held that the son could, pending the con
tingency, elect to take the property as realty (c) . ]
10. Election where an estate is to be sold or money is to be
laid out on land, and several parties are interested . ― Where

(f) Holloway v. Radcliffe, 23 Sm. 379 ; Re Pedder's Settlement, 5

Beav. 163. This was the case of an De G. M. & G. 890 ; Re Stewart, 1
undivided share, but the principle Sm. & G. 32.
was the same. But see Re Gardiner's (b) Sisson v. Giles, 3 De G. J. &
Trust, 1 Eq. Rep. 57. S. 614 ; [ and see Walrond v. Rosslyn,
(a ) See Re Skeggs, 2 De G. J. & 11 Ch. D. 640] .
Sm. 533 ; Stead v. Newdigate , 2 Mer. [(c) Meek v. Devenish, 6 Ch. D.
531 ; Gillies v . Longlands, 4 De. G. & 566. ]
1281
* 958 ELECTION . [CH. XXXI . S. 1.

an estate is directed to be sold, the proceeds to be divided

amongst several persons, no one singly can elect that his own
undivided share shall not be disposed of but shall remain
realty (d) , for the other undivided shares will not sell so ben
eficially in proportion as if the estate were entire (e ) : but if
money be directed to be laid out in lands to be settled on A.,
B. and C., as tenants in common , any one of them may elect
to take his own third as money, for two thirds may be invested
just as advantageously as the whole sum (ƒ) .
11. Tenant in tail may elect. ―― Sound principle would re
quire that a tenant in tail of lands to be purchased should
not be allowed to elect, because the interests of the issue
and the remainderman, who both take by title paramount,
would otherwise be prejudiced . But the old rule appears to
have been, that a tenant in tail might in every case have
elected , and on filing a bill would have been entitled to the
money (g) ; and the principle upon which the prac
[ * 958 ] tice was grounded * was said to be, that equity will
do. nothing in vain , and it were useless to direct an
actual purchase and settlement when the tenant in tail the
next moment might dispose of the fee simple. Lord Cow
per, however, in the case of Colwal v . Shadwell (a) , took the
distinction, that where the remainder in fee was not vested
in the tenant in tail himself, but was limited over to a stran
ger, there, as the absolute fee could only be acquired by a
recovery, which was a thing of time, and could not be suf
fered in vacation, the remainderman should not lose his
chance ; and as in that case the tenant in tail did actually die
before the recovery was suffered, it showed the remainder
man's interest in so glaring a light, that it established the pre
cedent ever afterwards (b) . But even then the money would

(d) Holloway v. Radcliffe, 23 (f) Seeley v. Jago, 1 P. W. 389 ;

Beav. 163 ; Fletcher v. Ashburner, 1 Walker v. Denne, 2 Ves. jun. 182, per
B. C. C. 500, per Sir T. Sewell ; Lord Loughborough.
Death v . Hale, 2 Moll. 317 ; and see (g) Cunningham v. Moody, 1 Ves.
Smith . Claxton, 4 Mad . 494. 176, per Lord Hardwicke.
(e) Chalmer v. Bradley, 1 J. & W. (a) Cited Chaplin v . Horner, 1 P.
59 ; Holloway v. Radcliffe, 23 Beav. W. 485.
163 ; and see Trower v. Knightley, 6 (b) See Cunningham v. Moody, 1
Mad. 134 . Ves. 176 ; Talbot v. Whitfield, Bunb.
204.
1282
CH. XXXI. S. 1. ] ELECTION. *959

have been decreed to the tenant in tail, provided the remain

derman had waived his right and consented to the pay
ment (c) .
12. Lord Chancellor King's doubt. In Eyre's case (d),
Lord Chancellor King was for extending the same protection
to the issue. " I cannot see," he said, " why I should not
have the like regard to the issue in tail as for the remainder
man. It is possible the tenant in tail, before he can light on
a purchase and settle it, may die, leaving issue, and this is a
chance of which I would not deprive such issue ." And in
Speaker Onslow's case (e) , he declared his adherence to the
same opinion. But the rule which had been established
before his time (f) of paying the fund to the tenant in tail
where the uses might be barred by fine, but not where they
could only be barred by recovery, appears, notwithstanding
his Lordship's authority, to have been revived by his suc
cessors (g) .
13. Tenant in tail may elect without suit. - And the elec
tion of the tenant in tail need not necessarily have been
made in a suit, but might have been expressed by act in pais,
as if tenant in tail with remainder to himself had received
the money of the trustee, or if tenant in tail with remainder
to a stranger had received it of the trustee with the consent
of the remainderman (h).
* Observation of Lord Thurlow . - Lord Thurlow, [ * 959 ]
indeed, once said, " If the fund be outstanding in
trustees , and it is necessary to come hither in order to obtain
it, the money, when obtained , will be personal property ; and
so it would also, if the trustees pay it without suit. That is,
supposing the estate, when purchased , would be a fee simple ,
for it would be otherwise in case of its being an estate tail " (a) .

(c) See Trafford v. Boehm, 3 Atk. Binford v . Bawden, 1 Ves . jun . 512 ;
440, and the cases cited under note Holderness . Carmarthen, 1 B. C. C.
(c) , p. 960. 382, per Lord Thurlow ; and see the
(d) 3 P. W. 13. preamble of 39 & 40 G. 3, c. 56.
(e) 3 P. W. 14, note (G). (h) Trafford v. Boehm, 3 Atk. 448 ;
(f) See Benson v. Benson, 1 P. and see Earl of Bath v. Earl of Brad
W. 130, note (1). ford, 2 Ves. 590 ; but see Pearson v.
(9) Trafford v. Boehm, 3 Atk. 447, Lane, 17 Ves. 106.
per Lord Hardwicke ; Cunningham (a) Pulteney v. Darlington, 1 B.
v. Moody, 1 Ves. 176, per eundem ; C. C. 236.
1283
*959 ELECTION. [CH. XXXI. S. 1.

But the concluding remark must have been intended (as Mr.
Serjeant Hill, in a note on the passage, has justly observed (b) )
to apply, not to every tenant in tail, as, not to tenant in tail
with remainder to himself in fee, but only to tenant in tail,
with remainder to a stranger ; for in a subsequent case , where
the tenant in tail had executed an assignment of two sums
of money directed to be laid out in lands, his Lordship said,
" As to the 5007. the assignor was tenant in tail, remainder to
a stranger, remainder to himself in fee ; as to the 10007. he
was tenant in tail, with remainder in fee to himself. I am
clear, that in regard to the 10007. he had the absolute domin
ion over it, having the immediate remainder in fee ; but as
to the 5007. I am equally clear the other way, because of the
intermediate remainder " (c).
14. 39 & 40 G. 3, c. 56. — By 39 & 40 G. 3, c. 56 (d) , the
inability of the tenant in tail with remainders over of money
to be laid out in the purchase of land to obtain possession of
the money, except through the medium of a fictitious pur
chase (e) , was removed ; and the Court was empowered, on
the petition of the first tenant in tail of such money-land, and
of the parties (if any) having antecedent estates therein
(with a provision for the separate examination of married
women) , to order the money to be paid to the petitioners or
as they should appoint (f) ; so that a kind of statutory
power of election was thus conferred on tenants in tail.
15. Fines and Recoveries Act. — By the Act for the aboli
tion of Fines and Recoveries (g) , a tenant in tail may, with
the consent of the protector of the settlement, if any, dispose
absolutely of the lands entailed at any time, whether in term
or vacation, and by the 71st section of the statute it is en
acted, that " money to be invested in the purchase of lands
to be settled so that any person, if the lands were purchased,
would have an estate tail therein, shall be treated as the

(b) Ib. note (a) , Lord Henley's (e) See Henley v. Webb, 5 Mad.
edit. 407.
(c) Holdernesse v. Carmarthen, 1 (f) See 5 Ves. 12, note ( 8 ) , as to
B. C. C. 382 . the qualification introduced by the
(d) Repealed and extended by 7 Court in making orders for payment
G. 4, c. 45, which in its turn was under this Act.
repealed by 3 & 4 W. 4, c. 74, s. 70. (g) 3 & 4 W. 4, c. 74, s . 71.
1284
CH. XXXI. S. 1. ] ELECTION. *960

lands to be purchased, and the previous clauses of [ * 960 ]

the Act shall apply to such money, as if it were
directed to be laid out in the purchase of freehold lands, and
such lands were actually purchased and settled ."
16. Whether tenant in tail of money liable to be laid out in
land may still elect to take the money . - With respect to this
enactment, a doubt suggests itself whether, even at the
present day, a tenant in tail, with remainder to himself in fee,
may not elect to take in its original character money which
is liable to be laid out in the purchase of lands , and declare
such election either by the institution of a suit or by Act
in pais. It is true that under the 71st clause of the late Act,
the tenant in tail may at any time defeat his issue and the
remaindermen by a deed executed with the proper formali
ties ; but what is there to prevent him from exercising a
power founded upon principles independent of the statute ,
and so acquiring the fee simple by the mere act of election ?
It may be said that the old rule, which made election a bar
to the issue, might have been grounded on this - that, be
cause no fine or recovery could have been levied or suffered
of money (a), the Court, on that account, held election to
have the effect of a bar, lest the tenant in tail should lose
the power, which the law intended him, of defeating the set
tlement, but that, since by the Fines and Recoveries Act a
tenant in tail of money may bar his issue and the remainder
man by the same formalities as if the lands were actually
purchased and settled, the same indulgence ought not now
to be shown. But to this it may be answered, that the ten
ant in tail was allowed to elect, not because the tenant in
tail of money had a right to exercise the same powers of
ownership as a tenant in tail of lands, but for the purpose of
avoiding circuity . Had the former been the principle, the
tenant in tail might equally have barred the remainderman
as the issue ; but for the destruction of remainders an actual
settlement was necessary, and a sham purchase was often
resorted to for the purpose (b).
(a) See Benson v . Benson , 1 P. (b) See v. Marsh , cited Chap
W. 130 ; Edwards ". Countess of lin v. Horner , 1 P. W. 485 , note (†) ;
Warwick, 2 P. W. 174 ; Maynwaring Maynwaring v. Maynwaring , 3 Atk.
v. Maynwaring, 3 Atk. 413. 413 ; Henley v. Webb, 5 Mad . 407.
1285
*961 ELECTION. [CH. XXXI. S. 1.

17. Practice of the Court as to monies paid in by railway com

panies . — The practice of the Court in dealing with sums paid
in by railway companies as compensation for portions of en
tailed land taken by them, went beyond any rule previously
established, for the Court was in the habit of ordering the
money to be paid to the tenant in tail without the execution
of a disentailing deed , and without enquiring who was
[ * 961 ] entitled in remainder (e) . But in a recent case
Lord Selborne sitting for M. R. refused to order pay
ment out of Court except on production of a disentailing deed
in the ordinary way (a).

II. How election may be manifested .

1. How election may be made. -The act of election may
either be presumed by the Court or be expressly declared.
2. Presumption. - Possession of the land. -- Receipt of the
money. The presumption may arise from slight circum
stances of conduct ( b) . Thus it will be sufficient, where
land is to be converted into money, if the cestui que trust
enter into possession and take the title deeds into his own
custody, for the trustees cannot recover the deeds from the
cestui que trust, and they cannot sell without them (c) ; or if
the cestui que trust merely keep the estate for a length of time
unsold ( d) (but in one case a period of two years was con

(c) Sowry v. Sowry, 6 Jur. N. S. (a) Re Butler's Will, 16 L. R.

337 ; Re South Eastern Railway Com 479 ; and see Re Broadwood's Settled
pany, 30 Beav. 215 ; Re Tyler's Es Estates, 1 Ch. D. 438 ; Limerick and
tate, 8 W. R. 540 ; Nottley v . Palmer, Ennis Railway Company Ex parte
1 L. R. Eq. 241 ; Re Row, 17 L. R. Smyth, 10 I. R. Eq. 66 ; [ Re Rey
Eq. 300 ; Re Holden, 1 H. & M. 445 nolds, 3 Ch. D. 61. ]
(where the amount of the fund in (b) See Pulteney v. Darlington, 1
question was 1394. Consols ) ; Re B. C. C. 238 ; Van v. Barnett, 19 Ves.
Watson, 10 Jur. N. S. 1011 (in which 109 ; Bradish v. Gee, Amb . 229 ,
case the Lords Justices said they Dixon v . Gayfere, 17 Beav . 433 ;
could not understand how the Court [ Roberts v. Gordon, 6 Ch . D. 531. ]
could have first come to the conclu (c) Davies v. Ashford, 15 Sim. 42 ;
sion in the face of the statute that and see Padbury v. Clark, 2 Mac. &
the money could be paid out without G. 298.
the execution and enrolment of a (d) See Ashby v. Palmer, 1 Mer.
disentailing deed, but the practice 301 ; Dixon v. Gayfere, 17 Beav. 433 ,
was useful and convenient, and saved Griesbach v . Fremantle, 17 Beav. 314 ;
expense) . Ex parte Maunsell, 2 Ir. Mutlow v. Bigg, 1 Ch . D. 385 ; [ Rob
Rep. Eq. 32 ; Re Wood's Settled erts v. Gordon, 6 Ch. D. 531 ; Re
Estates, 20 L. R. Eq. 372. Davidson, 11 Ch. D. 341.]
1286
CH. XXXI. S. 1.] ELECTION. *962

sidered not to be sufficient indication of such intention (e) ) ;

or, where money is to be turned into land, if the cestui que
trust receive the money from the trustee (f) ; but not if he
merely receive the annual income though for a considerable
length of time (g) .
3. Change of securities and trust declared for the “ executors."
-— Grant of a lease and reservation of rent to the " heirs ." .-- It was
determined by Lord Harcourt that a cestui que trust had
divested money of its real quality by causing the securities
to be changed, and the trust to be declared to himself and his
executors ; for this , he observed, was tantamount to saying the
money should not go to the heir (h) ; and vice versa, where land
was to be converted into money, it was held by Lord
Hardwicke , that a lease by the cestui que trust, re- [ * 962 ]
serving a rent to her heirs and assigns , was evidence
of an intention to continue the property as real estate (a) .
4. What knowledge required for election . To constitute an
act of election it is not necessary that the person entitled, as
for instance to money to be laid out in land, should know
that but for the act of election it would pass as land , but it
is sufficient if the Court can collect the intention that with
or without such knowledge he meant the money to be dealt
with and treated as money (b) .
-
5. Election expressed . A person may express his election,
even by parol. This , at least, was the opinion of Lord Mac
clesfield (c) , and apparently was actually decided in the case
of Chaloner v . Butcher (d) , in which the husband having
declared that the money should not be laid out in land, the

(e) Kirkman v. Miles, 13 Ves . 338 ; (h) Lingen v. Sowray, 1 P. W. 172 ;

Cookson v. Cookson, 12 Cl. & Fin. and see Cookson v. Cookson , 12 Cl. &
121 ; and see Brown v. Brown, 33 Fin. 121 ; Harcourt v. Seymour, 2
Beav . 399 ; Parker v. Williams , 15 W. Sim . N. S. 12.
R. 1006 ; but see Crabtree v. Bramble , (a) Crabtree v. Bramble, 3 Atk.
3 Atk. 688 ; Inwood v. Twyne, 2 Eden , 680, see 688, 689 ; and see Griesbach
148. v. Fremantle, 17 Beav. 314.
(f) Pulteney v. Lord Darlington, (b) Harcourt v. Seymour, 2 Sim.
1 B. C. C. 238 , per Lord Thurlow; N. S. 12, see p. 46.
Trafford v. Boehm, 3 Atk. 440 ; and (c ) Edwards v. Countess of War
see Rook v . Worth, 1 Ves. 461 . wick, 2 P. W. 174.
(9) Gillies . Longlands, 4 De G. (d) Cited Crabtree v . Bramble, 3
& Sm. 372 ; and see Re Pedder's Set Atk. 685.
tlement, 5 De G. M. & G. 890.
1287
*963 TRUSTEES FOR LUNATICS . [CH. XXXI. S. 2.

Court held, that, if the question concerned the right of a

third person, the declarations of the husband ought not to be
admitted , but, as it was between his personal and real repre
sentative, they should be read . And both Lord Thurlow (e) ,
and Lord Eldon (f) , seem to have lent their sanction to the
same doctrine, so that an obiter dictum of Lord Hardwicke to
the contrary ( g) , though supported by so illustrious a name,
must be considered as overruled.
6. How money to be turned into land affected by cestui que
trust's will. - Where money bore the notional impress of
realty, the cestui que trust might, until the late Wills Act,
have bequeathed it as so much money to be laid out in land,
and the money would have passed, though the will was not
attested according to the Statute of Frauds (h) ; for the will
operated first by way of election , and then by way of bequest ;
but now by the late Wills Act (i) the same formalities are
required for the testamentary disposition of personal as of
real estate.

[* 963] * SECTION II .

THE ACT OF THE TRUSTEE SHALL NOT ALTER THE NATURE OF THE
CESTUI QUE TRUST'S ESTATE .

1. Power of the trustee at law and in equity. ――― At law the

trustee is the absolute owner of the land or fund , and there
――
fore may exercise any control or dominion over it may
convert realty into personalty, or personalty into realty : but
equity, which regards the trustee as a mere instrument for
the execution of the trust, will not permit the interest of the
cestui que trust to be affected by any act of misconduct, but,
as often as any wrongful conversion is made, will transfer
to the new interest the quality and character of the old

(e) Pulteney v. Darlington, 1 B. C. (h) See the cases cited, Lechmere

C. 237. v. Earl of Carlisle, 3 P. W. 221 , note
(f)Wheldale v. Partridge, 8 Ves. (C) ; and see Pulteney v. Darlington,
236. 1 B. C. C. 235, 236 ; Sharp v. St.
(g) Bradish v. Gee, Amb. 229. Sauveur, 7 L. R. Ch . App. 343.
(i) 7 W. 4, & 1 Vict. c. 26.
1288
CH. XXXI. S. 2. ] TRUSTEES FOR LUNATICS . *964

will treat real estate as personal, and personal as real, as the

circumstances of the case may require.
2. Where the cestui que trust is sui juris. But although
every such change in the nature of the property as is not
made either in pursuance of the trust or by the authority of
the beneficial owner, must in general be considered a mis
feasance, the dealings of the Court (under the respective
jurisdictions of lunacy and chancery) , and of committees,
guardians, and trustees, with the property of lunatics and
infants, require particular notice .
3. Power of the trustee where the cestui que trust is a
lunatic. — It has been laid down as a general rule in lunacy,
that the Court will not alter the condition of the lunatic's
property to the prejudice of his successors ; but the maxim
must be received with the qualification, except it be for the
benefit of the lunatic himself (a) .
The interest of the lunatic the exclusive object. - - The Chan
cellor takes the advice and assistance of the presumptive
next of kin and presumptive heir at law in the care and
management of the property (b) ; but through all the cases
runs this prevailing principle - that the object of attention
is exclusively and entirely the interest of the lunatic, with
out any regard to those who may have eventual rights of
succession (c) . If the Court considered how the repre
sentatives would be affected, there would always be among
them an emulation of each other, and their speculations,
if the administrator were to engage in them, would
mislead his attention as to the interest of the only [* 964]
person he was bound to protect ; there would be a
continued running account between the personal and real
estates ; the Chancellor would be perpetually looking to the
right or left, and the interest of the lunatic would be com

(a) Ex parte Grimstone, cited Oxen Bromfield, 1 Ves . jun. 462 ; Ex parte
den v. Lord Compton , 4 B. C. C. 235, Grimstone, Amb. 708 ; S. C. cited 2
note, per Lord Apsley. Ves. jun. 75, note ( r ) , and 4 B. C. C.
(b) Ex parte Phillips, 19 Ves . 123, 235, note ; Ex parte Phillips, 19 Ves.
per Lord Eldon . 123 ; Dormer's case, 2 P. W. 265 ; Ex
(c) Oxenden v. Lord Compton, 2 parte Chumley, 1 Ves. jun. 297 ; Ex
Ves. jun. 72 ; and S. C. 4 B. C. C. 233, parte Baker, 6 Ves. 8.
per Lord Thurlow ; and see Ex parte
1289
*964 TRUSTEES FOR LUNATICS. [CH. XXXI. S. 2.

Imitted in favour of those who have no immediate interest,

and whose contingent interests are left to the ordinary
course of events ( a) .
4. Timber cut on an estate ex parte paternâ applied to relief
of an estate ex parte maternâ. - Upon this principle , where
a lunatic was seised ex parte paterná of estate A., and ex
parte materna of estate B., and the latter was subject to a
mortgage, the money arising from a fall of timber upon A.
was directed to be applied in discharge of the mortgage
upon B.; and upon a question between the respective heirs
it was held, that the representative who succeeded to A. was
not entitled to any recompense from the representative who
inherited B. (b).
5. Sale of lunatic's real estate . So, if the lunatic be con
siderably indebted, and it appears that his maintenance
would be better provided for, and his advantage promoted,
by the sale of a real estate inconvenient and ill-conditioned,
instead of exhausting the personalty, the Court, on a proper
representation of the case, would have no difficulty in making
an order to that effect (c) .
[6. Getting in money directed to be laid out in land . ―――――― And
where a lunatic became absolutely entitled to funds which
were vested in trustees upon trust to lay them out in the
purchase of land, but which were actually invested on mort
gage, and the mortgage money was got in pursuant to an
order in the lunacy expressing that it was for the benefit of
the lunatic to call it in, and was thereafter dealt with in the
lunacy with other monies admittedly personalty , it was held
that the fund had been reconverted into personalty (d) . ]
7. Fall of timber. So, timber which ought to be cut on a
lunatic's estate may be felled by the direction of the Court,
and the proceeds may either be applied to the redemption of
the land-tax , or payment of debts (e) , or to any other pur
pose which the true interest of the lunatic may require ; or

(a) Oxenden v. Lord Compton, 2 (c) Ex parte Phillips, 19 Ves. 124,

Ves. jun. 72 , 73 ; S. C. 4 B. C. C. per Lord Eldon.
233, 234, per Lord Loughborough. [ (d) M'Donogh v. Nolan, 9 L. R.
(b) Ex parte Phillips, 19 Ves. 123, Ir. 262. ]
per Lord Eldon ; but see Re Leeming, (e) Ex parte Phillips , 19 Ves. 119 ;
3 De G. F. & J. 43. Bevan's case, cited Ex parte Brom
1290
CH. XXXI. S. 2.] TRUSTEES FOR LUNATICS . *965

if not wanted for any particular purpose, will go to the next

of kin as personalty, and not to the heir as part of the
realty (ƒ) .
* 8. Action of trespass . — So, if it be necessary for [ * 965 ]
the interest of the real estate to bring an action of
trespass, resort may be had with that object to the lunatic's
personal fund (a) .
9. Improvements. By the same rule the money of the
lunatic may be laid out in improvements (b) ; and the Chan
cellor, acting tanquam bonus pater-
familias, may take every
opportunity of ameliorating the estate by fair and ordinary
means, such as draining, inclosure, &c . (c) , erecting a steam
engine for the purpose of working a coal mine ( d) , but must
not engage in risks and dangerous adventures (e) .
Necessary expenses of real estate. - And of course the per
sonalty may be drawn upon for necessary expenses, as repairs
(f) , fines for renewal of leases , or admission to copyholds (g) .
But where the committees of a lunatic , who were entitled
to the estate themselves after his death, laid out a sum in
purchasing timber for repairs , when they ought to have cut
timber on the estate, Lord Hardwicke said, that, having
done so merely to serve their own interest, they should

field, 1 Ves. jun. 455, 457 ; Re Mary (d) Oxenden v. Lord Compton, 2
Smith (a lunatic) , 10 L. R. Ch. App. Ves. jun. 73.
84, per L. J. James. (e) Ib. per Lord Loughborough.
(f) Ex parte Bromfield , 1 Ves. jun . (f) Sergeson v. Sealey, 2 Atk.
453 ; S. C. 3 B. C. C. 510 ; Oxenden 414, per Lord Hardwicke ; Ex parte
v. Compton, 2 Ves. jun. 69 ; S. C. 4 Grimstone, Amb. 708 ; S. C. cited
B. C. C. 231 ; Shelley's case , cited 1 Oxenden v. Lord Compton, 4 B. C. C.
Ves. jun. 457 ; Ex parte Phillips, 19 237, note, per Lord Apsley ; 2 Ves.
Ves. 124, per Lord Eldon. The dic jun. 72, per Lord Loughborough ;
tum in Marquis of Anandale v. Mar Newport's case, cited Ib.; [ Re Gist,
chioness of Anandale, 2 Ves. 384, 5 Ch . D. 881 ; ] Re Badcock, 4 M. &
must be considered as overruled . Cr. 440. But it was said in the last
(a ) Oxenden v. Lord Compton, 2 case, that "if the money were laid
Ves. jun. 72 ; per Lord Loughbor out in a purchase of land, or, what
ough . was the same thing, in building a
(b) Sergeson v. Sealey, 2 Atk. 414, farm house, it would be right that the
per Lord Hardwicke ; Dormer's case, sum so laid out should retain its char
2 P. W. 262 ; [ Re Gist, 5 Ch . D. 881. ] acter of personalty ."
(c) See Justice De Grey's argu (9) Justice De Grey's argument
ment in Ex parte Grimestone , cited in Ex parte Grimstone, ubi supra ; but
Oxenden v. Lord Compton, 2 Ves. see Degg's case, cited Oxenden v.
jun. 75 , note. Lord Compton, 4 B. C. C. 235, note.
1291
*966 TRUSTEES FOR LUNATICS . [CH. XXXI. S. 2.

make good the disbursement to the lunatic's next of

kin (h) .
10. Conversion not allowed , except where it is clearly for the
lunatic's benefit. — In the preceding cases the conversion has
been for the clear benefit of the lunatic, but in general the
Court will not lightly change the condition of the property,
but will only act on pressing and urgent occasions (i) : it
will interfere with great caution, and do nothing that is
unnecessary or uncalled for ( ) . The Court will not buy
and sell for the lunatic (k) ; and, therefore , if the commit
tee of a lunatic wantonly, and of his own head, lay
*
[ * 966 ] out money upon land, or turn land into money,
the Court will not suffer such fraudulent manage
ment to affect the rights of the representatives (a ) , but will
transfer to the heir what ought to have remained real estate ,
and to the next of kin what ought to have remained per
sonal estate (b) . [ So, where a lunatic was tenant in tail in
possession of large estates, upon which it was desirable to
expend a considerable sum for repairs and improvements ,
and he was also entitled to a fund in Court sufficient for the
required outlay, it was held that the expenses of the repairs
and improvements on the settled estates ought to be raised
by mortgage or charge of those estates, and that the fund in
Court ought not to be applied for the purpose (c) . ]
Personal estate applied to relief of real estate. ― So, where a
mortgage upon the lands of a lunatic is discharged out of his
personal estate, though it was formerly held that the next
of kin after the lunatic's decease had no lien upon the real
estate for the amount expended ( d) , it has since been ruled

(h) Ex parte Ludlow, 3 Atk. 407. per Lord Apsley ; Sergeson v. Sealey,
(i) Exparte Bromfield, 1 Ves. jun. 2 Atk. 414, per Lord Hardwicke.
463, and 3 B. C. C. 515 , per Lord (a) See Ex parte Bromfield, 1 Ves .
Thurlow ; and see Re Mary Smith jun. 462 .
(a lunatic) , 10 L. R. Ch. App . 79. (b) Anon . case, 2 Freem. 114 ;
(j) Oxenden v. Lord Compton, 2 Awdley v. Awdley, 2 Vern. 292 ; Mar
Ves. jun. 76, and 4 B. C. C. 238, per quis of Anandale v. Marchioness of
Lord Loughborough . Anandale , 2 Ves . 384, per Lord Hard
(k) Oxenden v. Lord Compton, 2 wicke ; and see Ke Badcock, 4 M. &
Ves. jun. 73, per Lord Loughborough ; Cr. 440 .
Ex parte Grimstone, cited in Oxenden [(c ) Re Gist, 5 Ch. D. 881. ]
v. Lord Compton, 4 B. C. C. 235, note, (d) Ex parte Grimstone, Amb.
1292
CH. XXXI. S. 2. ] TRUSTEES FOR LUNATICS . *966

that the personal estate after the lunatic's death shall be

recouped the amount expended in exonerating the real
estate (e).
[ Transfer of mortgage should be taken . — And where a
mortgage of a lunatic's real or leasehold property is paid
off out of his personal estate the mortgage should not be
re-conveyed to the lunatic, but should be kept on foot by
transferring it to the committee, to be disposed of as the
Court may direct, so as to leave open the question how the
mortgage debt should ultimately be borne (ƒ ) . ] However,
if timber be cut down, not by a committee in breach of his
duty, but by a stranger tortiously, then, as there is no abuse
of confidence, the heir has no equity, and the property of
the timber, like a windfall, will belong to the executor (g) .
[ 11. Right of customary heir preserved in equity on enfran
chisement. — Where a copyhold estate, as to which the rules
of descent were different from those of freeholds , was
enfranchised, the Court inserted a declaration in the order
sanctioning the enfranchisement, carrying over the equitable
interest in the enfranchised property, in the event of the
lunatic dying intestate, to the persons who would have taken
it if it had not been enfranchised (h) . So where part of
the personal estate of the lunatic was laid out in the pur
chase of real estate as a convenient mode of investment, a
declaration was inserted in the conveyance in conformity
with the terms of the order, that the premises granted were
to all intents and purposes to be considered as part of the
personal estate of the lunatic ; and this was held to be suffi
cient to cause the property to retain its character of per
sonalty though invested in land, and to make the land sub
ject to probate duty on the death of the lunatic.¹

786 ; S. C. cited Oxenden v. Comp (g) Anon. case, cited Er parte

ton, 4 B. C. C. 235, and Weld v. Tew, Bromfield, 1 Ves . jun. 462 , and 3
Beat. 272 . B. C. C. 515, per Lord Thurlow.
(e) Weld v. Tew, Beat. 266 ; Re [ (h) Re H. D. Ryder, 20 Ch. D.
Leeming, 3 De G. F. & J. 43. 514. ]
[ (f) Re Melly, 49 L. T. N. S.
429. ]

¹ Attorney-General v. Marquess of Ailesbury, 14 Q. B. D. 895.

1293
*967 TRUSTEES FOR INFANTS . [CH. XXXI. S. 2.

12. Out of what fund lunatic to be maintained . ―――― Where

property is vested in trustees in trust to apply the income
for the maintenance of a lunatic during his life, and any
surplus income not required is to be accumulated as
[ * 967 ] capital, and the lunatic is absolutely entitled to
other property, the Court will apply the life interest,
in the first place, towards his maintenance, unless the trustees
of the settled property have an absolute discretion whether
they will apply the whole or any part of the income for the
lunatic's benefit, in which case the exercise of such discre
tion will not be interfered with ( a) . ]
Next as to infants.
1. Infants distinguished from lunatics. ―- Lord Thurlow, on
one occasion, but without having examined the authorities,
said he could not distinguish between lunatics and infants (b) ;
but, when the matter came on again, and he had maturely
considered the subject, he never once hinted at the existence
of such a doctrine (c) ; and , indeed , until the late Wills Act
there was a very broad distinction between the two cases ;
for, if a lunatic recovered , which in contemplation of law is
always possible, he had precisely the same power of disposi
tion, though by different modes, over one species of property
as over the other (d) ; but an infant, while he could have
bequeathed personal estate under the age of twenty-one ,
could not have devised a freehold until he had attained that
age (e) . The Court, therefore, would not allow an infant's
estate to be converted from one species of property into
another, not from any tenderness to the rights of the repre
sentatives, but from a regard to the circumstances and
capacity of the infant himself. Should his money have
been turned into land, he would have lost a power of dis
position which the law permitted him to exercise : should
land have been turned into money, he would indirectly have

[ (a) Re Weaver, 21 Ch. D. 615. ] (d) See Ex parte Phillips, 19 Ves.

(b) Ex parte Bromfield, 1 Ves. 123.
jun. 461 ; S. C. 3 B. C. C. 515. (e) See Earl of Winchelsea v.
(c) Oxenden v. Lord Compton, 2 Norcliffe, 1 Vern. 437, in which case
Ves. jun. 69 ; S. C. 4 B. C. C. 231. the distinction appears first to have
been noticed.
1294
CH. XXXI. S. 2. ] TRUSTEES FOR INFANTS. *968

gained a power which the policy of the law had forbidden

him (f).
2. Timber cut on an infant's estate. ― - Upon the same princi
ple, had timber been cut on an infant's estate, the proceeds ,
and, it seems, the accumulation of the proceeds (g) , would
have continued part of the realty, and have descended
to the heir (h) . But a distinction was taken in
Mason * v. Mason (a) , (and Sir Thomas Clarke said [ * 968 ]
he allowed it (b) ,) between the case of an infant
tenant in fee and an infant tenant in tail : that in the former
case the proceeds of the timber should be taken as realty,
inasmuch as the infant was thus at all events absolutely
entitled ; but in the latter case, as the proceeds might, if
impressed with the character of realty, become vested in
the remainderman, the Court would treat the fund as per
sonalty, and give it to the infant's executors.
3. Exoneration of infant's real estate out of his personal estate.
- Again, if an infant's money had been applied to pay off a
charge, or redeem a mortgage affecting his real estate , it was
the better opinion (though some old authorities were against
it ) , that the sum so invested would still be looked upon as
part of the personalty (c) .
4. Necessary expenses . — But necessary expenses, though
affecting the infant's lands, were allowed to be thrown upon

(f) Ware v. Polhill, 11 Ves. 278, (a) Ubi supra.

and Ex parte Phillips, 19 Ves . 122, (b) Tullet v. Tullet , Amb . 371 ; and
per Lord Eldon ; Ashburton v. Ash see Dyer v. Dyer, 34 Beav. 504 ; At
burton, 6 Ves. 6 ; Sergeson v . Sealey, torney-General v . Marquess of Ailes
2 Atk. 413 ; and Rook v. Worth, 1 bury, 14 Q. B. D. 895.
Ves. 461 , per Lord Hardwicke ; Witter (c) Ex parte Bromfield , 3 B. C. C.
r. Witter, 3 P. W. 99 ; but see Earl 516, per Lord Thurlow ; Tullet v.
of Winchelsea v . Norcliffe , 1 Vern . Tullet, 1 Dick. 323, per Sir T. Clarke ;
435 ; Inwood v . Twyne, 2 Eden, 152 ; Seys v. Price, 9 Mod. 220, per Lord
Exparte Bromfield , Ves. jun. 461. Hardwicke ; Dowling v. Belton , 1
(g) See Ex parte Bromfield, 1 Ves . Flan. & Kelly, 462 ; but see 2 Freem .
jun. 454 . 114, c . 126 ; Ex parte Grimstone, Amb.
(h) Tullet v. Tullet, 1 Dick . 322 ; 708 ; Palmes v. Danby, Pr. Ch. 137 ;
S. C. Amb. 370 ; Mason v. Mason, Zoach v. Lloyd, cited Awdley v. Awd
cited, Ib. 371 ; Ex parte Phillips, 19 ley, 2 Vern. 192 ; as to Dennis v.
Ves. 124, per Lord Eldon ; and see Badd, cited Ib. 193, see Earl of Win
Rook v . Worth, 1 Ves . 461 ; but see chelsea v. Norcliffe, 1 Vern. 436.
Er parte Bromfield , 3 B. C. C. 516.
1295
*969 TRUSTEES FOR INFANTS . [CH. XXXI . S. 2.

the personal fund, as disbursements for repairs (d) , for keep

ing up a house, &c. (e) .
5. So, in Vernon v . Vernon (ƒ) , where an estate was de
vised to an infant in consideration of his paying the sum
which the original purchase had cost, it was held, that the
amount, being a necessary outlay, had properly fallen upon
the personalty, and the next of kin were not entitled to com
pensation.
6. Exceptions from the genera. rule. There were some
cases to which the reason for preserving the original charac
ter of the property did not apply. Thus , if an infant was
seised of a lease for lives ex parte maternâ, and the guardian
procured a new lease to be granted to the infant and his heirs,
whereby the old lease was merged, the substituted lease would
not descend in the maternal line , but, as a new acquisition ,
would go to the heirs on the part of the father (g) ; for it
being perfectly immaterial to the infant himself whether the
seisin was in the paternal or maternal line, the representative
ex parte maternâ had no equity against the representative ex
parte paterna.
[ 7. Repairs. Where repairs are absolutely necessary for
the protection of an infant's property the Court has
[ * 969 ] jurisdiction to direct the raising * of the necessary
funds by mortgage or sale of part of the infant's
property (a ) . But the jurisdiction should be jealously exer
cised and only in cases which amount to actual salvage (b) .]
8. Effect of late Wills Act. ― By the late Wills Act ( c) , an
infant has no greater testamentary power over personal than
over real estate ; and it remains to be seen how far the re
moval of the ground, so frequently relied upon, against per
mitting the conversion of the personal estate of an infant
into realty, can be treated as having diminished the rights

(d) Ex parte Grimstone, cited Ox (g) Mason v. Day, Pr. Ch . 319 ;

enden v. Lord Compton , 4 B. C. C. Pierson v. Shore, 1 Atk. 480.
235, note, per Lord Apsley. [(a ) Re Jackson, 21 Ch. D. 786 ;
(e) Ex parte Grimstone, Amb. 708, Glover v. Barlow, 21 Ch . D. 788,
per eundem. note.]
(f) Cited in Ex parte Bromfield , 1 [(b) Per Kay J., Re Jackson, ubi
Ves. jun. 456 . supra.]
(c) 7 W. 4, & 1 Vict. c. 26.
1296
CH. XXXI. S. 2.] TRUSTEES FOR INFANTS . *969

of the next of kin, or as authorising the application of the

decisions in lunacy to the administration of the property of
infants
9. The leaning of the Courts would appear to be to sim
plify the law by assimilating the case of infants to that of
lunatics. Thus in a late case ( d) an estate was devised to
an infant, his heirs and assigns, with a limitation over on his
dying under twenty-one, and timber was cut on the estate
during the infancy with the sanction of the Court. The in
fant died without attaining his age, and the question was
whether the proceeds belonged to the infant's personal rep
resentative, or should go with the estate to the person en
titled under the limitation over, and Sir J. Romilly, M. R.
held it to be personalty, and evidently made no distinction
between infancy and lunacy.

(d) Dyer v. Dyer, 34 Beav. 504. estate ; Field v. Brown, 27 Beav. 90 ;

But if an estate be settled upon A. unless the order be made upon the
for life only, with remainders over, application of a remainderman en
and the Court cuts the timber for titled in fee-simple, subject to the
the benefit of all parties interested, prior estate ; Phillips v. Daycock, W.
the proceeds will go along with the N. 1867 , p . 54.
1297
[*970] PART IV.

PRACTICE .

CHAPTER XXXII.

In this chapter we propose to consider such parts only of

the practice of the Court as most materially affect trustees
and their cestuis que trust, and are capable of being com
――
pressed within reasonable limits , viz . First, Distringas ;
Secondly, Production of documents ; Thirdly, Compulsory
payment into Court ; Fourthly, Receivership ; and Fifthly,
Costs of suit (a) .

SECTION I.

OF DISTRINGAS.¹

1. Danger to which stock, &c . , exposed in consequence of legal

title only being recognised . - - In the case of stock transferable
in the books of the Bank of England, and also in the case
of the stocks and shares of many other public companies, no
obligation exists on the part of the bank or public company
to look beyond the title of the legal holder. The modern

[(a ) In the sixth and earlier edi or be sued have been considered at
tions of this work, the subjects of par some length, but in referring to those
ties to suits relating to trusts, and of editions the recent changes in the
the order and manner in which trus practice of the Court must be borne
tees and cestuis que trust ought to sue in mind .]

1 Trustees Phillips Academy v. King, 12 Mass . 546 ; McDonogh v. Murdoch,

15 How. 367 ; Dublin Case, 38 N. H. 577 ; Att'y Gen. v. Utica Ins. Co. 2 Johns.
Ch. 384 ; Greenville Academies, Ex parte, 7 Rich. Eq. 476.
1298
CH . XXXII . S. 1. ] DISTRINGAS. #971

form of legislative enactment on the subject is usually to

the effect that the company "shall not be bound to see to
the execution of any trust, whether express , implied ,
*
or constructive " (b) . Where, therefore, property [ * 971 ]
of this description is held upon trust, the interests
of the cestui que trust are peculiarly liable to be endangered
by the dishonesty of the trustee ; and, indeed, but for the
means of protection now about to be explained, would be
almost entirely at his mercy.
2. Origin of the writ of distringas . ― -The distringas was
originally a process of the equity side (afterwards abolished)
of the Court of Exchequer for compelling the appearance of
a corporation to a bill filed , but formerly it was a common
practice, more particularly in any emergency, to issue a sub
pœna before the bill was actually on the file. When, there
fore, a party sought to restrain a transfer of stock , before he
filed the bill against the holder of stock and the bank (which
was then a necessary party) , to prevent any mischief in the
interim, he served process immediately on the secretary of
the bank to appear to the bill . But as the form of distringas
gave no information as to the stock to be restrained, the dis
tringas was accompanied with a notice in writing, which spe
cified the stock, and required the bank not to permit the
transfer. The effect of this was, that if the holder of the
stock applied to the bank to make a transfer, the bank imme
diately forwarded a notice to the party issuing the distringas,
that unless he actually filed a bill, and obtained and served
an injunction before a certain day, they should permit the
transfer to be made.
3. Practice continued notwithstanding 4 Anne, c. 16, and 39 &
40 G. 3, c. 36. - The 4 Anne, c. 16, s . 22, declared that no
subpoena or other process for appearance should issue until
after the bill was filed ; and the 39 & 40 G. 3, c. 36, en
abled suitors to obtain an injunction against the bank, with
out making the bank a party. However, in practice the dis
tringas still continued to be served on the bank, and the same
attention was paid to it in not allowing a transfer .

(b) 8 Vict. c. 16, s . 20 ; and see 25 & 26 Vict. c. 89, s . 30.

1299
* 972 DISTRINGAS . [CH. XXXII. S. 1 .

4. Process transferred to Chancery on the abolition of the equity

Exchequer. ―― The convenience of the distringas was so sen
sibly felt, from the frequent necessity of laying an embargo
upon stock at a moment's notice, that when 5 Vict . c . 5,
abolished the equity side of the Exchequer, it was thought
expedient to transfer the process to the Court of Chancery,
and enlarge the remedy.
5. Additional remedy given by 5 Vict. c. 5, s. 4. - Accord
ingly, by section 4 of the Act referred to, it was by way of
additional remedy enacted, that " it should be lawful for the
Court of Chancery, upon the application of any party inter
ested by motion or petition, in a summary way, without bill
filed, to restrain the Bank of England or other company,
whether incorporated or not, from permitting the transfer of
any stock in the public funds, or any stock or shares in any
public company, or from paying any dividend or div
idends due or to become due thereon ; and every
[ * 972 ] * order of the Court upon such motion or petition
should specify the amount of the stock, or the particu
lar shares to be affected thereby, and the name or names ofthe
person or persons, body politic or corporate, in which the same
should be standing."
6. Practice under the 4th section. ―――――
- An application to the
Court under this section must be founded upon an affidavit
verifying the special grounds upon which it proceeds (a) .
And when the order has been made, as it was not the inten
tion of the Legislature to do more than protect the stock
until the party could assert his right in the ordinary way, if
the opposite party move to dissolve the injunction, and the
Court sees that there has been great neglect on the part of
the person who obtained the order, and that any extension of
time would be oppressive to the party restrained , it will not
as of course give further time for instituting proceedings (b) .
Under the former practice, when a bill had been filed, and an
answer put in, and the defendant moved to discharge the re

(a) Ex parte Field , 1 Y. & C. C. C. (b) Re Marquis of Hertford, 1

1 ; Re Marquis of Hertford, 1 Hare, Hare, 584 ; see same case, Ph. 203.
586 ; Re Locke and others, 18 W. R.
275.
1300
CH. XXXII . S. 1. ] DISTRINGAS. *973

straining order, the plaintiff was allowed to file affidavits in

opposition to the answer, and was not confined to the merits
disclosed in the answer (c) .
7. Transfer of the old writ of distringas. -- By section 5 of
the Act it is thus enacted : " In the place and stead of the
Writ of Distringas, as the same has been heretofore issued
from the Court of Exchequer, a Writ of Distringas in the
form set out in the schedule to the Act shall be issuable from
the Court of Chancery, and shall be sealed at the subpoena
office, and the force and effect of such writ, and the practice
under or relating to the same, shall be such as is now in force
in the said Court of Exchequer : Provided, nevertheless, that
such writ, and the practice under or relating to the same,
and the fees and allowances in respect thereof, shall be sub
ject to such orders and regulations as may, under the provi
sions of this Act, or of any other Act now in force, or under
the general authority of the Court of Chancery, be made
with reference to the proceedings and practice of the Court
of Chancery."
Form of new writ. - In the Schedule to the Act, the form
of the writ is as follows : " Victoria, &c ., to the Sheriffs of
London greeting. We command you that you omit not, by
reason of any liberty, but that you enter the same, and dis
train the Governor and Company of the Bank of England, by
all their lands and chattels in your bailiwick, so that they, or
any of them, do not intermeddle therewith until We
otherwise * command you; and that you answer us the [ * 973 ]
issue of the said lands, so that they do appear before us in
our High Court of Chancery on the day of
to answer a certain bill of complaint lately exhibited against
them and other defendants before us in our said Court of Chan
cery by complainant ; and, further, to do and re
ceive what our said Court shall then and there order in the
premises , and that you then leave there this writ. Wit
ness," & c .
8. Orders of Court regulating practice . -[Notice substituted
for the writ. ] The Act, as we have seen, empowered the

(c) Ib. 1 Ph. 203 ; and see 15 & 16 Vict. c. 86, s. 59.
1301
*974 DISTRINGAS. [CH. XXXII. S. 1.

Court to regulate the practice of the distringas, and orders

[were accordingly issued with that object (a ) ; but the writ
of distringas has now been superseded (b) , and a notice sub
stituted in its place, which is made to apply, not only to the
Bank of England, but to all companies, whether incorporated
or not, and the practice in relation to such notices is now
regulated by Order 46, rules 2-10 , of the Rules of the Su
preme Court, 1883.
[ 9. Present practice as to obtaining and serving the notice in
lieu of distringas . - The present course is as follows : -- The
party seeking the benefit of the Act prepares a notice , and
makes an affidavit in the forms prescribed by the general
order. The notice and affidavit are then filed in the Central
Office, and an office copy of the affidavit and a duplicate of
the notice, authenticated by the seal of the Central Office ,
are obtained and served on the bank or company ; and such
service has the same force and effect against the bank or
company, as a writ of distringas duly issued under the 5th
section of the Act previously had.
The notice may be withdrawn by the person by whom or
on whose behalf it was given, on a written request signed by
him, or its operation may be made to cease by an order made
upon notice on the application of any other person claiming
to be interested.
If while the notice continues in force the bank or com
pany receive from the person in whose name the stock is
standing, or from some person acting on his behalf or repre
senting him, a request to permit the stock to be transferred, or
to pay the dividends thereon , the bank or company is not by
force or in consequence of the service of the notice, author
ised without the order of the Court or a judge to refuse to
permit the transfer to be made, or to withhold the payment
of the dividends, for more than eight days after the date of
the request. ] The result is, that when the holder of the
stock requests a transfer of the stock or payment
[* 974 ] * of the dividends, the bank [ or company ] immedi

(a) XXVII Cons . Ord. 1860. See [ (b) See Rules of the Supreme
Orders , 17 Nov. 1841 , 3 Beav. xxxiii.; Court Ord. 46 , superseding the similar
and 10 Dec. 1841, 3 Beav. xxxviii. Rules of April, 1880.]
1302
CH. XXXII. S. 1.] DISTRINGAS. *974

ately forwards a notice to the party who served the no

tice, that unless he bring an action, and obtain and serve
an injunction within eight days from the date of such re
quest, the transfer or payment will be made . The party
must, of course, be then upon the alert to take proceedings
and obtain and serve the injunction before the eight days
have expired (a).
10. Distinctions between remedies under the 4th & 5th sec
tions of the act. - [ Until the issuing of the Order of April,
1880, it was considered that while the 4th section of the Act
applied, ] not merely to stock in the funds , but to stock and
shares of public companies, whether incorporated or not, the
5th section was by the joint effect of the schedule to the
Act of Parliament and of the orders of Court before re
ferred to (b), confined to stock transferable at the Bank of
England, [but this distinction between cases under the 4th
and 5th sections has been superseded, and by the recent
Order, rule 3, the notice is applicable to any public com
pany, whether incorporated or not, and may affect shares,
securities, and money, as well as stock. The distinction ,
however, still remains that notice ] under the 5th section
may be, and is in fact, frequently obtained , not from any
fear of immediate danger, but as a general safeguard
merely (c) ; whereas a special case must be made in order to
obtain a restraining order under the 4th section (d) .
11. Both remedies available in the case of stock. ― The
[ notice in lieu of] distringas under the 5th section, and the
restraining order under the 4th section, may both occa
sionally be resorted to should circumstances require it ; for
the adoption of either remedy is not an election of the one
to the exclusion of the other (e) . " The 4th clause ," said
Sir J. Wigram, " was intended for interim purposes, - to
protect stock until the party claiming it should have an op
portunity of asserting his rights by bill in the ordinary way,

[(a) The proper course is to obtain [ (b) See note (a) , p. 973.]
an interim order, ex parte, over the (c ) See Etty v. Bridges, 1 Y. & C.
next motion day, which must be C. C. 486.
served on the legal owners of the (d) Note (a) , p. 972, supra.
stock ; Re Blaksley's Trusts , 23 Ch. (e ) Re Marquis of Hertford, 1
D. 549. ] Hare, 584 ; 1 Ph. 129.
1303
*975 PRODUCTION . [CH. XXXII. S. 2.

—an opportunity often wanting from the facility with

which that species of property is transferred from hand to
hand, and which the common distringas, preserved by the
5th section, does not in all cases afford. A distringas re
mains (f) only at the discretion of the bank. The restrain
ing order, which the 4th section enables the Court to grant,
is imperative ; it continues so long as the Court sees fit to di
rect, and can only be discharged in the meantime upon
[ * 975 ] the application of the parties interested ." * " Cases
might arise," he added, " in which, from the discovery
of new matter, after a distringas had issued, or from the bank
peremptorily but erroneously refusing to notice a distringas,
or perhaps from other causes, the party who obtained that
writ might, notwithstanding, upon a full disclosure of the
facts in a case of merits and urgency, entitle himself to a
restraining order under the 4th section " (a) .

SECTION II.

OF PRODUCTION.

1. General rule. - All documents held by the trustee in

that character must be produced by him to the cestuis que
trust, who in equity are the true owners (b) .
Cases for opinion. - And if the trustee has submitted cases
to counsel and taken opinions, not for the purpose of defence
in any litigation between himself and his cestuis que trust,
but for his guidance as trustee, he is bound to produce them
to the cestuis que trust, who pay the expense so incurred by
the trustee ( c) . [ So, in a suit by cestuis que trust against
their trustees to compel them to make good a breach of trust,
the trustees are bound to produce letters and copies of letters
between them and their solicitors in relation to the matters
in question in the action ante litem motam (d) . ]

(f) Sic, qu. " restrains." (c) Wynne v. Humberston , 27

(a) Re Marquis of Hertford, 1 Beav. 421 ; Devaynes v. Robinson,
Hare, 590. 20 Beav. 42 ; Talbot v. Marshfield, 2
(b) Simpson v. Bathurst, 5 L. R. Dr. & Sm. 285, 549.
Ch. App . 202, per Lord Hatherly. [ (d) Re Mason, 22 Ch . D. 609. ]
1304
CH. XXXII . S. 2.1 PRODUCTION. *976

Parties. - But as all the cestuis que trust have an interest

in the documents, they must all be represented, directly or
indirectly, in the suit before the documents can be finally
dealt with (e) . If the trust documents include mortgages
upon which the trust fund has been invested, the production
cannot be objected to on the ground that the mortgagors ,
or persons entitled to the equity of redemption , are not
parties (ƒ) .
2. Trust must be established. ― The privilege of requiring
production can be asserted only by a cestui que trust when
the relationship of trustee and cestui que trust has been
established ; for, so long as the claim is disputed, the would
be cestui que trust is regarded as a stranger (g) .¹
3. Accounts . — An executor and trustee is bound
to keep clear and distinct * accounts, and if he enter [ * 976 ]
the accounts of the trust in his private books, he is
bound to produce them ( a) ; and if an executor or trustee ,
being a partner, be allowed to enter the trust accounts in
the partnership books, the Court will not allow the partners
to withhold the inspection (b) ; but if an agent be employed
to manage an estate, and he keeps the accounts in the same
books in which the accounts relating to the estates of other
persons are kept, the production, in the absence of those
other persons, has been refused (c) .
―――――
4. Privileged communications. Where litigation is pending
or is contemplated between the trustee and his cestui que
trust, and the trustee submits a case to counsel for his
opinion, for the protection of the trustee himself adversely
to the cestui que trust, the case and opinion are communi
cations within the general rule, and privileged from pro
duction (d).

(e) Bugden v. Tylee, 21 Beav. (a) Freeman v. Fairlie, 3 Mer. 43,

545. per Lord Eldon.
(f) Gough v. Offley, 5 De G. & (b) Ib.
Sm. 653. (c) Airey v. Hall , 12 Jur. 1043.
(g) Wynne v. Humberston, 27 (d) Talbot v. Marshfield, 2 Dr. &
Beav. 421 . Sm. 285, 549 ; Brown v. Oakshot, 12

1 If a trustee does not keep clear, intelligible, and plain accounts, any
doubtful points or questions will be decided adversely to him ; Blauvelt v.
Ackerman, 23 N. J. Eq. 493 .
1305
*977 COMPULSORY PAYMENT INTO COURT. [CH. XXXII . S. 3.'

5. Persons bound by notice of the trust. - -The right of the

cestui que trust is enforced not only as against the trustee
personally, but as against all claiming under him, and though
for value, if with notice of the trust (e) .

SECTION III.

OF COMPULSORY PAYMENT INTO COURT.¹

-
1. General rule. The general rule as laid down by Lord
Eldon, and which has ever since been acquiesced in , is, that
to call for payment of money into Court, " the plaintiff must
either be solely entitled to the fund or have acquired in the
whole of the fund such an interest, together with others, as
entitles him on his own behalf, and the behalf of those others,
to have the fund secured in Court " (f) . It is not indis
pensable that the plaintiff should be the person exclusively
interested ; for if he have a partial or contingent interest (g) ,
it is enough, provided all the other persons interested in the
fund are before the Court (h) ; and occasionally the Court
will make orders for payment into Court, although
[ * 977 ] some of the persons interested in the money are * not

Beav. 252 ; Devaynes v. Robinson, 20 (f) Freeman v. Fairlie, 3 Mer. 29 ;

Beav. 42 ; Bacon v. Bacon, W. N. and see Dubless v. Flint, 4 M. & Cr.
1876, p. 96 ; [ see Re Mason, 22 Ch. 502 ; M'Hardy v . Hitchcock, 11 Beav.
D. 609 ; Mayor and Corporation of 77.
Bristol v. Cox, 26 Ch. D. 678.] (g) Ross v. Ross, 12 Beav. 89.
(e) Smith v. Barnes, 1 L. R. Eq . (h) Whitmarsh v. Robertson, 4
65. Beav . 26 ; Bartlett v. Bartlett, 4 Hare,
631 .

1 If a trustee fails to pay money into court as ordered, he is liable for the
principal, and compound interest, during such failure ; Lathrop r . Smalley's
Ex. 23 N. J. 192 ; Winder v. Diffenderffer, 2 Bland, 166 ; McElhenny's App . 46
Pa. St. 347 ; Durling v. Hammar, 5 C. E. Green, 220. When the trustee does
pay the fund into the court, either voluntarily or involuntarily, no interest
can be claimed from him since such payment ; Young v. Brush, 38 Barb. 294 ;
Lane's App . 24 Pa . St. 487 ; Brandon v . Hoggatt, 32 Miss. 335. There can be
no objection to the payment of the money into court by the trustee, if he
chooses to do it ; Smith v. Atwood, 14 Ga . 402 ; Wright v. Arnold , 14 B. Mon.
638. If a trustee has been guilty of misconduct, he will be ordered to pay
the funds into court ; Hosack v . Rogers, 9 Paige, 468 ; Conteer . Dawson, 2
Bland, 264 ; but a clear case and good reason must be shown to induce courts
to make such an order ; McTighe v. Dean, 7 C. E. Green, 81.
1306
CH. XXXII . S. 3.] COMPULSORY PAYMENT INTO COURT. *977

before it (a) , or the defendant does not admit that all are
before it ( b ) . Where the other persons interested are not
necessary parties to the suit , payment into Court, if con
sistent with the relief sought in the suit, may be obtained
without service on them of the notice of motion (e) ; but
where cestuis que trust had been served with the copy of a
bill which prayed the appointment of new trustees, and a
transfer of the fund not into Court but to the new trustees,
the Court held that the parties served with a copy of the
bill must be served with notice of the motion to transfer the
fund into Court (d) .
2. Plaintiff may move upon a possible title. - If the defend
ant admits himself to be a trustee for some one, but it re
mains to be ascertained whether he is a trustee for the
plaintiff or for other parties, the plaintiff may move upon
his possible title, where all persons are before the Court
among whom there will be found some one who is en
titled (e) . “ In a contest as to the title to any particular
property," said Lord Cottenham, "the Court will, in some
cases, take possession of the subject-matter of the contest
for security until it adjudicates upon the right . Such cases
generally arise when the property is in the hands of stake
holders, factors , or trustees who do not themselves claim any
title to it. In ordering money into Court under such cir
cumstances, the Court does not disturb the possession of any
party claiming title , or direct a payment before the liability
to pay is established " (f) .
3. Payment of a share . —— Occasionally, where the fund is
clear, and is divisible between the plaintiff and defendant in
certain proportions, the Court has ordered the defendant to
pay into Court the share only of the plaintiff (g) .

(a ) Wilton v. Hill, 2 De G. M. & (e) See Dolder v. Bank of Eng

G. 807 ; Hamond v. Walker, 3 Jur. land, 10 Ves . 355 ; Whitmore v .
N. S. 686. Turquand, 1 J. & H. 296 ; but see
(b) Symonds v. Jenkins ; 34 L. T. Dubless v. Flint, 4 M. & Cr. 502 ;
N. S. 277 ; 24 W. R. 512. M'Hardy . Hitchcock, 11 Beav. 73.
(c) Marryatt v. Marryatt, 23 L. J. (f) Richardson v . Bank of Eng
N. S. Ch. 876. land, 4 M. & Cr. 171.
(d) Lewellin v. Cobbold, 1 Sm. & (9) Rogers v. Rogers, 1 Anst . 174 ;
G. 572. Hamond v. Walker, 3 Jur. N. S. 686 ;
see Score v. Ford, 7 Beav. 336.
1307
*978 COMPULSORY PAYMENT INTO COURT. [CH. XXXII . S. 3.

4. Motion formerly must have been founded on admission in

defendant's answer. - [ It was formerly the rule of the Court
that where the motion was made before decree the merits
upon which it was ] founded must be admitted by the
defendant's answer, and that no evidence as to merits
could be adduced aliunde (h) . Thus if money was
[ * 978 ] * standing in the joint names of several persons as
of three trustees, it would not be ordered into Court
on the admission of the specific sum by one, though the
others admitted that a sum was standing in their joint
names, and the plaintiff offered to read affidavits sworn by
them from which the amount of the sum would appear (a) .
[But now any admission direct or implied sufficient. - -But in
a recent case (b) the Court of Appeal intimated an opinion
that any admission , whether direct or implied, would be
sufficient to enable the Court to act ; and in a subsequent
case, where a motion was made in an administration action ,
after the defendant's appearance but before any pleadings
had been delivered, for payment into Court of sums of
money alleged to be in the defendant's hands, and the
motion was supported by the affidavit of the plaintiff, but
the defendant though served with notice of the motion did
not appear, it was held by the late M. R. that the defendant
must be taken to have admitted that he had received the
money as he had not denied it, and he was ordered to pay
the amount into Court (e) ; and admissions by a trustee in
correspondence that he has received the money, and a recital

(h) Beaumont v. Meredith, 3 V. & into Court. ] The 59th sect. of 15 &
B. 181 , per Lord Eldon ; Richardson v. 16 Vict. c. 86, directing the defend
Bank of England , 4 M. & Cr. 171 , 175, ant's answer to be viewed merely as
per Lord Cottenham ; Dubless v. Flint, an affidavit in motions for injunction
4 M. & Cr. 502 ; Black v. Creighton, or receiver, &c . , did not touch motions
2 Moll. 554, per Sir A. Hart ; and for payment into Court.
see Green v. Pledger, 3 Hare, 171 ; (a ) Boschetti v. Power, 8 Beav.
Hagell v. Currie, 2 L. R. Ch. App. 98.
452. [ However in Jervis v. White, 6 [ (b ) London Syndicate v. Lord , 8
Ves. 738 , Lord Eldon took the affida Ch . D. 84. ]
vit of the plaintiff charging the de [ (c) Freeman v. Cox, 8 Ch. D. 148 .
fendant with having a sum of money In a recent case in Ireland, V. C.
in his hands and an affidavit of the Chatterton declined to follow Free
defendant before answer together as man v. Cox ; see Nesbitt v. Baldwin,
an admission, and ordered the money 7 L. R. Ir. 134. ]
1308
CH. XXXII. S. 3. ] COMPULSORY PAYMENT INTO COURT. *979

to that effect in the settlement which was executed by him,

are sufficient to found the order (d) . ]
5. Old rule that answer should contain an admission of plain
tiff's title. - And it would seem that [the old rule was that]
not only must the plaintiff have been able to read from the
answer an admission of the defendant's receipt of the
money, but also an admission of his own title, or probable
title, e.g. as next of kin, heir-at-law, &c ., and that if the
defendant ignored the plaintiff's title, the money would not
have been ordered into Court (e ) . But in a suit to establish
a constructive trust, the rights of the plaintiff might have
appeared so clear upon the answer, that the Court, notwith
standing a formal denial by the defendant that he was a
trustee , would have felt itself justified in ordering pay
ment (f).
[Present practice . - It is conceived that under the present
practice any admission by the defendant of the
plaintiff's title, whether expressed or implied * from [ * 979 ]
his conduct, would be sufficient to enable the Court
to order money into Court (a) .
6. Payment in after decree. Where the motion is made
after decree the Court will order money into Court in any
case where it is ascertained to its satisfaction , that the
amount must in any event be ultimately payable by the
defendant, and if the certificate of the chief clerk has not
been made finding the amount due, the Court will in a
proper case satisfy itself by an examination of the evidence
as to the amount, and order payment of the amount so ascer
tained (b) .]
7. Payment into Court must be upon the footing of an equity
alleged by the plaintiff. The plaintiff cannot ask for pay
ment of money into Court upon the footing of an equity
not alleged by him in his pleadings, but only stated by the

[(d) Hampden v. Wallis, 27 Ch. (f) Hagell v. Currie, 2 L. R. Ch.

D. 251. ] App. 452, per L. J. Cairns.
(e) Dubless v. Flint, 4 M. & Cr. [(a ) See Freeman v. Cox, 8 Ch . D.
502 ; M'Hardy v. Hitchcock, 11 Beav. 148 ; but see Nesbitt . Baldwin, 7
73 ; Bank of Turkey v. Ottoman Com L. R. Ir. 134.]
pany, 2 L. R. Eq. 366. [(b) London Syndicate v. Lord, 8
Ch . D. 84.]
1309
*980 COMPULSORY PAYMENT INTO COURT. [ CH. XXXII. S. 3.

answer [or statement of defence . ] Thus, where the plain

tiff filed a bill claiming one-fifth of the residuary estate of a
testator and asking relief as in the case of an open account,
and the defendant by his answer stated a deed amounting to
a settlement of account under which he admitted a sum to
be due from him, it was held that the plaintiff could not
without amending his bill obtain payment into Court of the
sum so admitted to be due (c) .
8. Not necessary that fund should be actually in defendant's
hands. -It is not necessary that the defendant should ac
knowledge the fund to be in his hands at the time of the
answer ; for if he admit that he once actually received it,
and state that he afterwards applied it in a way not author
ised by the trust, the Court will fasten upon the receipt, and
not allow him to discharge himself by pleading a breach of
duty ; as, if a trustee admit that he once had a fund in his
hands, but that he afterwards allowed it to be received by a
co-trustee who misapplied it ( d) , or that he afterwards sold
it out and did not re-invest it (e) , or paid it away improp
erly (ƒ) , or lent it on personal ( g) or other security (h) not
within the terms of the trust. And no attention will be
paid to the objection that the suit is for the very purpose of
securing the fund, and therefore that the money ought not
to be ordered into Court until decree (i).
[* 980] * 9 . Payments not mentioned in answer may be veri
fied by affidavit. ――― But if an executor (and the rule
must apply equally to a trustee ) admits in his answer [ or
statement of defence ] that he has received a specific sum,
but adds that he has made payments , the amount whereof he

(c) Proudfoot v. Hume, 4 Beav. 350 ; Meyer v. Montriou, 4 Beav. 343 ;

476. Nokes v. Seppings, 2 Ph. 19.
(d) Ingle v. Partridge, 32 Beav. (g) Vigrass v. Binfield, 3 Mad. 62 ;
661 ; Symonds v. Jenkins, 34 L. T. N. Collis v. Collis, 2 Sim. 365 ; Roy v.
S. 277 ; 24 W. R. 512. Gibbon, 4 Hare, 65.
(e) Wiglesworth v. Wiglesworth, (h) Wyatt . Sharratt, 3 Beav.
16 Beav. 272 ; Phillipo v. Munnings , 498 ; Costeker v. Horrox, 3 Y. & C.
2 M. & Cr. 309 ; and see Meyer v. 530 ; Hinde v. Blake, 4 Beav. 597 ;
Montriou, 4 Beav . 346 ; Futter v. Bourne v. Mole, 8 Beav. 177.
Jackson, 6 Beav. 424. ( See Rothwell v . Rothwell , 2 S.
(f) See Scott v. Becher, 4 Price, & S. 217 ; Wyatt r. Sharratt, 3 Beav.
498 ; Collis v. Collis , 2 Sim. 365.
1310
CH. XXXII S. 3.1 COMPULSORY PAYMENT INTO COURT. *980

does not specify, in respect of the testator's estate, the

Court will allow him to verify by affidavit the amount of
the payments properly made, and will order him to pay in
the actual balance (a).
10. Payment of money into Court not ordered on a mere
admission of circumstances showing a liability. Payment of
•
money into Court is, in general, confined to the cases of a
defendant's admission of actual possession of the fund, or of
a receipt not followed by any subsequent legal discharge,
and is not ordered upon a mere admission of facts from
which a liability may be inferred (b) . Thus, if a defendant
admit that he has had a fund in his hands from a certain.
time, and it clearly appears that he is liable and will be
decreed at the hearing to pay interest ; yet the Court will
not order him to pay interest on motion ( c) , unless he also
admit that he has actually made interest, which amounts to
a receipt (d) .
11. The case of Rothwell v. Rothwell (e ) is no exception
to this rule, for there the defendant had covenanted with the
trustees of his marriage settlement to pay 8507. within
twelve months from the marriage ; and the covenant not
having been performed , the children filed a bill against the
covenantor and the trustees to have the money raised ; and
the defendant admitting " that the 8507. had not been got in,
but that it was still in his hands," the Court ordered the pay
ment into Court, not on the admission of the debt, but " that
it was still in his hands."
12. Special case of a trustee who is a debtor to his trust
estate. - However, in some cases the Court orders payment
into Court upon motion of what is apparently a mere debt ;
as, where an executor or trustee admits himself to owe a
debt to the estate he represents, for here the person to pay
and the person to receive being the same, the Court assumes
that what ought to have been done has been done, and orders
(a) Anon. 4 Sim, 359 ; and see (c) Wood v. Downes, 1 V. & B. 50.
Proudfoot v. Hume, 4 Beav. 476 ; Roy (d) Freeman v. Fairlie, 3 Mer. 43 ;
v. Gibbon, 4 Hare, 65. see Wood v. Downes , 1 V. & B. 50.
(b) See Richardson v. Bank of (e) 2 S. & S. 217 ; see Richardson
England, 4 M. & Cr. 174 ; Peacham v. v. Bank of England, 4 M. & Cr. 174.
Daw, 6 Mad. 98.
1311
*981 COMPULSORY PAYMENT INTO COURT.. [ CH. XXXII. S. 3.

the payment, not as of a debt by a debtor, but as of monies.

realised in the hands of the executor or trustee (f) . Thus,
where A. , B. and C. were appointed executors of a will, of
whom A. and C. alone proved, and A. and B. were ap
pointed trustees, and a bill was filed by A. for the
[ * 981 ] administration of the trusts of the will, and B. by
his answer admitted that he and his partner G. B.
were indebted to the testatrix at the time of her decease,
and that part of the assets had been lent to the partnership
by C., and that the sum of 11377. 7s. 104d. was due from the
partnership to the estate on the balance of accounts, and
that the debt owing from the partnership, and the monies
received from C. the executor, had been treated as part of
the assets , and applied partly in payment of testatrix's
debts, and as to the residue upon the trusts of the will, the
Court held, notwithstanding B.'s disclaimer of having acted,
that he must be deemed to have acted as executor and trus
tee, and as such to have received the monies in question , and
ordered him to pay the balance into Court (a).
13. Where trustees mean to apply the fund. - Trustees will
not be ordered to pay into Court where they have a discre
tionary power over the fund, and it appears that they are
intending bona fide to exercise it ; for this would only lead
to expense by occasioning the necessity of another applica
tion to have the fund paid out again (b) .
14. Whether the order is matter of course. Lord Langdale
once said, that according to the old practice it was mere mat
ter of course to order trust funds into Court, but that the
question now was whether there existed any sufficient ground
for the order, such as danger of the fund, &c . (c) . V. C.
Stuart subsequently declared his adherence to the old prac
tice (d) ; [but in a recent case V. C. Hall was of opinion
that the rule was not absolute , but a reasonable ground for
the payment must be made out (e) . ]

(f) Richardson v . Bank of Eng (c ) Ross v. Ross, 12 Beav. 89.

land, 4 M. & Cr. 174, per Lord Cot (d) Robertson v. Scott, 14 L. T. N.
tenham . S. 187.
(a) White v. Barton, 18 Beav. 192. [ (e ) Re Braithwaite, 21 Ch. D.
(b) Talbot v. Marshfield, 2 Dr. & 121.]
Sm. 285.
1312
CH. XXXII . S. 4. ] RECEIVERSHIP . *982

15. Payment into Court at the hearing. -- The Court will

occasionally make an order for payment into Court at the
hearing of the cause, “ ex debitio justitia," though it might
have hesitated to do so upon an interlocutory application by
motion ; as, where a plaintiff having only a remote contin
gent interest in a fund claims at the hearing to have the fund
brought into Court (f) . And an order for payment into
Court will be made at the hearing, if proper, without any
notice of motion for that purpose (g).
16. Time allowed for payment into Court. The time to be
given for payment of money into Court will depend on the
circumstances of the case. If it be money in the defendant's
hands, it will be ordered in forthwith, and an immediate
transfer may be directed of stock standing in the de
*
fendant's name . Where the defendant had improp- [ * 982 ]
erly lent a sum on personal security, but no insol
vency was suggested nor any danger as to the money, the
Court ordered it to be paid in, on or before , the first day of
the following term (a) . In another case, where the defend
ant had lent 8201. upon a mortgage not authorised by the
trust, the Court allowed six weeks, with liberty to apply for
further time if the circumstances should then warrant the
indulgence (b) .
17. Distringas . Where a [ notice in lieu of] distringas or
injunction has been previously obtained against the transfer
of the stock, the Court orders the transfer into Court to be
made , " notwithstanding the notice or injunction. ”

SECTION IV.

OF RECEIVERSHIP.¹

1. Receiver will be appointed at the instance of all the ces

tuis que trust. As the cestuis que trust or parties beneficially
(f) Governesses Institution v . (a) Vigrass v. Binfield, 3 Mad. 62 ;
Rusbridger , 18 Beav. 467 . and see Hinde v. Blake, 4 Beav. 597 ;
(9) Isaacs v. Weatherstone , 10 Roy v. Gibbon, 4 Hare, 65 .
Hare , App . xxx. (b) Wyatt v. Sharratt, 3 Beav.
498 ; Score v. Ford, 7 Beav. 333 .
1 A receiver will be appointed, pending proceedings for the removal of a
trustee ; Jones v. Dougherty, 10 Ga. 273 ; Calhoun v. King, 5 Ala . 523. There'
1313
*983 RECEIVERSHIP . [CH. XXXII . S. 4.

interested in an estate are in equity the owners of it, should

they concur in an application for a receiver and the trustee
consents, the Court will at any time make the order ( c) . But
the usual recognisances will not be dispensed with (d) .
2. Also where trustee is guilty of misconduct, or is insolvent,
bankrupt, & c. — And as each cestui que trust is entitled to
have the fund properly protected , a receiver will be granted
at his instance if it can be shown that the trustee has been
guilty of misconduct, waste, or improper disposition of the
trust estate (e) , or that he has an undue leaning or bias
towards one of two conflicting parties (ƒ) , or that the fund
is in danger from his being in insolvent circumstances ( g) ,
or being a bankrupt (h) , or that one trustee has misconducted
himself, the other consenting to the order (i) , or that
[ * 983 ] he is * incapacitated from acting ( a) , or that the ex
ecutor is a person of bad character, drunken habits,
and great poverty ( b ) . [ And a receiver will be appointed
against an executor in a creditors ' action, if there is any
danger of his paying any creditor in full , and the application

(c) Brodie v. Barry , 3 Mer. 695 ; Mansfield v . Shaw, 3 Mad. 100 ; and
Beaumont v. Beaumont, cited Ib. 696 ; see Anon. 12 Ves . 4 ; Middleton v.
see Browell v. Reed, 1 Hare, 435. Dodswell, 13 Ves. 266 ; Havers v.
(d) Manners v. Furze, 11 Beav. Havers, Barn. 23.
30 ; Tylee v. Tylee, 17 Beav. 583. (h) Gladdon v. Stoneman, 1 Mad.
(e) Anon. 12 Ves. 5 per Sir W. 143, note ; Langley v. Hawk, 5 Mad.
Grant ; and see Middleton v. Dods 46 ; [Re Hopkins, 19 Ch. D. 61. ]
well, 13 Ves. 266 ; Howard v. Papera, (i) Middleton v. Dodswell, 13
1 Mad . 142 ; Richards v. Perkins, 3 Ves. 266.
Y. & C. 299 ; Evans v. Coventry, 5 (a) Bainbrigge v. Blair, 3 Beav.
De G. M. & G. 911 . 421 .
(f)Earl Talbot v. Scott, 4 K. & J. (b) Everett v. Prythergch, 12 Sim.
139. 367, 368.
(g) Scott v. Becher, 4 Price, 346 ;

must be good cause shown before a receiver will be appointed, but if the trust
property is in danger, there will be no hesitation about it ; Ogden v. Kip,
Johns. Ch. 160 ; Poythress v . Poythress, 16 Ga. 406. A receiver will ordinarily
pay claims without preference ; yet there may be some legal preferences ;
M'Dermutt v. Strong, 4 Johns. Ch. 687 ; Austin v. Bell, 20 Johns. 442 ; Le
Prince v. Guillemot, 1 Rich. Eq . 220 ; Gracey v. Davis, 3 Strob. Eq . 58.
When necessary an heir will be regarded as a trustee, and rents and profits
may accumulate in his hands, for the benefit of an executory devisee, until
the vesting of the estate, but the court may in its discretion appoint a receiver
of them for that purpose ; Rogers v. Ross, 4 Johns . Ch . 388 ; 8 Am . Dec. 575.
1314
CH . XXXII . S. 4.] RECEIVERSHIP. *983

for a receiver in such a case may be made ex parte immedi

ately upon the issuing of the writ (c) . ]
3. Where executrix a feme covert, and husband abroad.
And a receiver was appointed [ in a case under the old law ]
where the executrix was a feme covert, and the husband,
besides being in indifferent circumstances, was out of the
jurisdiction, for in such a case, said the Court, if the execu
trix waste the assets or refuse payment, the party aggrieved
has no remedy, as the husband must be joined in the
action (d) . [ But now that the husband is not a necessary
party to an action against the executors, and is not subject
to liabilities by reason of any devastavit committed by his
wife unless he has acted or intermeddled in the administra
tion, it is conceived that his poverty or absence would be no
ground for the appointment of a receiver (e) . ]
4. Receiver where trust estate unprotected ..- And a receiver
has been ordered where four trustees had been named in a
will and one died, and another was abroad, and the third had
scarcely interfered in the trust, and, the fourth submitted to
a receiver by his answer (ƒ) . In another case three trustees
had disagreed, and a receiver was appointed (g) : the order
was taken by arrangement between the parties, but the
Court had previously expressed its opinion that , unless the
trustees could agree, a receiver must be appointed (h) .
Where two out of three trustees chose to act separately,
and took securities in their own names omitting that of the
dissentient trustee, a cestui que trust was held entitled to a
receiver (i) . And the Court will grant a receiver at the
instance of the cestui que trust, when the single trustee is, or
all the trustees are out of the jurisdiction (j) .
5. Receiver not granted on slight grounds . - - But the Court
is not in the habit of granting a receiver, and so taking the
administration out of the hands of the trustees, the natural

[ (c ) Re Radcliffe deceased , 7 Ch. (h) See now Hart v. Denham, W.

D. 733. ] N. 1871 , p. 2.
(d) Taylor v . Allen , 2 Atk. 213. (i) Swale v. Swale, 22 Beav. 584.
[ (e) 45 & 46 Vict. 75, ss . 18 , 24. ] (j) Noad v. Backhouse, 2 Y. & C.
(f) Tidd v. Lister, 5 Mad. 429. C. C. 529 ; Smith v . Smith, 10 Hare,
(9) Day v. Croft, May 2 , 1839, App. lxxi.
M. R.
1315
*984 RECEIVERSHIP . [CH. XXXII . S. 4.

curators of the estate, upon very slight grounds (k) . Thus

it is no sufficient cause for a receiver that one of sev
[ *984 ] eral trustees * has disclaimed ( a) , or is inactive, or
gone abroad (b) . Nor is it a sufficient cause that
trustees are in mean (not insolvent) circumstances (e), or
being trustees for sale have let the purchaser into possession
before they received the purchase money, for the Court will
not necessarily infer this to be misconduct (d) .
6. Receiver not discharged at the mere instance of the party
procuring his appointment. When a receiver is appointed
under the authority of the Court, he is appointed for the
benefit of all parties interested, and therefore will not be
discharged merely on the application of the party at whose
instance the order was made (e) .
7. An exception under special circumstances . - However,
when a receiver had been appointed on the application of
the plaintiff the tenant for life , on the ground of the mis
conduct of one of the trustees, and the incapacity of the
other, and afterwards three new trustees were appointed by
the Court, who, on a motion by the plaintiff to discharge the
receiver, undertook to receive the rents and pass their ac
counts half-yearly before the Master in the same way as a
receiver, the Court said it was not proposed to deprive any
party of the protection of a receiver, but merely to substi
tute the trustees in his place ; that the tenant for life ought
not unnecessarily to be charged with the costs of a receiver ;
that it was not intended to put the tenant for life in posses
sion ; that if any objections were shown to the trustees the
application would be refused, but in the absence of such
objections it was a reasonable request : and the order for
discharging the receiver was made (ƒ) .

(k) See Middleton v. Dodswell, 13 thornthwaite v . Russel, 2 Atk. 126.

Ves. 268 ; Barkley v. Lord Reay, 2 In Havers v. Havers, Barn. 23, the
Hare, 306. Court considered misapplication prob
(a ) Browell v. Reed, 1 Hare , 434 ; able.
but see Tait v. Jenkins, 1 Y. & C. C. (d) Browell v. Reed, 1 Hare, 434.
C. 492 . (e) Bainbrigge v. Blair, 3 Beav.
(b) Browell v. Reed, 1 Hare, 434, 423, per Lord Langdale.
per Sir J. Wigram. (f) Bainbrigge v. Blair, 3 Bear.
(c) Anon. case, 12 Ves . 4 ; Howard 421 , 423, 424 ; and see Poole v.
v. Papera, 1 Mad. 142 ; and see Ha Franks, 1 Moll . 80.
1316
CH. XXXII. S. 5. ] COSTS OF SUIT OF TRUSTEES . *985

8. Expense of receiver falls on life estate. Where the Court

appoints a receiver, the poundage and the expenses of pass
ing his accounts fall upon the income of the tenant for
life (g).
[ 9. Receiver's priority for his costs and his remuneration.
Where property was realised in an action by debenture
holders against their trustees to execute the trusts of the
deed for securing the debentures, and a receiver and mana
ger had also been appointed in the action, the receiver and
manager was allowed the balance due to him, including his
remuneration and his costs of the action, in priority to the
costs, charges, and expenses of the trustees, and the costs of
the plaintiffs other than the plaintiffs ' costs of the realisation
of the property (h) .]

* SECTION V. [* 985] *

OF COSTS OF SUIT.¹

I. Cost as between trustees and strangers . - As between

strangers on the one hand, and trustees and cestuis que trust
on the other.

1. In these cases, the trustee is on no better footing than

any ordinary plaintiff or defendant, for the circumstances of
the trust cannot be allowed to affect the interest of a third

(g) Shore v. Shore, 4 Drew. 510. [ (h) Batten v. Wedgwood Coal

and Iron Company, 28 Ch. D. 317.]

1 Costs. - Generally as between the trustee and cestui que trust, the costs
will be paid from the trust fund, or by the cestui que trust ; Bliss v. American
Bible Society, 2 Allen, 334 ; Bendall v. Bendall, 24 Ala. 295 ; Morton v. Bar
rett, 22 Me. 257 ; Hosack v. Rogers, 9 Paige, 463 ; Graver's App. 50 Pa . St.
189 ; Minuse v. Cox, 5 Johns. Ch. 451. If the cestui que trust brings any pro
ceeding against the trustee, without due cause, he must pay the costs ; Down
ing v . Marshall, 37 N. Y. 380 ; a trustee can make no additional charge for
his own services as attorney in such cases ; Mayer v . Galluchat, 6 Rich. 1 .
Trustees generally receive costs whether they are plaintiffs or defendants ;
Towle v . Swasey, 106 Mass . 108 ; Sargent v. Sargent, 103 Mass . 297 ; Bowditch
r. Soltyk, 99 Mass. 136 ; Hepburn's App. 65 Pa . St. 472 .
If a trustee fails to account, the costs will come upon him ; Burnham v.
Dalling, 1 Green ( N. J. ) 310 ; so if he mixes trust funds with his own ; Bogle
v. Bogle, 3 Allen, 158 ; or follows out a capricious notion ; Lathrop v . Smalley,
23 N. J. Eq . 192 ; Brinton's Est. 10 Barr, 408 ; or does not do his duty ; Ibid ;
Kent v. Hutchins, 50 N. H. 92 ; Lathrop v. Smalley , 23 N. J. Eq . 192. If a
1317
 #985 COSTS OF SUIT OF TRUSTEES. [CH. XXXII. S. 5.

person (a) . Thus, if a trustee fail in his application to the

Court, he must pay the costs of it (b) .

(a) Burgess v. Wheate , 1 Eden, (b) Ex parte Angerstein, 9 L. R.

251, per Lord Northington . Ch . App. 479 ; [ Pitts v. La Fontaine,
6 App. Cas. 482. ]

trustee seeks to collect an unjust bill from the cestui que trust, the former pays
the costs ; Waterman v. Cochran, 12 Vt. 699 ; or refuses to let the cestui que
trust use his name in a proceeding beneficial to the trust estate ; Guyton v .
Shane, 7 Dana, 498 ; or institutes proceedings for his own benefit ; Ingram v.
Kirkpatrick, 8 Ired . Eq . 62 ; Manning v. Manning, 1 Johns. Ch. 535 ; but see
Atcheson v. Robertson, 4 Rich. Eq . 44. For any charge against the trustee,
the costs are upon him; Bickham v. Smith, 55 Pa . St. 335 ; likewise if he
make an ungrounded defence ; Burnham v. Dalling, 1 Green, Ch. 310 ; Duns
comb v. Dunscomb, 1 Johns. Ch. 508. If a trustee is guilty of any breach,
he will receive no costs ; Spencer v. Spencer, 11 Paige, 159 ; or has made a
mistake ; Robertson v. Wendell, 6 Paige, 322. If a trustee makes it necessary
to audit his accounts, he can receive no costs, though he pays none ; Norris's
• App. 71 Pa. St. 115. If a trustee is in doubt as to the course he should
pursue, he may ask the court for instructions, and receive his costs in con
nection therewith ; Armstrong v. Zane, 12 Ohio, 287 ; Dustan v. Dustan, 1
Paige, 509.
If it is necessary to obtain from the courts an interpretation of a declara
tion of trust, the costs come out of the trust estate, and as it is the fault of
the settlor, it is proper that they should ; Sawyer v . Baldwin, 20 Pick. 378 ;
Bowditch v. Soltyk, 99 Mass. 136 ; Bigelow v. Morong, 103 Mass . 287 ; Monks
v. Monks, 7 Allen, 401 ; King v . Strong, 9 Paige, 94. In case of particular
legacies where the decision will neither aid nor hinder the trust estate , the
costs may come from that particular legacy ; Birdsall v. Hewlett, 1 Paige, 32.
If the trustees are either plaintiffs or defendants in suits with strangers,
the party succeeding will receive costs from the other ; Knowles v. Knowles,
86 Ill. 1 ; Hanson v. Jacks , 22 Ala. 549 ; Knox v. Bigelow, 15 Wis . 415 ; Rose
v. Rose, 28 N. Y. 184 ; Buckels v. Carter, 6 Rich. 106. If trustees bring un
justifiable suits, they must pay the costs ; Roosevelt v. Ellithorp , 10 Paige,
415 ; Savage v . Dickson, 16 Ala. 260. If trustees are entitled to costs, they
are allowed them in their accounts ; Cassey's Est. 47 Pa . St. 424 ; Knox v . Picket,
4 Des. 92 ; Graver's App. 50 Pa. St. 189 ; Long v. Israel, 9 Leigh, 556 ; Hardy
v. Call, 16 Mass . 530 ; Miles v. Bacon, 4 J. J. Marsh. 457 ; Abbott v. Brad
street, 3 Allen , 587 ; Collins v . Townley, 21 N. J. Eq . 353 ; Drew v. Wake
field, 54 Me. 291. Parties disputing a will may be held for costs ; Perrine v.
Applegate, 1 McCarter, 531 ; Nickerson v. Buck, 12 Cush. 343 ; Collins v.
Townley, 21 N. J. Eq. 353 ; Woodbury v. Obear, 7 Gray, 472. A cestui que
trust incurring costs at law against his trustee in defending a legal title,
instead of coming at once into equity, cannot recover costs, but is entitled to
be reimbursed for any costs paid the trustee ; Keaton v. Cobb, 1 Dev. Eq.
439 ; 18 Am. Dec. 595 ; Allen v. Gilreath, 6 Ired. Eq . 252 ; Murphy v. Grice,
2 Dev. & B. Eq. 199. If strangers force trustees into court, the latter may have
their costs ; Ibid ; Wood v. Vandenburgh, 6 Paige, 278. Yet if the stranger is
defeated, the courts may throw the costs upon the trustee, the amount to
come from the trust estate ; Kreitz r. Frost, 55 Barb . 474 ; State v. Tolan, 33
N. J. L. 195 ; there must be a special order, to give either party costs ; Ibid.
1318
CH. XXXII . S. 5.] COSTS OF SUIT OF TRUSTEES. * 985

2. Costs where trustees cannot make a title. - So, in a suit

by a stranger for specific performance of a contract, the
vendor trustee for sale must, if he cannot make a title, pay
the costs of the suit agreeably to the general rule (c) .
3. Trustee made a defendant as a necessary party . ――――――――- So.
where trustees or executors are brought before the Court as
necessary parties by a stranger, if the trustees or executors
contest the claims of the plaintiff, and the plaintiff recover
in the suit, they are not entitled to the costs ( d) .
4. Plaintiff failing in his suit not necessarily bound to pay
costs of a trustee. -If a plaintiff fail in his suit, but stands in
so hard a case that he ought not to pay any costs, the Court
will not oblige him to pay the costs of a defendant because
the latter happens to sustain the character of a trustee (e) .
5. Trustee to bar dower. - - In a foreclosure action against
the mortgagor and his trustee to bar dower, the trustee is .
not entitled to his costs as against the mortgagee (f).
6. Trustee has costs as between party and party only.-
Where an action by a stranger is dismissed with costs, a
trustee , who is a defendant, will not, as is usual between
trustee and cestui que trust, be ordered his costs as between
solicitor and client, but only as between party and party (g) .

(c) Edwards v. Harvey, G. Coop. (f) Horrocks r . Ledsam, 2 Coll

40; and see Hill v. Magan , 2 Moll. 208 .
460 ; Elsey v. Lutyens, 8 Hare, 164. (g) Mohun v. Mohun, 1 Sw. 201 ;
(d) Rashley v. Masters, 1 Ves . Saunders v. Saunders, 3 Jur. N. S.
jun. 201 , see 205. 727.
(e ) Brodie v. St. Paul, 1 Ves. jun.
326, see 334.

The party winning may be ordered to pay the costs ; Gray v. Dougherty, 25
Cal. 266 ; Coleman v. Ross, 46 Pa. St. 180. Courts have a large discretion in
the matter of costs ; Taylor v. Root, 48 N. Y. 687. Where a trustee set up
an improper claim to property, and a bill was filed to compel him to give it
up, the court charged him with costs ; Fisher v. Wilson, 2 Chy. 260. A trustee
refusing to allow his name to be used in a defence, cannot have costs ; Ellis
v. Ellis, 7 Chy . 102 ; also one making a separate, instead of a joint defence ;
Gibson v. Annis, 11 Chy. 481 ; Lavin v . O'Neill, 13 Chy. 179 ; costs in eject
ment are allowed ; Edinburgh Life Assur. Co. 23 Chy. 230 ; are not allowed in
some suits to establish a trust ; English v. English, 15 Chy. 330. Surviving
trustee and representatives may get individual costs ; Reid r. Stephens ,
Chy. Chamb. 372 ; for other cases, see Wiard v. Gable, 8 Chy. 458 ; Hope r.
Beard , 11 Chy . 212 ; Meighen v. Buell, 25 Chy. 604 ; Morgan v. Holland,
7 P. R. 74.
1319
*986 COSTS OF SUIT OF TRUSTEES . [ CH. XXXII . S. 5.

7. Trustee respondent to petition of cestui que trust. - Where

money has been paid into Court by a Railway Company, and
the cestui que trust are petitioners and the trustee a respond
ent, the company must pay the costs of both, as the
[ * 986 ] trustee * is justified in appearing separately to in
form the Court that the order is right (a) .
8. Costs in creditor's suit. -- If a creditor filed a bill against
an executor for payment of a debt, the rule which [until the
recent alteration in the practice of the Court ] prevailed at
law was not also the rule of equity, viz., that if the creditor
recovered he should be entitled to his costs, de bonis testatoris,
and if there were none, then de bonis propriis of the execu
tor ; for the consideration of costs in equity rested entirely in
the discretion of the Court (b) .
Executor (though not so formerly) now held entitled to his costs
in preference to the plaintiff. As the law formerly stood, if
the assets were not sufficient to cover both the plaintiff's
debt and costs, the executor was not decreed in equity to pay
costs personally ( c ) , unless he had misconducted himself, as
by having satisfied simple contract debts in preference to
debts upon specialty (d) ; but he was not entitled to retain
his own costs out of the assets in preference to the claims of
the plaintiff (e ) . And if a bill had been filed by a specialty
creditor, and the specialty debt had exhausted the personal
assets , the executor could not have claimed to be reimbursed
out of the real estate to the prejudice of testator's heir (ƒ) :
for the executor, it was said, should have considered the risk
before he applied for the probate (g) . But now the practice
is that the executor shall have his own costs in the first place,

(a ) Ex parte Metropolitan Rail 468 ; and see Bennett v. Attkins, 1 Y.

way Company, 16 W. R. 996. & C. 247 ; Wilkins v. Hunt, 2 Atk.
(b) Twisleton v. Thelwel, Hard . 151 .
165 ; Uvedale v . Uvedale, 3 Atk. 119 ; (e) Humphrey v. Morse, 2 Atk.
but see Davy v. Seys, Mos. 204. [ Now 408 ; Sandys v. Watson, 2 Atk. 80 ;
by Rules of the Supreme Court, and see Adair v. Shaw, 1 Sch . & Lef.
1883, Order 65 , R. 1 , the costs of and 280.
incident to all proceedings in the Su (f) Uvedale v. Uvedale, 3 Atk.
preme Court are in the discretion of 119 ; and see Nash v. Dillon, 1 Moll.
the Court.] 237.
(c) Twisleton v. Thelwel, Hard . (g) See Uvedale v. Uvedale, 3
165 ; Morony v. Vincent, 2 Moll . 461 . Atk. 119 ; Humphrey v. Morse, 2
(d) Jeffries v. Harrison , 1 Atk . Atk. 408.
1320
CH. XXXII . S. 5.] COSTS OF SUIT OF TRUSTEES. *987

even as against the plaintiff, for the Court will not take the
fund out of his hands until his costs are paid (h).

II. Of costs as between trustees and cestuis que trust,

inter se.

1. Trustee entitled to costs as a general rule. - The general

rule is that a trustee shall have his costs of suit awarded to
him at the hearing either out of the trust estate, or to be paid
by his cestui que trust (i) . And if there be a fund
under the control of the Court he will have his costs [ * 987]
as between solicitor and client (a). And if there be
no fund, still if the cestuis que trust chose to bring the trustees
before the Court for obtaining its directions as to the rights
of the parties or the mode of administration, and the trustees
are free from blame, the trustees are entitled to their costs as
between solicitor and client as against the cestuis que trust per
sonally (b). But if plaintiffs take proceedings for the purpose
of creating a fund, of which the defendants would be trustees
for plaintiffs , if plaintiffs succeeded, but the plaintiffs fail,
the defendants are entitled as against the plaintiffs to costs
only as between party and party (e).

(h) Bennet v. Going, 1 Moll. 529 ; trustee, or mortgagee, who has not
Tipping v. Power, 1 Hare, 405 ; Ott unreasonably instituted or carried on
ley v. Gilby, 8 Beav. 603 ; Tanner v. or resisted any proceedings, of any
Dancey, 9 Beav. 339. right to costs out of a particular es
(i) 1 Eq . Ca. Ab. 125, note (a) ; tate or fund to which he would be
Hall v. Hallet, 1 Cox, 141 , per Lord entitled according to the rules previ
Thurlow ; Attorney-General v. City ously acted upon in the Chancery
of London, 3 B. C. C. 171 ; Norris v. Division ; see Re Hodgson, W. N.
Norris, 1 Cox, 183 ; Sammes v. Rick 1884, p. 117, where the action had
man, 2 Ves. jun. 38, per Lord Chief been instituted before the order came
Baron Eyre ; Rashley v. Masters, 1 into operation. Re McClellan, 29
Ves. jun. 201 ; Rock v. Hart, 11 Ves. Ch. D. 495. ]
58 ; Maplett v. Pocock, Rep. t. Finch, (a ) Mohun v. Mohun, 1 Sw. 201 ,
136 ; Landen v. Green, Barn. 389 ; per Sir T. Plumer ; Moore v. Frowd,
Taylor v. Glanville, 3 Mad . 176, etc.; 3 M. & Cr. 49, per Lord Cottenham .
[Re Love, 29 Ch. D. 348. By Order (b) Attorney-General v. Cuming, 2
65, R. 1 , of the Rules of the Supreme Y. & C. C. C. 155 ; but see Edenbor
Court, 1883 , the costs of all proceed ough v . Archbishop of Canterbury, 2
ings, including the administration of Russ . 112.
estates and trusts, are in the discre (c) Saunders v . Saunders, 3 Jur.
tion of the Court, but this is not to N. S. 727 ; Mohun v . Mohun, 1 Sw.
deprive an executor, administrator, 201 .
1321
*988 COSTS OF SUIT OF TRUSTEES . [CH. XXXII. S. 5.

2. Charges and expenses . If it appear upon the pleadings,

or the Court be otherwise satisfied, that the trustee has sus
tained charges and expenses beyond the costs of suit, the
Court will order him his costs, charges and expenses, properly
incurred. But an order made in a suit in this form will not
comprise costs, charges and expenses, incurred in defending
other suits, unless they be specially mentioned (d) .
[3. Priority. ―― If the trust estate be insufficient for the
payment of all the costs of the action, the trustee is entitled
to have his costs, charges and expenses, paid in priority to
the costs of the cestuis que trust (e ) . But the costs of realis
ing the trust estate will have priority over the trustees' costs,
charges and expenses, as will also the costs and remuneration
of a receiver appointed in the suit (ƒ) . ]
4. Professional charges. -- If the trustee be a solicitor, he
cannot make the usual professional charges , but the Court
will not declare that the trustee shall have his costs out of
pocket only, but will give him his costs as between solicitor
and client in the usual way, and leave it to the taxing officer
to deal with the effect of the order (g) .
5. Practice in creditors' and legatees' suits where fund is defi
cient . — A singular application of the rules respecting costs
as between trustees and third persons, and as between trus
tees and their cestuis que trust inter se, arises in the
[*988 ] case of a deficient fund . If a creditor * bring an action
for administration and there is a surplus, he can only
have costs as between party and party, for that is all that he
is entitled to as against the residuary legatees with whom he
has no privity ; but if the estate be deficient, and is devisible
amongst the creditors pro ratâ, the creditor is regarded in
the light of a trustee for himself and the other creditors, and
then as between him and his co-creditors he is allowed his
costs as between solicitor and client. Thus the less the estate
the larger the plaintiff's costs. The same principle applies,
mutatis mutandis, to a suit by a legatee where the fund, after
payment of debts, is sufficient for discharge of the legacies in

(d) Payne v. Little, 27 Beav . 83. [(f) Batten v. Wedgwood Coal

[(e) Dodds v. Tuke, 25 Ch. D. and Iron Company , 28 Ch . D. 317. ]
617.] (g) York v. Brown, 1 Coll . 260 .
1322
CH. XXXII. S. 5.] COSTS OF SUIT OF TRUSTEES. *989

full (a) ; but otherwise if the fund be insufficient for pay

ment of debts (b) . Where the personalty had been exhausted ,
and a creditors' suit was instituted against the devisees of the
real estate, which was also likely to prove deficient, the order
was that the proceeds should be applied first in payment of
the costs of plaintiffs and defendants as between party and
party pari passu, and then in discharge of the debts, and if
the fund were insufficient for the latter purpose, then as be
tween the plaintiffs and the other creditors the plaintiffs
should be paid their extra costs as between solicitor and
client (c).
6. Trustee not appearing. ______ Where the trustee did not ap
pear at the hearing, and a decree nisi was made against him,
and the trustee set down the cause again, and prayed to have
his costs of the suit upon his paying the costs of the day,
Lord Kenyon said, " The payment of the costs of the day
makes the trustee rectum in curia ; and as he would most
unquestionably have been entitled to his costs if he had ap
peared at the original hearing, so he now stands in the same
situation, and is therefore entitled to his costs " (d) .
-
7. Decree passed. But if the decree has been passed, a
trustee who has omitted to ask for his costs at the hearing
cannot have the cause re-heard upon the subject of costs only,
and cannot obtain an order for payment of his costs upon
presenting a petition (e) .
8. Disclaimer. - If a person named as trustee be made de
fendant to a suit, and by his defence disclaim the trust, the
suit will be dismissed as against him with costs (ƒ) ; but not
with costs as between solicitor and client, for, having
refused to accept the office, he stands in the * position [ * 989 ]
of an ordinary defendant (a ) ; and if his defence be

(a) Thomas v. Jones, 1 Dr. & Sm. (c) Henderson v. Dodds, 2 L. R.

134, and cases there cited ; and see Eq. 532.
Tardrew v. Howell, 2 Giff. 530. (d) Norris v. Norris, 1 Cox, 183.
(b) Weston v. Clowes, 15 Sim. 610 ; (e) Colman v . Sarell, 2 Cox, 206.
Newman v. Hatch, Set. on Dec. p. 875, (f) Hickson v. Fitzgerald, 1 Moll.
4th ed.; Wettenhall v. Davis, 9 Jur. 14.
N. S. 1216 ; S. C. nom. Wetenhall v. (a) Norway v. Norway, 2 M. & K.
Dennis, 33 Beav. 285. 278, overruling Sherratt v. Bentley, 1
R. & M. 655.
1323
*989 COSTS OF SUIT OF TRUSTEES. [CH. XXXII . S. 5. ì

unnecessarily long, he will only be allowed the reasonable

costs of a disclaimer (b) .
9. Costs of trustee of a void deed. - If a person be a trustee
of a deed void as against creditors , or on other grounds, the
plaintiff by praying a conveyance by the trustee may elect to
treat him in that character, so as to give him a claim to
costs (c) . Otherwise the so -called trustee is a trustee of a
nullity, and he and his cestui que trust cannot have costs as
against the true owner (d) ; more particularly if the deed to
which the trustee is a party contain a false recital for the
purpose only of misleading (e) ; and if the trustee's claim to
the expenses of the so-called trust be the occasion of the suit,
he will be ordered to pay costs (f) . [ So, where the trustee
had prepared the settlement and had persuaded the settlor
to execute it, he was ordered to pay the costs of the action
to set it aside (g) . ] If a suit be instituted against trustees
of an instrument, which is a nullity, for enforcing the void
trusts, and the suit is dismissed, the quasi trustees will have
their costs, but only as between party and party (h) .
10. Suit originated by the trustee's misconduct. If any
particular instance of misconduct, or a general dereliction of
duty in the trustee (i) , or even his mere caprice and obsti

(b) Martin v. Persse, 1 Moll. 146. Finch, 259 ; Earl Powlet v. Herbert,
(c) Snow v. Hole, V. C. of Eng 1 Ves. jun. 297 ; Caffrey v. Darby, 6
land, March 8, 1845 ; and see Gold Ves. 488 ; Littlehales v. Gascoyne, 3
smith . Russell, 5 De G. M. & G. 547, B. C. C. 73 ; Ashburnham v. Thomp
556 ; Daking . Whimper, 26 Beav. son, 13 Ves. 402 ; Hide v. Haywood,
571 ; Ponsford v. Widnell, W. N. 2 Atk. 126 ; Adams v. Clifton, 1 Russ.
1869 , p. 81 ; Travis v. Illingworth, 297 ; Mosley v. Ward, 11 Ves . 581 ;
W. N. 1868, p. 206 ; Ex parte Tom Piety v. Stace , 4 Ves. 620 ; Seers r .
linson, 3 De G. F. & J. 745 ; and see Hind, 1 Ves. jun . 294 ; Fell v. Lut
ante, p . 640. widge, Barn. 319, see 322 ; Brown v.
(d) Elsey v. Cox, 26 Beav. 95 ; How, Barn. 354, see 358 ; Sheppard
Crossley v. Elworthy, 12 L. R. Eq . 158. r. Smith, 2 B. P. C. 372 ; Haber
(e) Turquand v. Knight, 14 Sim . dashers' Company . Attorney-Gen
643. eral, 2 B. P. C. 370 ; Franklin v.
(f) Smith v. Dresser, 1 L. R. Eq . Frith, 3 B. C. C. 433 ; Whistler v.
651 ; S. C. 35 Beav. 378. Newman, 4 Ves. 129 ; Stacpoole v.
[(g) Dutton v. Thompson, 23 Ch. Stacpoole, 4 Dow, 209 ; Crackelt v.
D. 278. ] Bethune, 1 J. & W. 586 ; Baker v.
(h) Mohun r. Mohun, 1 Sw . 201. Carter, 1 Y. & C. 252, per Lord Abin
(i) Springett v. Dashwood, 2 Giff. ger, C. B.; Hide v. Haywood, 2 Atk.
521 ; Byrne v. Norcott, 13 Beav. 346 ; 120 ; Wilson v. Wilson , 2 Keen, 249 ;
Attorney-General v. Hobert, Rep. t. Attorney-General v. Wilson , Cr. & Ph.
1324
CH. XXXII . S. 5. ] COSTS OF SUIT OF TRUSTEES . *990

nacy ( ) , be the immediate cause why the suit was

*
instituted, the trustee, on the charge being substan- [ * 990 ]
tiated against him, must pay the costs of the proceed
ings which his own improper behaviour occasioned ; and of
course if the trustee be decreed to pay the costs personally,
he cannot afterwards deduct them from the, trust fund in
his hands (a). [ So, if an executor or trustee improperly
institute an action to administer the estate or execute the
trust, the Court will not allow its process to be used as an
instrument of oppression, but will make the plaintiff person
ally bear all the costs of the action (b) ; and under the new
rules, if an administration action be rendered necessary
solely by the neglect of the trustee to furnish accounts, the
decree should be so framed as to enable the Court to throw
the whole costs of the action on the trustee (c) . But the
right of a trustee to his costs rests substantially upon con
tract, and can only be lost or curtailed by such inequitable
conduct as amounts to a violation or culpable neglect of his
duty under the contract ( ) , and his costs accordingly are
not " by law left to the discretion of the Court ; " and a trustee ,
if deprived of his costs, may, without the leave of the Court
or judge making the order, appeal on the question of his
costs only (e) . Where, however, the settlement is itself set
aside, the trustee has no claim to his costs as matter of right,
as in that case there is no contract in existence, and accord
ingly he cannot appeal as to such costs (ƒ) . ]
1 ; Lyse v. Kingdon , 1 Coll . 184 ; (a) Attorney- General v. Daugars,
[ Thomson v . Eastwood, 2 App. Cas. 33 Beav. 621.
215 ; Heugh v . Scard, 33 L. T. N. S. [(b) Re Cabburn, 46 L. T. N. S.
659 ; 24 W. R. 51.] 848.]
(j) Taylor v. Glanville, 3 Mad. [ (c) Re Hayter, 32 W. R. 26. ]
178, per Sir J. Leach ; Smith v . Bold [(d) Turner v. Hancock, 20 Ch. D.
en, 33 Beav. 262 ; May v. Armstrong, 303 ; Re Evans, 26 Ch . D. 58, 65.]
W. N. 1866 , p. 233 ; Jones v. Lewis, [(e) Cotterell v. Stratton , 8 L.R. Ch .
1 Cox, 199 ; Earl of Scarborough v. App. 295 ; Farrow v. Austin, 18 Ch. D.
Parker, 1 Ves. jun. 267 ; Kirby v. 58 ; Turner v. Hancock, 20 Ch . D.
Mash, 3 Y. & C. 295 ; Thorby v. 303 ; Re Sarah Knight's Will , 26 Ch.
Yeates, 1 Y. & C. C. C. 438 ; Hamp D. 82 ; Re Love, 29 Ch . D. 348 ; but
shire v. Bradley, 2 Coll. 34 ; Penfold see Taylor v. Dowlen, 4 L. R. Ch . App.
v. Bouch, 4 Hare, 271 ; and see Bur 697 ; Re Hoskins's Trusts , 6 Ch . D.
rows . Greenwood, 4 Y. & C. 251 ; 281. ]
Hayhow . George, and Southwell v. [ (ƒ) Dutton v. Thompson, 23 Ch.
Martin, 21 L. T. N. S. 135. D. 278.]
1325
*991 COSTS OF SUIT OF TRUSTEES. [CH. XXXII . S. 5.

11. Where misconduct proved only in part. - But where a

bill was filed charging the trustee with a breach of trust both
as to realty and personalty, and the charge failed as to the
former but succeeded as to the latter, the Court said, it was
scarcely possible to suppose that the trustee should be per
mitted to have his costs, but it would be injustice to make
him pay the whole costs, as one part of the bill had failed,
and he was therefore ordered to pay the costs of that part of
the bill which had succeeded (g) .
[ 12. Costs of innocent trustee may be thrown on guilty trus
tee. - Where two trustees are jointly and severally liable for
a breach of trust committed by one of them , the other trustee
being innocent, the Court may order the guilty trustee to
repay to the innocent trustee the costs of the action to repair
the breach of trust (h) . Where a trustee acting honestly
has invested the trust funds on improper securities but has
made good the loss to the trust estate before judgment in
an action to execute the trusts, he will be allowed his
costs.1
[*991 ] * 13. Setting aside a purchase by trustees, and ab
sence of fraud. — Trustees for sale had purchased in
the name of a trustee at an undervalue, but without any im
putation of fraud, and by auction . As to so much of the suit
as related to calling upon the trustees to submit to a resale,
and the directions consequential thereon , the Court gave
relief against the trustees with costs ; but as to the accounts
that must have been taken had the sale been unimpeachable,
the trustees were allowed their costs (a) .
14. Mistake or slight neglect of the trustee. If the suit
was occasioned by an innocent mistake of the trustee (such
as an investment in good faith and without loss to the trust
fund on a security not strictly correct (b) ) , the Court will

(9) Pocock v. Reddington , 5 Ves. (a) Sanderson v. Walker, 13 Ves.

800 ; [ Re Sarah Knight's Will, 26 601.
Ch. D. 82.] (b) Fitzgerald v. Fitzgerald, 6 Ir.
[(h) Price . Price, 42 L. T. N. S. Ch. Rep. 145.
626 ; Wilson v . Thomson, 20 L. R. Eq.
459. ]

1 Peacock v. Colling, 33 W. R. 528 ; 54 L. J. Ch. 743 C. A.

1326
CH. XXXII. S. 5.] COSTS OF SUIT OF TRUSTEES. *992

content itself with not giving him costs (c) , or will punish
him with payment of part of the costs only (d), or will even
allow him his costs (e) ; [ but an official liquidator who is a
paid agent is not entitled to the same latitude in the matter
of costs as a gratuitous trustee (ƒ ) . ]
15. Administration suit mainly caused by a breach of trust.
-Though, as a general rule, where a trustee commits a breach
of trust he must pay the costs of a suit to repair it, yet he
will be entitled to his subsequent costs relating to the ordi
nary taking of the accounts ( g) .
16. Misconduct of the trustee discovered in the progress of
the suit. If the suit did not originate from any necessity of
enquiring into the conduct of the trustee , but, in the course
of the proceedings instituted upon other grounds, it appears
the trustee has in some particular instance been guilty of a
breach of trust, the Court will not award against the trustee
the costs of the whole suit, but only of so much of it as con
nects itself with his misconduct, and as to the rest of the
suit will allow him his costs (h).
17. Clearance of default. The Court never gives costs to
a defaulting trustee while he continues in default, but the
Court says, " when you have paid in the balance found due
from you, then you shall have your costs " (i) . But a bank
rupt [ formerly ceased ] from the date of the bank
ruptcy to be a debtor to the trust estate, and was [ * 992]
therefore entitled to his costs from the date of the
bankruptcy (a) .
(c) O'Callaghan v . Cooper, 5 Ves. [ (f) Re Silver Valley Mines, 21
117 ; Mousley v. Carr, 4 Beav. 49 ; Ch. D. 381. ]
Attorney- General v. Drapers' Com (g ) Hewett v. Foster, 7 Beav. 348 ;
pany, Ib. 71 ; Devey v. Thornton, 9 and see Bate v. Hooper, 5 De G. M. &
Hare, 222 ; [ Ryan v. Nesbitt, W. N. G. 345 ; Re King, 11 Jur. N. S. 899.
1879, p. 100. ] (h) Tebbs v. Carpenter, 1 Mad .
(d) East v. Ryal, 2 P. W. 284. 290, see 308 ; Newton v. Bennet, 1 B.
(e) Taylor v. Tabrum, 6 Sim. 281 ; C. C. 359 ; Pride v . Fooks, 2 Beav.
Flanagan v. Nolan, 1 Moll. 84 ; Tra 430; Heighington v. Grant, 1 Ph. 600.
vers v. Townsend , Ib. 496 ; Attorney (i) Birks v. Micklethwait, 33 Beav.
General v. Caius College, 2 Keen, 409 ; Watson v. Row, 18 L. R. Eq.
150 ; Bennett v. Attkins, 1 Y. & C. 680 ; [ Lewis v. Trask, 21 Ch . D. 862 ;
247 ; Fitzgerald v. O'Flaherty, 1 Moll. Re Basham, 23 Ch . D. 195 ; McEwan
347 ; Attorney- General v. Drummond, v. Crombie, 25 Ch . D. 175. ]
2 Conn. & Laws . 98 ; Royds v. Royds, (a) Bowyer v. Griffin , 9 L. R. Eq.
14 Beav. 54. 340.
1327
*992 COSTS OF SUIT OF TRUSTEES . [CH. XXXII. S. 5.

- The liability
[ 18. Where defaulting trustee a bankrupt.
of a trustee for his breaches of duty was, however, by the
Bankruptcy Act, 1869, s . 49, continued notwithstanding his
discharge, and there has been some conflict of opinion as to the
right of a bankrupt trustee since that Act to his costs as from
the date of the bankruptcy, but the better opinion seems to
be that he is not entitled to such costs until he has made
good his default ( b) . By the Bankruptcy Act, 1883 ( c) , the
liability of a trustee for a breach of trust (except in cases of
fraudulent breaches ) is released by the order of discharge,
and it follows that under that Act, except in cases of fraud,
a bankrupt trustee will, as from the date of his discharge, be
entitled to his costs.
19. Apportioning costs in action against executor of default
ing executor. ― - If an action be brought against the executor
of a defaulting executor to administer the original testator's
estate , the defendant's costs ought strictly to be borne, as
to those incurred solely in reference to the original testator's
estate out of that estate, as to those incurred in seeking relief
against the defaulting executor out of his estate, and as to
the remaining costs out of the two estates equally ; but to
avoid the complication and expense of thus apportioning the
costs, the Court has allowed the defendant the costs of taking
the account of the original testator's estate, and half the rest
of his costs out of the original testator's estate (d) . ]
20. Costs of discussing a doubtful point of law . - An exec
utor, instead of accumulating a fund as directed by the will,
had improperly kept the balance in his hands ; but, as the
amount of costs had in great measure been occasioned by the
enquiry what rule the Court ought to adopt with respect to
the computation of interest, it was thought hard under the
circumstances to fix the executor with payment of costs even
relatively to the breach of trust ; and therefore the Court
gave no costs (e) .

[ (b) Lewis v. Trask, 21 Ch. D. [(d) Re Griffiths, 26 Ch. D. 465 ;

862 ; Re Basham , 23 Ch . D. 195 ; and see Palmer v. Jones, 43 L. J. N.
McEwan v. Crombie, 25 Ch . D. 175 ; S. Ch. 349 ; Re Kitto, 28 W. R. 411.]
Secus, Clare v. Clare, 21 Ch. D. 865. ] (e) Raphael v. Boehm, 13 Ves.
[ (c) 46 & 47 Vict. c. 52, ss. 30, 37. ] 592.
1328
CH. XXXII. S. 5. ] COSTS OF SUIT OF TRUSTEES . *993

21. Costs to be paid in part and received in part by the trus

tee. In one case, as to part of the suit, the trustee ought
from his misconduct to have paid the costs, and, as to another,
to have been allowed his costs ; and the Court, by a kind of
compromise, left each party to pay his own costs (ƒ).
22. Trivial misconduct. - When the breach of trust is
trivial, the Court may overlook it altogether, and give the
trustee his own costs (g) .
* [ 23. Action by representative of trustee to recover [ * 993 ]
the trust estate . If the representative of a trustee
who has invested the trust estate on an unauthorised secu
rity, bring an action to recover the trust estate, he will not
be allowed the costs of that action as against the cestuis que
trust, but must look for such costs to the estate of the trus
tee (a).]
24. Trustees protecting from parental influence. ――――――― The Court
watches with jealousy transactions between parent and child
occurring shortly after the child has attained twenty-one,
more especially when the transactions had their inception
during minority, and trustees acting bonâ fide in refusing to
convey under such suspicious circumstances will be entitled
to their costs (b).
25. Trustee instituting a suit for his private ends. — -If a trus
tee have a private interest of his own, separate and inde
pendent from the trust, and oblige the cestui que trust to
come into a Court of equity merely to have some point
relating to the trustee's private interest determined at the
expense of the trust, that is such a vexatious proceeding in
the trustee, that, for example's sake, he will be decreed to
pay the whole costs of the suit (c) .
26. Trustee falsely denying the plaintiff's claims. ― If in a
suit for an account the defendant states his belief that the
plaintiff is considerably indebted to him, and after a long

(f) Newton v. Bennet, 1 B. C. C. [ (a ) Gurney v. Gurney, 48 L. T.

362. N. S. 529. ]
(9 ) Fitzgerald v. Pringle, 2 Moll. (b) King v. King, 1 De G. & J.
534 ; Bailey v. Gould, 4 Y. & C. 221 , 663, see 671.
see 225 ; Knott v. Cottee, 16 Beav. (c) Henley v. Philips, 2 Atk. 48.
77; Cotton v. Clark, 16 Beav. 134 ;
Chugg v. Chugg, W. N. 1874, p. 185.
1329
*994 COSTS OF SUIT OF TRUSTEES . [CH. XXXII . S. 5.

investigation it proves that the defendant is considerably

indebted to the plaintiff, the trustee, thus daring the plaintiff
to his account will be decreed to pay the costs (d). And if
the balance be in favour of the trustee, but far below what
he had stated, he will not be entitled to have his costs (e) , or
at least not the costs of the account itself (ƒ) .
27. Trustee mis-stating his accounts. A trustee will be
deprived of costs (g) , or will even have to pay costs if he
refuse to account ( h ) , or if he wilfully mis-state the ac
counts (i) , or if, by any chicanery in his answer, he keep the
cestui que trust from a true knowledge of the accounts ( ) ,
or even if he has kept the accounts in a very confused man
ner (k) . And an executor will be liable to pay costs if he
deny assets, and the contrary be established against
[* 994 ] him (7) . But an executor is entitled to have the
accounts taken under the direction of the Court, and,
therefore, even where he had obstructed the taking of the
accounts, he was not decreed to pay the costs, though he
was not allowed to have his costs ( a) . But in another case,
where he had unnecessarily and unjustifiably protracted the
suit, and multiplied the costs by his litigiousness , he was
ordered to pay the costs of a simple administration suit up
to the hearing (b) .
28. Corporation pleading ignorance falsely. Where a cor
poration filling the character of trustees for a grammar
school by their answer pleaded ignorance of the claims of

(d) Parrot v. Treby, Pr. Ch. 254 ; (j) Avery v. Osborne, Barn . 349 ;
Eglin v. Sanderson, 3 Giff. 434. Reech v. Kennegal, 1 Ves. 123.
(e) Attorney-General v. Brewers' (k) Norbury v. Calbeck, 2 Moll.
Company, 1 P. W. 376 . 461.
(f) Fozier v. Andrews, 2 Jon. & • (1) Sandys v. Watson, 2 Atk. 80 .
Lat. 199. (a ) Re King, 11 Jur. N. S. 899.
(g) Gresham v. Price, 35 Beav. 47. [But under the Rules of the Supreme
(h) Boynton v. Richardson , 31 Court now in force, an executor in
Beav. 340 ; Kemp v. Burn, 4 Giff. stituting proceedings to have the
348 ; Wroe r. Seed, 4 Giff. 425 ; Un accounts taken must, to entitle him
derwood . Trower, W. N. 1867 , p . 83 ; to costs, be able to satisfy the Court
[Re Radclyffe, 50 L. J. N. S. Ch. 317. ] that under all the circumstances of
(i) Sheppard v. Smith, 2 B. P. C. the case the institution of the action
372 ; and see Flanigan v. Nolan, 1 was reasonable. See Order 65 , R. I. ]
Moll. 86. (b) Talbot v. Marshfield, 4 L. R.
Eq. 661, 3 L. R. Ch . App . 622 .
1330
CH. XXXII. S. 5. ] COSTS OF SUIT OF TRUSTEES. *995

the charity, and the information was afterwards elicited from

the documents scheduled to their answer, as the Court in
ferred from such conduct a disposition to obstruct and defeat
the ends of justice, the corporation was decreed to pay the
costs of the suit (c) .
29. Corporation suppressing documents. And a corpora
tion similarly circumstanced was punished in the same man
ner where, the Court having directed the production of cer
tain documents, it was afterwards discovered that a very
material one had been suppressed ( d) .
30. Trustee setting up title of his own. ―――――― The costs of the
suit will be cast upon the trustee, if, in his answer, he set up
a title of his own, and make an ill defence ( e) ; and he will
not be allowed to have his costs if he set up any trust differ
ent to what it actually is (ƒ) ; and where a trustee filed an
improper answer he was not allowed the costs of the an
swer (g) .
31. Executor denying relationship of next of" kin. — An exec
utor sued by the next of kin had put the plaintiffs to the
proof of their relationship, and, the fact not admitting a
doubt, the executor was fixed with the costs of the en
quiry (h) .
32. Costs where interest given against executors . - It was
laid down as a rule by Lord Thurlow, that " where the Court
is obliged to give interest against executors as a remedy for a
breach of trust, costs against them will follow of
*
course " (i) ; but Sir W. Grant said, " that was a [ * 995 ]
proposition to which he was not quite prepared to
accede, as there might be many cases in which executors must
29
pay interest, which would not be cases for costs (a) ; and

(c) Attorney-General v. Burgesses (f) Ball v. Montgomery, 2 Ves.

of East Retford , 2 M. & K. 35. jun. 191 , see 199.
(d) Borough of Hertford v. Poor (g) Eddowes v . Eddowes, 30 Beav.
of same Borough, 2 B. P. C. 377 . 603.
(e ) Loyd v. Spillett, 3 P. W. 344 ; (h) Lowson v. Copeland, 2 B. C. C.
Bayly v. Powell, Pr. Ch. 92 ; Willis 156.
v. Hiscox, 4 M. & Cr. 197 ; Attorney (i) Seers v. Hind, 1 Ves. jun. 294,
General v. Drapers' Company, 4 Beav. and see Franklin v. Frith, 3 B. C. C.
67; Attorney-General v. Christ's Hos 433 ; Mosley v. Ward, 11 Ves . 581.
pital, Ib. 73 ; Irwin v . Rogers, 12 Ir. (a) Ashburnham v. Thompson, 13
Eq. Rep. 159. Ves. 404.
1331
*995 COSTS OF SUIT OF TRUSTEES . [CH. XXXII. S. 5.

the existence of any such rule has since been denied (b) .
The meaning of Lord Thurlow probably was, that where the
suit was occasioned by the misconduct of the trustee, and
the charge against him was shown to be well founded by the
Court's fixing him with interest, the costs of the suit in that
case would be consequential upon the relief (c) .

(b) Tebbs v. Carpenter, 1 Mad. v. Haworth, 17 Beav. 259 ; [ Re John

308 ; Woodhead v. Marriott, C. P. Jones, 49 L. T. N. S. 91. ]
Cooper's Rep. 1837-38, 62 ; Holgate (c) See Mosley v. Ward, 11 Ves.
582.
1332
 *APPENDIX. [* 996 ]

No. I.

TRUSTEE RELIEF ACT .

10 & 11 VICT. CAP. 96.

"An Act for better securing Trust Funds, and for the Relief of Trustees."
(22nd July, 1847.)

WHEREAS it is expedient to provide means for better securing trust

funds, and for relieving Trustees from the responsibility of administer
ing trust funds in cases where they are desirous of being so relieved :
Be it enacted by the Queen's most Excellent Majesty, by and with the
advice and consent of the Lords Spiritual and Temporal, and Com
mons, in this present Parliament assembled, and by the authority of the
same, that all trustees, executors, administrators, or other persons, hav
ing in their hands any monies belonging to any trust whatsoever (a) ,

(a) The owner of an estate charged the estate under the power of sale
with a sum in favour of another is not and pay the purchase-money into
a trustee of that sum within the Act, Court under the Trustee Relief Act ;
for he has not the monies in his Cox v. Cox, 1 K. & J. 251. See Trus
hands ; and if it were held otherwise , tee Act, 1850, sect. 48.
the money might be paid into Court, A sum of money was payable by
and the incumbrancer would have instalments , and the trustee after re
to bear the costs of getting it out, ceiving one instalment paid it into
whereas the nature of a charge is Court, and on a petition of the cestui
that the beneficiary is entitled to have que trust the Court not only admin
it raised out of the estate together istered the instalment paid in , but
with the costs of raising it ; Re Buck also gave directions to the trustee as
ley's Trusts , 17 Beav. 110 ; and see to the future instalments ; and said
Re Cooper's Legacy, 17 Jur. 1087 ; the order would give ample indem
Warburton v. Cicognara, 3 I. R. Eq. nity to the trustee ; Re Wright's Set
592. But see Trustee Act, 1850, tlement, 1 Sm. & Giff. App. v. The
sect. 48. Court had, in fact, no jurisdiction as
It has been thought that where to the instalments payable in future,
there is a power of sale without a and the order would be an indemnity
power of signing receipts for the pur in this sense only, that the trustee
chase-money, the purchaser may take would be acting in a way which had
1333
*996 TRUSTEE RELIEF ACT.

received the sanction of the Court 493; Re Hall , 10 W. R. 37 ; Re Webb's

extra-judicially. See Re Lloyd's Policy, 2 L. R. Eq. 456 ; and the
Trusts, 2 I. R. Eq. 507 ; and see Trus company will be entitled to their
tee Act, 1850, s . 31 ; and Re Fortune's costs, as between solicitor and client ;
Trusts, 4 I. R. Eq. 351. Re Webb's Policy, 2 L. R. Eq . 456 ;
[Trustees of charitable funds have Re Cobbe, 15 W. R. 29 ; Re Hay
a strict right to pay their trust money cock's Policy, 1 Ch . D. 611. But in
into Court and relieve themselves of the last ease the late M. R. observed
the trust, without giving notice to the that the Trustee Relief Act does not
Charity Commissioners, notwithstand enable assurance companies to pay
ing the 17th section of the Charitable policy monies into Court after notice
Trusts Act, 1853, but their proper of conflicting claims, unless the policy
course is to apply first to the Com monies were " monies belonging to
missioners ; Re Poplar and Black some trust," in the words of the first
wall Free School , 8 Ch. D. 543. ] section ; S. C. [ And in Matthew v.
Where money in which a lunatic Northern Assurance Company, 9 Ch.
is interested has been paid into Court, D. 80, where the assurance company,
the Lord Chancellor, Lords Justices, in consequence of conflicting claims,
or Master of the Rolls, or any Vice paid the policy money into Court and
Chancellor [under the old practice contended that they were thereby
had, and under the present practice discharged from all liability, the late
a Judge of the High Court] has juris M. R. held in an action by an assignee
diction under the Act to order repay of the policy against the assurance
ment to the Poor Law Guardians of company for the recovery of the pol
the expenses incurred by them for icy money, that the company were
the support of the lunatic ; Re Up only stakeholders in a limited sense ;
full's Trust, 3 Mac. & G. 281 ; Re that the relation between them and
Coleman's Trust, 14 L. T. N. S. 587 ; the policy holder was that of debtor
Re Parker, 2 W. R. 139 ; Re Ward's and creditor ; that there was no trust
Estate, 2 W. R. 406 ; Re Drewery's or constructive trust such as to entitle
Trust, 2 W. R. 436 ; Re Buckley's them to pay the money into Court
Trust, Johns. 700 ; or [ in the case of under the Act ; and that the payment
a lunatic not so found by inquisition] into Court was no discharge.
to order the maintenance of the luna But now by 36 & 37 Vict. c. 66, s.
tic ; Re Sturge's Trusts, 5 Jur. N. S. 25, subs. 6, power is given to any
423 ; Re Burke, 2 De G. F. & J. 124 ; 6 debtor trustee or other person liable in
Jur. N. S. 717 ; Re Law, 7 Jur. N. S. respect of a debt or chose en action,
410 ; Re Perry's Trusts, 31 L. T. N. and who has received notice of any
S. 775 ; 23 W. R. 335. [ Re Whitby's written assignment thereof, to pay
Trust, W. N. 1877 , p . 208. the same into Court, in the case of
If a lunatic is entitled to a fund any disputed claim, under and in
which has been paid into Court under conformity with the provisions of the
the Act, the Court has jurisdiction Trustee Relief Act. But this section
upon a petition presented in the only applies where there has been an
Chancery Division under the Act and assignment in writing of the debt or
in lunacy to make an immediate order chose en action ; Re Sutton's Trusts,
for the transfer of the fund to the 12 Ch. D. 175.
account of the lunatic ; Re Tate , 20 Under the " Public Works Loans
Ch. D. 135. ] Act, 1875 ," 38 & 39 Vict. c. 89, s. 28,
Monies due upon a policy may be the secretary of the Public Works
paid under the Act into Court by an Loans Commissioners may pay into
insurance company : United Kingdom Court any surplus monies under the
Life Assurance Company, 34 Beav. control of the Commissioners arising
1334
 TRUSTEE RELIEF ACT. *997, *998

or the major part of them, shall be at liberty (a) , on filing an [*997]

affidavit shortly describing the instrument creating the trust (b)
according to the best of their knowledge and belief, to pay the [ *998 ]
same, with the privity of the Accountant-General of the High
Court of Chancery, into the Bank of England (a) , to the account of such
Accountant-General in the matter of the particular trust (b) (describing

from the taking possession, lease, sale, as interested ; but if a person inter
mortgage, or other disposition under ested cannot be found the notice may,
the act of any mortgaged property, by leave of the court, be dispensed
as if he were a trustee . ] with ; Re Hansford, 7 W. R. 199 ; [ Re
(a) Trustees are at liberty to pay Whitaker's Trusts, 47 L. T. N. S. 507 ;
in, but they are not bound to pay in, 31 W. R. 114 ; ] and where the parties
if they are willing to execute the trust are extremely numerous, the Court
without the aid of the Court ; Moun may give leave to substitute notice
tain v. Young, 18 Jur. 769 ; and see on some of them ; Re Colson's Trust,
Handley v. Davies, 5 Jur. N. S. 190. 2 W. R. 111.
(b) The affidavit must not go into Where a person interested in the
the whole history of the trust, so as fund was not named as such in the
to show upon the accounts how the affidavit upon which the money was
particular sum arose, or the trustee paid into Court, it was held that he
will be deprived of his costs ; Re could not make his claim upon peti
Waring, 16 Jur. 652. All the trustees tion, but the Court gave him leave to
should properly join in the affidavit file a bill ; Re Jephson , 1 L. T. N. S.
as all may have some information to 5. But this case has not been fol
contribute, but under particular cir lowed in subsequent practice . [ See
cumstances the Court (as the Act is Re Puttrell's Trusts, 7 Ch. D. 647 ;
silent who is to make the affidavit) Pelling v. Goddard, 9 Ch. D. 185. ]
will order the Paymaster-General to When an executor, after paying
receive the money on the affidavit of money into Court, discovered debts of
one of several co-trustees ; v. the testator, he was allowed to have
-, 1 Jur. N. S. 974. the money paid back to him out of
(a) The payment into Court may Court on his undertaking to apply it
of course be made without an order properly ; Ex parte Tournay, 3 De G.
of the Court ; Re Biggs, 11 Beav. 27. & Sm. 677.
And annuities or Stocks of the Bank (b) The money must not be paid
of England, or of the East India in by an executor to an account "the
Company, or South Sea Company, or trusts of the testator's will ," for this
Government or Parliamentary secu implies not a particular trust, but a
rities, may be transferred into Court general administration of the testa
without an order, but private securities tor's estate. The executor must take
can only be deposited under the Trus on himself the responsibility of sever
tee Relief Amendment Act, 12 & 13 ing the fund from the testator's assets
Vict. c. 74, by an order to be made on and appropriating it to the particular
petition. [But see Re Ross's Trusts, purpose, and then pay it in to the
28 W. R. 418, where V. C. Malins limited account. If it has already
held that Railway Stock might be been paid in to an account too gen
transferred into Court under the eral for the Court to deal with, it may
Trustee Relief Act. ] be carried over to the correct account,
Notice of the payment into Court and the Court will then proceed to
must by the general orders be given adjudicate upon the rights of the par
to the persons named in the affidavit ties ; Re Joseph's Will, 11 Beav. 625 ;
1335
*999 TRUSTEE RELIEF ACT.

the same by the names of the parties, as accurately as may be, for the
purpose of distinguishing it ) , in trust to attend the orders of the said
Court (c) ; and that all trustees or other persons having any annuities or
stocks standing in their name in the books of the Governor and Com
pany of the Bank of England or of the East India Company or South Sea
Company, or any Government or Parliamentary securities (d)
[*999 ] standing in their names (e) , or in the names of any deceased
persons of whom they shall be personal representatives, upon
any trusts whatsoever, or the major part of them, shall be at liberty to
transfer or deposit such stocks or securities into or in the name of the
said Accountant-General, with his privity, in the matter of the particular
trust ( describing the same as aforesaid ) , in trust to attend the orders of
the said Court ; and in every such case the receipt of one of the cashiers
of the said Bank for the money so paid, or in the case of stocks or secu
rities the certificate of the proper officer, of the transfer or deposit of such
stocks or securities , shall be a sufficient discharge to such trustees or other
persons for the money so paid, or the stocks or securities so transferred
or deposited (c).

Re Everett, 12 Beav. 485 ; Re Wright's suit in respect of the costs deducted

Will, 15 Beav. 367 ; Re Robinson's by him, or in respect of any other
Trust, 1 Jur. N. S. 750 ; Re Coulson's monies that might be recovered upon
Trust, 4 Jur. N. S. 6 ; Re Godfrey's the footing of the trust ; see Beaty v.
Trust, 2 Ir. Ch. Rep. 105 ; and see Re Curson, 7 L. R. Eq . 194 ; Goode v.
Monahan, 8 I. R. Eq. 353. If the West, 9 Hare, 378 ; Re Jephson, 1
fund has been paid to the account of L. T. N. S. 5 ; Attorney-General v.
the testator's estate, and in the matter, Alford, 2 Sm. & G. 488 ; Thorp v.
&c., the Court will not proceed without Thorp, 1 K. & J. 438 ; and the trustee
the presence of the personal represen cannot require a fund to be kept in
tative and his admission of assets ; Court to indemnify him against
Re Edward's Estate , 4 W. R. 801. As threatened proceedings ; Re Wright's
to the proper heading of the account, Trusts, 3 K. & J. 419 ; and see England
see further, Re Jervoise, 12 Beav. 209 ; v. Lord Tredegar, 35 Beav. 256.
Re Tillstone's Trusts, 9 Hare, App . Trustees by paying money into
lix ; and see Appach on the Acts, Court retire from their trusts, and can
p. 44. not thereafter exercise the powers of
(c) The County Courts have now the trust ; Re Coe's Trust, 4 K. & J.
jurisdiction where the sum does not 199 ; Re Williams's Settlement, 4
exceed 5007.; 28 & 29 Vict. c. 99, s. 1. K. & J. 87 ; Re Tegg's Trusts, 15
(d) The Act does not extend to L. T. N. S. 236 ; 15 W. R. 52 ; [ Re
the bonds of a foreign Government ; Re Mulqueen's Trusts, 7 L. R. Ir. 127 ;]
Lloyd's Trust, 2 W. R. 371 . and come under the usual words of
(e) Where stock is standing in the " Trustees desirous of being dis
joint names of a deceased and sur charged," so as to call into operation
viving trustee, the survivor may trans a power of appointing new trustees in
fer into Court under the Act ; Re that event; Re Bailey's Trust, 3 W. R.
Parry, 6 Hare, 306. 31.
(a ) The payment into Court is a Trustees, if they pay into Court,
discharge only as to the money paid should pay in the whole fund, and if
in, and leaves the trustee liable to a they do not, then, unless there be mis
1336
 TRUSTEE RELIEF ACT. * 1000, * 1001

II. And be it enacted , That such orders as shall seem fit ( b) shall be
from time to time made by the High Court of Chancery in respect of the
trust monies, stocks , or securities so paid in, transferred , and deposited
as aforesaid, and for the investment (c ) and payment (d) of any
such monies, or of any dividends or interest on any such stocks [ *1000 ]
or securities, and for the transfer and delivery of any such stocks
and securities, and for the administration of any such trusts gen
erally, upon a petition ( a) * to be presented in a summary way [* 1001 ]
to the Lord Chancellor or the Master of the Rolls, without bill,

take or some ground of justification, trustees and transfer the fund to

they will bear the costs of accounting them , with an intimation that the
for the balance ; Mitchell v. Cobb, 17 trustees had power to make the in
L. T. 25. But trustees may deduct vestment ; Re Sillar, W. N. 1871 , p. 3.
the reasonable costs of the payment (d) The Court has ordered payment
into Court where no dispute has arisen of income to the first tenant for life,
or is likely to arise as to the deduc and by the same order, on proof of
tion ; Beaty v . Curson , 7 L. R. Eq. his death to the Accountant-General,
194 ; and see Re Fortune's Trusts , 4 to the next tenant for life ; Re Brent's
I. R. Eq . 351 . Trust, 8 W. R. 270.
(b) Where the Court is not satisfied (a) The application must be made
as to the facts by affidavit, it will, by petition, [ Pelling v. Goddard, 9 Ch.
before making an order direct an en D. 185 ; ] and cannot be made upon
quiry; Re Wood's Trusts, 15 Sim. motion ; Re Masselin's Will, 15 Jur.
469 ; and see Re Sharpe's Trust, 15 1073 ; Ex parte Stock , 5 Ir. Ch. Rep.
Sim . 470. 341 ; nor by an order on further direc
The Court has a discretion to be tions in a cause ; Otte v . Castle, 1
governed by the circumstances of the W. R. 64 ; but see Dixon v. Morley,
case, and , therefore, where money be W. N. 1869, p . 49 ; [ Davies v. Davies,
longing to a lunatic found such in 1 Set. on Decrees, 496, 4th edit. ;]
France was paid into Court, and the nor, except where the [ money or
French curator (in whom by the securities in Court do not exceed
French law the property became 1000l . or 1000l. nominal value (see
vested for the maintenance of the Rules of the Supreme Court, 1883,
lunatic) applied for payment of the Order 55, Rule 2 (5 ) , ) ] upon a sum
fund to himself, the Court refused to mons at Chambers. But when an
transfer the capital, and directed pay order has been once made upon a
ment to him of the dividends only ; petition in compliance with the Act,
Re Garnier, 13 L. R. Eq . 532. so as to found the jurisdiction , any
(c) The Court has ordered an in further proceedings may be at Cham
vestment in New Three per Cent. Bank bers. Re Hodges, 4 De G. M. & G.
Annuities ; Re Dunster's Trusts, 3 491 ; and see Re Tracey's Trusts, (un
W. R. 267. der the Irish Act) , 6 I. R. Eq . 271 ;
Where trustees were empowered [and where an order directing inqui
with the consent of the tenant for life ries is made in Court upon a petition
to invest in shares of railway com the further hearing of the petition
panies guaranteed by the Indian Gov may be adjourned into Chambers ; Re
ernment, and the money was paid Moate's Trusts, 22 Ch. D. 635. ]
into Court under the Act, the Court The trustees themselves (see Order
declined to sanction such an invest 6, p. 1006, post) are competent to pre
ment, but offered to appoint new sent the petition, but they are not the
1337
 *1001 TRUSTEE RELIEF ACT.

by such party or parties, as to the Court shall appear to be competent and

necessary in that behalf, and service of such petition shall be made upon
such person or persons as the Court shall see fit and direct (a) ; and every

proper persons, and if they present guardian ad litem should be appointed ;

the petition the Court will not allow Re Ward's Will, 2 Giff. 122 ; Re Gill
them more than respondent's costs ; man's Trusts, 1 I. R. Eq . 342. Under
Re Cazneau's Legacy, 2 K. & J. 249 ; the Irish Act, guardians ad litem to
Re Hutchinson's Trusts, 1 Dr. & Sm. infants are appointed upon motion ;
27. [And see Re Poplar and Black Re Bennett's Trusts, 6 I. R. Eq . 337.
wall Free School, 8 Ch. D. 543. ] The Court will declare the rights of
In one case the trustees , after pay parties upon a petition under the Act ;
ing in, applied by petition to have the Re Walker's Trusts, 16 Jur. 1154.
fund distributed as in an adminis And where the petitioner, as it turns
tration suit, and the Court directed out, is not himself entitled, the Court,
proper enquiries accordingly as to the if it be necessary to declare the rights,
persons interested ; Re Trower's Trust, and the trustees desire the opinion of
1 L. T. N. S. 54. the Court, will declare the rights and
The petition should set out the give all the parties their costs, as in
material statements of the affidavit a suit under similar circumstances ; Re
under which the money is paid in, as Woollard's Trust, 18 Jur. 1012 .
the affidavit is regarded as a declara A petition may be presented by a
tion of the trust to which the atten person entitled to an aliquot share
tion of the Court is to be called ; Re without bringing the other parties
Levett's Trust, 5 De G. & Sm. 619 ; interested before the Court ; Re Bef
Re Flack's Will, 10 Hare , App. xxx . ford's Will, 21 L. T. 164. A petition
But the petition must not set out the by a person, so entitled, should ask
affidavit in extenso, or at a needless that the other shares should be car
length ; Re Curtois, 17 Jur. 852 ; 10 ried to the separate accounts of the
Hare, App . Ixiv., and see ante, p. 997 , other persons entitled, in order to
note (b) . save the expense of serving the peti
Where a petition stands over for tion on any future application ; Re
amendment, by adding a next friend Hawke's Trust, 18 Jur. 33. See Re
on behalf of the petitioner, it is not Young, 5 W. R. 400. Or liberty may
necessary to have the petition re be given to the other parties entitled
answered ; Re Medow's Trusts , 10 to apply at chambers ; Winkworth v.
Jur. N. S. 536 . Winkworth, 32 Beav. 233 ; and see
[A petition is the proper means of Re Tracey's Trusts, 6 I. R. Eq . 271.
obtaining a stop order, where the fund Where the claimants to the fund
is over £ 1000 (see supra) , and the in opposition to the petitioner reside
application for it is the first applica abroad, the Court will give them time
tion after the payment into Court ; to make out their case ; Re Hodson's
Re Day's Trusts, 49 L. T. N. S. 499. ] Will, 22 L. J. N. S. Ch . 1055.
A claimant may proceed in formâ (a) See [ Orders 7 and 8 of
pauperis under the Act ; Re Money, Chancery Funds Amended Orders,
13 Beav. 109. 1874, ] post, 1006 .
A trustee who did not concur with [Where on the hearing of a peti
his co-trustees in paying the money in tion class enquiries were directed , and
to Court, must still be served with any the chief clerk made a certificate
petition under the Act ; Re Bryant's finding who were the persons inter
Settlement, W. N. 1868 , p. 123. ested in arguing the question in dis
Where an infant is to be served, a pute, but several of those persons
1338
 TRUSTEE RELIEF ACT. *1002

order made upon such petition shall have the same authority and effect,
and shall be enforced and subject to re-hearing and appeal, in the same
manner as if the same had been made in a suit regularly insti
tuted in the Court (b), and if it shall * appear that any such [*1002 ]
trust funds cannot be safely distributed without the institution

were not respondents, the petitioner titled ; Re Bolton's Will, 18 W. R.

was authorised by the Court to serve 56 ; 21 L. T. N. S. 413.
a copy of the petition, the order made It has been held under the Irish
on the first hearing, and the certifi Act, 11 & 12 Vict. c. 68, which is
cate, on those persons, and the hear similarly worded, that the Court has
ing of the petition was adjourned to no jurisdiction to order service upon
give the persons served an oppor a person out of the jurisdiction ; Ex
tunity of appearing ; Re Battersby's parte Crawford, 2 Ir. Ch . Rep . 573 ;
Trusts, 10 Ch . D. 228. ] Ex parte Bernard , 6 Ir. Ch. Rep . 133.
It was intimated by V. C. Wood, In Re Bonelli's Electric Telegraph
on a petition by tenant for life for Company, 18 L. R. Eq. 655, V. C.
payment of the income, that for the Bacon ordered a substituted service,
future he should hold it unnecessary and also service abroad. But in Re
to serve the remainderman ; Re Whit Haney's Trusts, W. N. 1874 , p . 221 ,
ling's Settlement, 9 W. R. 830 ; and the V. C. expressed a doubt as to
see Ex parte Peart, 17 L. J. N. S. Ch. service abroad, as the M. R. had
168. And where the corpus was only previously decided in Re Mewburn's
carried over to a particular account, Settled Estates (22 June, 1874) that
service on the remaindermen, who this could not be done. However,
were extremely numerous, was dis the L. JJ. adopted the view of V. C.
pensed with ; Re Hodges, 6 W. R. Bacon, and ruled that the Court has
487 ; and in another case the Court jurisdiction to order service abroad ;
gave no costs to the remainderman, Re Haney's Trusts, 10 L. R. Ch . App.
who, the Court said, merely came to 275 ; [and this view has since been
look after his own interests ; Re acted on by the late M. R. in Re
Thornton's Trust , 9 W. R. 475 . Morant's Trusts, W. N. 1879 , p . 144 ;
When money has been paid into and followed in Ireland , Re Dunne's
Court, and part of it has, by an order Trusts, 1 L. R. Ir. 12. ] And see Re
of the Court, been carried to the Gethin, 9 I. R. Eq . 512 .
separate account of a cestui que trust, (b) The Court under this Act has
the trustees need not be served again as ample jurisdiction as in a suit, and
on application by the cestui que trust may therefore declare the validity or
to have it paid out of Court ; Re invalidity of a deed without directing
Young, 5 W. R. 400. fresh proceedings, if the Court in the
If the trustee try to avoid service , exercise of its discretion do not think
the Court on being satisfied of the a suit necessary ; Lewis v. Hillman,
fact will make the order without 3 H. L. C. 607 ; or may order a deed
service ; Ex parte Baugham, 16 Jur. to be rectified ; [ Re Bird's Trusts, 3
325. Ch. D. 214. ] But in general the
Where the trustees had not been Court will not allow a deed to be im
heard of for ten years, and the place peached upon the petition without a
named for service in the trustee's suit ; Way's Settlement, 10 Jur. N. S.
affidavit had been pulled down, the 1166. In one case V. C. Wood, in
Court dispensed with service on the disposing of a fund on petition, said
trustees, but directed an enquiry at that if there were creditors or other
chambers who were the persons en unascertained claims, a suit might be
1339
*1002 TRUSTEE RELIEF ACT.

of one or more suit or suits, the Lord Chancellor or Master of the Rolls
may direct any such suit or suits to be instituted (a).

necessary, but that otherwise the the decisions in reference to costs

Court had jurisdiction as in a suit, under the Act :
and might direct an issue to try a The trustee who is served with the
question of sanity or the like ; Re petition is primâ facie entitled to his
Allen's Will , Kay App. li . Where costs ; Re Erskine's Trust, 1 K. & J.
trustees of a marriage settlement 302 ; Croyden's Trust, 14 Jur. 54 ; Re
had transferred the fund into Court, Wylly's Trusts, 28 Beav. 458 ; Re
and a petition was presented by a Wright's Trusts , 3 K. & J. 419 ; Re
person claiming adversely to the Headington's Trust, 27 L. J. N. S.
settlement, V. C. Wood disposed of Ch. 175 ; Re Robertson's Trust, 6 W.
the case upon the petition, no párty R. 405 ; and it is not thought desir
having objected ; but before the able to hold too strict a hand over
Lords Justices, the respondent not trustees paying in trust monies ; Re
consenting, the petition was ordered Wylly's Trust, 6 Jur. N. S. 906 ; Re
to stand over that a bill might be Brocklesby, 29 Beav. 652 ; Re Ben
filed ; Re Fozard's Trust, 1 K. & J. dyshe, 3 Jur. N. S. 727 ; though it is
233 ; 24 L. J. N. S. Ch . 441 ; and see not matter of course that they should
Re Bloye's Trust, 2 H. & Tw . 140 ; 1 have their costs ; Re Elgar, 11 L. T.
Mac. & G. 488 ; Ex parte Stutely, 1 N. S. 415 ; Re Lane's Trust, 24 L. T.
De G. & Sm. 703. 181 ; and see Hankey v. Morley, 4
An order made by the Court for Jur. N. S. 234 ; Handley v. Davies, 5
maintenance of an infant out of a Jur. N. S. 190.
fund paid into Court, and to which [But a trustee is within Rule 27
the infant is entitled , constitutes the (19) of Order 65 of the Rules of the
infant a ward of Court ; Re Hodges's Supreme Court, 1883, and if he has
Settlement, 3 K. & J. 213 ; [ and see been tendered and has accepted 30s.
De Pereda v. De Mancha, 19 Ch. D. for his costs, he will not be allowed
451 ; Brown v. Collins, 25 Ch. D. 56. ] his costs of appearing on the petition,
(a) The Court directs a suit for if he comes merely to ask for his
its own satisfaction only, and will not costs, and his appearance is otherwise
authorise the petitioner to commence unnecessary ; Re Sutton, 21 Ch. D.
an action because it may be the more 855.]
convenient course for making out his In Ireland the costs of lodging a
title ; Re Harris's Trust, 18 Jur. 721. trust fund in Court are restricted in or
Though a person be not named as a dinary cases to 81. Re Boyd's Trusts,
cestui que trust in the affidavit upon 1 Ir. Rep. Eq. 489. And if they re
which the money was paid in, yet if tain more they may be deprived, in
he can make a primâ facie case, the consequence, of their costs of appear
Court will give him leave to bring an ing on the petition ; Re Blayney's
action ; Re Jephson, 1 L. T. N. S. 5. Trust, 9 I. R. Eq . 413.
When a trustee filed a bill instead A trustee objected to act with a
of paying in under the Trustee Relief proposed new trustee of whom he dis
Act, the Court allowed him only such approved, and on the appointment of
costs as he would have been entitled such new trustee the old trustee paid
to had he paid in under the Act ; the fund into Court, and was allowed
Wells v . Malbon, 31 Beav. 48 ; and his costs ; Re Williams's Trust, 6 W.
see Gunnell v. Whitear, 10 L. R. Eq. R. 218.
664. A trustee holding a chose en action
The following is a summary of to which a married woman is entitled,
1340
 TRUSTEE RELIEF ACT. *1003

* IV. And be it enacted , That the Lord Chancellor, with the [ * 1003 ]
assistance of the Master of the Rolls or of one of the Vice-Chan

is justified, having regard to her right 194 ; [Re Hoskin's Trusts, 5 Ch. D.
to a settlement, in paying it into 229, 6 Ch . D. 281. But if a trustee
Court , Re Swan , 2 H. & M. 34. But is without sufficient reason deprived
see contra, Re Roberts's Trusts, 38 L. of his costs, he may semble appeal for
J. N. S. Ch . 708. them ; Turner v. Hancock, 20 Ch . D.
But a trustee who , after accepting 303, 307 ; disapproving, Re Hoskin's
the trust, throws it up from caprice Trusts, ubi supra ; and see supra, p.
soon after, and pays the money into 990. ]
Court, will not have his costs of ap If the person who pays in is the
pearing on the tenant for life's peti personal representative of a testator
tion ; Re Leake's Trusts, 32 Beav. 135. whose will creates the difficulty , the
When the trustee has paid in the executor should take his costs of pay
fund abusively, as in order to avoid ing in the fund out of the testator's
an action about to be brought against estate, but the subsequent costs come
him , he will have no costs ; Re Wa out of the fund ; Re Cawthorne, 12
ring, 16 Jur. 652 ; and Re Fagg's Beav. 56 ; Re Jones, 3 Drew. 679 ;
Trust, 19 L. J. N. S. Ch. 175. And secus, however, if the trust fund has
on the other hand, where a trustee been severed from the testator's estate,
refuses in a proper case to pay the and is paid in by a trustee and not by
fund into court, and obliges the cestuis the executor ; Re Lorimer, 12 Beav.
que trust to bring an action, the Court 521 ; Ex parte Lucas, V. C. Knight
will not allow him all his costs of Bruce, 6 July, 1849.
suit, but only such costs as he would The Court cannot direct the costs
have got had he paid the money into to be paid out of another fund , also
Court, and then the plaintiff had pre paid in by the trustee, but standing
sented a petition ; Weller v. Fitzhugh, to a different account, though it may
22 L. T. N. S. 567 ; Gunnell v. Whit form part of the testator's residuary
ear, 10 L. R. Eq . 664. And where he estate, and therefore be, per se, liable
has transferred the fund into Court to costs ; Re Hodgson , 18 Jur. 786 ;
without sufficient reason , though he S. C. 2 Eq. Rep. 1083 ; nor out of the
may be allowed his costs of the trans testator's residuary estate when it has
fer, he will not be allowed the costs not been paid in ; Re Bartholomew's
of appearing on the petition ; Re Will, 13 Jur. 380 ; and see Re Sharpe's
Covington's Trust, 1 Jur. N. S. 1157 ; Trusts, 15 Sim. 470 ; Re Feltham's
Re Heming's Trust, 3 K. & J. 40 ; Trusts, 1 K. & J. 534. But see Re
and see Croyden's Trust, 14 Jur. 54 ; Trick's Trusts, 5 L. R. Ch. App. 170.
Re Leake's Trusts, 32 Beav. 135 ; But where five-sixteenths of a fund
and in cases of gross misconduct in paid into Court had lapsed , the Court
paying in the fund, the Court has threw the whole costs on the lapsed
jurisdiction to throw upon the trustee shares as constituting part of the
personally the costs of the petition ; residue ; Re Ham's Trust, 2 Sim. N.
Re Woodburn's Will, 1 De G. & J. S. 106.
333 ; Re Cater's Trust, 25 Beav. 361, If a trustee deducts his costs be
366 ; Re Knight's Trusts, 27 Beav. 45 ; fore paying in the fund, the Court
Re Foligno's Mortgage, 32 Beav. 131 ; has no jurisdiction as to the sum de
Re Glendenning, W. N. 1867, p. 191 ; ducted ; Re Bloye's Trust, 1 Mac. &
Re Robert's Trusts , 38 L. J. N. S. Ch . G. 504 ; 2 Hall & Tw. 153 ; Re Bar
708 ; Re Wise's Trust, 3 I. R. Eq. ber, 9 Jur. N. S. 1098 ; Re Fortune's
599 ; Re Elliott's Trusts, 15 L. R. Eq. Trusts, 4 I. R. Eq. 351. But where
1341
 113
*1004 TRUSTEE RELIEF ACT.

1 [ *1004] cellors, shall have * power and is hereby authorised to make such
the trustee is allowed the costs of the 152 , Lord Romilly wished the point in
petition, his costs will be taxed, in question to be submitted to the Lord
cluding those which he had deducted ; Chancellor, who directed the costs to
Re Hue's Trusts, 27 Beav. 337 ; and be paid out of the corpus .
where a trustee has deducted costs But the costs cannot be thrown on
improperly, an action may be brought corpus without service on the remain
against him for recovery of the costs derman ; Ex parte Peart, 17 L. J. N.
so improperly deducted, and the costs S. Ch . 168 ; Ex parte Fletcher, 17 L.
of the action will be thrown upon the J. N. S. Ch. 169 ; or on those who
trustee ; Beaty v. Curson , 7 L. R. Eq. sufficiently represent them ; Re Green
194. land's Trust, 1 W. R. 46. And as the
It has been held, though the policy necessity of serving the remainder
of the decision may be doubtful, that men would lead to great inconven
the trustee who is served with a peti ience and expense, it was resolved by
tion will not be allowed in taxation all the judges that for the future the
the costs of taking copies of the affi costs of a petition for payment of divi
davits filed by the parties beneficially dends should be thrown upon the income,
interested ; Re Lazarus , 3 K. & J. 555. and service upon the remaindermen be
Whether on a petition by tenant dispensed with; Re Marner's Trusts,
for life for payment of the dividends 12 Jur. N. S. 959 , 3 L. R. Eq. 432 ;
the costs should come out of the cor Re Cameron, 1 I. R. Eq. 258. The
pus or out of the income is a point on rule therefore now is, that upon a
which the practice has much varied. petition for payment of dividends
In favour of payment out of the corpus only, while the costs, charges and
are the following cases : Re Ross's expenses properly incurred by the
Trust, 1 Sim. N. S. 196, V. C. Cran trustee in paying the money into
worth ; Re Staples's Settlement, 13 Court will, where not previously de
Jur. 273, 273, V. C. E.; Re Field's ducted, be directed to be paid out of
Trusts, 16 Beav . 146 ; Re Butler's the corpus (Re Whitton's Trusts, 8 L.
Trust, 16 Jur. 324 ; and Re Leake's R. Eq. 353) , the costs of the peti
Trusts, 32 Beav . 135, Sir J. Romilly ; tioners and of all persons appearing
and in support of the contrary view ; on the petition will fall upon the in
Ex parte Fletcher, 12 Jur. 619 ; 17 L. come ; Re Mason's Trusts, 12 L. R.
J. N. S. Ch. 169 ; Ex parte Peart, 12 Eq. 111 ; Re Whitton's Trusts , 8 L. R.
Jur. 620 ; 17 L. J. N. S. Ch . 168, V. Eq . 353. It was held in some cases,
C. Knight Bruce ; Re Lorimer, 12 that the costs of the trustee's appear
Beav. 521 , Lord Langdale ; Re Bang ance upon the petition were an excep
ley's Trust, 16 Jur. 682 ; Re Ingram, tion, and ought to be borne by the
18 Jur. 811 , V. C. Kindersley ; Re corpus (Re Gordon's Trusts, 6 L. R.
Jepson, 6 March, 1859, V. C. Wood ; Eq. 335 ; Re Wood's Trusts, 11 L. R.
and Re Hamersley's Settlement, 23 Eq . 155 ) , but this has since been de
Beav. 267 , Sir J. Romilly. termined otherwise ; Re Evans ' Trusts,
In other cases the costs have been 7 L. R. Ch . App . 609 ; Re Smith's
divided, and the cost of the tenant Trusts, 9 L. R. Eq . 374. " It is said,"
for life thrown on the income, and observed L. J. James, " that a differ
the costs of the trustees and remain ence ought to be made with respect
derman on the corpus ; Re Whitling's to the appearance of the trustees, but
Settlement, 9 W. R. 830 ; Re Tchit I think that Re Marner's Trusts was
chagoff's Will, 12 W. R. 1100 ; Re intended to apply to all the costs of
Hadland's Settlement, 23 Beav. 266 . the petition ; and I am the more dis
In Re Turnley, 1 L. R. Ch. App. posed to follow that construction, be
1342
 TRUSTEE RELIEF ACT. *1005

orders as from time to time shall seem necessary for better [* 1005 ]
carrying the provisions of this Act into effect (a ).

cause the reasonable course for a Parry's Trust, 12 Jur. 615 ; Re Smith ,
tenant for life to pursue, when about 3 Jur. N. S. 659.
to present a petition, is to write to If the money was paid in from the
the trustee and tell him that he does unreasonable claim of a person who
not seek to affect the corpus, but only is served with and appears upon the
wants his income, and therefore that petition, and opposes it, the Court has
there is no occasion for the trustee to jurisdiction to throw the costs upon
incur the costs of appearing. In such such wrongful claimant ; Re Arm
a case, if the title of the tenant for ston's Trusts, 4 N. R. 450 ; S. C. 4
life be clear the trustee ought not to De G. J. & S. 454.
appear." But it was probably in If the petition be presented by an
tended by the L. J. that the letter incumbrancer, whose debt will swal
must be accompanied with the tender low up the whole fund, and be served
of a sufficient sum to cover the ex on a subsequent incumbrancer with
pense of the trustee's consulting his notice that his costs of appearing will
solicitor ; [see now rule 27 ( 19 ) of be resisted, such subsequent incum
Order 65 of Rules of the Supreme brancer, if he appear, will not have
Court, 1883. ] his costs ; Roberts v . Ball, 24 L. J.
If a person not appearing by the N. S. Ch . 471.
affidavit to have an interest, but who The costs in all cases are in the
made a claim, be served with the discretion of the Court ; Roberts v.
petition and disclaim at the bar, he Ball, 24 L. J. N. S. Ch . 471.
will not be allowed his costs ; Re

(a) [This section has become obsolete, and was repealed by 42 & 43 Vict.
c. 78. The general rules and orders relative to this Act now in force are as
follows : -
SUPREME COURT FUNDS RULES, 1884 .
RULE 41. When a trustee or other person desires to lodge (1 ) funds in
Court in the Chancery Division , under the Act 10 & 11 Vict. c. 96, he shall
annex to the affidavit to be filed by him pursuant to the said Act a schedule in
the same printed form as the lodgment schedule to an order, setting forth
(a) His own name.
(b) The amount of money and description and amount of securities pro
posed to be lodged in Court.
(c) The ledger credit to be opened in the Pay Office books, in the matter
of the particular trust to which the funds are to be placed .
(d) A statement whether legacy or succession duty (if chargeable ) or any
part thereof has or has not been paid.
(e) A statement whether the money or the dividends on the securities so to
be lodged in Court, and all accumulations of dividends thereon, are
desired to be invested in any and what description of Government
securities, or whether it is deemed unnecessary so to invest the same.
The paymaster on receipt of an office copy of such schedule (which is to
be retained by him) shall issue the necessary direction for giving effect to
such lodgment.

[(1) 66 Lodge in Court " means pay or transfer into Court or deposit in
Court ; see Rule 3. ]
1343
*1006 TRUSTEE RELIEF ACT.

[* 1006 ] * V. And be it enacted, That in the construction of this Act

the expression " the Lord Chancellor " shall mean and include

RULE 74. When it is stated in the schedule to the affidavit made pursuant
to Rule 41 , that it is desired that any money to be lodged in Court, or the
dividends accruing on any securities to be lodged in Court in pursuance of
the Act 10 & 11 Vict. c. 96 , and the accumulations thereof, shail be invested
in any description of Government securities, the Paymaster shall ( if or so
soon as such money shall amount to or exceed £40, or so soon as dividends
accruing on such securities shall amount to or exceed £ 10 ) invest the same
accordingly, without any order or further request for that purpose. If such
money does not amount to £40 ( and is not less than £ 10) , the Paymaster
shall place such money on deposit without a request for that purpose, unless
the said schedule contains a statement that it is deemed unnecessary to place
such money on deposit, or unless notice in writing be left at the Pay Office of
an order having been made , or of an intended application to the Court affect
ing such money, securities, or dividends. Dividends accruing on funds or on
investments or accumulations of funds lodged in Court under the said Act
prior to the commencement of the Chancery Funds Rules, 1872, may, when,
or so soon as they amount to or exceed £ 10, be invested without request.
CHANCERY FUNDS AMENDED ORDERS, 1874.
ORDER 5. A person having made a payment or transfer of money or secu
rities into, or a deposit of securities in Court under the above-mentioned Act
of the 10th & 11th Vict. c. 96, shall forthwith give notice thereof to the sev
eral persons named in his affidavit ( 11) to be made in pursuance of Rule 34
of the Chancery Funds Consolidated Rules , 1874, and the said Act, as inter
ested in or entitled to such money or securities (a) .
ORDER 6. The persons interested in or entitled to any money or securities
so paid or transferred into, or deposited in Court, in pursuance of the said
Act of the 10th & 11th Vict. c. 96, and named in the affidavit, or any of
such persons, or the person so paying or transferring into or depositing in
Court may apply by petition, or, in cases where the fund does not exceed 300!.
cash or 300l. in securities (b ) , by summons as occasion may require, respecting

[ (1 ) Where the person mentioned the recent Rules, Pearson, J., in order
in the affidavit could not be found, to protect the trustees and prevent
the Court declined to give any direc useless litigation, directed that notice
tions as to what would be sufficient of the affidavit should be served in
notice, but intimated extra-judicially the same way and upon the same par
what, under the circumstances, would ties as it would have been if the 34th
probably be held to be sufficient ; Re Rule of the Chancery Funds Consoli
Hardley's Trusts, 10 Ch. D. 664. It dated Rules, 1874, had remained in
will be observed that, under the Su force ; Re Stening's Trust, 50 L. T.
preme Court Funds Rules, 1884, which N. S. 586. ]
repealed the Chancery Funds Consoli (a) Where a cestui que trust was
dated Rules, 1874, it is not necessary believed to be in New York, but the
to state in the affidavit the names of address was unknown, the Court al
the persons interested in or entitled lowed publication in two New York
to the fund, and this order, though papers to be sufficient notice : Re
not expressly repealed, has become Goodsman's Will, W. N. 1870 , p . 152.
inapplicable to the practice under the [ (b) Now extended by Rules of
Rules of 1884 ; but in a case under the Supreme Court, Order 55, R. 2,
1344
 TRUSTEE RELIEF ACT. *1006

the Lord Chancellor, Lord Keeper, and Lords Commissioners for the cus
tody of the Great Seal of Great Britain for the time being.

the investment, payment out, or distribution of the money or securities, or of

the dividends or interest of such securities .
ORDER 7. A person who has paid or transferred money or securities into,
or deposited securities in Court pursuant to the said Act of the 10th & 11th
Vict. c. 96, shall be served with notice of any application made to the Court,
or a Judge in Chambers, respecting such money or securities, or the dividends
thereof, by any person interested therein or entitled thereto.
ORDER 8. The persons interested in or entitled to such money or securi
ties shall be served with notice of any application made by the trustee to
the Court, or Judge, respecting such money or securities, or the dividends
thereof (c).
ORDER 9. No petition relating to such money or securities as mentioned
in the last four preceding Orders shall be set down to be heard, and no sum
mons relating thereto shall be sealed until the petitioner or applicant has first
named in his petition or summons a place where he may be served with any
petition or summons, or notice of any proceeding or order relating to such
money or securities, or the dividends thereof.
ORDER 10. Petitions presented and summonses issued under the said Act
of 10 & 11 Vict. c. 96, shall be entitled in the matter of the said Act and in
the matter of the particular trust . ]

(5) to cases where the money or se where a person has gone abroad many
curities in Court do not exceed years ago and has not since been
£1,000 or £1,000 nominal value.] heard of ; Re Whitaker's Trusts, 47
[(c) This notice may be dispensed L. T. N. S. 507 ; 31 W. R. 114 ; Re
with under special circumstances, as Hansford, 7 W. R. 199, 254. ]
1345
[*1007 ] *No. II.

TRUSTEE RELIEF AMENDMENT ACT.

12 & 13 VICT. CAP. 74.

" An Act for the further Relief of Trustees." ( 28th July, 1849.)

WHEREAS difficulties have arisen in the transfer of securities vested

in trustees in certain cases under the provisions of an Act passed in the
Session of Parliament holden in the tenth and eleventh years of the
reign of Her present Majesty, intituled An Act for better securing Trust
Funds, and for the Relief of Trustees, and it is expedient to make further
provision for carrying into effect the objects of the said recited Act : Be
it therefore enacted by the Queen's most excellent Majesty, by and with
the advice and consent of the Lords Spiritual and Temporal, and Com
mons, in this present Parliament assembled, and by the authority of the
same, that if upon any petition presented to the Lord Chancellor or Mas
ter of the Rolls in the matter of the said Act it shall appear to the Judge
of the Court of Chancery before whom such petition shall be heard, that
any monies, annuities, stocks or securities (a) are vested in any persons as
trustees, executors, or administrators , or otherwise, upon trusts within
the meaning of the said recited Act, and that the major part of such per
sons (b) are desirous of transferring, paying, or delivering the same to
the Accountant-General of the High Court of Chancery under the pro
visions of the said recited Act, but that for any reason the concurrence
of the other or others of them cannot be had (c) , it shall be lawful for
such Judge as aforesaid to order and direct such transfer, payment, or
delivery to be made by the major part of such persons without the con
currence of the other or others of them ; and where any such monies
or Government or Parliamentary securities shall be deposited with any
banker, broker, or other depositary, it shall be lawful for such Judge as
aforesaid to make such order for the payment or delivery of such monies,

[(a) Under these words the deben (b) Where of three trustees, one
ture stock of a Railway Company, the was invalided and two petitioned , the
consolidated stock of a Railway Com Court made the order ; Re Broad
pany, and India 4 per Cent. stock wood's Trust, 8 L. T. N. S. 632.
have been ordered into Court ; Re (c) The non-concurring trustee
Gledstane's Trusts, W. N. 1878 , p . 26. ] must be served with any petition
under the Act.
1346
 # TRUSTEE RELIEF AMENDMENT ACT. *1008

Government or Parliamentary securities, to the major part of [*1008 ]

such trustees, executors, administrators, or other persons as afore
said, for the purpose of being paid or delivered to the said Accountant
General as to the said Judge shall seem meet ; and every transfer of any
annuities, stocks, or securities, and every payment of money or delivery of
securities, in pursuance of any such order, shall be as valid and effectual
as if the same had been made on the authority or by the Act of all the
persons entitled to the annuities, stocks , or securities so transferred , or
the monies or securities so paid or delivered respectively, and shall fully
protect and indemnify the Governor and Company of the Bank of Eng
land, the East India Company, and the South Sea Company, and all other
persons acting under or in pursuance of such order.

By 28 & 29 Vict. c. 99 , s . 1 , it is enacted , that the County

Courts shall have and exercise all the power and authority of the
High Court of Chancery in all proceedings under the Trustees
Relief Acts , in which the trust estate or fund to which the pro
ceeding relates shall not exceed in amount or value 5001."
And by 30 & 31 Vict. c. 142 , s . 24 , it is enacted , that " any
monies , annuities , stocks , or securities vested in any persons as
trustees , executors , administrators or otherwise , upon trusts ,
within the meaning of " (the Trustee Relief Act ) , " where the
same does not exceed in amount or value the sum of 500l . , upon
the filing by such trustees or other persons , or the major part of
them, to or with the Registrar of the County Court within the dis
trict of which such persons or any of them shall reside , an affi
davit shortly describing the instrument creating the trust, accord
ing to the best of their knowledge , may in the case of money be
paid into a Post-office Savings Bank established in the town in
which the County Court is held , in the name of the Registrar of
such Court, in trust, to attend the orders of the Court, " and “ in
the case of stocks or securities may be transferred or deposited
into or in the name of the Treasurer and Registrars of such Court,
in trust, to attend the order of the Court," & c.
1347
[*1009] *No. III.

TRUSTEE ACT , 1850.

13 & 14 VICT. CAP. 60.

"An Act to consolidate and amend the Laws relating to the Transfer of
Real and Personal Property vested in Mortgagees and Trustees." (5 Aug
ust, 1850.)

WHEREAS an Act was passed in the first year of the reign of His late
Majesty King William the Fourth, intituled An Act for amending the
Laws respecting Conveyances and Transfers of Estates and Funds vested in
Trustees and Mortgagees, and for enabling Courts of Equity to give effect to
their Decrees and Orders in certain cases : And whereas an Act was passed
in the fifth year of the reign of His late Majesty King William the
Fourth, intituled An Act for the Amendment of the Laws relative to Es
cheats and Forfeitures of Real and Personal Property holden in Trust :
And whereas an Act was passed in the second year of the reign of Her
present Majesty, intituled An Act to remove Doubts respecting Conveyances
of Estates vested in Heirs and Devisees of Mortgages : And whereas it is
expedient that the provisions of the said Acts be consolidated and en
larged, ― Be it therefore enacted by the Queen's most Excellent Majesty,
by and with the advice and consent of the Lords Spiritual and Temporal,
and Commons, in this present Parliament assembled , and by the author
ity of the same (a) .
I. ( This section was repealed by " The Statute Law Revision Act,
1875.")
II. And, whereas it is expedient to define the meaning in which cer
tain words are hereafter used : It is declared that the several words here
inafter named are herein used and applied in the manner following
respectively (that is to say) ,
The word " lands " shall extend to and include manors, mes
[* 1010] suages, tenements, and hereditaments, corporeal and in
corporeal, of every tenure or description, whatever may be
the estate or interest therein (a) :

(a) The Court has no jurisdiction order, and the property comprised
under the Trustee Acts to decide on rent-charges, the order was amended
a disputed question of title ; Re Drap by adding the word " hereditaments ; "
er's Settlement, 9 W. R. 805. Re Harrison, 1 Set. on Dec. 516 , 4th
(a ) In one case, where the word edit.
" lands " only was used in the vesting
1348
 TRUSTEE ACT, 1850 . * 1011

The word " stock " shall mean any fund, annuity, or security transfer
able in books kept by any company or society established or to be
established, or transferable by deed alone, or by deed accompanied
by other formalities, and any share or interest therein (b) :
The word " seised " shall be applicable to any vested estate for life or
of a greater description, and shall extend to estates at law and in
equity (c ), in possession or in futurity, in any lands :
The word " possessed " shall be applicable to any vested estate less
than a life estate, at law or in equity, in possession or in expectancy,
in any lands:
The words " contingent right," as applied to lands, shall mean a con
tingent or executory interest, a possibility coupled with an interest,
whether the object of the gift or limitation of such interest or
possibility be or be not ascertained, also a right of entry, whether
immediate or future, and whether vested or contingent :
The words " convey " and " conveyance " applied to any person, shall
mean the execution by such person of every necessary or suitable assur
ance for conveying or disposing to another lands whereof such person
is seised, or entitled to a contingent right, either for the whole estate
of the person conveying or disposing, or for any less estate, together
with the performance of all formalities required by law to the
validity of such conveyance, including the acts to be performed by
married women and tenants in tail in accordance with the provisions
of an Act passed in the fourth year of the reign of His late Majesty
King William the Fourth, intituled An Act for the abolition of Fines
and Recoveries, and the substitution of more simple modes of Assur
ance (d), and including also surrenders and other acts which a tenant
of customary or copyhold lands can himself perform
* preparatory to or in aid of a complete assurance of such [ * 1011 ]
customary or copyhold lands (a):
The words " assign " and " assignment " shall mean the execution and
performance by a person of every necessary or suitable deed or act

(b) The word stock includes shares Goddard v. Macaulay, 6 Ir. Eq . Rep.
in joint-stock companies ; Re Angelo, 221 .
5 De G. & Sm . 278 ; and shares in (d) Thus, where there is an adult
ships, 18 & 19 Vict. c. 91 , s. 10. tenant for life with remainder to an
(c ) In suits where all parties bene infant tenant in tail with remainders
ficially interested are before the Court, over, a vesting order of the infant's
it is sufficient for the purchaser to take estate with the consent of the tenant
a conveyance of the legal estate, for for life as protector will bar the entail,
the equities of the parties are bound and all remainders over ; Powell v.
by the order of sale, and no vesting Matthews, 1 Jur. N. S. 973 ; see form
order as to the equitable estate is re of order, 1 Set. on Dec. p. 535, 4th
quired or will be made ; Re Williams's edit.
Estate, 5 De G. & Sm. 515. See the (a) See, as to copyholds, Rowley
analogous case under the prior Act, v. Adams, 14 Beav. 130, and post, p.
1025, note (a) .
1349
*1012 TRUSTEE ACT, 1850.

for assigning, surrendering, or otherwise transferring lands of which

such person is possessed, either for the whole estate of the person
so possessed or for any less estate :
The word " transfer " shall mean the execution and performance of
every deed and act by which a person entitled to stock can transfer
such stock from himself to another :
The words " Lord Chancellor " shall mean as well the Lord Chancellor
of Great Britain as any Lord Keeper or Lords Commissioners of the
Great Seal for the time being :
The words " Lord Chancellor of Ireland " shall mean as well the Lord
Chancellor of Ireland as any Keeper or Lords Commissioners of the
Great Seal of Ireland for the time being :
The word " trust " shall not mean the duties incident to an estate con
veyed by way of mortgage (b) ; but, with this exception, the words
"trust " and " trustee " shall extend to and include implied and con
structive trusts (c) , and shall extend to and include cases
[*1012] * where the trustee has some beneficial interest or estate in
the subject of the trust, and shall extend to and include

(b) As to the question upon the estate to an infant, and the executors
former Act, 1 W. 4, c. 60, whether prayed that the infant might be de
the word " trust "" included a " mort clared a trustee within the Act, and
gage," see note ( c) , p . 836 , 3d edit. that the property on payment of the
(c) A vendor, after a contract , has purchase-money might be conveyed
been held to be a trustee of shares in to the purchaser who had accepted
a joint-stock bank for the purchaser ; the title, and the prayer was sup
Re Angelo, 5 De G. & Sm. 278. But ported by the infant's counsel, the
in cases of real estate, if not univer Court made the order ; Re Lowry's
sally, at least where the alleged trus Will, 15 L. R. Eq . 78. [ This point
tee can possibly dispute the trust, the is, however, not likely to arise in the
constructive trust must first have been future in the case of freeholds , as by
declared by the decree of the Court, the Conveyancing and Law of Prop
and the infant heir of the vendor who erty Act, 1881 , s . 4, the personal
died intestate after having contracted representative of the vendor is em
to sell real estate is not a constructive powered to convey, where at his death
trustee for the purchaser unless so an enforceable contract is subsisting . ]
declared by decree ; Re Carpenter, 1 If the owner of copyholds covenant
Kay, 418 ; Re Burt, 9 Hare, 289 ; Re to surrender, and declares that in the
Dickenson, 17 L. T. 231 ; Cust v. meantime he will stand seised upon
Middleton, 7 Jur. N. S. 151 ; Re Weed trust for the covenantee, the cove
ing's Estate, 4 Jur. N. S. 707 ; Re nantor is a trustee within the Act ;
Faulder, W. N. 1866, p. 83 ; Jackson Re Collingwood's Trusts, 6 W. R. 536 ;
v. Milfield, 5 Hare , 538 ; Re Milfield, and see Steele v. Waller, 28 Beav. 466.
2 Ph. 254 ; [ Morgan v. Swansea Urban And even where there is no such de
Sanitary Authority, 9 Ch. D. 582. ] claration, yet if the contract be not
Re Wise, 5 De G. & Sm. 415, is dis in fieri, but has been carried out and
tinguishable ; and see Re Propert's completed, the covenantor is a trustee
Purchase, 22 L. J. N. S. Ch. 948. But within the Act ; Re Cuming, 5 L. R.
where a vendor died before accept Ch. App . 72 .
ance of the title having devised the If the cestui que trust has sold his
1350
 TRUSTEE ACT, 1850. *1012

the duties incident to the office of personal representative of a de

ceased person (a) :
The word " lunatic " shall mean any person who shall have been found
to be a lunatic upon commission of enquiry in the nature of a writ
de lunatico inquirendo :
The expression " person of unsound mind " shall mean any person not
an infant, who, not having been found to be a lunatic, shall be inca
pable from infirmity of mind (b) to manage his own affairs :
The word " devisee " shall, in addition to its ordinary signification,
mean the heir of a devisee and the devisee of an heir, and generally
any person claiming an interest in the lands of a deceased person,
not an heir of such deceased person, but by a title dependent solely
upon the operation of the laws concerning devise and descent :
The word " mortgage " shall be applicable to every estate, interest, or

equitable interest, and the sale has ficial owner of stock standing in his
been completed, the purchaser is then name, subject to a provision or direc
the cestui que trust, and may apply for tion for his maintenance which is
a transfer of the legal estate ; Re vested in some other person, is a con
Wilkinson's Trust, 10 Jur. N. S. 716 ; structive trustee within the Act ;
Re Groom, 11 L. T. N. S. 336. Gardner v. Cowles, 3 Ch. D. 304. ]
Where a testator had signed an Where a feme covert is a trustee of
agreement to convey certain ease stock, the husband, as the Bank acts
ments in compromise of an action, an upon his directions, is a constructive
infant devisee, no title being in ques trustee within the Act ; Re Wood, 7
tion, was held to be a constructive Jur. N. S. 323. [ See now 45 & 46
trustee within the Act ; Re Taylor, Vict. c. 75. ]
W. N. 1866, p. 5. An heir who takes by descent, but
Where a compulsory sale had been has bound himself on the doctrine of
made to a railway company, and the election to hold upon the trusts of the
purchase-money had been paid and will, is a trustee within the Act ;
possession taken in the lifetime of the Dewar v. Maitland, 2 L. R. Eq . 834 .
ancestor, the case was held to be Three persons were appointed as
within the Act ; Re Russell's Estate, signees of a bankrupt , and one of
12 Jur. N. S. 224 ; and see Re Bad them resigned his office and went
cock, 2 W. R. 386. abroad, and his resignation was ac
A vendor who refused to convey cepted by the creditors, and the Court
after tender of a deed settled by the held that the one who had resigned
judge, or to receive the purchase and gone abroad was a trustee within
money, was declared a trustee, and the Act ; and an order was made for
on the purchaser paying his purchase vesting the legal estate in the two
money into Court, his solicitor was to acting assignees ; Re Joyce's Estate,
execute the conveyance for the ven 2 L. R. Eq. 576 ; 12 Jur. N. S. 1015.
dor ; Warrender v. Foster, 1 Set. on [(a ) A trustee may by virtue of
Dec. 438, 4th edit. this definition be appointed to per
An executor holding a legacy be form the duties of an executor ; Re
queathed to persons successively is Moore, 21 Ch . D. 778. ]
a constructive trustee ; Re Davis's (b) See Re Wakeford, 1 Jon. &
Trusts, 12 L. R. Eq. 214. Lat. 2 (under 1 W. 4, c. 60) ; Re
[ An infant who is the sole bene Jones, 6 Jur. 545.
1351
*1013 TRUSTEE ACT, 1850 .

property in lands or personal estate which would in a Court of equity

be deemed merely a security for money :
The word " person " used and referred to in the masculine gen
[* 1013 ] der shall include a female as well as a male, and shall
include a body corporate (a) :
And generally, unless the contrary shall appear from the context, every
word importing the singular number only shall extend to several
persons or things, and every word importing the plural number shall
apply to one person or thing, and every word importing the mascu
line gender only shall extend to a female.
III . And be it enacted, that when any lunatic or person of unsound
mind (b) shall be seised or possessed of any lands upon any trust ( c) or
by way of mortgage (d) , it shall be lawful for the Lord Chancellor ( e ),

(a) By 25 & 26 Vict. c. 37, s. 10, the Lords Justices is now, by the 7th
the Trustee Act, 1850, is made to section of 38 & 39 Vict. c. 77 , exer
extend to a trustee or trustees of the cisible by such of the Judges of the
private estates of Her Majesty, her High Court of Justice or Court of
heirs or successors , and any petition Appeal as are intrusted by the
or other proceeding for obtaining the Queen's sign manual with the care,
benefit of the Act shall be in the &c., of lunatics. ]
name or names of any person or per In cases of lunacy or unsoundness of
sons authorised by any writing under mind, the application must be made
the sign manual. exclusively to the Judges so intrusted
(b) Where the unsoundness of as aforesaid, as the other Judges
mind is contested, the case is not have no jurisdiction ; Jeffryes v.
within the Act ; Re Walker, Cr. & Drysdale, 9 W. R. 428 ; Re Ormerod,
Ph. 147 ; Re Campbell, 18 L. T. 202. 3 De G. & J. 249 , and cases there
(c) See definition of Trust, p . 1011. cited ; and see Re Irby, 17 Beav.
(d) See definition of Mortgage, 334 ; Herring v. Clark, 4 L. R. Ch.
ante, p. 1012. [ Semble, that the Court App. 167 ; Re Mason, 10 L. R. Ch.
has no jurisdiction under this section App . 273 ; [ Re Stamper, 46 L. T. N.
to make an order for the transfer of S. 372. ]
a mortgage vested in a lunatic . The As the section speaks of convey
lunatic's interest may, however, be ance and assignment, the Court has no
sold under sect. 116 of the Lunacy authority under it to vest a power
Regulation Act, 1853 ; Re Brown, 50 though an imperative one ; Re Porter's
L. T. N. S. 373. ] Will, 3 W. R. 583. See post, 1031.
(e) It was doubted whether the [Where the person of unsound
Lords Justices, though they were in mind is tenant in tail, it is not nec
fact intrusted under the Queen's sign essary in the vesting order to refer
manual with the care, &c ., of lunatics, to the Fines and Recoveries Act, or
had power to exercise the jurisdiction to the manner in which the trustee
given by the Act to the Lord Chan could have conveyed if sane . The
cellor intrusted, &c.; Re Waugh's order should simply direct the prop
Trust, 2 De G. M. & G. 279 ; Re Pat erty to vest for all the estate which
tinson, 21 L. J. N. S. Ch. 280. See, the person of unsound mind could
however, 15 & 16 Vict. c. 87, s. 15, convey if sane ; Mason v. Mason, 7
removing the doubt, and the 11th Ch . D. 707. ]
section of the Trustee Extension Act, Where one of several trustees is a
post, p . 1044. [ This jurisdiction of lunatic, and it is desired to obtain
1352
 TRUSTEE ACT, 1850. * 1014

intrusted by virtue of the Queen's sign manual with the care of the per
sons and estates of lunatics, to make an order that such lands be
vested (a) in such a person or persons (b) in such manner and [ * 1014 ]
for such estate as he shall direct ; and the order shall have the
same effect as if the trustee or mortgagee had been sane, and had duly
executed a conveyance or assignment (c) of the lands in the same manner
for the same estate (d) .
IV. And be it enacted , that when any lunatic or person of unsound
mind shall be entitled to any contingent right in any lands upon any trust
or by way of mortgage, it shall be lawful for the Lord Chancellor,
intrusted as aforesaid, to make an order wholly releasing such lands from
such contingent right, or disposing of the same to such person or
persons as the said Lord Chancellor shall direct ; and the order shall
have the same effect as if the trustee or mortgagee had been sane,
and had duly executed a deed so releasing or disposing of the contin
gent right.
V. And be it enacted, that when any lunatic or person of unsound
mind shall be solely entitled to any stock or to any chose en action upon
any trust or by way of mortgage, it shall be lawful for the Lord Chan
cellor, intrusted as aforesaid, to make an order vesting in any person or
persons ( e) the right to transfer such stock, or to receive the dividends
or income thereof, or to sue for and recover such chose en action , or any

from the Court an appointment of [ (b) The Court will not on the
new trustees in the place of the petition of a person absolutely enti
lunatic and others with a vesting tled vest the property in the person
order, the petition should be intituled so entitled, but will appoint a new
in Lunacy and in the Chancery trustee and vest the property in him,
Division ; [ Re Pearson , 5 Ch . D. 982 ; leaving the petitioner to take further
Re Chell, 49 L. T. N. S. 196 ; ] Re steps to put an end to the trust ; Re
Davidson, 20 L. J. N. S. Ch. 644. Holland, 16 Ch . D. 672 ; but see Re
And see Trustee Extension Act, sect. Currie, 10 Ch . D. 93. ]
10. (c) See definition of Conveyance
As to a person " of unsound mind," and Assignment, pp. 1010, 1011 .
who is an infant, see p. 1015, post, (d) As to costs, see sect. 51 , and
note (c). post, p. 1037, note (b) .
As to the parties to be served, see [(e) The Court of Lunacy will not
p. 1033, post, note (c) . under this section make an order
(a ) The vesting order being a con vesting the right to transfer the stock
veyance, should be so worded as to in the persons beneficially entitled to
make it clear by the description what it, as that would in effect be an ad
property passes ; Re Ord's Trust, 3 ministration of the trust in Lunacy
W. R. 386. which the Court always refuses, but
Where the circumstances require on a petition intituled in the Chan
a severance of the property, the cery Division as well as in Lunacy
Court will make two vesting orders the Court will appoint the benefi
instead of one general one ; Brader ciaries new trustees of the settlement,
v. Kerby, W. N. 1872 , p. 174. and vest the right in them in that
capacity ; Re Currie , 10 Ch . D. 93. ]
1353
 *1015 TRUSTEE ACT, 1850.

interest in respect thereof (ƒ ) , and when any person or persons shall be

entitled jointly with any lunatic or person of unsound mind to any stock
or chose en action upon any trust or by way of mortgage, it shall be
lawful for the said Lord Chancellor to make an order vesting the right
to transfer such stock, or to receive the dividends or income
[ * 1015] thereof, * or to sue for and recover such chose en action, or any
interest in respect thereof, either in such person or persons,
so jointly entitled as aforesaid (a) , or in such last-mentioned person or
persons, together with any other person or persons the said Lord Chancellor
may appoint (b).
VI. And be it enacted, that when any stock shall be standing in the
name of any deceased person whose personal representative is a lunatic
or person of unsound mind, or when any chose en action shall be vested
in any lunatic or person of unsound mind as the personal representative
of a deceased person, it shall be lawful for the Lord Chancellor, in
trusted as aforesaid, to make an order vesting the right to transfer such
stock, or to receive the dividends or income thereof, or to sue for and
recover such chose en action or any interest in respect thereof, in any
person or persons he may appoint.
VII. And be it enacted, that where any infant (c ) shall be seised or
possessed of any lands upon any trust or by way of mortgage, it shall be

(f) Where a person of unsound an order vesting the right to transfer

mind was entitled to a sum of stock until a new trustee had been appointed
as trustee, and also entitled to another in the place of the lunatic. But the
sum of the same stock beneficially, section clearly gives jurisdiction to
as the Bank would not apportion the vest the right in the other trustees
past dividend between the trust estate without appointing a new trustee, and
and the beneficial estate, the Court where there is no object to be at
in appointing new trustees vested the tained by such appointment it will be
right to receive the whole dividend dispensed with; Re Watson, 19 Ch. D.
in the new trustees upon their under 384 ; and see Re Ray, 47 L. T. N. S.
taking that they would invest in the 500.]
name of the old trustee so much as (b) The lunatic husband of a feme
belonged to him beneficially ; Re covert a trustee is within the Act ; Re
Stewart, 2 De G. F. & J. 1 ; [see Wood, 3 De G. F. & J. 125 ; and see
Hodges v. Wheeler, 1 Set. on Dec. Ex parte Bradshaw, 2 De G. M. & G.
4th edit. 522. ] 900.
(a ) See Re White, 5 L. R. Ch. (c) A " person of unsound mind "
App. 698 ; [ Re Wacher, 22 Ch. D. 535, is defined by the 2d section to mean
where, one of three executors of the " any person not an infant, who, not
surviving executor of a testator being having been found a lunatic , shall be
of unsound mind, an order was made incapable from infirmity of mind to
giving the right to transfer stock be manage his own affairs." And, there
longing to the estate of the original fore, where an infant trustee is of un
testator and still standing in his name. sound mind the case does not fall
In Re Nash, 16 Ch. D. 503, where under the lunacy jurisdiction of the
consols were standing in the names Chancellor, but the ordinary jurisdic
of three trustees one of whom was a tion in Chancery ; Re Arrowsmith's
lunatic, L. J. Cotton refused to make Trusts, 4 Jur. N. S. 1123. And the
1354
 TRUSTEE ACT, 1850 . * 1016

lawful for the Court of Chancery ( d) to make an order vesting such lands
in such person or persons in such manner and for such estate as the said
Court shall direct ( e ) ; and the order shall have the same effect
as if the infant trustee or mortgagee, had been twenty-one years [* 1016]
of age, and had duly executed a conveyance or assignment of the
lands in the same manner for the same estate (a).
VIII. And be it enacted, that where any infant shall be entitled to
any contingent right in any lands upon any trust or by way of mortgage,
it shall be lawful for the Court of Chancery to make an order wholly
releasing such lands from such contingent right, or disposing of the same
to such person or persons as the said Court shall direct ; and the order
shall have the same effect as if the infant had been twenty-one years of
age, and had duly executed a deed so releasing or disposing of the con
tingent right.
IX. And be it enacted, that when any person solely (b) seised or
possessed of any lands upon any trust ( c) shall be out of the jurisdiction of

infant need not be served with the would have to acknowledge the deed,
petition ; Re Tweedy, 9 W. R. 398 ; vested it in such person or persons as
Re Willan, Ib. 689. the executor and executrix should ap
(d) As to the County Courts, see point, and in default thereof, in the
post, p. 1045. executor and executrix ; Re Powell,
(e) It is now settled, notwithstand 4 K. & J. 338.
ing the doubts entertained at first (a) Tenant for life with remainder
(see Re Howard's Estate, 5 De G. & to an infant in tail. A vesting order
Sm. 435 ) , that the Court will make as to the estate of the infant with the
an order, vesting an estate on a pur consent of the tenant for life, will
chase to the uses commonly called bar the entail and remainders over ;
the uses to bar dower ; but will not Powell v. Matthews, 1 Jur. N. S. 973.
incorporate a declaration that no See the interpretation clause as to
woman shall be entitled to dower, the words " convey," and "' convey
this being no part of the conveyance ; ance."
but as uses to bar dower have not (b) [ It has been held] that a co
that effect as to a woman married parcener who has no beneficial inter
since Jan. 1 , 1834, a woman so mar est, but holds in trust for the other
ried will be entitled to dower unless coparcener, is solely seised as trustee
otherwise barred ; Re Lush's Estate, for such coparcener ; McMurray v.
5 De G. & Sm. 436 ; Davey v. Miller, Spicer, 5 L. R. Eq. 527 ; [ but see Re
17 Jur. 908. Greenwood's Trusts, 27 Ch . D. 359.]
An order has been made to vest (c ) An heir who takes the trust
the legal estate in the devisees of a estate by the disclaimer of the trus
mortgagor, subject to a charge cre tees, Wilks v. Groom, 6 De G. M. &
ated by his will ; Re Ellerthorpe, 18 G. 205, [ or by the death of the trus
Jur. 669. tee in the testator's lifetime, Re Gill,
Where the executor and executrix 1 Set. on Dec. 4th edit. 520, ] is a
(a married woman) of a mortgagee trustee within the section. And an
applied for a vesting order, the Court heir of a mortgage who had taken
instead of vesting the property in the possession has been held to be a trus
executor and executrix, when the tee for the mortgagee's executors ; Re
feme covert in order to part with it Skitter's Mortgage, 4 W. R. 791 ;
1355
* 1017 TRUSTEE ACT, 1850.

the Court of Chancery ( d) , or cannot be found (e ) , it shall be lawful for

the said Court (ƒ) to make an order vesting such lands in such
[*1017] person or * persons in such manner and for such estate as the
said Court shall direct ; and the order shall have the same effect
as if the trustee had duly executed a conveyance or assignment of the
lands in the same manner and for the same estate.
X. And be it enacted, that when any person or persons shall be seised
or possessed of any lands jointly (a ) with a person out of the jurisdiction
of the Court of Chancery, or who cannot be found, it shall be lawful for
the said Court to make an order vesting the lands in the person or persons
so jointly seised or possessed, or in such last-mentioned person or persons
together with any other person or persons, in such manner and for such
estate as the said Court shall direct ; and the order shall have the same
effect as if the trustee (b ) out of the jurisdiction, or who cannot be found,
had duly executed a conveyance or assignment of the lands in the same
manner for the same estate (c) .

see post, 1019, note (b) ; [ and see 44 gees ; a new trustee was afterwards
& 45 Vict. c. 41 , s. 30. ] appointed in his place, and on a peti
A person had contracted to sell an tion for a vesting order, it was held
estate, which in equity had converted that he was a trustee within the mean
it into personalty, but before he exe ing of the Act for the transferee of
cuted the conveyance died intestate, the mortgage ; Re Walker's Mortgage
and it was held that the heir was a Trusts, 3 Ch . D. 209.]
trustee for the personal representa [ ( ) This section applies where
tive ; Re Badcock, 2 W. R. 386. See the trustee out of the jurisdiction is of
ante, p. 1011 , note (c) ; [and see 44 & unsound mind ; Re Gardner's Trusts ,
45 Vict. c. 41 , s . 4. ] 10 Ch. D. 29. ]
(d) A temporary absence, as where [ (a) The words " seised jointly "
the captain of a merchantman was are not limited to a legal joint ten
abroad on a voyage, is not within the ancy but are used in a wide sense, and
Act ; Hutchinson v . Stephens, 5 Sim. apply to the case of lands descending
499 (a case under the old Act, 11 G. to the co-heiress and the surviving heir
4 & 1 W. 4, c. 60) . [ A trustee may or (if the case fall within sect. 30 of
be treated as out of the jurisdiction, the Conveyancing and Law of Prop
although he appears by counsel ; Still erty Act, 1881 ) the personal repre
well v. Ashley, 1 Set. on Dec. 4th sentative of a deceased co-heiress of
edit . 520. ] the deceased trustee ; Re Greenwood's
(e) A defendant against whom an Trusts, 27 Ch. D. 359 ; Re Templer's
absolute decree of foreclosure upon Trusts, 4 N. R. 494 ; but see McMur
an equitable mortgage was made, but ray v. Spicer, 5 L. R. Eq. 527. ]
who could not be found, was deemed (b) The word " trustee " does not
to be a trustee for the mortgagee include a joint mortgagee. One of the
within the Act, and a vesting order mortgagees being out of the jurisdic
was made accordingly ; Lechmere v. tion, the mortgage money was paid to
Clamp, 30 Beav. 218 ; 31 Beav. 578. the joint account of the joint mortga
See p. 1026 , post, note (e) . gees, but the Court refused to make
[One of three joint mortgagees, an order ; Re Osborn's Mortgage, 12
who were trustees, refused to concur L. R. Eq. 392.
in a transfer of the mortgage which (c) The concluding words of this
was executed by the other mortga section (as a conveyance by one of
1356
 TRUSTEE ACT, 1850. *1018

XI. And be it enacted , that when any person solely entitled to a con
tingent right in any lands upon any trust shall be out of the jurisdiction
of the Court of Chancery, or cannot be found, it shall be lawful for the
said Court to make an order wholly releasing such lands from such con
tingent right, or disposing of the same to such person or persons as the
said Court shall direct ; and the order shall have the same effect as if
the trustee had duly executed a conveyance so releasing or disposing of
the contingent right.
XII. And be it enacted, that when any person jointly entitled with
any other person or persons to a contingent right in any lands upon any
trust shall be out of the jurisdiction of the Court of Chancery, or cannot
be found, it shall be lawful for the said Court to make an order disposing
of the contingent right of the person out of the jurisdiction or who can
not be found, to the person or persons so jointly entitled as
aforesaid, or to such last-mentioned person or persons together [* 1018 ]
with any other person or persons ; and the order shall have the
same effect as if the trustee out of the jurisdiction, or who cannot be
found, had duly executed a conveyance so releasing or disposing of the
contingent right.
XIII. And be it enacted, that where there shall have been two or
more persons jointly seised or possessed of any lands upon any trust, and
it shall be uncertain which of such trustees was the survivor, it shall be law
ful for the Court of Chancery to make an order vesting such lands in
such person or persons in such manner and for such estate as the said
Court shall direct ; and the order shall have the same effect as if the sur
vivor of such trustees had duly executed a conveyance or assignment of
the lands in the same manner for the same estate.
XIV. And be it enacted, that where any one or more person or per
sons shall have been seised or possessed of any lands upon any trust, and
it shall not be known , as to the trustee last known to have been seised or
possessed, whether he be living or dead, it shall be lawful for the Court of
Chancery to make an order vesting such lands in such person or persons
in such manner and for such estate as the said Court shall direct ; and
the order shall have the same effect as if the last trustee had duly exe
cuted a conveyance or assignment of the lands in the same manner for
the same estate.

several trustees would have the effect If one of the co-heirs of a mortga
of severing the joint tenancy) led to gee be out of the jurisdiction, he is a
a doubt at one time whether the Court trustee within the 10th section of the
had power under this section to vest Act for the persons entitled to the
the lands in the joint owner within mortgage money, and the entirety on or
the jurisdiction and another as joint their petition may be vested in the co
tenants; Re Watt's Settlement, 9 Hare, heir within the jurisdiction ; Re Tem
106 ; Re Plyers' Trust, Ib. 220. But pler's Trusts, 4 N. R. 494 ; and see
the doubt has since been dispelled ; Re Hughes' Settlement, 2 H. & M. 695.
Smith v . Smith, 3 Drew. 72 ; Re Mar See p. 1019, note (b) .
quis of Bute's Will, Johns. 15.
1357
* 1019 TRUSTEE ACT, 1850 .

XV. And be it enacted, that when any person seised of any lands
upon any trust shall have died intestate as to such lands without an heir,
or shall have died and it shall not be known who is his heir or devisee, it
shall be lawful for the Court of Chancery to make an order vesting such
lands in such person or persons in such manner and for such estate as the
said Court shall direct ; and the order shall have the same effect as if the
heir or devisee of such trustee had duly executed a conveyance of the
lands in the same manner for the same estate (a).
XVI. And be it enacted, that when any lands are subject to a contin
gent right in an unborn person or class of unborn persons who upon com
ing into existence would in respect thereof become seised or possessed of
such lands upon any trust, it shall be lawful for the Court of Chancery
to make an order which shall wholly release and discharge
[ * 1019 ] * such lands from such contingent right in such unborn person
or class of unborn persons, or to make an order which shall vest
in any person or persons the estate or estates which such unborn person
or class of unborn persons would upon coming into existence be seised or
possessed of in such lands.
XVII. and XVIII.— ( These sections were repealed by the Extension Act.
See post, p. 1041.)
XIX. And be it enacted, that when any person to whom any lands
have been conveyed by way of mortgage shall have died (a) without having
entered into the possession or into the receipt of the rents and profits
thereof, and the money due in respect of such mortgage shall have been
paid to a person entitled to receive the same, or such last-mentioned
person shall consent to an order for the reconveyance of such lands (b),

(a ) This section does not apply to they were chattels real, it is conceived
leaseholds for years ; Re Mundel's that this section has ceased to have
Trust, 8 W. R. 683 ; Re Harvey, Set. any application to lands held by a
on Dec. 520, 4th edit. But a vesting trustee dying after the 31st Decem
order as to leaseholds for years may ber, 1881. ]
be made on the appointment of new [(a) Where the death has occurred
trustees under the 34th section ; Re since the 31st of December, 1881 , it
Driver's Settlement, 19 L. R. Eq. 352 ; is now unnecessary to have recourse
Re Rathbone, 2 Ch. D. 483 ; Re Dal to this section, see 44 & 45 Vict. c.
gleish's Settlement, 4 Ch . D. 143, 41 , s. 30. ]
reversing S. C. 1 Ch. D. 46 ; Re Mun (b) The personal representative of
del's Trust, 6 Jur. N. S. 880 ; Re Mat a mortgagee who had not taken posses
thew's Settlement, 2 W. R. 85. See, sion, or the assignee of the represen
however, Re Robinson's Will, 9 Jur. tative, may obtain an order vesting
N. S. 885. the legal estate, which has descended
[ An order vesting the property in to the heir, notwithstanding the word
a person absolutely entitled can be "re-conveyance " points in strictness
made under this section ; Re Godfrey's to a conveyance to the mortgagor ;
Trusts, 23 Ch. D. 205. Re Boden's Trust, 1 De G. M. & G.
Now that by 44 & 45 Vict. c. 41 , s. 57 ; 9 Hare, 820 ; Re Quinlan's Trust,
30, trust estates devolve upon the 9 Ir. Ch . Rep . 306 ; Re Lea's Trust,
legal personal representatives as if 6 W. R. 482 ; overruling Meyrick's
1358
 |

TRUSTEE ACT, 1850. *1020

then in any of the following cases it shall be lawful for the Court of
Chancery to make an order vesting such lands in such person or persons
in such manner and for such estate as the said Court shall direct ; that is
to say :
When an heir or devisee (c ) of such mortgagee shall be out of the juris
diction of the Court of Chancery or cannot be found :
When an heir or devisee of such mortgagee shall, upon a demand by a
person entitled to require a conveyance of such lands or a duly
authorised agent of such last-mentioned person, have stated in writ
ing that he will not convey the same, or shall not convey the same
for the space of twenty-eight days next after a proper deed ( d ) for
conveying such lands shall have been tendered to him by a person
entitled as aforesaid, or a duly authorised agent of such last-men
tioned person :
When it shall be uncertain which of several devisees of such mortgagee
was the survivor :
When it shall be uncertain as to the survivor of several de
visees of such mortgagee, or as to the heir of such mort- [ *1020]
gagee whether he be living or dead :
When such mortgagee shall have died intestate as to such lands, and
without an heir, or shall have died and it shall not be known who is
his heir or devisee :
And the order of the said Court of Chancery made in any one of the
foregoing cases shall have the same effect as if the heir or devisee or sur
viving devisee, as the case may be, had duly executed a conveyance or
assignment of the lands in the same manner and for the same estate.
XX. And be it enacted, that in every case where the Lord Chancellor,
intrusted as aforesaid, or the Court of Chancery, shall, under the pro
visions of this Act, be enabled to make an order having the effect of a
conveyance or assignment of any lands, or having the effect of a release
or disposition of the contingent right of any person or persons, born or
unborn, it shall also be lawful for the Lord Chancellor, intrusted as afore
said, or the Court of Chancery, as the case may be (a) , should it be
deemed more convenient, to make an order appointing a person to convey ,

Estate, 9 Hare, 116 ; and see Re 791 ; or under the 15th section, Re
Hewitt, 27 L. J. N. S. Ch. 302. Keeler, 11 W. R. 62.
If the mortgagee died intestate, (c) See the interpretation clause,
and was illegitimate, the Court will p. 1012, ante, as to the meaning of
make the vesting order on service of the word " devisee ."
the petition on the Crown ; Re Min (d) As to the instrument to be
chin's Estate, 2 W. R. 179. tendered in the case of copyholds, see
If the mortgagee had taken posses Rowley v. Adams,, 14 Beav. 130,
sion the executors of the mortgagee where the question arose upon the
may obtain an order for vesting in 17th section, since repealed.
them the legal estate, which has de- (a) In the case of an infant trus
scended to the heir, under the 9th tee being a "person of unsound mind,"
section ; Re Skitter's Trusts , 4 W. R. the case falls, not under lunacy, but
1359
*1021 TRUSTEE ACT, 1850.

or assign such lands, or release or dispose of such contingent right ; and the
conveyance or assignment, or release or disposition , of the person so
appointed (b) , shall, when in conformity with the terms of the order by
which he is appointed, have the same effect, in conveying or assigning
the lands, or releasing or disposing of the contingent right, as an order
of the Lord Chancellor, intrusted as aforesaid, or the Court of Chancery,
would in the particular case have had under the provisions of this Act.
And in every case where the Lord Chancellor, intrusted as aforesaid, or
the Court of Chancery, shall, under the provisions of this Act, be enabled
to make an order vesting in any person or persons the right to transfer
any stock transferable in the books of the Governor and Company of the
Bank of England, or of any other company or society established or to
be established, it shall also be lawful for the Lord Chancellor, intrusted
as aforesaid, or the Court of Chancery, if it be deemed more convenient,
to make an order directing the Secretary, Deputy Secretary, or Accountant
General for the time being of the Governor and Company of the Bank of
England, or any officer of such other company or society, at once to transfer
or join in transferring the stock to the person or persons to be
[* 1021 ] named in * the order ( a) ; and this Act shall be a full and com
plete indemnity and discharge to the Governor and Company of
the Bank of England, and all other companies or societies, and their
officers and servants, for all acts done or permitted to be done pursuant
thereto (b) .
XXI. And be it enacted, that as to any lands situated within the
Duchy of Lancaster or the counties palatine of Lancaster or Durham, it
shall be lawful for the Court of the Duchy Chamber of Lancaster, the
Court of Chancery in the county palatine of Lancaster, or the Court of
Chancery in the county palatine of Durham, to make a like order in the

under the ordinary jurisdiction of (a) The person here meant is not
the Court ; Re Arrowsmith's Trusts , a beneficiary, but where a person has
4 Jur. N. S. 1123 ; see p. 1015, ante, become absolutely entitled, the Court
note (c). can appoint him a trustee, and direct
(b) The conveyance should con a transfer to him ; Re Dickson's Set
tain a recital showing that it is made tlement, 27 L. T. N. S. 671 ; 21 W. R.
in obedience to the order of the Court, 220 ; [and see Re Currie, 10 Ch. D..
and should be executed by the per 93. ]
son appointed to convey in his own name ; (b) The Court under this section
though the late Vice-Chancellor of can only direct the bank officer to
England in a case arising upon the transfer in the place of the person
1 W. 4, c. 60, seems to have consid creating the difficulty, and therefore
ered that the execution by the person where the stock was standing in the
appointed to convey, of a deed pur names of two persons, one of whom
porting to be the conveyance of the was out of the jurisdiction , it was
trustee who refused, would, with a necessary to order the person within
mere reference in the attestation the jurisdiction to join in the trans
clause to the order appointing the fer ; Wade v. Hopkinson ; Hodgson
person to convey, be sufficient ; Ex v. Hodgson, 1 Set . on Dec. 521 , 4th
parte Foley, 8 Sim. 395. edit.
1360
 TRUSTEE ACT, 1850. * 1022

same cases as to any lands within the jurisdiction of the same Courts
respectively as the Court of Chancery has under the provisions herein
before contained been enabled to make concerning any lands ; and every
such order of the Court of the Duchy Chamber of Lancaster, the Court of
Chancery in the county palatine of Lancaster, or the Court of Chancery
in the county palatine of Durham, shall, as to such lands, have the same
effect as an order of the Court of Chancery : provided always that no
person who is anywhere within the limits of the jurisdiction of the High
Court of Chancery shall be deemed by such local Courts to be an absent
trustee or mortgagee within the meaning of this Act (c) .
XXII. And be it enacted, that when any person or persons shall be
jointly entitled with any person out of the jurisdiction of the Court of
Chancery (d), or who cannot be found, or concerning whom it shall be
uncertain whether he be living or dead, to any stock or chose en action upon
any trust (e) , it shall be lawful for the said Court (ƒ ) , to make
an order * vesting the right to transfer such stock, or to receive [* 1022 ]
the dividends or income thereof ( a ) , or to sue for or recover such
chose en action, or any interest in respect thereof, either in such person or
persons so jointly entitled as aforesaid, or in such last-mentioned person or
persons together with any person or persons the said Court may appoint ( b) ;

(c) This section does not (nor (f) If the Court be asked to
does 17 & 18 Vict. c. 82 ) , enable the transfer the stock to new trustees
provincial Courts to make orders in appointed under a power, it must first
lunacy; Re Ormerod , 3 De G. & J. 249. be satisfied of the fitness of the per
(d) Where the trustee out of the sons proposed, and all parties inter
jurisdiction is incapacitated from lu ested must be served ; Re Maynard's
nacy or infancy, the power of the Settlement, 16 Jur. 1084. See p.
Court must be sought for in the sec 1030, note, and p . 1033, note (c) .
tions applicable to cases of lunatics (a) Of four trustees of stock one
and infants, and not in this section. was out of the jurisdiction , and M. R.,
Consequently, in a case arising be without disturbing the capital, vested
fore the Trustee Extension Act (see the right to receive the dividends in
3d section) , the Court had no au the three trustees. The Bank ap
thority to make a vesting order with pealed from this, on the ground that
respect to stock held by an infant the section did not authorise an un
trustee out of the jurisdiction ; Cra limited severance of the dividends
mer v. Cramer, 5 De G. & Sm. 312. from the capital, and the L. JJ. con
The order should recite the fact fined the order to the dividends to
that the trustee is out of the jurisdic accrue during the lives of the three
tion ; Re Mainwaring, 26 Beav. 172. trustees ; Re Peyton's Settlement, 2
As to what will amount to being De G. & J. 290 ; 25 Beav. 317.
out of the jurisdiction , see ante, p . (b) Where the stock is vested in
1016, note (d) . two trustees, one of whom is out of
(e) The husband of an executrix is the jurisdiction, the Court has no
a trustee within the Act ; Ex parte authority under the first branch of
Bradshaw, 2 De G. M. & G. 900 ; the section to vest the right in the
and see Re Wood, 3 De G. F. & J. 125. person who asks for it as being the
[But see now 45 & 46 Vict. c. 75, ss. absolute owner ; Re Brass's Trust, 4 W.
1, 2, 5, 18. ] R. 764 ; but see Ex parte Bradshaw,
1361
* 1023 TRUSTEE ACT, 1850.

and when any sole trustee (c ) of any stock or chose en action shall be out
of the jurisdiction of the said Court, or cannot be found, or it shall be
uncertain whether he be living or dead, it shall be lawful for the said Court
to make an order vesting the right to transfer such stock, or to receive
the dividends or income thereof, or to sue for and recover such chose en
action, or any interest in respect thereof, in any person or persons the
said Court may appoint.
XXIII. And be it enacted, that where any sole trustee (d) of any
stock or chose en action shall neglect or refuse to transfer such stock, or to
receive the dividends or income thereof, or to sue for or recover such chose en
action or any interest in respect thereof, according to the direction of the
person absolutely entitled thereto (e) , for the space of twenty-eight days
next after a request in writing (ƒ) for that purpose shall have
[*1023 ] been made to him by the person entitled thereto, it shall be
lawful for the Court of Chancery to make an order (a) vesting
the sole right to transfer such stock, or to receive the dividends or income
thereof (b), or to sue for and recover such chose en action, or any interest
in respect thereof, in such person or persons as the said Court may
appoint.
2 De G. M. & G. 900. It does not ing, or, which is more likely, because
appear from the report what jurisdic the petitioner's title was disputed.
tion the Court had to make the order (e) A tenant for life is not a per
in Re Ryan's Settlement, 9 W. R. 137. son absolutely entitled within the mean
The stock was standing in the names ing of the Act, except for the purpose
of two deceased trustees, and the sur of an application limited to the in
vivor of them had died intestate, and come only ; nor is one of two trus
as letters of administration to him in tees ; Mackenzie v. Mackenzie, 5 De
volved no inconvenience, but only G. & Sm. 338 ; more fully reported
expense, the case was not within the 16 Jur. 723. But persons duly
purview of the Act, except on the appointed new trustees are " abso
appointment of new trustees ; see pp. lutely entitled" ; Ex parte Russell, 1
1028, note ( a) , and 1031 , note (e) . Sim. N. S. 404 ; Re Baxter's Will, 2
(c) A. and B. being trustees, the Sm. & G. App. v.; Re Ellis's Settle
Master found that it was uncertain ment, 24 Beav. 426.
whether A. was living or dead, but (f) The case of a trustee refusing
that B. was living. Afterwards B. to obey the order of the Court was
died . Held that A. was not a sole not within this section ; Mackenzie v.
trustee within the meaning of the Mackenzie, 5 De G. & Sm. 338. But
22d section, as he was not originally see now sect. 4 of the Trustee Exten
the sole trustee ; Re Randall's Will, sion Act.
1 Drew. 401. (a) As to the person to be served
(d) Sole trustee may mean the under this and the following section,
rhole number of the co-trustees ; see see post, 1033, note (c) .
interpretation clause, ante, p. 1013. (b) The Court cannot, under this
Re Hartnall, 5 De G. & Sm. 111 ; [Re section, make any order as to divi
Hyatt's Trusts, 21 Ch. D. 846. ] See dends accrued due subsequently to
Re Spawforth's Settlement, 12 W. R. the date of the request, and à fortiori
978, in which case the order was re not as to prospective dividends ; Re
fused , but it does not appear whether, Hartnall, 5 De G. & Sm . 111. See
because the request was not in writ now sect. 4 of Extension Act.
1362
 TRUSTEE ACT, 1850. *1024

XXIV. And be it enacted, that where any one of the trustees of any
stock or chose en action shall neglect or refuse to transfer such stock, or to
receive the dividends or income thereof, or to sue for or recover such chose en
action according to the directions of the person absolutely entitled thereto,
for the space of twenty-eight days next after a request in writing for that
purpose shall have been made to him or her by such person, it shall be
lawful for the Court of Chancery to make an order vesting the right to
transfer such stock, or to receive the dividends or income thereof, or to
sue for and recover such chose en action, in the other trustee or trustees of
the said stock or chose en action, or in any person or persons whom the
said Court may appoint jointly with such other trustee or trustees (c) .
XXV. And be it enacted, that when any stock shall be standing in the
sole name of a deceased person, and his or her personal representative shall
be out of thejurisdiction of the Court of Chancery, or cannot be found (d),
or it shall be uncertain whether such personal representative be living or dead,
or such personal representative (e) shall neglect or refuse to transfer such
stock, or receive the dividends or income thereof, according to the direction
of the person absolutely entitled thereto, for the space of twenty-eight days
next after a request in writing for that purpose shall have been made to
him by the person entitled as aforesaid, it shall be lawful for the Court
of Chancery to make an order vesting the right to transfer such stock,
or to receive the dividends or income thereof, in any person or persons
whom the said Court may appoint.
" XXVI. And be it enacted, that where any order shall have [ * 1024 ]
been made under any of the provisions of this Act vesting the
right (a ) to any stock in any person or persons appointed by the Lord
Chancellor, intrusted as aforesaid, or the Court of Chancery, such legal
right shall vest accordingly, and thereupon the person or persons so ap
pointed are hereby authorised and empowered to execute all deeds and

(c) See Re White, 5 L. R. Ch. App. whether he intends doing so , and has
698. neglected to transfer ; Re Ellis's Set
[ (d) Where stock was standing in tlement, 24 Beav. 426 ; [ and where
the names of two original trustees the executor of the executor of the
(both deceased) , and the survivor of last surviving trustee refuses to prove ;
them had died intestate, and there Re Price's Settlement, W. N. 1883 , p .
had never been any representation 202 ] ; and see under 1 W. 4, c . 60 ;
taken to his estate, but new trustees Cockell v. Pugh, 6 Beav. 293 ; Re
had been appointed under a power, Lunn's Charity , 15 Sim. 464 ; and the
the Court reappointed the new trus Court seems to have made a similar
tees, and made an order vesting the order when the next of kin who was
right to call for a transfer of and to entitled to take out administration
transfer the stock in the new trus had refused to make the transfer ;
tees ; Re Crowe's Trusts, 14 Ch . D. Re Stroud's Trusts, W. N. 1874 , p.
304, 610 ; and see Re Hilliard's Set 180 .
tlement Trust, 42 L. T. N. S. 79. ] (a) See Sect. 6 of the Trustee Ex
(e) This enactment applies where tension Act, and p. 1043, note (b) ,
the executor of a surviving trustee post.
has not proved, and declines to say
1363
*1025 TRUSTEE ACT, 1850.

powers of attorney, and to perform all acts relating to the transfer of

such stock into his or their own name or names or otherwise (b) , or relat
ing to the receipt of the dividends thereof, to the extent and in conform
ity with the terms of such order ; and the Bank of England, and all
companies and associations whatever, and all persons, shall be equally
bound and compellable to comply with the requisitions of such person or
persons so appointed as aforesaid , to the extent and in conformity with
the terms of such order, as the said Bank of England, or such companies,
associations or persons, would have been bound and compellable to com
ply with the requisitions of the persons in whose place such appointment
shall have been made, and shall be equally indemnified in complying
with the requisition of such person or persons so appointed as they would
have been indemnified in complying with the requisition of the person in
whose place such appointment shall have been made ; and after notice in
writing of any such order of the Lord Chancellor, intrusted as aforesaid,
or of the Court of Chancery, concerning any stock, shall have been given,
it shall not be lawful for the Bank of England, or any company or asso
ciation whatever, or any person having received such notice, to act upon
the requisition of the person in whose place an appointment shall have
been made in any matter whatever relating to the transfer of such stock,
or the payment of the dividends or produce thereof.
XXVII. And be it enacted, that where any order shall have been
made under the provisions of this Act, either by the Lord Chancellor,
intrusted as aforesaid, or by the Court of Chancery, vesting the legal
right to sue for or recover any chose en action or any interest in respect
thereof in any person or persons, such legal right shall vest accordingly,
and thereupon it shall be lawful for the person or persons so appointed
to carry on, commence and prosecute, in his or their own name or names,
any action, suit, or other proceeding at law or in equity for the recovery
of such chose en action, in the same manner in all respects as the person
in whose place an appointment shall have been made could have sued for
or recovered such chose en action.
XXVIII. And be it enacted, that whensoever under any of the provis
ions of this Act, an order shall be made, either by the Lord Chan
[* 1025] cellor, * intrusted as aforesaid, or the Court of Chancery, vesting
any copyhold or customary lands in any person or persons, and
such order shall be made with the consent (a) of the lord or lady of the

[ (b) See Re Peacock, 14 Ch . D. such estate as was vested in the per

212 ; where the order was made so as son in respect of whom the incon
to vest in the new trustees the right venience to be remedied by the Court
to call for a transfer of the funds to arises . Such an order does not affect
themselves or to any purchaser or the interests of the lord, and there
purchasers. ] fore the petition need not be served
(a ) The Court has power without upon him. On the order being made,
the consent of the lord to vest in the the person in whom the property is
person nominated by the Court all vested applies for admission as an
1364
 TRUSTEE ACT, 1850. *1026

manor whereof such lands are holden, then the lands shall, without any
surrender or admittance in respect thereof, vest accordingly ; and whenever,
under any of the provisions of this Act, an order shall be made either by
the Lord Chancellor, intrusted as aforesaid, or the Court of Chancery,
appointing any person or persons to convey or assign any copyhold or cus
tomary lands, it shall be lawful for such person or persons to do all acts
and execute all instruments for the purpose of completing the assurance
of such lands (b) ; and all such acts and instruments so done and executed
shall have the same effect, and every lord and lady of a manor, and every
other person, shall, subject to the customs of the manor and the usual
payments, be equally bound and compellable to make admittance to such
lands, and to do all other acts for the purpose of completing the assurance
thereof, as if the persons in whose place an appointment shall have been
made, being free from any disability, had duly done and executed such
acts and instruments.
XXIX. And be it enacted, that when a decree shall have been made
by any Court of equity directing the sale of any lands for the payment
of the debts (c ) of a deceased person, every person seised or possessed of
such lands, or entitled to a contingent right therein as heir, or under the
will of such deceased debtor, shall be deemed to be so seised or possessed
or entitled, as the case may be, upon a trust within the meaning of this
Act ; and the Court of Chancery is hereby empowered to make an
* order wholly discharging the contingent right, under the will [ * 1026 ]
of such deceased debtor, of any unborn person (a).

ordinary surrenderee would have admission of the new trustee, but it

done. So instead of a vesting order, was ruled that he could claim one
the Court, without the consent of the fine only, viz., on the admission of
lord, may appoint a person to convey the new trustee ; Bristow v. Booth, 5
the copyholds, and then the person L. R. C. P. 80.
so appointed must surrender, and the Where the lord consents, it may
surrenderee must be admitted . But be by act in pais, without appear
to prevent circuity, this section allows ance in Court; Ayles v. Cox, 17 Beav.
the lord to consent to a vesting order, 585.
and then the estate will vest without (b) See 20th section , and see form
the necessity of any surrender or ad of order appointing a person to com
mission ; Paterson v. Paterson, 2 L. R. plete the assurance of a copyhold
Eq . 31 ; S. C. 35 Beav. 506 ; Re Flit estate ; Re Hey's will, 9 Hare, 221.
croft, 1 Jur. N. S. 418 ; Re Hurst, 1 (c) A sale for payment of costs of
Set. on Dec. 540, 4th edit.; Re Hey's suit was not within this Act ; Weston
Will, 9 Hare, 221 , overruling Cooper v. Filer, 5 De G. & Sm. 608. But
v. Jones, 2 Jur. N. S. 59 ; Re Howard, see now sect. 1 of the Trustee Exten
3 W. R. 605. sion Act, and Wake v. Wake, 17 Jur.
When on the death of a trustee 545.
the customary heir was out of the (a) See such an order without a
jurisdiction and the Court appointed petition in Wood v. Beetlestone, 1 K.
a new trustee, the lord claimed two & J. 213. But see Gough v. Bage, 25
fines, one for the admission of the L. T. N. S. 738.
customary heir and another for the
1365
*1027 TRUSTEE ACT, 1850.

XXX. And be it enacted, that where any decree (b) shall be made by
any Court of equity for the specific performance of a contract concerning
any lands (c), or for the partition (d ) or exchange of any lands, or generally
when any decree shall be made for the conveyance or assignment of any
lands (e), either in cases arising out of the doctrine of election
[* 1027] or * otherwise, it shall be lawful for the said Court to declare that
any of the parties to the said suit wherein such decree is made are

(b) See Trustee Extension Act, s. making an absolute decree for fore
1, which applies not only to a decree closure and directing a conveyance,
but to any order of the Court. can add a declaration that the mort
(c) See such an order under this gagor is a trustee for the mortgagee,
Act and the Trustee Extension Act, and make a vesting order ; Lechmere
in Ex parte Mornington , 4 De G. M. v. Clamp (No. 2 ) , 30 Beav. 218 ; S.
& G. 537. [ In suits for the specific C. (No. 3 ), 31 Beav. 578 ; [ and in a
performance of a contract for a lease recent case of an equitable mortgage,
the Court has on several occasions where the mortgagor had died having
made orders under this section ap devised his estate to trustees upon
pointing a person to convey, or vest trust for sale, and the trustees having
ing the interests of unborn persons ; disclaimed, the legal estate descended
see Hodgson v. Bower, Howell v. to the heir of the mortgagor, who
Palmer, 1 Set. on Dec. 4th edit . pp. was an infant and was made a de
529, 530 ; Hall v. Hale, 51 L. T. N. S. fendant to a foreclosure action , the
226 ; but in Grace v. Baynton, 25 W. Court, in making the usual foreclos
R. 506, the late M. R. expressed his ure decree , inserted a declaration
opinion that in such a case the Court that." in case the plaintiffs were not
had no power either to appoint a redeemed within six months , the
person to convey in the place of a infant should be a trustee for them
party refusing to execute the lease, within the Act, and that his mother,
or to make a vesting order.] who was executrix of the mortgagor,
(d) In a partition suit, instead of should be ordered to convey on his
giving an infant entitled to a share a behalf " ; Foster v. Parker, 8 Ch. D.
day to show cause, the Court may 147 ; but where the mortgagor who
declare him to be a trustee of such had created an equitable mortgage
parts of the property as are allotted by deposit died intestate, and the
to other parties ; Bowra v. Wright, 4 estate descended to the infant heir
De G. & Sm. 265. subject to the mortgage, the judg
Where a lunatic was interested in ment directed the infant to convey
an undivided share, and a partition when he attained twenty-one , and
was decreed with a declaration that gave him a day to show cause ;
the lunatic was a trustee within the Mellor v. Porter, 25 Ch . D. 158.
Act, the L. JJ. authorised the com "This section applies to all cases
mittee of the estate to convey by an where there is a judgment against an
order made under the Trustee Act, infant for an immediate conveyance,
and under 16 & 17 Vict. c. 70 ; Re but this is not the form of a judg
Bloomar, 2 De G. & J. 88. But it ment for foreclosure in the case of
has since been held that the L. JJ. an equitable mortgagee," per Kay, J.
have jurisdiction to make a vesting Mellor v. Porter, ubi sup.] In another
order under the Trustee Act ; Re case the Court required a separate
Molyneux, 4 De G. F. & J. 365. application to be made ; Smith v.
(e) In a foreclosure suit by an Boucher, 1 Sim . & G. 72.
equitable mortgagee, the Court in In Weston v. Filer, 5 De G. & Sm.
1366
 TRUSTEE ACT, 1850 . *1027

trustees of such lands or any part thereof, within the meaning of this
Act, or to declare concerning the interests of unborn persons ( a) who
might claim under any party to the said suit, or under the will or voluntary
settlement of any person deceased who was during his lifetime a party to
the contract or transactions concerning which such decree is made, that
such interests of unborn persons are the interests of persons who, upon
coming into existence, would be trustees within the meaning of this Act,
and thereupon it shall be lawful for the Lord Chancellor, intrusted as
aforesaid, or the Court of Chancery, as the case may be, to make such
order or orders as to the estates , rights and interests of such persons, born
or unborn, as the said Court or the said Lord Chancellor might under the
provisions of this Act make concerning the estates, rights and interests
of trustees born or unborn.
XXXI. And be it enacted , that it shall be lawful for the Lord Chan
cellor, intrusted as aforesaid, or the Court of Chancery, to make declara
tions and give directions concerning the manner in which the right to any
stock or chose en action vested under the provisions of this act shall be
exercised ; and thereupon the person or persons in whom such right
shall be vested shall be compellable to obey such directions and declara
tions by the same process as that by which other orders under this Act
are enforced (b) .
XXXII . And be it enacted, that whenever it shall be expedient (c)

608, where an estate had been ordered (c) Where a trustee appointed by
to be sold for payment of costs, there a will is an infant, the Court deems it
was no decree for a conveyance, so expedient to appoint a trustee in his
that the case was not within the place ; Re Porter's Trust, 2 Jur. N. S.
section ; and V. C. Parker considered 349 ; Re Gartside's Estate, 1 W. R.
that it could not be deemed a case of 196. But the order should be with
constructive trust, but as to which out prejudice to an application by
see Jackson v. Milfield , 5 Hare 538, the infant on his coming of age to be
and the other cases on sect. 18 of the restored to the trust ; Re Shelmerdine,
1 W. 4, c. 60 , note (e) , p. 839, of 3d 33 L. J. N. S. Ch. 474 ; [ Re Brunt, W.
edit. of this work. N. 1883 , p. 220.
In cases falling within the 30th sec Where a trustee is by age and in
tion, the vesting order may now be firmity incapable of acting as a trus
obtained at chambers ; [ Rules of the tee the Court considers it expedient
Supreme Court, Order 55, R. 2 ( 8 ) . ] to appoint a new trustee in his place ;
(a) The expression " unborn per Re Lemann's Trusts, 22 Ch . D. 633. ]
sons "" has been construed liberally, Where there is a great difficulty
and has been held to include the in obtaining administration to the de
"heirs of a person now living; Bas ceased trustee, or last surviving trus
nett v. Moxom, 20 L. R. Eq . 182. tee, the Court considers it expedient
(b) Under this section the Court to appoint new trustees ; Davis v .
has no jurisdiction to order the fund Chanter, 4 Jur. N. S. 272 ; Re Mat
into Court ; Re Parby, 29 L. T. 72. thews, 26 Beav. 463 ; or generally
But it can direct trustees to transfer where there is no personal represen
into court under the Trustee Relief tative of a surviving trustee ; Re
Act ; Re Thornton's Trusts, 9 W. R. Davis's Trust, 12 L. R. Eq . 214.
475. Where two trustees were desirous
1367
* 1028 TRUSTEE ACT, 1850 .

[* 1028 ] to * appoint ( a) a new trustee or new trustees, and it shall be

found inexpedient, difficult (b) or impracticable so to do without
the assistance of the Court of Chancery, it shall be lawful for the said

of retiring, and it was doubtful whether ing a trustee for misconduct or other
the power of appointing new trustees cause , the application to the Court
in the settlement applied to the case, should be by suit, as it was not the
it was deemed expedient to appoint intention of the Act to deprive retir
new trustees ; Re Woodgate's Settle ing trustees of their right to have
ment, 5 W. R. 448 ; Re Armstrong's their accounts taken in the presence
Settlement, Ib. of their cestuis que trust, or of their
A trustee had become bankrupt, lien upon the trust estate, for any
had never surrendered and absconded, balance due to them ; Re Blanchard,
and the Court under the Trustee Act, 7 Jur. N. S. 505. Even a solicitor,
1850 , and the Bankruptcy Act, 1849, though an officer of the Court, is not
s. 130, appointed a new trustee in his removable by petition against his
place ; Re Renshaw's Trusts , 4 L. R. will, on grounds of misconduct in the
Ch . App . 783. character, not of solicitor, but of trus
The three trustees appointed by a tee ; Re Blanchard, 3 De G. F. & J.
testator died in his lifetime, and the 131. But where one of the trustees
Court appointed new trustees ; Re had gone to Australia, and it was
Smirthwaite's Trusts, 11 L. R. Eq . 251 . not known where he was, the Court
Under the combined effect of this appointed a new trustee in his place ;
section, and of the Bankruptcy Act, Re Harrison's Trusts, 22 L. J. N. S.
[ 1883 , s. 147 , which in substance re Ch. 69. And where an assignee in
enacted the 117th section of the Bank bankruptcy had resigned his office
ruptcy Act, 1869 ] the court has power and gone abroad, and the creditors
to appoint a new trustee in the place had accepted his resignation, the
of a trustee who has become bank Court made a vesting order ; Re
rupt, whether he voluntarily resigns Joyce's Estate, 2 L. R. Eq . 576 ; and
or not ; Coombes v. Brookes, 12 L. R. in another case where a trustee had
Eq . 61 . gone abroad to reside permanently
(a ) The Court cannot under the the Court appointed a trustee in
Act remove a trustee who is willing his place ; Re Bignold's Settlement
to act ; Re Hodson's Settlement, 9 Trusts, 7 L. R. Ch . App. 223. [Un
Hare, 118 ; Re Hadley, 5 De G. & Sm. der the Bankruptcy Act, 1883, s. 147 ,
67 ; Re Garty's Settlement, 3 N. R. as was the case under the Bankruptcy
636 ; [ Re Combs, 51 L. T. N. S. 45. ] Act, 1869, s . 117 , a bankrupt trustee
Thus where one of the two trustees may be removed against his will, both
was residing out of the jurisdiction , these sections containing the words
but it did not appear whether such "whether voluntarily resigning or
residence was likely to be permanent, not "; Re Adams's Trusts, 12 Ch. D.
the Court refused to appoint a new 634. ]
trustee in his room ; Re Mais , 19 Jur. (b) Where there is a power of ap
608 ; see Re Lincoln Primitive Meth pointment of new trustees, and the
odists, 1 Jur. N. S. 1011. [ Where it donee is willing to exercise it, the
was alleged that a trustee was of un Court will not appoint new trustees
sound mind, but the trustee disputed upon a suggestion that the power will
his insanity and was unwilling to be be improperly exercised ; Re Hodson's
removed, the Court refused to make Settlement, 9 Hare, 118. But where
an order ; Re Combs, 51 L. T. N. S. the parties having the power of ap
45. ] If there be ground for remov pointing new trustees were resident
1368
 TRUSTEE ACT, 1850 . *1028

Court of Chancery to make an order appointing a new trustee or new

trustees, either in substitution for or in addition to any existing trustee
or trustees (c) .

in India, the Court made an order ; in three persons, one of whom is a

Re Humphry's Estate, 1 Jur. N. S. lunatic, the petition should be pre
921. If the power of appointing new sented in Lunacy as well as in Chan
trustees be vested in a lunatic , the cery ; Re Mason, 10 L. R. Ch. App .
Court of Chancery has jurisdiction 273 ; [Re Duce's or Druce's Trusts , 30
to appoint a new trustee not under W. R. 759 ; 46 L. T. N. S. 669 ; but
the special power given to the lunatic, where the application is merely for
but under the statutory power of the the appointment of new trustees and
Act ; Re Sparrow, 5 L. R. Ch. App . no vesting order is required, the or
662. The petition should state, if der may be made in Chancery only ;
such is the case, that there is a power Re Vickers's Trusts, 3 Ch. D. 112 .
of appointing new trustees, but that Where there were originally three
the persons capable of exercising it trustees, and a new trustee had been
are not willing to do so ; Re Sutton, appointed under a power, in the place
28 Ch . D. 464. of one of the trustees who was a luna
If trustees have been already ap tic, it was held that a petition for a
pointed under a power, the Court can vesting order must be entitled in
appoint them again for the purpose Chancery as well as in Lunacy, as
of making a vesting order ; Re Mun otherwise the vesting order would
del's Trust, 2 L. T. N. S. 653 ; [ Re sever the joint tenancy, and that the
Pearson, 5 Ch. D. 982 ; Re Chell, 49 new trustee must be reappointed by
L. T. N. S. 196 ; ] Re Carson's Settle the Court before a vesting order could
ment Trusts, W. N. 1867 , p. 32 ; Re be made ; Re Pearson, 5 Ch. D. 982 ;
Clay's Settlement, W. N. 1873, p. Re Chell, 49 L. T. N. S. 196. Where
129 ; Re Dalgleish's Settlement, 4 Ch. the existing trustee was of unsound
D. 143, reversing S. C. 1 Ch . D. 46 ; mind and out of the jurisdiction, new
[ Re M'Carthy's Trusts, 1 L. R. Ir. 16 ; ] trustees were appointed in Chancery
and see Re Driver's Settlement, 19 L. and a vesting order made under sect.
R. Eq. 352. But the Court will re 9; Re Gardner's Trusts, 10 Ch. D. 29. ]
quire evidence of the fitness of the If the power of appointing new
persons appointed before making such trustees be in the tenant for life who
order ; Re Maynard's Settlement, 16 is a lunatic, the Court will not appoint
Jur. 1084. a new trustee under the Act until the
(c) Where it is sought to substitute appointment of a committee ; Re
a trustee in the place of a lunatic Parker's Trusts, 32 Beav. 580.
trustee, the application must be made In an application to the Court for
in lunacy ; Re Ormerod , 3 De G. & J. the appointment of new trustees of a
249, and cases there cited ; Re David settlement, it was objected that the
son, 20 L. J. N. S. Ch. 644 ; Re deed was invalid, but the Court re
Waugh's Trust, 2 De G. M. & G. 279 ; fused to enter into that question, and
Re Good Intent Benefit Society, 2 W. appointed new trustees to protect the
R. 671 ; Jeffryes v. Drysdale, 9 W. property ; Re Matthews, 26 Beav. 463 .
R. 428 ; see Trustee Extension Act, The decisions were formerly in
s . 10, and Re Burton's Trusts , 6 I. R. conflict, whether under this section
Eq . 270. the Court could appoint new trustees
On an application for the appoint in a case where there was no existing
ment of new trustees and a vesting trustee, Vice- Chancellor Parker hold
order where the legal estate is vested ing the affirmative ; Re Tyler's Trust,
1369
*1029 TRUSTEE ACT, 1850.

[* 1029] * XXXIII. And be it enacted, that the person or persons who,

upon the making of such order as last aforesaid, shall be trustee

5 De G. & Sm. 56 ; and Vice-Chancel to be the sole trustees ; Re Stokes's

lor Turner the negative ; Re Hazel Trusts, 13 L. R. Eq . 333 ; [ and this
dine, 16 Jur. 853. And see Re Frost's decision was subsequently followed in
Settlement, 15 Jur. 644. But all doubt Re Tatham's Trusts, W. N. 1877, p.
for the future has been removed by 259 ; Re Harford's Trusts, 13 Ch. D.
the 9th section of the Trustee Exten 135 ; Re Gibbin's Trusts, W. N. 1880,
sion Act. p. 99 ; Re Shipperdson's Trusts, 49
The Court in appointing new trus L. J. N. S. Ch . 619 ; Re Northorp, 29
tees under this section does not limit W. R. 134 ; but in Re Colyer, 50 L.J.
itself necessarily to the number N. S. Ch. 479, L. J. Cotton, in a Lun
named in the original instrument of acy petition, declined to follow it,
trust. Thus it has appointed two in and required the full number of trus
stead of one ; Tunstall's Will, 4 De G. tees to be made up ; and in Re Aston,
& Sm. 421 ; and has added two new 23 Ch. D. 217, the late M. R., with the
trustees to the two original trustees ; concurrence of the other members of
Re Baycott, 5 W. R. 15. But it never the Court, while adhering to his de
appoints a single trustee where there cision in Re Harford's Trusts, declined
were originally more trustees than to follow it, on the ground of L. J.
one ; Re Ellison's Trust, 2 Jur. N. S. Cotton's objection , and to avoid a con
62; Re Porter's Trust, 2 Jur. N. S. flict of decisions between the practice
349 ; Re Tunstall, 15 Jur. 645 ; Re of different members of the Court;
Dickinson's Trust, 1 Jur. N. S. 724. and see Re Lamb's Trusts, 28 Ch . D.
But where there was only one trustee 77. But where the whole of the fund
originally and the trust was coming is immediately divisible, the Court
to an end the Court appointed a sin will not require the appointment of a
gle trustee ; Re Reynault, 16 Jur. 233. new trustee ; Re Martin, 26 Ch. D.
The Court will appoint two trustees 745 ; Re Lamb's Trust, ubi supra. ]
where there were originally three ; In the case of a charity, the Court
Bulkeley v. Earl of Eglinton , 1 Jur. appointed ten new trustees and vested
N. S. 994 ; Re Marriott's Settlement, the estate in the whole body, and
18 L. T. N. S. 749 ; or will appoint directed that when reduced to three
three where there were originally four ; the trustees should apply at Cham
Emmet v. Clarke, 7 Jur. N. S. 404 ; bers for the appointment of new trus
and where a fund was bequeathed to tees ; Re Bergholt, 2 Eq. Rep. 90.
a single trustee upon trust for a per The Court will not [ in general]
son for life, with remainder to two appoint persons trustees who are resi
others, and the remaindermen peti dent out of the jurisdiction ; Re Gui
tioned for the appointment of an ad bert, 16 Jur. 852 ; Re Curtis's Trust,
ditional trustee, the Court made the 5 I. R. Eq . 429 ; [ but the Court has
order but threw the costs upon the in several cases, where the special
remaindermen ; Re Brackenbury's circumstances rendered that course
Trusts , 10 L. R. Eq. 45. advisable, appointed such trustees ;
In one case, where there was a Re Austen's Settlement, 38 L. T. N. S.
power of appointing new trustees, with 601 ; Re Cunard's Trusts , 48 L. J. N. S.
a direction that the number might be Ch. 192 ; 27 W. R. 52 ; Re Hill's
augmented or reduced, and one of the Trusts, W. N. 1874, p. 228 ; ] and it
three trustees wished to retire, but no will not appoint one of the costuis que
new trustee could be found, the Court trust a trustee , if it can be avoided ;
appointed the two continuing trustees Ex parte Clutton, 17 Jur. 988 ; Re
1370
 TRUSTEE ACT, 1850. *1030

or trustees, * shall have all the same rights and powers as he [ * 1030 ]
or they would have had if appointed by decree in a suit duly
instituted.

Clissold, 10 L. T. N. S. 642 ; Ex parte The Court can appoint new trus

Conybeare's Settlement, 1 W. R. 458 ; tees under this section where a trust
and see Re Giraud, 32 Beav. 385. is an office without any estate ; Re
The husband of a cestui que trust Boyce, 10 Jur. N. S. 138 ; but in such
was appointed jointly with another, a case where the trustee was a luna
on the husband's undertaking that if tic, the order should have been made
he became sole trustee he would im both in Chancery and Lunacy ; S. C.
mediately take steps for the appoint see ante, p. 1013, note ( e) . But now
ment of a co-trustee ; Re Hattatt's by the 10th section of the Extension
Trusts, 21 L. T. N. S. 781 ; 18 W. R. Act the order can be made in lunacy
416 ; [Re Burgess's Trusts, W. N. only ; Re Owen , 4 L. R. Ch . App . 782.
1877 , p. 87 ; Re Lightbody's Trusts, The Court (notwithstanding the 197th
52 L. T. N. S. 40 ; but this undertak section of the Bankruptcy Act, 24 &
ing was not required in Re Jesson (In 25 Vict. c. 134) appointed new trus
Lunacy, 7 Aug. 1878, M. S. ) , where tees of a creditors' deed ; Re Price's
three new trustees were appointed, Trust Deed, 6 L. R. Eq. 460 ; Re
one of whom was the husband of the Bache's Trust, 16 W. R. 1078 ; Re
tenant for life . ] In another case one Raphael's Trust Estate, 9 L. R. Eq.
of the firm of solicitors who acted 233 ; Re Donisthorpe, 10 L. R. Ch.
for the petitioners was appointed App. 55.
trustee ; Ke Brentnall's Trusts, W. N. In addition to the evidence of the
1872 , p . 77. necessary facts to bring the case
A cestui que trust may apply for the within the Act, the Court before ap
appointment of new trustees by peti pointing new trustees requires evi
tion under the Act, but this does not dence by affidavit of the fitness of
preclude him from instituting a suit the proposed trustees, and their con
for that purpose ; Legg v. Mackrell, sent to act; Re Battersby's Trust, 16
1 Giff. 165 ; 4 L. T. N. S. 568. But Jur. 900. But if the evidence be sat
if he adopt the latter course instead isfactory the Court will make the
of presenting a petition the Court order at once, without a reference ;
may make the offending party an Re Tunstall, 15 Jur. 645. [ In ordi
swerable for the difference of the nary cases an affidavit of fitness by
costs ; Thomas v . Walker, 18 Beav. one responsible person is sufficient,
521. but if the trust fund be of large
Where there are two distinct trust amount, the evidence of a second
estates under the same will , but only person may be required ; Re Hart
one set of trustees, the Court, with ley's Will, W. N. 1879, p. 197. ]
the consent of the representative of The new trustee need not appear
the surviving trustee, will appoint upon the petition to consent ; Re
new trustees of one estate without Draper's Settlement, 2 W. R. 440 ;
dealing with the other estate ; Re though they may appear to consent ;
Dennis, 12 W. R. 575 ; and generally Re Parke's Trust, 21 L. T. 218. If
the Court assumes the power of ap they do not appear an affidavit that
pointing separate trustees of separate the proposed new trustees will consent
shares ; Re Cotterill's Trusts , W. N. is insufficient ; Re Parke's Trust, 21
1869 , p. 183 ; [ and see sect . 5 of the L. T. 218 ; and their written consent
Conveyancing Act, 1882, 45 & 46 must be proved.
Vict. c. 39, which now expressly au Where the trust fund is the subject
thorises this to be done. ] of a suit, the affidavit of the solicitor
1371
*1031 TRUSTEE ACT, 1850.

[*1031 ] * XXXIV . And be it enacted, that it shall be lawful (a ) for

the said Court of Chancery upon making any order (b ) for ap
pointing a new trustee or new trustees, either by the same or by any
subsequent order ( c ) to direct that any lands subject to the trust ( d) shall
vest in the person or persons who upon the appointment shall be the trus
tee or trustees, for such estate as the Court shall direct ; and such order
shall have the same effect as if the person or persons who before such
order [was or] were the trustee or trustees (if any ) had duly executed all
proper conveyances and assignments of such lands for such estate (e).
in the cause is not the proper evidence the Court, be made over again, so as
of the fitness of the new trustee, as it to bear date subsequently to the pro
is the trustees' duty to watch the so duction of the evidence ; Re Have
licitor ; Grundy v. Buckeridge, 22 L. lock's Trusts, 11 Jur. N. S. 906.
J. N. S. Ch. 1007. (c) The new trustees may be ap
In one order the Court inadvert pointed in a suit, and a vesting order
ently appointed an alien a trustee and may be made subsequently. See Re
afterwards refused to substitute a Hughes's Settlement, 2 H. & M. 695.
natural born subject without the con (d) If the lands be leaseholds for a
sent of the Crown, which was not term of years, the Court can, under
given. The order was then reheard this section, make a vesting order,
by the same judge pro formâ and dis and without the concurrence of the
charged, and a natural born subject landlord unless there was a restric
appointed in the place of the alien ; tion against alienation ; Re Matthew's
Re Giraud, 32 Beav. 385. See now 33 Settlement, 2 W. R. 85, &c.; [ Re
Vict. c. 14, s. 2, and where the cestuis Driver's Settlement, 19 L. R. Eq.
que trust were living abroad and Eng 352 ; Re Dalgleish's Settlement, 4 Ch.
lish trustees could not be found, the D. 143, reversing S. C. 1 Ch. D. 46 ;
Court appointed aliens ; Re Hill's Re Rathbone, 2 Ch. D. 483 ; ] see ante,
Trusts, W. N. 1874, p. 228 ; [and see p. 1018, note (a) . But see Re Far
ante, p. 1030. ] rant's Trust, 20 L. J. Ch. 532. And
As to the parties to be served on the Court has jurisdiction to vest the
applications for the appointment of estate though it has escheated to the
new trustees, see note (c) , page 1033, Crown, provided the Crown consent ;
infra. Re Martinez's Trust, W. N. 1870 , p.
(a) The late Vice-Chancellor Par 70 ; 22 L. T. N. S. 403 ; and see sect.
ker was not disposed to make a vest 15, of this Act.
ing order in cases where a conveyance (e) The Court has jurisdiction to
could be had; Langhorn v. Langhorn, divest the whole estate from the con
21 L. J. N. S. Ch. 860. But it is clear tinuing and incapacitated trustees,
that the Court has power to make, and to vest it in the new body of
and according to the present practice, trustees (including the continuing
it frequently does make, vesting trustees) as joint tenants ; Re Fisher's
orders even where there is no inca Will, 1 W. R. 505 ; Smith v . Smith, 3
pacity in the person seised or pos Drew. 72, overruling Re Watts's Set
sessed of the legal estate to convey tlement, 9 Hare, 106, and Re Plyer's
to the new trustee ; Re Manning's Trust, Ib. 220. But the Court has
Trusts, Kay, App. xxviii. no power to give any direction as to
(b) If the necessary evidence was the mode in which the trust shall be
not forthcoming at the date of the executed by the trustees ; Re Tayler,
order, but it is afterwards obtained, 2 De G. F. & J. 125 ; see ante, p. 1027 ;
the order must under the direction of note (b).
1372
 TRUSTEE ACT, 1850 . *1032

* XXXV. And be it enacted, that it shall be lawful for the [ *1032 ]

said Court of Chancery, upon making an order for appointing a
new trustee or new trustees, either by the same or by any subsequent
order, to vest the right to call for a transfer of any stock ( a ) subject to
the trust, or to receive the dividends or income thereof, or to sue for or
recover any chose en action , subject to the trust, or any interest in respect
thereof, in the person or persons who upon the appointment shall be the
trustee or trustees (b) .
XXXVI. And be it enacted, that any such appointment by the Court
of new trustees, and any such conveyance, assignment, or transfer as
aforesaid, shall operate no further or otherwise as a discharge to any
former or continuing trustee than an appointment of new trustees under
any power for that purpose contained in any instrument would have
done.
XXXVII. And be it enacted, that an order under any of the herein
before contained provisions for the appointment of a new trustee or trus
tees, or concerning any lands, stock, or chose en action subject to a trust,
may be made upon the application of any person beneficially interested
in such lands, stock, or chose en action, whether under disability or
not (c ), or upon the application of any person duly appointed as a

(a) The Court has no power under proper securities, the Court vested in
this section to vest the right to the stock the new trustees the right to call for
itself, but only the right to call for a a transfer of the funds to themselves,
transfer ; and an order professing to or to any purchaser or purchasers, the
vest the right to the stock was ac trustees undertaking to hold the pro
cordingly discharged ; Re Smyth's ceeds on the trusts of the settlement ;
Settlement, 4 De G. & Sm. 499 ; but Re Peacock, 14 Ch. D. 212. ]
see now sect. 6 of the Trustee Exten (1) A vesting order vests the
sion Act, and p. 1043, post, note (b) . estate from the date of the order ;
The Court has power under this Woodfall v . Arbuthnot , 3 L. R. P. &
section to vest the right as to stock D. 108 .
standing in the name of a deceased (c) A person contingently entitled
person who has no personal represen to a beneficial interest is within the
tative ; Re Herbert's Will, 8 W. R. meaning of the Act ; Re Sheppard's
272. [ See Re Crowe's Trusts, 14 Ch . Trusts, 8 Jur. N. S. 711 , reversed 1
D. 304, 610. ] N. R. 76 ; 4 De G. F. & J. 423.
The Court will not make a vesting In sales by the Court the purchaser,
order which would lend any sanction as beneficially interested in the prop
to a past breach of trust ; Re Har erty sold, is within the meaning of
rison, 22 L. J. N. S. Ch . 69. And the section ; Ayles v . Cox, 17 Beav.
the Court as distinct from the L. C. 584 ; Rowley v. Adams, 14 Beav. 130 .
& L. J. J. will not make a vesting And the plaintiffs in the suit, as
order where the old trustee in whom beneficially interested in the proceeds,
the property is vested is a lunatic ; are also within the meaning of the
Re Smith's Trusts , 4 I. R. Eq . 180 . section ; Re Wragg, 1 De G. J. & S.
[Where part of the trust funds 356. And of course the purchaser or
had been invested in unauthorised several purchasers and the plaintiffs
securities, and it was desired to sell can join as co-petitioners ; Rowley v.
them and reinvest the proceeds in Adams, 17 Beav. 130, see 135.
1373
*1033 TRUSTEE ACT, 1850 .

[* 1033] * trustee thereof; and that an order under any of the provisions
hereinbefore contained concerning any lands, stock, or chose en
action subject to a mortgage, may be made on the application of any person
beneficially interested in the equity of redemption, whether under disability
or not, or of any person interested in the monies secured by such mortgage.
XXXVIII . and XXXIX. ( These sections were repealed by " The Statute
Law Revision Act, 1875. ")
XL. And be it enacted, that any person or persons entitled in manner
aforesaid to apply for an order from the said Court of Chancery, or from
the Lord Chancellor intrusted as aforesaid , may, should he so think fit,
present a petition (a) in the first instance to the Court of Chancery, or to
the Lord Chancellor intrusted as aforesaid, for such order as he may
deem himself entitled to, and may give evidence by affidavit or other
wise (b) in support of such petition before the said Court, or the Lord
Chancellor intrusted as aforesaid, and may serve such person or persons
with notice of such petition as he may deem entitled to the service there
of(c).
Committees of a lunatic cestui que certificates and affidavits of identity ;
trust are not beneficially interested Re Hoskins, 4 De G. & J. 436.
within the meaning of the section ; Where it is proposed to appoint
Re Bourke, 2 De G. J. & S. 426. new trustees in substitution for existing
(a ) When a petition has been trustees the petition must be served
presented, it may be amended by on the old trustees, Re Sloper, 18
order of the Court by adding co Beav. 596 ; who will have their costs ;
petitioners without being re-answered ; Futvoye v. Kennard, 3 L. T. N. S. 687.
Re Cartwright's Trust, 8 W. R. 492 . [But where a trustee is permanently
(b) In practice the evidence ad resident abroad, Re Bignold's Settle
duced is universally by affidavit, but ment Trusts, 7 L. R. Ch . App . 223 ;
under the words " or otherwise " the Re Martin Pye's Trusts, 42 L. T. N. S.
applicant is not confined to evidence 247 ; or where a trustee has absconded
by affidavit. and cannot be found, Re Nicholson's
(c) In petitions for the appoint Trusts, W. N. 1884 , p . 76 ; Hyde v.
ment of new trustees, all the cestuis Benbow, W. N. 1884, p. 117 ; service
que trust ought, as a general rule, to is unnecessary.]
be served ; Re Richards' Trust, 5 De Where an order is asked against
G. & Sm. 636 ; Re Sloper, 18 Beav. recusant trustees under the 23d or
596 ; Re Fellows's Settlement, 2 Jur. 24th section, the trustees need not be
N. S. 62 ; Re Maynard's Settlement, served ; Re Baxter's Will, 2 Sim. &
16 Jur. 1084 ; and see Re Lonsdale's G. App. v.; and see the following
Trust, 14 Jur. 1101 ; Re Thomas's cases, decided under 1 Will. 4, c. 60,
Trust, 15 Jur. 187 ; Re Prescott's s. 8 ; Re Third Burnt Tree Building
Trust, 19 L. T. 371. But in special Society, 16 Sim. 296 ; Re Bradburne,
cases the Court relaxes the rule ; Re 12 L. J. N. S. Ch . 353.
Smyth's Settlement, 2 De G. & Sm. In orders against a lunatic trustee,
781 ; Re Blanchard , 3 De G. F. & J. the committee of the estate must be
137 ; Re Blanchard's Estate, 2 N. R. served, as the lunatic trustee may
386 ; [ Re Lightbody's Trusts, 52 L. have some claim for costs or other
T. N. S. 40. ] The devolution of the wise ; Re Saumarez, 8 De G. M. & G.
beneficial title may be traced by 390 ; and see Re Wood, 7 Jur. N. S.
affidavit, without strict evidence by 323. But in other cases service on
1374
 TRUSTEE ACT , 1850 . *1034

* XLI. And be it enacted, that upon the hearing of any such [* 1034 ]
(motion or) (a) petition it shall be lawful for the said Court, or
for the said Lord Chancellor, should it be deemed necessary, to direct a
reference to one of the Masters in Ordinary of the Court of Chancery to
inquire into any facts which require such an investigation, or it shall be
lawful for the said Court or the said Lord Chancellor to direct such
(motion or) (a) petition to stand over, to enable the petitioner or petitioners
to adduce evidence or further evidence before the said Court, or before the
said Lord Chancellor, or to enable notice or any further notice of such
(motion or) petition to be served upon any person or persons.
XLII. And be it enacted, that upon the hearing of any such (motion
or) (b) petition, whether any (certificate or ) report from a Master shall
have been obtained or not, it shall be lawful for the Court, or the Lord
Chancellor, intrusted as aforesaid, to dismiss such (motion or) petition,
with or without costs, or to make an order thereupon in conformity with
the provisions of this Act.
XLIII. And be it enacted, that whensoever in any cause or matter,
either by the evidence adduced therein, or by the admissions of the parties,
or by a report of one of the Masters of the Court of Chancery, the facts
necessary for an order under this Act shall appear to such Court to be
sufficiently proved, it shall be lawful for the said Court , either upon the
hearing of the said cause, or of any petition or motion in the said cause or
matter, to make such order under this Act (c).
the lunatic or his committee was a person out of the jurisdiction ; Re
deemed unnecessary ; Re East, 8 L. Wycherley's Trusts, 1 L. R. Ir. 12. ]
R. Ch . App. 735 ; Re Green, 10 L. R. [ (a) The words " motion or " in
Ch. App. 272. The guardian of the this section are repealed by " The
infant heir of a trustee need not be Statute Law Revision Act, 1875."]
served with a petition for a vesting [ (b) The words " motion or " and
order upon the appointment of new "certificate or " in this section are
trustees ; Re Little, 7 L. R. Eq . 323. repealed by "The Statute Law Revis
But the adult heir of the last surviv ion Act, 1875."]
ing trustee must be served, for he (c) An order may be made in a
may have some claim to costs ; Re suit without a petition ; Wood v. Beetle
Oxenham's Trusts, W. N. 1875, p. 6 . stone, 1 K. & J. 213 ; Collard v. Roe,
[ But see 44 & 45 Vict. c. 41 , S. 4 Jur. N. S. 431 ; 4 De G. & J. 525 ;
30.] Lechmere v. Clamp, 9 W. R. 860 ;
Where an estate is subject to an Hargreaves v. Wright, 1 W. R. 408 ;
annuity, a vesting order may be made Hughes v. Wells . 2 W. R. 575 ; but
without service on the annuitant ; Re see Gough v. Bage, 25 L. T. N. S.
Winteringham's Trust , 3 W. R. 578. 738. The High Court has no such
As to service on the lord of a jurisdiction to make a vesting order
manor, in respect of copyholds, see respecting property which is vested
ante, p. 1025, note (a) . in a lunatic, but there must be a peti
As to service on the remainderman, tion in lunacy ; Jeffryes v. Drysdale,
where the trust estate is a term of 9 W. R. 428. [ In Frodsham v . Frod
years, see ante, p. 1031 , note (d) . sham, 15 Ch. D. 317 , it was held by
[ The Court has jurisdiction to the Court of Appeal, reversing the
order service of the petition upon late M. R., that, having regard to the
1375
*1035 TRUSTEE ACT, 1850.

[* 1035] * XLIV. And be it enacted , that whenever any order shall be

made under this Act, either by the Lord Chancellor intrusted as
aforesaid, or by the Court of Chancery, for the purpose of conveying or
assigning any lands, or for the purpose of releasing or disposing of any
contingent right, and such order shall be founded on an allegation of the
personal incapacity of a trustee or mortgagee, or on an allegation that
a trustee or the heir or devisee of a mortgagee is out of the jurisdiction of
the Court of Chancery or cannot be found, or that it is uncertain which of
several trustees, or which of several devisees of a mortgagee, was the sur
vivor, or whether the last trustee, or the heir or last surviving devisee of
a mortgagee be living or dead, or on an allegation that any trustee or
mortgagee has died intestate, without an heir, or has died and it is not
known who is his heir or devisee, then in any of such cases the fact that
the Lord Chancellor intrusted as aforesaid, or the Court of Chancery, has
made an order upon such an allegation shall be conclusive evidence of the
matter so alleged in any Court of law or equity upon any question as to
the legal validity of the order : Provided always that nothing herein
contained shall prevent the Court of Chancery directing a reconveyance
or re-assignment of any lands conveyed or assigned by any order under
this Act, or a redisposition of any contingent right conveyed or disposed
of by such order ; and it shall be lawful for the said Court to direct any
of the parties to any suit concerning such lands or contingent right to pay
any costs occasioned by the order under this Act, when the same shall
appear to have been improperly obtained .
XLV . And be it enacted, that it shall be lawful for the Lord Chan
cellor intrusted as aforesaid, or the Court of Chancery, to exercise the
powers herein conferred for the purpose of vesting any lands, stock, or
chose en action in the trustee or trustees of any charity or society over
which charity or society the said Court of Chancery would have juris
diction upon suit duly instituted (a) , whether such trustee or trustees
recital in 18 & 19 Vict. c. 134, s. 16, arising on the petition. The making
Cons. Ord. xxxv. rule 1 , and the prac of a vesting order may thus be re
tice which had prevailed ever since, ferred to chambers, but an order so
it was so doubtful whether there was made in chambers should state so
jurisdiction to make a vesting order much of the previous order as di
in chambers, except in cases provided rected any enquiry preliminary to the
for by general order, as to render it vesting order, and as gave liberty to
unsafe to make such orders. See apply in chambers for a vesting or
rules of the Supreme Court, Ord. 55, der, and should also state the certifi
rule 2 , as to the applications which cate which followed the enquiry ; Re
may now be made in chambers ; and Tweedy, 28 Ch. D. 529. ]
see Re Moate's Trust, 22 Ch . D. 635. (a) See orders under this section,
But where the matter has in the first Re Norton Folgate, Re Basingstoke
instance been brought before the School, 1 Set. on Dec. 565, 4th edit.
Court upon petition, it is competent Under 16 & 17 Vict. c. 137, where
to the judge who hears it to mould the value of the property exceeds 301.
his order so as to direct the disposal per annum, any person authorised by
in chambers of any of the questions the Charity Commissioners may
1376
 TRUSTEE ACT, 1850 . *1036

shall have been duly appointed by any power contained in any deed or
instrument, or by the decree of the said Court of Chancery, or by order
made upon a petition to the said Court under any statute authorising
the said Court to make an order to that effect in a summary way upon
petition.
* XLVI. And be it enacted, that no lands , stock, or chose en [*1036]
action vested in any person upon any trust or by way of mortgage,
or any profits thereof, shall escheat or be forfeited to her Majesty, her
heirs, or successors, or to any corporation , lord or lady of a manor, or
other person, by reason of the attainder or conviction for any offence of
such trustee or mortgagee, but shall remain in such trustee or mortgagee,
or survive to his or her co-trustee, or descend or vest in his or her repre
sentative, as if no such attainder or conviction had taken place (a) .
XLVII. And be it enacted, that nothing contained in this Act shall
prevent the escheat or forfeiture of any lands or personal estate vested in
any such trustee or mortgagee, so far as relates to any beneficial interest
therein of any such trustee or mortgagee, but such lands or personal
estate, so far as relates to any such beneficial interest, shall be recoverable
in the same manner as if this Act had not passed (b ).
XLVIII. And be it enacted, that where any infant or person of un
sound mind shall be entitled to any money payable in discharge of any
lands, stock, or chose en action conveyed, assigned, or transferred under
the Act, it shall be lawful for the person by whom such money is payable
to pay the same into the Bank of England, in the name and with the
privity of the Accountant- General, in trust in any cause then depending
concerning such money, or, if there shall be no such cause, to the credit
of such infant or person of unsound mind, subject to the order or dispo
sition of the said Court ; and it shall be lawful for the said Court, upon
petition in a summary way, to order any money so paid to be invested in
the public funds, and to order payment or distribution thereof, or pay
ment of the dividends thereof, as to the said Court shall seem reasonable ;
and every cashier of the Bank of England who shall receive any such
money is hereby required to give to the person paying the same a receipt
for such money, and such receipt shall be an effectual discharge for the
money therein respectively expressed to have been received .
XLIX. And be it enacted, that where in any suit commenced or to
be commenced in the Court of Chancery it shall be made to appear to
the Court by affidavit that diligent search and enquiry has been made

apply to the judge at chambers for 4, c. 23. See now section 8 of the
any order which may be made by such Extension Act, giving the Court
judge, notwithstanding any lunacy ; power to appoint new trustees in the
Re Davenport's Charity, 4 De G. M. place of persons convicted of felony .
& G. 839 ; and see p. 852 , supra. (b) This is a re-enactment of sect.
(a) This section is a re-enactment 5 of the Escheat and Forfeiture Act.
almost verbatim of section 3 of the See now 33 & 34 Vict. c. 23.
Escheat and Forfeiture Act, 4 & 5 W.
1377
*1037 TRUSTEE ACT, 1850 .

after any person made a defendant, who is only a trustee, to serve him with
the process of the Court, and that he cannot be found, it shall be lawful
for the said Court to hear and determine such cause, and to make such
absolute decree therein against every person who shall appear to them to
be only a trustee, and not otherwise concerned in interest in the matter
in question, in such and the same manner as if such trustee had been
duly served with the process of the Court, and had appeared and
[ * 1037] * filed his answer thereto, and had also appeared by his counsel
and solicitor at the hearing of such cause : Provided always, that
no such decree shall bind, affect, or in anywise prejudice any person
against whom the same shall be made, without service of process upon
him as aforesaid, his heirs, executors, or administrators, for or in respect
of any estate, right, or interest which such person shall have at the time
of making such decree for his own use and benefit, or otherwise than as
a trustee as aforesaid (a) .
L. (This section was repealed by "The Statute Law Revision Act,
1875.")
LI. And be it enacted, that the Lord Chancellor intrusted as afore
said, and the Court of Chancery, may order the costs and expenses of and
relating to the petitions, orders , directions, conveyances, assignments,
and transfers to be made in pursuance of this Act, or any of them, to
be paid and raised out of or from the lands or personal estate, or the
rents or produce thereof, in respect of which the same respectively shall
be made, or in such manner as the said Lord Chancellor or Court shall
think proper (b).

(a) In Westhead v. Sale, 6 W. R. Ves. 554 (decided under 7 Anne , c.

52, the Court directed the Records 19).
and Writ Clerk to certify that the Where a mortgaged estate has de
cause was ready for hearing in the scended to an infant heir of the mort
absence of a trustee who could not gagee, and the mortgagor is asking
be found. for a reconveyance on payment of
(b) The prayer as to the costs principal and interest, the infant is
should not contain the words " inci also entitled to the costs of any en
dental to or consequent " upon the quiry as to the infancy ultra the ordi
application, as they give rise to un nary costs ; Ex parte Ommaney, 10
certainty ; Re Fellows's Settlement, 2 Sim . 298 ; Miltown v. Trimbleston, 1
Jur. N. S. 62. Flan. & K. 338 ( decided under 1 Will.
[ Costs will not be allowed on the 4, c. 60) .
higher scale merely on the ground If the lunatic, against whom an
that the trust funds are large ; Re order is sought, be a trustee, the trust
Spettigue's Trusts, 32 W. R. 385. ] estate or the cestui que trust must
Where an infant trustee was or bear the costs of the proceedings
dered to convey, it was said that the under the Act, and if he be a mort
infant was entitled to the same costs gagee, and it appears upon the face of
as an adult, and the order was made the mortgage deed that the lunatic
"the other party undertaking to pay mortgagee is a trustee for a third
such costs as should appear to be party, the costs will fall on the mort
reasonably incurred ; " Re Cant, 10 gagor ; Re Lewes, 1 Mac. & G. 23.
1378
 TRUSTEE ACT, 1850. *1038

* LII. And be it enacted, that upon any petition being pre- [* 1038]
sented under this Act to the Lord Chancellor intrusted as afore
said, concerning a person of unsound mind, it shall be lawful for the said
Lord Chancellor, should he so think fit, to direct that a commission in the

But if the mortgagor had no notice Re Fulham, 15 Jur. 69 ; Ex parte

of the fact that the lunatic was a Davies, 16 Jur. 882. And where new
trustee, the costs will follow the gen trustee of two funds are appointed
eral rule ; Re Townsend, 1 Mac. & G. upon the same petition the costs are
686 ; Re Jones, 2 Ch. D. 70. borne by the two funds ratably, ac
What is the general rule has been cording to their respective values ;
much disputed. The latest phase of Re Grant's Trusts, 2 J. & H. 764.
the law is, that where the lunatic is In Ex parte Davies, 16 Jur. 882 ,
beneficially interested in the mortgage the Court, though after same hesita
money, there the costs of the petition, tion, declared that certain costs in
which should be presented by the curred under the Act should, with in
committee and need not be served on terest at 4 per cent., form a charge on
the mortgagor, are (exclusive of the the inheritance.
costs of the mortgagor if served) by The Court, on appointing new
force of authority and contrary to trustees of real estate, has power un
principle to be borne by the lunatic's der the section to direct the costs to
estate ; Re Wheeler, 1 De G. M. & G. be raised by a mortgage to be settled
436 ; Re Stuart, 4 De G. & J. 319, and by the Court ; Re Crabtree, V.C.Wood,
cases cited Ib.; Re Phillips, 4 L. R. 11 Jan. 1866 (MS. ) .
Ch. App. 629 ; but that in all other Where a petition is presented for
cases the costs must be paid by the vesting the legal estate of the lots
mortgagor ; Ex parte Clay, Shelf. sold by the Court in the purchasers,
Lun. 510, 2d edit., where the mort the petition may properly be presented
gage money had not been paid ; Re by the purchasers, and the costs of
Stuart, 4 De G. & J. 317 ; Re Jones, 2 the purchaser of each lot is payable
De G. F. & J. 554, where the mortgage out of the purchase-money of such
money had been paid ; and see Re lot ; Ayles v. Cox, 17 Beav. 584. See
Viall, 8 De G. M. & G. 439 ; Re Row ante, p. 1032 , note (c) .
ley's Lunacy, 1 N. R. 251 ; Re Town The Court has no jurisdiction
send, 2 Ph . 348 , and cases there cited. [under this section ] to order a person
[Where a mortgagee became of served with the petition to pay the
unsound mind, but was not so found costs personally ; Re Primrose, 23
by inquisition, and an order was made Beav. 590. But see the decisions
on the petition of the mortgagor au upon the Trustee Relief Act, Re
thorising him to pay the mortgage Woodburn's Will, 1 De G. & J. 333,
debt into the Bank of England, and and subsequent cases, ante, p . 1003.
vesting the estate in the petitioner, it [In Re Sarah Knight's Will, 26 Ch.
was held that the Court had no juris D. 82 , Pearson, J., was of opinion
diction to make the mortgagee or his that he had jurisdiction under the
estate bear the costs where the appli Rules of the Supreme Court, 1883 ,
cation was made by the mortgagor ; Order 65, r. 1 , to order a respondent
and no costs were allowed on either to pay the costs personally, but the
side ; Re Sparks, 6 Ch . D. 361. ] decision was reversed on appeal on
The costs of applications for the other grounds, the Court refraining
appointment of new trustees come out from deciding the point, but Cotton,
of the corpus of the trust fund ; Re L. J., expressing a doubt as to the
Fellows's Settlement, 2 Jur. N. S. 62 ; jurisdiction. ]
1379
*1039 TRUSTEE ACT, 1850.

nature of a writ de lunatico inquirendo shall issue concerning such person,

and to postpone making any order upon such petition until a return shall
have been made to such commission (a) .
LIII. And be it enacted, that upon any petition under this Act being
presented to the Lord Chancellor intrusted as aforesaid, or to the Court
of Chancery, it shall be lawful for the said Lord Chancellor, or the said
Court of Chancery, to postpone making any order upon such petition
until the right of the petitioner or petitioners shall have been declared in a
suit duly instituted for that purpose (b).
[*1039] * LIV. And be it enacted , that the powers and authorities
given by this Act to the Court of Chancery in England shall
extend to all lands and personal estate within the dominions, plantations,
and colonies belonging to her Majesty (except Scotland) (a).
LV. And be it enacted, that the powers and authorities given by this
Act to the Court of Chancery in England shall and may be exercised in
like manner and are hereby given and extended to the Court of Chancery
in Ireland with respect to all lands and personal estate in Ireland.
LVI. And be it enacted, that the powers and authorities given by
this Act to the Lord Chancellor of Great Britain intrusted as aforesaid,
shall extend to all lands and personal estate within any of the dominions,
plantations, and colonies belonging to her Majesty (except Scotland and
Ireland) (b).
LVII. And be it enacted, that the powers and authorities given by
this Act to the Lord Chancellor of Great Britain intrusted as aforesaid,
shall and may be exercised in like manner by and are hereby given to

[(a ) A commission will not be order as to lands or personal estate

directed to issue under this section , in Ireland ; Re Hewitt's Estate, 6 W.
where the trustee disputes his in R. 537 ; Re Taitt's Trusts, W. N.
sanity, but the inquiry in that case 1870, p. 257 ; [ Re Lamotte, 4 Ch . D.
should be under the ordinary pro 325 ; Re Hodgson, 11 Ch . D. 888 ; ] or,
ceedings in lunacy. The object of as to lands in Canada, Re Schofield ,
the section is only to give a sum 24 L. T. 322 ; Re Groom, 11 L. T. N.
mary and easy remedy for the re S. 336.
moval of the trustee where there is (b) The Lord Chancellor of Great
no contest as to the facts, but the Britain, sitting in lunacy, has no juris
Court requires information ; Re diction over lands in Ireland ; Re
Combs , 51 L. T. N. S. 45. ] Davies, 3 Mac. & G. 278 ; [ but the
(b) Thus where a father pur • Judges of the Court of Appeal who
chased in the name of his son, but have jurisdiction in Lunacy, having
without intending an advancement, been by special order appointed addi
the Court refused to declare the son, tional Judges of the Chancery Divis
who was a lunatic, a trustee for his ion for the purposes of applications
father without a suit, and directed a connected with lunacy can under the
suit accordingly ; Collinson v. Collin two jurisdictions appoint new trustees
son, 3 De G. M. & G. 409 ; and see and make an order vesting lands or
Re Burt, 9 Hare , 289. personal estate in Ireland ; Re La
(a) Consequently the High Court motte, ubi supra ; Re Hodgson, ubi
of Justice here may make a vesting supra.]
1380
 TRUSTEE ACT, 1850 . *1039

the Lord Chancellor of Ireland intrusted as aforesaid , with respect to all

lands and personal estate in Ireland.
LVIII. And be it enacted, that in citing this Act in other Acts of
Parliament, and in legal instruments and in legal proceedings, it shall
be sufficient to use the expression " The Trustee Act, 1850."
LIX. And be it enacted, that this Act shall come into operation on the
first day of November, one thousand eight hundred and fifty.
1381
[*1040] * No. IV.

TRUSTEE EXTENSION ACT, 1852 .

15 & 16 VICT. CAP. 55.

An Act to extend the Provisions ofthe " Trustee Act, 1850."

(30th June, 1852. )

WHEREAS it is expedient to extend the provisions of the Trustee Act,

1850 : Be it therefore enacted by the Queen's most excellent Majesty, by
and with the advice and consent of the Lords Spiritual and Temporal,
and Commons in this present Parliament assembled, and by the authority
of the same.
I. That when any decree or order shall have been made (a) by any
Court of equity directing the sale (b) of any lands for any purpose what
ever (c), every person seised or possessed of such land, or entitled to a
contingent right therein, being a party to the suit or proceeding in which
such decree or order shall have been made, and bound thereby (d) or

(a) A decree made before the pass debts ; and consequently where the
ing of this Act is within the operation decree for sale had been made in order
of this clause ; Wake v. Wake , 17 to provide a fund available for the
Jur. 545. The decree or order binds payment of costs, the Court had no
only the parties to the suit, and there power to make a vesting order ; Wes
fore in an administration suit, if the ton v . Filer, 5 De G. & Sm. 608. This
legal estate has descended to the heir enactment remedies the inconven
of the testator who is not a party, the ience ; Hancox v. Spittle, 3 Sm. & G.
Court has no jurisdiction to make a 478. And now in cases falling under
vesting order ; Gunson v. Simpson, 5 this section, a vesting order may be
L. R. Eq. 332 ; and see Gough v. Bage, obtained in Chambers ; see [ Rules of
W. N. 1871 , p. 237 ; 25 L. T. N. S. the Supreme Court, Order 55, R. 2,
738. Art. 8. The section applies to the
[ By 47 & 48 Vict. c. 71 (The Intes case where the person to convey is not
tates Estates Act, 1884) , s . 5, on a sale under disability, per V. C. Bacon ; Re
under that Act of any estate or inter Lee, Kenyon v. Lee, 1 Set. on Dec.
est of the Crown, this section is to 4th edit. 537 ; Beckett v. Sutton, 19 Ch.
apply as if such estate or interest were D. 646 ; but see Strong v. Padmore,
vested in a subject. ] contra, 1 Set. on Dec. 4th edit. 537. ]
[(b) This section applies to a sale [ (d) A devisee of real estate
under the Partition Acts ; Beckett v. charged with debts who had become a
Sutton, 19 Ch . D. 646. ] lunatic , and had subsequently by his
(c) The 29th section of the Trustee committee, with the sanction of the
Act, 1850 , applied only to decrees Master in Lunacy, commenced an ac
directing a sale for the payment of tion for the administration of his tes
1382
 TRUSTEE EXTENSION ACT. *1041

* being otherwise bound by such decree or order, shall be deemed [ * 1041 ]

to be so seised or possessed or entitled (as the case may be ) upon
a trust within the meaning of the Trustee Act, 1850 ; and in every such
case it shall be lawful for the Court of Chancery (a) , if the said Court
shall think it expedient for the purpose of carrying such sale into effect,
to make an order vesting such lands or any part thereof, for such estate as
the Court shall think fit, either in any purchaser (b) or in such other person
as the Court shall direct ; and every such order shall have the same effect
as if such person so seised or possessed or entitled had been free from all
disability, and had duly executed all proper conveyances and assignments
of such lands for such estate.
II. That sections numbered seventeen and eighteen in the Queen's
Printer's copy of the Trustee Act, 1850, be repealed ; and in every case
where any person is or shall be jointly or solely seised or possessed of any
lands or entitled to a contingent right therein upon any trust, and a demand
shall have been made upon such trustee by a person entitled to require
a conveyance or assignment of such lands, or a duly authorised agent of
such last-mentioned person , requiring such trustee to convey or assign
the same, or to release such contingent right, it shall be lawful for the
Court of Chancery, if the said Court shall be satisfied that such trustee
has wilfully refused ( c) or neglected to convey or assign the said lands
for the space of twenty-eight days after such demand (d ) , to make an
order vesting such lands in such person, in such manner and for such
estate as the Court shall direct, or releasing such contingent right in such
manner as the Court shall direct ; and the said order shall have the same
effect as if the trustee had duly executed a conveyance or assignment of
the lands, or a release of such right, in the same manner and for the same
estate (e).

tator's estate, is bound by an order a vesting order against her late hus
for sale of the real estate made in the band.
action, and is a trustee within the sec (e) Under the 17th & 18th sections
tion ; Re Stamper, 46 L. T. N. S. 372. ] of the Trustee Act, 1850, the power
(a ) And the Court of Chancery of the Court arose only upon written
had jurisdiction even where the party refusal to convey, or neglect or refusal
seised or possessed was of unsound so to do after tender of a proper deed.
mind, but not found lunatic ; Herring The former contingency was of rare
v. Clark, 4 L. R. Ch. App . 167 . occurrence, and considerable difficulty
(b) As to the persons to present was often experienced in bringing the
the petition where lands are sold in case within the terms of the latter.
several lots to different purchasers , In copyholds , for instance, vested in a
see ante, p. 1032, note (c) ; 1038, note. feme covert, who could only surrender
As to the costs of the petition, see with consent of the husband, and on
ante, p. 1038, note. being privately examined, how could
(c) A married woman is capable of a proper deed be tendered ? See
refusing; Rowley v. Adams, 14 Beav. Rowley v. Adams, 14 Beav. 130.
130. Where a mortgagor covenanted to
(d) In Knight v. Knight, 14 L. T. surrender copyholds to the mortgagee,
N. S. 161 , a divorced woman obtained and refused to surrender for twenty
1383
*1042 TRUSTEE EXTENSION ACT.

III. That when any infant shall be solely entitled to any stock
[* 1042 ] upon * any trust, it shall be lawful for the Court of Chancery to
make an order vesting in any person or persons the right to
transfer such stock, or to receive the dividends or income thereof (a) ;
and when any infant shall be entitled jointly with any other person or
persons to any stock upon any trust, it shall be lawful for the said Court
to make an order vesting the right to transfer such stock, or to receive
the dividends or income thereof, either in the person or persons conjointly
entitled with the infant, or in him or them together with any other per
son or persons the said Court may appoint (b) .
IV. That where any person shall neglect or refuse to transfer any
stock or to receive the dividends or income thereof, or to sue for or
recover any chose en action, or any interest in respect thereof, for the
space of twenty-eight days next after an order of the Court of Chancery
for that purpose shall have been served upon him (c ) , it shall be lawful
for the Court of Chancery to make an order (d) vesting all the right of
such person to transfer such stock, or to receive the dividends or income
thereof, or to sue for and recover such chose en action, or any interest

eight days, the Court made a vesting and vested the right to receive the
order, and service on the mortgagor, dividends in the guardian during the
who could not be found, was dispensed infant's minority ; Re Morgan, 1 Set.
with ; Re Crowe's Mortgage, 13 L. R. on Dec. 516, 4th edit.
Eq. 26. (b) In Cramer v. Cramer, 5 De G.
(a) An order was once made by & Sm. 312, Vice-Chancellor Parker
mistake under this Act, where the in held that, the Trustee Act, 1850,
fant was entitled beneficially ; Re having conferred no general power in
Westwood, 6 N. R. 61 ; but the order the case of an infant trustee of stock
was afterwards corrected, and made within the jurisdiction, the Court had
under the proper Act, viz., 1 W. 4, c. no authority to make a vesting order
65, s. 32 ; Re Westwood, 6 N. R. 316. with regard to stock held by an in
Agents of executors invested a fant trustee out of the jurisdiction.
sum of stock in the names of infants, Hence this clause ; see Sanders v.
who had an interest under the will, Homer, 25 Beav. 467.
instead of in the names of the execu [The section applies to the case of
tors, and the Court made a vesting stock to which an infant is benefi
order for the transfer into the names cially entitled standing in the joint
of the executors ; Rives v. Rives, W. names of the infant and another per
N. 1866, p. 144 ; 14 L. T. N. S. 351 . son ; Re Harwood, 20 Ch. D. 536. ]
So where executors had invested (c) In Mackenzie v. Mackenzie, 5
stock in the names of themselves and De G. & Sm. 338, it was held that the
an infant, and the infant was the sur case of a person refusing to transfer
vivor ; Gardner v. Cowles, 3 Ch. D. stock in obedience to an order of the
304. Court, was not provided for in the
Where stock was standing in the Trustee Act, 1850. Hence the pres
names of three trustees and (lege for) ent remedial enactment.
an infant, and two of the trustees (d) The order under this section
were dead and the third was out of need not be made upon a petition,
the jurisdiction, the Court appointed but may be made upon motion ; Re
a guardian, and allowed maintenance, Holbrook's Will , 5 Jur. N. S. 1333.
1384
 TRUSTEE EXTENSION ACT. * 1043

in respect thereof, in such person or persons as the said Court may

appoint.
V. When any stock shall be standing in the sole name of a deceased
person, and his personal representative shall refuse or neglect to transfer
such stock or receive the dividends or income thereof for the space
of twenty-eight days next after an order of the Court of Chancery
*
for that purpose shall have been served upon him, it shall be [ *1043]
lawful for the Court of Chancery to make an order vesting the
right to transfer such stock, or to receive the dividends or income thereof,
in any person or persons whom the said Court may appoint (a) .
VI. When any order being or purporting to be under this Act, or
under the Trustee Act, 1850, shall be made by the Lord Chancellor
intrusted as aforesaid, or by the Court of Chancery, vesting the right
to any stock, or vesting the right to transfer any stock, or vesting the
right to call for the transfer of any stock, in any person or persons, in
every such case the legal right to transfer such stock shall vest accord
ingly (b) and the person or persons so appointed shall be authorised
and empowered to execute all deeds and powers of attorney, and to
perform all acts relating to the transfer of such stock into his or their
own name or names, or otherwise, to the extent and in conformity with
the terms of the order, and the Bank of England, and all companies and
associations whatever, and all persons, shall be equally bound and compel
lable to comply with the requisitions of such person or persons so
appointed as aforesaid, to the extent and in conformity with the terms
of such order, as the said Bank of England, or such companies, asso
ciations, or persons would have been bound and compellable to comply
with the requisitions of the person in whose place such appointment
shall have been made.
VII. That every order made or to be made, being or purporting to
be made under this or the Trustee Act, 1850, by the Lord Chancellor
intrusted as aforesaid, or by the Court of Chancery, and duly passed
and entered, shall be a complete indemnity to the Bank of England, and

(a ) It is the practice of the Bank to the stock." Hence this enact

of England not to allow the dividend ment, which directs the Bank to obey
to be split into fractional parts ; all orders vesting the right to stock
Skynner v. Pelichet, 9 W. R. 191 . or the right to call for a transfer of
(b) In Re Smyth's Settlement, 4 it. [Where the trustees appointed
De G. & Sm. 499, it was held that, by a testator died and new trustees
under the 35th section (which differed were appointed in their place, and all
in this respect from the 26th section) the trust property was vested in the
of the Trustee Act, 1850, the Court new trustees, the Bank declined to
had no power to vest "the right to a act unless the order directed the new
the stock," but only " the right to call trustees to transfer the stock into
for a transfer of the stock," and that their own names ; Re Glanville's
the Bank was justified in refusing to Trusts, W. N. 1877, p . 248 ; 1878, p.
transfer stock to new trustees under 21. ]
an order vesting in them " the right
1385
*1044 TRUSTEE EXTENSION ACT.

all companies and associations whatsoever, and all persons, for any act
done pursuant thereto ; and it shall not be necessary for the Bank of
England, or such company or association or person, to enquire con
cerning the propriety of such order, or whether the Lord Chancellor
intrusted as aforesaid, or the Court of Chancery had jurisdiction to
make the same .
VIII. That when any person is or shall be jointly or solely seised or
possessed of any lands or entitled to any stock, upon any trust,
[* 1044] and such person has been or shall be convicted of felony, it
shall be lawful for the Court of Chancery, upon proof of such
conviction, to appoint any person to be a trustee in the place of such convict,
and to make an order for vesting such lands, or the right to transfer such
stock, and to receive the dividends or income thereof, in such person to be
so appointed trustee ; and such order shall have the same effect as to lands
as if the convict trustee had been free from any disability and had duly
executed a conveyance or assignment of his estate and interest in the
same.
IX. That in all cases where it shall be expedient to appoint a new
trustee, and it shall be found inexpedient , difficult, or impracticable so
to do without the assistance of the Court of Chancery, it shall be lawful
for the said Court to make an order appointing a new trustee or new
trustees, whether there be any existing trustee or not at the time of making
such order (a) .
X. In every case in which the Lord Chancellor intrusted as afore
said (b) has jurisdiction under this Act, or the Trustee Act, 1850, to
order a conveyance or transfer of land or stock, or to make a vesting
order, it shall be lawful for him also to make an order appointing a new
trustee or new trustees, in like manner as the Court of Chancery may do
in like cases, without its being necessary that the order should be made
in Chancery as well as in Lunacy, or be passed and entered by the Regis
trar of the Court of Chancery (c) .

(a) See note, p. 1029, supra, as to L. R. Eq . 214 ; Re Moore , 21 Ch . D.

the doubt which led to this enactment. 778, and see Re Smirthwaite's Trusts,
See an order under this section, Davis 11 L. R. Eq. 251 ; Re Gillett's Trusts,
v. Chanter, 4 Jur. N. S. 272. It has 25 W. R. 23.
been doubted whether the Court has The Court sitting in Lunacy and
jurisdiction to appoint trustees of in Chancery has power under this
personalty where none were ap section to appoint new trustees of the
pointed by the testator, but the Court will of a deceased lunatic, where the
has authority to do it by its inherent trustees appointed by the lunatic
jurisdiction independently of the Act ; have died in his lifetime, for the pur
Dodkin v . Brunt , 6 L. R. Eq . 580. pose of getting rid of the funds
[And it has since been held that the standing in Court to the credit of
executor or heir must be deemed a the lunacy ; Re Orde, 24 Ch. D. 271. ]
constructive trustee so as to give the (b) See Trustee Act, 1850 , s. 3,
Court jurisdiction to appoint trustees and ante , p. 1013.
under the Act ; Re Davis's Trusts, 12 (c) Where four trustees had been
1386
 TRUSTEE EXTENSION ACT. * 1045

XI. That all the jurisdiction conferred by this Act (d) on the Lord
Chancellor, intrusted by virtue of the Queen's sign manual with the care
of the persons and estates of Lunatics, shall and may be had,
exercised, and performed by the person or persons for the time [ * 1045 ]
being intrusted as aforesaid.
XII. That this Act shall be read and construed according to the
definitions and interpretations contained in the second section of the
Trustee Act, 1850, and the provisions of the said last-mentioned Act
(except so far as the same are altered by or inconsistent with this Act)
shall extend and apply to the cases provided for by this Act, in the same
way as if this Act had been incorporated with and had formed part of
the said Trustee Act, 1850.
XIII. That every order to be made under the Trustee Act, 1850, or
this Act, which shall have the effect of a conveyance or assignment of any
lands, or a transfer of any such stock as can only be transferred by
stamped deed, shall be chargeable with the like amount of stamp duty as
it would have been chargeable with if it had been a deed executed by
the person or persons seised or possessed of such lands, or entitled to
such stock ; and every such order shall be duly stamped for denoting
the payment of the said duty.

The 28 & 29 Vict. c . 99 , has since been passed, by which it is

enacted, by section 1 , article 5 , that, " in all proceedings under the
Trustee Acts , or any of such Acts , in which the trust estate or
fund to which the proceeding relates does not exceed in amount
or value the sum of 5001.," the County Courts " shall have the
power and authority of the High Court of Chancery. ”

appointed, and three died and the J. N. S. Ch . 280. The doubts there
fourth was a lunatic, a petition for raised as to the jurisdiction of the
the appointment of four new trustees Lords Justices under the Trustee
was held to be properly intituled Act, 1850, were removed by 15 & 16
under this section in Lunacy only ; Vict. c. 87, s . 15 (date of Royal
Re Owen, 4 L. R. Ch. App. 782 ; Re Assent 1 July, 1852) , and therefore
Mason, 10 L. R. Ch. App. 273 ; see after the Trustee Extension Act, to
Trustee Act, 1850, s . 32, and ante, p . which the Royal Assent was given on
1013, note (e). 30 June, 1852. See ante, p. 1013,
(d) See Re Waugh's Trust , 2 De note (e).
G. M. & G. 279 ; Re Pattinson, 21 L.
1387
 INDEX .

[ The references are to the star paging.]

ABATEMENT.
adverse possession equivalent to, in equity , 724, 725.
ABATOR.
not bound by a use, 3.
ABROAD .
assignment executed, when an act of bankruptcy, 512, 513.
cestui que trust resident abroad, payment to, 353, 354, 476.
fraudulent conveyance of lands, relieved against, 49 .
injunction against taking possession of lands, 49.
lands abroad (within the Queen's dominions) within Trustee Act, 1850,
ss. 54, 56 . . . 1039.
equities and contracts as to, enforced, 48, 49 ; whether so as to trusts
qu. 49, 50.
lien against, cannot be enforced , 49.
management of property abroad, commission when allowed in respect of,
628 et seq.
person domiciled , not suitable to be trustee, 40, 847, 1030.
personal estate abroad, trust of, enforced in equity, 48.
real estate abroad , equities attaching to, how far enforced, 48.
receiver when appointed where trustees out of jurisdiction, 983.
rents and profits of land, account of, directed, 49.
Scotch estate, equitable mortgage of, enforced, 48.
service on persons abroad does not enlarge jurisdiction , 49.
Trustee Act, under, 1034.
Trustee Relief Acts, under, 1001 , 1006.
trustee resident abroad, 40, 659 , 847.
incapacitated, is not, from acting, 658, 659.
new trustee may be appointed instead of, 646, 649 , 847 , 1028 , 1033.
payment to co- trustees ordered by Court, 355 note (ƒ) .
vesting order may be made as to estate of, 1016 , 1028. See TRUSTEE
Acts .
when appointment of, is proper, 662.
trusts of land abroad how far effectual, 48, 49, 50.
ABSCONDING TRUSTEE .
removed, may be, 847.
service of petition for appointment of new trustees on, unnecessary, 1033.
ABSENCE .
trustee, of, when a ground for appointing new trustee, 1016 et seq. See
TRUSTEE ACTS .
ABSOLUTELY ENTITLED.
who are, within Trustee Acts , 1022.
ACCEPTANCE OF TRUST, 200 et seq., 251 , 252.
acting in execution of trust , by, 200, 201 , 205, 251.
what acts constitute acceptance, 201 , 203, 251 .
attorney, by signing power of, 202 , 203, 207.
1388
 INDEX.

[The references are to the star paging. ]

ACCEPTANCE OF TRUST― continued.
constructive acceptance, what amounts to, not easily to be determined,
201.
declaration, by, 200.
deed , by, not requisite, 205 ; but may make breach of trust a specialty
debt, 205.
duties consequent on, 206, 207.
trustee must not rely on co-trustee, 207.
must inform himself of state of trust, 207.
should have inventory of chattels made, 207.
may assume no breach of trust if he has no notice of any, 207.
execution of trust deed, by , 200.
executor, by, how made, 201.
by voluntary interference with assets, 202.
as by assigning lease, bringing action , selling assets, 202, 203.
unless conduct can be clearly explained, 203.
by proving will, 201 .
executor of executor, by, 202.
executor who is also trustee cannot prove will, and renounce trusts of
estate, 202, 204.
legatee being executor may claim legacy though he renounce , 197.
express declaration, by, 200.
mistake, person assuming character of trustee by, accountable, 207 , 208.
parol, by, sufficient , 205.
parol evidence admissible to prove, 205.
presumption of, by lapse of time, 201 ; but not from taking custody of
trust deed, 204.
probate, effect of trustee taking out, 201 , 202.
recitals in trust deed, trustee should see to correctness of, 201 .
renunciation after acceptance not permitted, 251, 252.
several trust estates, by devisee of, 204.
time, by lapse of, without disclaimer, 197 , 201.
trust deed, by executing, 200 ; but secus merely taking custody of, 204.
two trusts by same instrument, trustee accepting one, deemed to have
accepted the other, 204.
writing, by, not necessary before commencing action, 205.
ACCIDENT .
no excuse for trustee, if it occur during misfeasance , 907.
possession of title deeds by , will not per se confer priority, 714.
ACCORD.
no bar without satisfaction, 923.
ACCOUNT.
agent of trustee, against, 191 , 482, 641 , 642.
cestui que trust, against, gaining by breach of trust, 910, 911.
Chancery Division, matters of account are assigned to, 887.
charity, against trustees of, when directed, 872 , 934 et seq.
complication in, a ground for relief in equity, 886.
copy of, whether c. q . t. entitled to, 691 .
costs of taking, 990, 991 , 993, 994. See Costs.
creditors of trustee not entitled to account of administration, 641 .
decree for, merely, not within 1 & 2 Vict. c. 110, s . 18 , 804 note (a) .
delay when a bar to action for, 870 et seq.
expenses, of, duty of trustee to keep, 638.
fraudulent concealment of lease till term expired, where, 888.
ignorant, where trustee was, of his true character, 244, 889 , 904.
improper, rendered by co-trustee , liability of trustee for, 691.
inconvenience, claim for account when refused on ground of, 870 et seq.,
934.
just allowances, direction for, when given, 278, 890.
1389
 INDEX.

[The references are to the star paging.]

ACCOUNT- continued .
laches, where plaintiff guilty of, account restricted to institution of suit ,
871, 889.
where surviving partner guilty of, 872 .
lapse of time, after, indulgence shown to trustee, 691 note (e).
legal title, account in equity in respect of, 886 , 890, 891.
Limitations, Statute of, formerly not applicable to action for, 871 .
married woman, settlement of accounts by, with trustee, 786.
mesne rents and profits, of, 885 et seq . See RENTS AND PROFITS.
ignorance or mistake of trustee, 244, 339, 344, 934, 936 .
lands abroad , of, 49 .
misstating, trustee is fixed with costs, 993.
parish, no retrospective account against , 936.
preliminary accounts and inquiries , Court may make order for , 351 .
profits of trade , of, against person in fiduciary relation, 276 , 278. See
PROFITS OF TRADE .
refusal of trustee to render , 691 note (e ) , 993 .
retiring trustee, against, of money paid to induce him to retire, 277.
settled, opening, against solicitor trustee, 630.
tenant for life, against, who has received excessive income , 334 , 335 .
trustee, against, who has employed trust money in trade, 276, 277 , 340 et
seq.
who has purchased trust estate, 491, 494 ; who has renewed lease,
185.
who has delayed sale of trust property, 424 .
trustee, duty of, to keep proper, 691, 993 ; and produce same, 449, 975,
976.
costs of neglect or refusal to render, 691, 930, 993.
right of trustee to have accounts taken in presence of c. q. t., 1028.
vouchers, trustee entitled to custody of, 449 .
but must produce them to c. q. l., 449.
waste, in respect of, 188 , 872.
wilful default, on footing of, when directed , 904 , 905.
ACCOUNTANT.
trustee may employ , 633.
ACCUMULATION .
application of income before conversion where accumulation directed ,
301 .
infant, of income of, during minority, 579, 582 , 584, 585.
maintenance out of, form of order directing , 587 .
simple and compound, 90.
trust for, when lawful , 89 et seq. See THELLUSSON ACT .
perpetuity, leading to, bad if possibly exceeding lawful limit, 89 ; and
see 97.
but no danger of perpetuity where rents applicable as vested
interest de anno in annum , 89.
and trust is valid if beneficiaries can put an end to accumulation
within the legal limits , 90 .
until A. attains 24, and then to transfer to him , A. on majority may
demand payment, 689 .
trustee neglecting to comply with direction for, charged with compound
interest, 343 , 902.
where directed, and investment, tenant for life has income after one year,
301.
ACKNOWLEDGMENT .
debt, of, by one trustee, 259 .
execution of deed, of, 22 , 35. See FINES AND RECOVERIES ACT .
production of documents of title, of right to , 443 , 444 .
trust, proof of, by subsequent acknowledgment of trustee, 55.
1390
 INDEX .

[ The references are to the star paging.]

ACQUIESCENCE. See LACHES.
breach of trust, in, effect of, 922 et seq.
infant not bound by, 496 , 918.
married woman, formerly not bound by, 496, 789, 918, 925.
secus where entitled for separate use without restraint, 496, 919
et seq .
quære, where so entitled with restraint, 911 , 919, 925, 926.
class persons, by, as creditors or parishioners, 496, 923 .
constructive trusts, remedy of c. q. t . under, when barred by acquiescence,
186, 864.
purchase in name of stranger, in case of, 170.
creditors, by, in trust deed for them, 496, 513, 514, 522.
definition of, 873 , 874.
delay, by reason of, when implied , 197, 495, 496. See LACHES.
direct or indirect, 873, 874 .
fluctuating body, by, 496, 923.
infant not bound by, 496, 925.
Limitations, Statute of, does not interfere with the effect of, in equity, 875.
married woman, by, effect of, 496 , 911 , 918 et seq . , 925.
in husband's receipt of separate estate, 777 , 778.
meaning of, explained , 874, 923, 924.
remainderman, by, 379, 923.
removal of trustees irregularly appointed, right to, when barred by, 848.
requisites of, 873, 874, 925 , 926.
reversionary, where c. q. t.'s interest is , 923.
standing by, while expense is incurred , effect of, 874.
trustee, by, delaying to disclaim trust, 197.
ACT OF PARLIAMENT.
applications by trustees for, 580.
charity, necessary for total alteration of scheme of, 535.
costs of obtaining, 535, 536.
money paid into Court under, treated as land, 950.
investment of, in what securities allowed, 311.
monies voted by, for public services, in hands of Secretaries of State, are
not trust funds , 642.
opposition to Bill, costs of, when allowed, 580, 636.
money paid to tenant for life for refraining from, 190.
ACTING.
acceptance of trust by, 200 , 201 , 205, 251. See ACCEPTANCE OF TRUST.
disclaimer of trust by acts, 198. See DISCLAIMER.
executor, meaning of expression, 646 note (d) .
trustee, meaning of expression , 258, 655, 665 .
every trustee who has accepted office treated as, 258, 709 ; and see 208.
ACTION.
appeal by trustee is at his own risk, 350.
breach of trust, to prevent, duty of co-trustee to bring, 274.
cestui que trust may require trustee to lend his name for, 853.
choses in. See CHOSE IN ACTION.
costs of, trustee when liable for, 350.
Court may direct institution of, 597 , 1002 , 1038 .
debt, for calling in, duty of executor or trustee to bring, 290, 291.
decree or judgment in, takes administration from trustee, 422, 449, 457,
597, 617, 618.
equity to settlement, to enforce, 741 , 749.
lapse of time, when barred by, 864 et seq. See LIMITATION.
married woman, against, 770 et seq., 793.
by, 759 et seq.
new trustees, for appointment of, 1030, 1034.
protection of trustee, for, 350.
1391
 INDEX .

[The references are to the star paging.]

ACTION - continued.
removal of trustee, for, pleadings in, 847 .
summons, originating, now substituted for, in certain cases, 350.
tenant for life , powers of, under Settled Land Acts not affected by, 557.
trustee the right party to bring, respecting trust estate, 15, 234, 241 , 853.
duty of trustee to see that proper parties are before the Court, 351 .
instituting action for private ends, pays costs , 993.
instituting action instead of paying into Court under Trustee Relief
Act, 350.
powers of, when suspended by institution of action, 422 , 449, 457 , 597,
617, 618, 669.
trustee in bankruptcy, against, to recover trust property, 241 .
validity of act without, which Court would have directed , 573.
ADEMPTION , 401 et seq.
codicil republishing will, effect of, 405.
direction to pay debts does not negative presumption of, 407.
doctrine of, explained , 401 .
legacy, of, by subsequent advance by parent, 401 et seq.
money, legacy of, not adeemed by subsequent settlement of land, 404.
parents and persons in loco parentis, doctrine of, applies only to, 402.
partial, by advance of less amount than legacy, 404, 405.
presumption, is matter of, only, 403 .
residuary gift, of, by subsequent advance, 405.
satisfaction , distinguished from, 401 , 408.
stranger, when benefited by doctrine of, 407, 408.
ADMINISTRATION.
action for, effect of, on trust for sale, 422 ; on powers , 422, 449, 457, 597,
617, 618, 669.
assets , legal and equitable, 825 et seq. See ASSETS .
bankruptcy, in, 831 , 832 .
bond, 481 .
cæterorum, to husband, 775.
charity, of, under Romilly's Act, 929.
costs of action for, by creditor, 986, 987 , 988. See Costs.
executor ordered to pay, 994.
lien of trustee prevails over, 639, 640.
testamentary expenses , are, 644.
creditors of trustee not entitled to account, 641.
difficulty in obtaining, when a ground for appointing new trustees, 1027.
guardian of infants, to, limited to purpose of appointing trustees, 657.
interest on debts, allowance of, 526.
letters of, how obtained after successive intestacies, 482.
what legacies will be paid without taking out, 354.
limited to trust property, when to be taken out, 224, 657.
mortgagee, proof by, in administration action , 521.
order for, Court not bound to make, if questions can be determined with
out it, 351.
originating summons in lieu of action for determination of questions in,
350, 620.
retainer, where executor claims, as to simple contract debt, 831.
sale, order for, converts property as from its date, 951.
separate property of married woman, of, 774.
wilful default, account on footing of, when directed , 905.
ADMINISTRATOR. See EXECUTOR.
convict's property, of, appointed by Crown, 28, 29.
dealings with, after interval from intestate's death, how far safe, 481 , 482.
de bonis non, assets vest in, where executor dies intestate, 225.
office of, may be exercised by one co -administrator , 273.
purchase of trust property by, not permitted, 490.
1392
 INDEX .

[The references are to the star paging.]

ADMINISTRATOR - continued.
protection of, against creditors, 362.
real estate, cannot sell, though charged with debts, 467, 468 .
receipt of, after lapse of time, 481 , 482.
where there is charge of debts, 467, 468 .
renunciation of executor and trustee, administrator appointed upon, is
not properly a trustee, 204.
survivorship of office of joint administrator, 261.
time and trouble, not allowed to charge for, 628.
trustee, of, bound by trust, 246, 906.
whether he can make a title, 484 ; may relinquish trust, 672.
ADMISSION.
assets, of, is not an admission of right of set off, 701 .
copyholds, to, fine to be paid by trustee on, 235 et seq.
at what rate where co-trustees, 236.
how raised, 379.
lord cannot refuse admission until fine paid, 235.
tenant for life and remainderman, how to be borne as between, 378,
379.
vesting order, with consent of lord, operates as admission , 1025 .
payment into Court, what admission sufficient to found motion for, 977 et
seq. See PAYMENT INTO COURT.
set off, objection to, may be waived by admission, 701 .
trust, of, by defendant, 55 , 63.
ADOPTION.
trust deed, of, by creditor, 513, 522.
ADULT. See ADVANCEMENT ; INFANT.
ADVANCEMENT.
infant's legacy, out of capital of, 588.
not allowed if a limitation over, 588 ; but may be, in account between
trustee and infant, 589.
allowed where cross limitations among children, 589.
meaning of term, 588 note ( b) .
portion, ademption of, by subsequent advance, 401 et seq. See ADEMPTION.
advancement to child regarded as, 404. See PORTION.
satisfaction of, by subsequent advance, 461 et seq . See SATISFACTION.
power of, advice of Court as to exercise of, how to be obtained, 619, 620.
when Court will insert in settlement under executory trust, 127.
with consent of tenant for life, how to be exercised when tenant for
life becomes bankrupt, 589.
presumption of, on purchase in name of child, wife, or near
relative, 170 et seq.
adult, where child is, 173.
copyholds for lives, on purchase of, 172.
daughter, in favour of, 177.
evidence to rebut presumption , 175 .
to support presumption, on part of child, 176.
grandchild, in favour of, 177.
illegitimate child, in favour of, 177.
infant, when child is, 171 .
joint names, on purchase in, 171 , 172 .
names of father and child, 171 .
names of purchaser, wife , and strangers, 178.
names of stranger and child, 172.
but stranger qua his estate is trustee for father, 172.
mother, in case of purchase by, on slight evidence of intention, 178.
nephew, in favour of, 177.
parol declaration by parent, admissibility of, as evidence, 173, 174.
1393
 INDEX .

[The references are to the star paging.]

ADVANCEMENT - continued.
personalty, doctrine applies to , 179.
policy of assurance on life of parent in name of child, 179.
possession, continuance by parent in, 173, 174.
previous provision for child, effect of, as rebutting presumption, 173.
purchase money, if not paid, is a debt from estate of purchaser, 178.
receipts, effect of son signing, in parent's name, 174.
relationship of father and child a mere circumstance of evidence, 170.
relatives in whose favour presumption arises, 177, 178.
reputed wife (e.g., deceased wife's sister ) , does not arise in favour of,
177.
reversionary estate, in case of purchase of, 171 .
solicitor, relation of, by child to parent rebuts presumption, 179.
stepchild, does not arise in favour of, 177.
stranger, does not arise in favour of, even where purchaser in loco
parentis, 177.
wife, in favour of, 177, 178.
renewal of lease by parent, who is tenant for life, is not an, 184.
and child is trustee of all or no part, 175 note (i) .
tenant for life , of, under special power, 589, 590.
ADVANTAGE .
charity lease should not contain covenant for lessor's private advantage,
542.
purchase of trust property by trustee set aside though he has not gained,
485. See PURCHASE .
trustee may not derive, from trust, 275 et seq.; unless accidentally, 282.
as by buying up debts, from game on trust estate, presenting to
living, being receiver, trading, &c. , 275, 276 , 280 ; retiring from
trust in consideration of premium , 668.
application of rule to mortgagees, 277 ; partners, 277 ; factor, 280 ;
broker, 280 ; commission agent, 280 ; auctioneer, 280 ; solicitor, 281 ;
agents, 279 ; guardians, 279 ; tenant for life, 303, 304.
cannot seek aid of equity under cover of the trust, for his own
benefit, 284.
may assert his legal right, 284.
may not lease to one of trustees, 486.
whether trustee may have, on failure of c. q. t., 282.
wrongdoer not allowed to make, by his own wrong, 188, 191 .
ADVERSE POSSESSION. See POSSESSION .
curtesy does not attach where there is, 734.
equitable estate, is available against, 725.
ADVERSE TITLE.
trustee cannot set up, against his c . 9. t. , 285.
ADVERTISEMENTS .
executors, by, for creditors under Lord St. Leonards' Act, 362.
trustees, by, selling by auction , 435 .
ADVICE .
counsel, of, trustee acting under, when protected, 207, 346, 347. See
COUNSEL
Court, of, how obtained by trustee, 352 , 618 et seq .
words of, whether trust is raised by, 134, 135. See IMPLIed Trust.
ADVOWSON.
election of clerk to fill, 257 ; trustees must not vote by proxy, ib.
heir at law, right of presentation when devolving on, 275 .
purchase of, on footing of immediate possession, simoniacal, 104.
survivorship of right to present, as between co-trustees, 262.
tenants in common of, who shall present, 276.
trust of, for parishioners, how carried into effect, 85 et seq., 257.
1394
 INDEX.

[The references are to the star paging.]

ADVOWSON — continued.
trust to present to, within six months after vacancy, 600.
trustee presents but must observe direction of c. q. t., 234, 275.
trustees should not purchase, 503.
AFFIDAVIT.
distringas, in support of application for, under 5 Vict . c. 5, s. 5, 972, 974.
evidence usually given by, under Trustee Acts, 1033.
fitness of new trustees, as to , 1021 , 1028 , 1030, 1031 .
payment into Court upon, when compulsory, 977 et seq.
restraining order, in support of application for, under 5 Vict. c. 5, s. 5, 974.
trust, evidenced by, within Statute of Frauds , 55.
trustees, by, under Trustee Relief Act, 360, 997 , 1005.
not allowed on application for advice of Court under Lord St. Leon
ards' Act, 618 .
AGENCY.
agreement, trustee procuring renewal for his own firm held bound by
constructive trust, 186.
deed of, 517.
AGENT.
accountable to trustees only, not to c. q. t., 191 , 482, 641 , 642.
unless quasi-trustee deriving personal benefit, 192, 642 ; or by accept
ing delegation of trust or fraud , 192 , 642.
cestui que trust when regarded as agent of trustee, 881 , 882.
criminal act of, trustee whether liable for, 294, 295.
denying real character may be prosecuted for perjury, 168.
disclaiming trustee may act as agent to trust, 198.
executor when justified in employing, 256 , 264 , 633.
following money into hands of, rights of principal as to, 894.
husband and wife, of, receipt by, of chose en action , 740 note (a) .
lease, agent of trustee may not renew, for his own benefit, 182.
lien, agent has not any, upon trust estate for charges, 641.
though trust be to pay expenses in first instance, 641 .
secus where positive direction to employ particular agent, 253, 254,
641.
Limitations, Statutes of, when entitled to plead, 901 .
management, for, purchase by, 486 .
negligence of, trustee not liable for, 638.
notice to, must be to actual, not to possible, agent, 708 , and see 709.
production of accounts kept by, 976.
profiting by agency, is constructively a trustee, 187 , 191 , 279, 486 .
purchase by, in own name not provable by parol to be for another, unless
part of consideration paid by employer, 168.
when improper, 486 , 490 .
purchase money, payment of, to agent of trustee, 435, 447 , 448.
security from , trustee or executor not required to take, 256.
town agent, country solicitor defending suit by, allowed agent's bill
although trustee, 282.
trustee after disclaimer may be agent to trust estate, 198.
one trustee may act as, in some cases for another, 254.
may employ, on proper occasions, 254, 435, 632.
e.g. , broker, 255 ; collector of rents, bailiff, attorney, 632 , 633,
637 ; collector of debts, 632, 633.
where special direction by testator, 253 , 254 .
paying to agent, cautions to be observed by, 352, 353.
for sale, cannot buy as agent for another, 486 .
may employ agent, 435 ; but not to receive purchase money, 435,
448 .
trustee, of, cannot buy for himself, 486.
West Indies, for management of estate in, 628.
1395
 INDEX .

[The references are to the star paging.]

AGRICULTURAL HOLDINGS (ENGLAND ) ACT.
charity trustees exercising powers of, require consent of Commissioners,
547.
improvements under, application of trust monies in, 563, 564.
by tenant not to be taken into account in estimating best rent, 595.
right of tenant to compensation for, 596.
married woman, powers of, in respect to land, under, 793, 794.
ALIEN.
cestui que trust of real estate, formerly could only be till office found, 44 ;
secus since 33 Vict. c. 14, 45.
chattels personal, alien enemy not competent to hold, 27 ; but see 33 Vict.
c. 14, 26 ; alien friend may, and may create trust, ib.
devise to, and to British subject, upon trust, 40.
executory trust for, Court would not give effect to, in favour of Crown, 45.
husband not entitled to curtesy, 733.
lands, may acquire by purchase, but formerly not by descent or operation
of law, 26, 45.
purchasing, could hold until office found, 26 , 44.
could not sue or be sued touching lands, 40.
may now acquire and hold real and personal property , 27, 40, 45.
Naturalization Act, 1870, provisions of, as to , 27 , 40, 45.
office or franchise, not qualified for, by act of 1870 , 27.
proceeds of sale of real estate, could take , 45, 950.
protector of settlement, cannot be appointed , 382.
trust, how far he can create of real estate, 26.
of real estate for, 44, 823, note (b).
could be enforced as against all but Crown, 44.
formerly Crown could claim benefit without previous inquisi
tion , 96 .
trustee of freeholds or chattels real, formerly could not be, 40.
secus since 33 Viet. c. 14, ib.
of chattels personal, may be, 40.
when appointed by Court, 1031 .
trustee of real estate for, Crown could sue, in equity, 45.
will, power of, to dispose of property by, 27 , note.
ALIENATION.
bankruptcy, when an " alienation," 102 .
charity estates, of, when permitted , 539 et seq. See CHARITY.
corporation, by, 22 , 31 .
enlargement of estate is not an, 784.
gift until , or gift over upon, 101 et seq.
what assignment occasions a forfeiture, 102 .
insolvency, when an " alienation," 103 .
limitation over in event of, effect of, 101 et seq.
marriage of feme, how far an alienation of her chose en action, 102.
meaning of term , 102 , 784.
partial restraint upon, whether valid, 102 .
powers, whether trustee can exercise, after alienation of estate, 608 et seq.
whether tenant for life can, 668.
restraint against, trust imposing, inoperative , 98 et seq., 689, 693.
secus, restraint against anticipation as to separate property of married
woman, 693, 754 et seq.
tenant for life, by, under Settled Land Acts, 553, 555. See SETTLED
LAND ACTS.
ALIMONY.
inalienable character of, 750.
ALLOTMENT.
new shares, of, 596.
1396
 INDEX.

[ The references are tothe star paging.]

ALLOTMENTS EXTENSION ACT, 1882, 540 , note (e) .
ALLOWANCE .
contract for, trustee may make, specially, 631 , 632.
expenses, of, to trustee , 634 et seq. See EXPENSES.
improvements, for, to trustee, 491, 492, 493, 544, 546, 575 et seq.
to trustee who has purchased trust estate, 491 , 493.
interest, of, to trustees, 577, 637 , note (d) . See INTEREST.
just allowances, direction for , when inserted in decree for account, 278, 890.
trustees in bankruptcy, to, 634, note (e) .
maintenance of infant, for, 582.
skill and exertions in business, for, 630.
time and trouble, for, to trustees, Chap. XXIV. sec. 1 , 627-634.
AMERICA. See JURISDICTION, WEST INDIES.
AMERICAN SECURITIES , 295.
ANNUITANT.
contribution by, to fine on renewal of lease, 184.
ANNUITIES.
Government or Bank annuities, investment of trust money in, 308 et seq.
ANNUITY.
express trust, secured by, arrears of, what recoverable, 883, 884.
forfeiture of, on alienation , &c. , 103.
investment of fund to provide for, in East India Stock, 311 .
purchase of, in name of stranger, gives rise to resulting trust, 163
purchase of, may be waived by c. q. t. , 574, 690.
trust money ought not to be lent upon, 319.
trustee, to, for time and trouble, 637.
trustees in lieu of purchasing, may pay sum down, 574, 690.
vesting order, when made without service on annuitant, 1034.
ANSWER.
Chancery , in -
costs of trustee disclaiming by, 198.
declaration of trust, may constitute, under Statute of Frauds, 55, 56.
but plaintiff must read from it the terms of the trust, 56.
disclaimer by, is not a renunciation of probate , 223.
Limitations, Statute of, might be pleaded by, 356, 869.
married woman , of, having separate property, 759, 760.
payment into Court when directed on admission in , 977 et seq.
suppression or chicanery in, visited with costs, 993.
vendor, by, to requisitions of purchaser, 459.
ANTICIPATION, RESTRAINT AGAINST, 754 et seq. See MARRIED
WOMAN.
APPEAL.
costs, for, by trustee, 990.
County Court, from, in charity cases , 932.
Court of, constitution of, 17.
trustee, by, from decree is at his own risk, 350.
not allowed from direction of Court under Lord St. Leonards'
Act, 619 .
APPLICATION OF PURCHASE MONEY.
trustees, by, purchaser when bound to see to , 451 et seq. See RECEIPT.
APPOINTMENT. See POWER.
execution of power prevents resulting trust to settlor, 153.
fraudulent, 616 , 686. See POWER.
married woman, by, under power makes property liable for debts, 919 et seq.
new trustees, of, 655 et seq. , 846 et seq. See NEW TRUSTEES.
under Trustee Acts, 1027 et seq. See TRUSTEE ACTS.
1397
 INDEX .

[The references are to the star paging.]

APPOINTMENT - continued.
perpetuity, when void for, 98.
power of, authorised by " usual powers " in executory trust, 127, 128.
APPORTIONMENT.
capital and income, as between, 305, 565, 566, 682, 683, 914, 915.
charities, between, of funds intermixed, 895, 896.
of pure and impure personalty in bequest to, 951.
charities, of, between divided parishes , 929.
costs, of, in action against executor of defaulting executor, 992.
on appointment of trustees of two funds, 1038.
dividend in bankruptcy, of, between tenant for life and remainderman,
914.
dividends, in respect of, on change of investment, in favour of tenant for
life, 323.
on appointment of new trustees, 1014 .
fines for renewal of leases, of , 184 , 371 et seq., 682. See RENEWABLE
LEASEHOLDS .
purchase money, of, as between tenant for life and remainderman,
430 , 565, 566 .
by trustees of limited interest, 430 , 594.
reversionary interest, of proceeds of, as between tenant for life and
remainderman, 305, 565, 566.
APPROPRIATION.
legacy, of, by executor permitted without suit, 204, 205, 581 .
payments, of, as between c. q. t. and trustee, 895.
residue, of, by trustees or executors , 592.
specific, what amounts to, so as to create trust, 83, 894. See SPECIFIC
APPROPRIATION .
ARBITRARY POWER, 600, 612, 613. See POWER.
ARBITRATION .
power of trustees to submit claims to, 591, 592.
ARMY AGENT.
notice to, of charge on proceeds of officer's commission, 708.
ARREARS.
pin money, of, 777, 778.
rent, of, what recoverable under Statutes of Limitations, 875 , 882 et seq.
separate estate, of, 758, 776 et seq., 787. See MARRIED WOMAN.
ARTICLES , MARRIAGE.
executory trusts in, construction of, 112 et seq. See EXECUTORY TRUST.
money to be laid out in land where bound by, 939.
notice of, how far binding upon purchaser, 860, 861 .
renewable leaseholds, of, direction to renew implied in, 365.
ASSENT.
executor of, to legacy, 205, 477.
ASSETS . And see EXECUTOR.
administration of, 825 et seq.; in bankruptcy, 831 , 832 .
admission of, is not admission of right of set off, 701 .
conversion of, within what time to be made, 289, 299.
copyholds were formerly not, 825 .
unless blended with freeholds in one mortgage, 800 note ( 1) .
secus now under 3 & 4 Will. 4. c. 104, 827.
denial of, improperly, by executor , 993.
decrees, priority of, in administration of, 830 note ( ƒ) .
debts, duty of executor to provide for payment of, 509.
descent, by, 10, 825.
devastavit, 251 , 356, 357, 479. See EXECUTOR.
effect of 3 & 4 Will. 4. c. 104, as to, 829 , 830.
1398
 INDEX .

[ The references are to the star paging. ]

ASSETS - continued.
equitable, what are, 825, 828.
land, charged with debts or devised upon trust for payment of debts,
825.
separate property of married woman, 773.
true test for determining what are, 825.
whether trust of chattels is, 827.
of fee, 828 et seq.
equity of redemption is, 827.
escheat, real estate devolving on lord by, is assets, 240.
executor, not liable for debt of, except in special case , 225.
executor, in hands of, a species of trust property at common law, 224.
executor of executor, vest in, but not in administrator, 224, 225.
executrix, married woman , may appoint executor, 225.
husband of, might dispose of assets during coverture , 225.
secus now, under Married Women's Property Act, 1882, 225 note (b) .
failure of c. q. t., on, vest in Crown, 285.
Frauds, Statute of, sect. 10, under , 827.
Indian, conversion of, 335.
interference with, by executor, is acceptance of office, 203.
judgments, priority of, in administration , 825 , 830 note (ƒ) .
legal, what are, 825.
whether trust in fee devised is, 829.
married woman, property appointed by, when available as, 919 et seq.
money to be laid out in lands not considered personal assets, 941 .
mortgage of, by executor, 477 et seq.
outstanding, executor should not allow, to remain, 296 et seq.
sale of, by executor, 477 et seq.
trade, following assets employed in, 894 , 916 .
liability of trustee or executor employing assets in, 339, 340, 342,
479.
interest, when charged, 340. See INTEREST.
trust held to be, in hands of heir, 10.
chattels, of, always accounted assets in equity, 826.
whether so freeholds before Statute of Frauds, 827.
Act did not extend to complicated trusts, 827.
under statute 3 & 4 Will . 4. c. 104, 827 et seq.
ASSIGN, ASSIGNEE .
bankrupt, of. See BANKRUPTCY.
cestui que trust , of, may call for transfer of legal estate, 692.
takes subject to equities, 695 et seq.
precautions to be taken by, 704.
devisee of trustee, whether an " assign, " 231 , 232.
husband, of, when bound by wife's equity to settlement, 739, 742 et seq.
personal representative to be deemed an " assign," within the meaning of
all trusts and powers, 233.
power, discretionary, when assign can execute, 603.
power of sale in mortgage, when assigns can execute, 431 , 603.
receipt by assignee when a discharge, 346.
set off against assignor when binding on assignee, 698.
trust, when assigns can execute, or sign receipts, 231 , 232 .
trustee, of, originally not bound by a use , 2.
but afterwards held bound, 2 , 15, 16, 246 ; whether in the per or post,
16, 246.
except purchaser for value without notice, 16.
rents and profits, account of, directed against, 890.
trust confided to trustee " and his assigns," effect of, 231 , 232.
voluntary assignment, notice of trust presumed against person claiming
under, 16 .
1399
 INDEX .

[The references are to the star paging.]

ASSIGNMENT. See CONVEYANCE.
act of bankruptcy, when constituting , 511 , 512, 513, 514.
breach of trust , of right to sue for, 692 , 900 .
cestui que trust, interest of, formerly not assignable, 3.
chattels real, of, 650, 651.
chose in action, of, 72, 446 , 447 , 712, 713. See CHOSE IN ACTION.
debt, of effect of, 697 et seq.
definition of, in Settled Land Act, 556.
equitable interest, of, how made, 692 et seq.
when effectual, 73, does not operate merely by way of contract, 73.
anciently not permitted, 8.
notice of, when, to whom and how to be given, 701 et seq. See NOTICE.
distinction in this respect between real and personal estate, 704,
705.
writing when necessary for, 693 .
forfeiture when created by, under clause divesting property on alienation,
103.
fraudulent, when, under 13 Eliz . c . 5 , 510 , 518.
fund in Court, of, what enquiries and notice proper, 711.
stop order on, 711.
impeachable, trustee may assume validity of, 346 .
leaseholds, of, by trustee or executor, right to indemnity on, 185, 238,
445, 446.
married woman, by, of separate property, 773.
merger of charge, to prevent, 727, 731. See MERGER.
new trustees, to , of chattels real, 650 , 651.
notice of, when necessary, 72, 701 et seq. See NOTICE .
equitable interest perfectly transferred without, 74, 701.
equivalent, as against trustee , to taking possession, 345.
power, of, 607, 608.
proviso against, effect of, 101 et seq.
tenant for life, by, does not affect his exercise of powers under Settled
Land Acts, 555.
tenant in tail, by, 693.
trustee or executor, by, beneficially interested and indebted to estate, 686,
687.
AT HOME.
land to be converted into money, when so considered, 949 , 950 .
money to be laid out on land, when, 944, 946 .
trust for sale not determined when all c. q. t. sui juris, 425 .
ATTACHMENT.
debt of, does not affect debts vested in garnishee upon trust , 225 , 245 .
but money may be ordered into Court pending enquiry as to trust, 245.
must be of actual debt, 815 .
but debt need not be due, 815.
when complete, as against trustee in bankruptcy, 815, 816.
defaulting trustee, when liable to, under Debtors Acts, 916 et seq.
ATTAINDER.
cestui que trust, of, 284.
effect of, 27, 818 et seq.
relates back to time of offence, 27.
trustee, of, 250.
does not work forfeiture of trust estate, 1036.
ATTENDANT TERM.
attended inheritance gained by disseisin, 250 note ( 1 ) .
trust of, followed devolution of freeholds, 95.
ATTESTED COPY.
trustee not entitled to , of settlement, 670.
1400
 INDEX.

[ The references are to the star paging.]

ATTESTED COPY - continued.
when to be given to purchaser by trustees of bankrupts and trustees for
sale, 442, 443.
ATTESTING WITNESS .
to a will being a trustee of a legacy , 275 note (c).
ATTORNEY. See SOLICITOR.
executor, of, allowance of expense of employment of, 633.
fraud by, .191 .
infant cannot be, in action, 37 ; but may, to deliver seisin, ib.
married woman, whether infant or not, may appoint, 39.
power of,
appointment of attorney under, distinguished from delegation of
trust, 258.
assignment of chose in action , on, 446 , 447.
Conveyancing Act, 1882, provisions of, as to irrevocability, &c. , of,
353, 354.
dividend, to receive, 684.
forged, trustee paying under, when liable, 353.
infant can deliver seisin under, 37.
purchase-money, to receive, 447 , 448.
receipt clause in, effect of, 453.
trustee or executor signing, liability of, 202, 207.
trustee paying under, when exempt from liability, 354.
ATTORNEY-GENERAL.
compromise with consent of, allowed in case of charities, 935.
costs, not responsible for, 927.
Fraudulent Trustee Act, must sanction prosecution under, 898.
information in name of, 927.
when proper form of action, 31 , 86 , 927.
parens patria, his duty as representing, 927 , 931 .
petition under Romilly's Act, his allowance of, 928.
he must be a party to proceedings under, 930 .
may correct his judgment, 930, 931 .
AUCTION.
sale of trust property by, 423, 434 et seq. See SALE.
trustee cannot purchase trust property at, 484, 485.
AUCTIONEER.
agent of trustees selling, is, 448.
trustee who is, cannot make profit from trust, 280.
AUGMENTATION.
loans, of, under charitable gift, powers of trustees as to, 538, 539.
number of trustees, of, 659, 663, 664, 1029.
salaries, of, powers of trustees as to, 538.
AUSTRALIA.
law of, as to wife's choses in action, 348.
"AUTHORISING AND EMPOWERING."
may raise a trust, 131.
AUTHORITY.
bare, to several, determines by death of any, 261.
but secus if coupled with interest, ib.
to receive monies, how given by c. q. t., 352.
trustee should see to genuineness of, when paying to agent, 353.
AVERMENT .
trust, of, permitted at common law, 51.
not upon a bequest, 60.
how far as against an executor, 60 .
not in contradiction of intention expressed or implied upon written
instrument, 51 , 52.
1401
 INDEX .

[The references are to the star paging.]

AVERMENT - continued.
trust, not where deed is necessary to pass legal estate, 52.
use, of, 51, 52.
BAILIFF.
infant cannot be, 37.
mortgagee or trustee may employ, 632 , 633.
BALANCE .
costs of executor improperly retaining, 992 .
excessive, trustees must not keep, at bankers , 297.
interest on, allowed on further directions , 905.
BALLOT.
election by, unknown to common law of England , 88.
election of clerk under trust of advowson for parishioners should not be
by, 88.
BANK .
balance, trustees keeping excessive, at bankers, held liable, 297, 339.
deposit of plate, &c. , in bank, by trustees, 295.
failure of, trustees when liable for, 297.
lien of, on shares in names of trustees , 715.
notes treated as cash, 893.
whether earmarked , 240, 241 , 892 , 893 .
securities deposited with, how affected by bankruptcy of bankers, 244.
shares in, belonging to testator, duty of executors to convert, 289.
new, trustees cannot accept, unless expressly authorised, 596.
trust monies may be deposited in, temporarily to trust account, 295.
but not otherwise, 296 ; nor out of trustee's control, 296.
paid into, to trustee's private account, presumed to be traded with,
340.
and interest thereon charged at 5 per cent. , 340, 342 note.
how followed, 244, 894, 895.
transmission of, through bank, justifiable, 256.
but lodgment should be to trust account, 256.
trustees, payment of money to joint account of, at bank, should be made
where practicable, 292, 447, 448, 474.
BANK ANNUITIES.
execution, may now be taken in, 773 .
investment in, when proper, 308, 314 et seq.
considered equivalent to payment of portion , 418.
transfer into more than four names not usually allowed, 43.
vesting of, in new trustees , 650, 652.
BANK OF ENGLAND.
annuities, investment in, when proper, 308, 314 et seq. See BANK ANNU
ITIES.
indemnity to, on complying with orders under Trustee Acts, 1021 , 1043.
party to action, when to be made , 971 .
stock, trustees may now invest on, 308 et seq.
trustee of stock, cannot be, 32.
Trustee Act, bound by orders under, 1020, 1021 , 1024, 1043.
trusts, cannot be compelled to notice, 32.
will need not now be entered or registered at, 32.
BANK STOCK.
government security, is not, 307.
investment in, by trustees, when proper, 308 et seq.
liability of trustees investing in, by mistake, 307.
BANKER.
following trust money into hands of, 894, 895.
neglect of, liability of trustee for, 337.
1402
 INDEX.

[The references are to the star paging.]

BANKER - continued.
not accountable for sale of stock by executor's order even when misap
plication probable, 482 , 483.
payment of money to co-executor who was banker of testator, 253, 291.
securities deposited with, when devolving on trustee in bankruptcy, 244 .
set off, right of, as between banker and customer, 698 , 699, 700, 895.
trustee who is , cannot profit by the trust, 280.
BANKRUPT. See BANKRUPTCY,
BANKRUPTCY.
act of, assignment for benefit of creditors, by making, 511 , 512 , 513, 514.
administration of assets by Court of, under recent Act, 831 , 832.
transfer of action for, 832.
alienation, clause divesting property on, does not extend to involuntary
bankruptcy, 102 .
but does to petition for liquidation , 104.
annulled, does not cause forfeiture under clause of forfeiture on bank
ruptcy, 102.
assignment of whole property to secure past debt, an act of bank
ruptcy, 511.
or if in fraud of creditors , 511 .
of all but colourable part or of necessary stock in trade, 511.
valid where no existing debts , 512 ; and as between parties to it, 512 .
where invalid under late Bankruptcy Act, 514.
if not enforceable, not an act of bankruptcy, 512.
by trader of part of property not an act of bankruptcy, 513.
unless he contemplated bankruptcy, 513.
void at law may be good in equity as to parties to it, 513.
certificate of discharge formerly barred trust debts, 915.
but bankrupt trustee bound to see that proof was made, 915.
debt by fraudulent breach of trust not barred by, 916.
chattels in possession of trustee, how affected by, 242.
clause divesting property on, effect of, 102 et seq.
contribution by co-trustee of bankrupt, trustee in bankruptcy may re
cover, 916.
co-trustee, of, proof against estate, how to be made , 915.
covenant to settle future property, avoidance of, 78.
discharge of bankrupt, trust debt how far barred by, 915, 916 , 992.
disentailing deed of wife's land, husband notwithstanding bankruptcy can
concur in, 780.
district Courts, jurisdiction of, in charities whose income is under £30 ,
now £50, 852 note (d) , 932 .
elegit, writ of, goods not to be taken in execution under, 795.
equitable debt will now support petition in, 906 .
equity to settlement of married woman, as against trustee in bank
ruptcy, 742.
execution creditor, how affected by debtor's, 815 , 816.
firm, of, in which trustee is partner, effect of, 913, 914, 916.
forfeiture on , under clause divesting property in event of, 102 et seq.
under order and disposition clauses of Bankruptcy Act, 242 et seq.
fraudulent conveyance under 13 Eliz. c. 5, 510, 518.
is act of bankruptcy, 512 , 514.
fraudulent preference, 513, 514, 515 note (a) .
fraudulent trustee, of, 992 .
heirlooms not forfeited on bankruptcy of tenant for life, 683.
judgment creditor how affected by debtor's, 814.
legacy duty payable in respect of debts proved, of which payment is
directed by will, 520.
limitation over, on, or until, 101 et seq.
settlor cannot so limit over his own property, 104.
1403
 INDEX.

[The references are to the star paging.]

BANKRUPTCY ― continued.
limitation over, except on marriage to extent of portion received with
wife, 104.
or where there is a limitation over in favour of wife or children, 105.
maintenance, trust for, trustee in bankruptcy how far entitled under, 99
et seq., 690.
married woman cannot be made bankrupt unless trading separately from
husband, 790, 791.
lending money to husband, postponed to other creditors, 791.
new trustee, appointment of, on bankruptcy of trustee, 658, 850.
under Bankruptcy Act, 1883 , 850.
non-trader formerly not amenable to bankrupt laws, 510.
order and disposition of bankrupt, property in, 242 et seq.
cestui que trust tenant for life and bankrupt, 683.
notice of assignment, importance of, 702 .
" true owner," whether trustee or c. q. t., 244, 245.
trust chattels in hands of bankrupt executor, factor, or trustee are
not within clauses as to, 244.
secus, where executor has assumed to be absolute owner, 244.
where goods are in possession of bankrupt according to the title, 243.
petition in, mere trustee for absolute owner cannot sustain, 245 note (c) .
proof in bankruptcy.
breach of trust, for, against estate of bankrupt trustee with in
terest, 912.
investment by trustee in improper securities, in respect of, 913.
lien on bankrupt's beneficial interest not waived by trustees proving,
912.
secus in case of proof by executor, 912 .
mortgagee, by, 521 .
partners of trustee, trust debt when provable against, 913, 916.
release given to one co-trustee , effect of, 915.
set off where bankrupt trustee interested in trust fund, 912.
stock improperly sold by trustee, in respect of, 912.
tenant for life and remainderman, apportionment as between, 914, 915.
trustee, by, should be, except where trust simple, 234.
generally should be by all trustees, 259.
bankrupt trustee how far liable in equity if he does not prove,
notwithstanding certificate, 915.
trustee, in bankruptcy of, 912 et seq.
where trust estate amalgamated with that of bankrupt, 241 .
where bankrupt trustee one of several trustees, 915 .
where trustee one of a bankrupt firm , 913, 916.
where co-trustees severally bankrupt, 915, 916.
set off in bankruptcy of trustee, 912 , 913 .
settlement of future property, contract for, avoided, 80 .
surplus assets, bankrupt may declare trust of, 26.
tenant for life, of, effect of, as to powers exercisible with his consent, 589.
tenant for life, of, heirlooms not forfeited on, 683.
trade, trustee carrying on, is amenable to bankrupt laws, 238.
trader, distinction between, and non-trader under old bankruptcy
laws, 510.
abolished under recent Act, 514.
trader, goods in order and disposition of, pass to trustee in bankruptcy,
242, 243.
trustee, bankruptcy of.
bankrupt not absolutely disqualified from being trustee, 40, 658, 847.
note (e) , " unfit " but not " incapable," 658.
appointment of new trustee in place of, 658, 850, 1027 , 1028.
costs, bankrupt trustee when entitled to, 991 , 992 .
injunction against bankrupt trustee, 855, 856.
1404
 INDEX.

[ The references are to the star paging.]

BANKRUPTCY continued .
trustee, bankruptcy of.
proof in, by c. q . t ., 234, 912. See supra, proof.
receiver, is ground for appointment of, 982.
set off against costs payable to defaulting trustee, 635.
trust property not affected by, 239, 240.
followed, may be, though tortiously converted, if capable of
being identified, 240 ; or if money payable at future day, 241 .
trustee in bankruptcy.
action against, in whose name it must be, 241.
in case of factor, 241 .
auction, cannot buy in at, without authority of creditors, 437.
bankrupt trustee, of, may compel contribution by co -trustee, 916.
following trust monies into hands of, 240 et seq.
husband, of, is affected by wife's equity to settlement, 742 .
interest, charged with, for balances improperly retained, 338.
just allowances to, 634 note (e) .
legal estate, taking, bound by trust, 247.
whether passes to , when bankrupt has beneficial interest, 242.
or where trust is doubtful, 242.
notice of assignment by, necessity for, 703.
priority as against, by giving notice, 703 .
production of title deeds by, 442 , 443.
property of bankrupt vests in, 26.
purchase by, from first mortgagee does not let in second mortgage, 728.
purchase of bankrupt's estate by, not allowed, 489 .
trust property, following, into hands of trustee, 241 , 242.
undue preference of creditor, 513, 514 .
voluntary settlement, when avoided by bankruptcy of settlor, 80.
BANKRUPTCY ACT, 1883 (46 & 47 Vict. c . 52 ) , 514, 1028 . See STATutes .
BARE TRUSTEE .
bare trust distinguished from trust coupled with an interest, 611.
married woman being, may convey as jeme sole, 36.
meaning of term , 221 note (g) .
protector of settlement, when he may be and duties of, 382.
whether " true owner " within order and disposition clauses, 244.
BEARER.
securities payable to, custody of, 295.
BENEFICE . See ADvowSON ; PRESENTATION.
BEQUEST. See LEGACY ; LEGATEE .
assent to, by executor, 205, 477.
personal estate, of, how made according to Statute of Frauds and under
present law, 57 et seq.
passes proceeds of land subject to trust for conversion, 949.
residuary, 158, 159. See RESIDUE.
" BESEECHING.”
may raise a trust, 131 .
BID.
leave to, at sale, not generally given to trustee, 489.
BILL IN CHANCERY.
appointment of new trustees, bill for, formerly necessary, 671 .
but not where suit pending, 672.
declaration of trust, whether sufficient to prove, 56 note (a).
omitting to pray for interest, 338.
BILL IN PARLIAMENT.
application for, by trustees, 580.
money paid to trustees for not opposing, how treated, 190.
opposition to, by trustees, 580.
1405
 INDEX .

[The references are to the star paging.]

BILL OF EXCHANGE.
distinguished from money and bank notes, 892.
followed in equity, when, 893.
married woman, by, binds separate estate, 761 , 763.
trover for, sent to factor, whether it should be against factor or principal,
qu . 241.
trust money may be transmitted by, 256.
BONA VACANTIA, 161 , 285.
BOND. See COVENANT.
administration bond, 481.
assignee of, bound by equities affecting assignor, 698, 699.
cohabitation, to induce, invalidity of, 106 note (b) .
indemnity, of, whether trustee should take, 349.
on appointment of new trustee against breach of trust, 359, 668.
married woman, by, binds separate estate, 761 , 762, 763
penalty in, creditor cannot claim beyond, 527 .
satisfaction of, as between parent and child, 406. See SATISFACTION.
stranger, in name of, presumption of resulting trust on taking, 163.
trustee, by, for due execution of trust, 252.
voluntary, creates a debt, 81 , note (ƒ) ; how payable out of assets, ib.
BONUS.
Bill in Parliament, for not opposing, 190.
BORROWING.
directors of company, by, in excess of powers, 595.
BOX.
securities kept in, by trustees, 295.
BREACH OF TRUST. Chaps . XXIX., xxx. , 846-937 .
accident, not excused by, in case of misfeasance, 907 .
account in respect of, when granted on footing of wilful default, 904 , 905.
accumulate, neglect of trustee to , 343, 902 .
acquiescence in, by c. q . t., 922 et seq. See ACQUIESCENCE .
agent, by, 894, 901. See AGENT.
agent, by employment of, 256. See AGENT.
assignment, mere right to sue for breach of trust is not capable of, 692,
900.
assuming to act as trustee, effect of, 904.
bankruptcy, proof in, against bankrupt trustee, 912.
in case of co-trustee, 915 . See BANKRUPTCY, proof in.
cestui que trust concurring in , liability of, 910.
stopping partial interest of, 911.
charitable trusts, remedy for breaches of, 927 et seq. See CHARITY.
compensation for, on what principle awarded, 907.
compromise of action for, jurisdiction of Court to sanction, 926.
concurrence in, by c. q. t. , effect of, 495 , 496 , 918 et seq.
confirmation of, by c . q. t. , when effectual, 497, 498 .
contribution between co-trustees, 909, 910, 916.
conversion of securities, by neglect to make, 289, 298. See CONVERSION .
tortions, of trust property, 892.
copyholds, co-trustee of, releasing, to avoid payment of fine, 237.
corporation, proceedings against , in respect of, 530, 531, 902 .
costs of action for, how to be borne, 909, 989 et seq.
co-trustee, allowing, may be removed, 847.
bond of indemnity against, 349, 359.
duty of, in case of, 273, 274.
following trust property into hands of, 897.
permitting money to lie in hands of, 265.
proceedings against, 897.
responsibility of, inter se, and to c. q. t., 908 et seq., 918.
1406
 INDEX.

[ The references are to the star paging.]

BREACH OF TRUST - continued.
covenant, neglect by trustee to enforce, 902, 903.
criminal proceedings for, 898.
debt, constitutes simple contract, 205 , 906.
secus where trustee has signed the deed and it amounts to a covenant,
205, 206, 906.
will now support petition in bankruptcy, 906.
Debtors' Act, defaulting trustee within exception in sec. 4, 900 note (b).
deceased trustee, representative of, liable, 906.
unless he has distributed assets under sanction of Court, 906.
delegation of duty, by, to strangers, 252 ; or attorney, or solicitor, 255, 256 ;
or even co-trustee, 252 , 257.
depreciation of property, trustee when liable for, 907.
devastavit by executor is a, 357.
directors of company, by, 901 , 903, 904.
equitable debt, constitutes , 906.
executor when liable for, 906. See EXECUTOR.
express trust, action for breach of, not barred by Statutes of Limitations,
901 , 902.
factor, by, 874.
firm , trust money received by, 902, 909.
following trust property in case of, Chap. xxx., sect. 1 , 857-892.
assets employed in trade, 894.
bank notes, bills, & c. , 892 .
banker, into hands of, 895.
charity, funds of, mixed with funds of other charities, 895, 896.
chattels, 893.
co-trustee, into hands of, 897.
disseisor, into hands of, 250, 723 et seq.
doubtful equity, purchaser how far bound by notice of, 860.
legatee, into hands of, 906 .
money, 862, 892 et seq.
fraud, obtained by, 897.
invested by trustee in land, 896.
where trust money is only part of the purchase money, c. q. t.
has lien for trust money and interest, 897.
where it is the entirety c. q. t. may take land itself, 897.
lent for specific purpose, 894.
mixed with trustee's money , c. q. t. has lien on the whole, 894.
paid into bank to simple account with trustee, 894, 895.
mortgagee, into hands of, 861 .
next of kin, into hands of, 906.
partners of trustee, into hands of, 913, 914.
property substituted for trust estate, 892 et seq.
where conversion tortious, c. q. t. has lien as against trustee or
those who represent him in right, 892.
purchaser, into hands of, 858 et seq., 893.
with notice , 858, 859.
without, 858, 859.
chose in action, of, 862.
time within which estate may be followed, 863 et seq.
volunteer, into hands of, 857.
fraudulent, not released by discharge in bankruptcy, 992.
fraudulent preference, trustee making good trust fund does not com
mit, 897.
fraudulent trustee, criminal proceedings against, 898.
ignorance of trustee, when an excuse for, 904.
cestui que trust, of, when an excuse for laches, 926. See IGNO
RANCE.
imaginary value, trustee not charged with, 908.
1407
 INDEX .

[The references are to the star paging.]

BREACH OF TRUST- continued.
indemnity clause, trustees when exempted from responsibility by virtue
of, 274, 275.
infant not liable for, 39.
unless he has contrived a fraud, 39.
cannot acquiesce or concur in, 918 et seq.
injunction to restrain, right of c. q. t. to , 855, 856.
innocent trustee, right of against co-trustees, 909.
insufficient security, realization of, not directed in absence of c. q. t., 908.
insurance, neglect by trustee to keep up, 903.
notice to office, neglect to give, 903.
policy, improperly parting with custody of, 903.
interest when and at what rate charged against trustee guilty of, 338 et seq.
See INTEREST.
investment, improper, by making, 334 et seq. See INVESTMENT.
knowledge of, and abstinence from suing whether a bar to relief, 922 et seq.
laches, relief when barred by, 495, 496, 901 , 923.
land, by tortious sale of, 902.
lease, improper, of charity lands, 542 et seq.
liability for, trustee not charged with imaginary values or more than he
received, 908.
except where great negligence, &c ., ib.
husband, of, for wife's breaches of trust, 33.
loser by breach, trustee nevertheless liable, 907.
representative of deceased trustee, when liable, 906.
set off, of gain in one fund against loss in another, not allowed,
907, 908.
trustee primarily liable but has his remedy against c. q. t. gaining by
breach of trust, 910.
one gaining indirectly not primarily liable to co-trustees who
were parties to the breach, 910.
lien of c. q. t., on property substituted for trust property, 892 et seq. See
supra, following trust property.
of trustee on beneficial interest of c. q. t., 910.
on legacy of co-trustee for amount of contribution, 910, 912.
on policy for premiums advanced, 903.
limitation of action for, 897, 900 et seq. , 906, 922.
loan, improper, borrower how affected by notice, 862.
loss, involuntary, trustee when liable for, 907 et seq.
married woman, by, husband liable for, 33 ; except in cases within Mar
ried Women's Property Act, 1882 , ib.
liability of her separate property in respect of, 768 et seq., 787,
919 et seq.
married woman, by trustee for separate use of, 902.
mesne rents and profits, account of, 885 et seq. See RENTS AND Profits.
misdemeanor, when fraudulent, is , 898.
mistake , when excused by, 349, 900.
mixing trust property with private moneys, by, 297, 298, 893, 894, 895.
ne exeat regno, when granted against defaulting trustee, 900.
negligence, by, 902 et seq.
new shares, by neglecting to get in, 908.
notice of, effect of, 862 , 897 , 901 , 923.
notice of apprehended, effect of, on purchaser, 457 , 459, 481.
banker of trustee when bound by, 482 note (b) .
notice of assignment or transfer, neglect by trustee to give, 903, 904.
number of trustees, right of c. q. t. as to keeping up, &c ., 846 et seq.
outstanding, by allowing assets to remain, 296 et seq. See CONVERSION.
partners of trustee when liable for, 902, 913, 916.
payment into Court compulsory on, 976 et seq. See PAYMENT INTO
COURT.
1408
 INDEX.

[The references are to the star paging.]

BREACH OF TRUST― continued.
personal representative of trustee, liability of, 906.
personal security, by allowing assets to remain on, 290.
policy, trustee suffering, to become forfeited, 903.
neglecting to give notice of assignment of, 903.
power imperative, by neglecting to execute, 904.
priority cannot be obtained through medium of, 714.
proof for, in bankruptcy of trustee, 912 et seq. See BANKRUPTCY.
purchase of trust estate by trustee, 484 et seq. See PURCHASE.
purchaser when affected with notice of, 423, 424, 457, 459.
quasi-trustee, by, 904.
person reaping benefit of breach of trust is, 344.
receipt of trustee known to contemplate, 294.
of executor known to contemplate, 481 .
of trustee who has committed, 472 .
receiver, when a ground for appointment of, 982 et seq.
release of claim in respect of, when effectual, 924 et seq.
registration, by neglecting to effect, 904.
remainderman, action by, in respect of, 906.
remedy of c. q. t. for, generally, 900.
removal of trustee on ground of, 846, 847, 849.
renewal of lease at fixed price , covenant for, 425.
rents, receipt of, by one co-trustee, 260.
rents and profits, account of, 885 et seq. See RENTS AND PROFITS.
retainer by personal representative of insolvent trustee, 906.
retire, trustee should not, in favour of one who contemplates , 668.
reversioner, acquiescence by, 923.
sale, improper, 423, 424.
in breach of trust, cannot be enforced, 423.
neglect by trustee to make, 903.
of property purchased in breach of trust, 472 note (c) .
} tortious by trustee of land, 902 ; of stock, 912. And see BANKRUPTCY,
proof.
set off of beneficial interest against debt, when allowed in bankruptcy, 912 .
of gain in one fund against loss in another not allowed, 907, 908.
simple contract debt, constitutes, 205 , 906 .
unless trustee accepted under hand and seal, 205, 906 .
but deed must contain words of covenant and be executed by trustee,
206, 906.
solicitor, by enabling, to misapply purchase money, 474, 475.
negotiating loan when affected with notice of, 337.
trustee, of, when liable for trustee's breach of trust, 899, 900.
when liable for, 901 note (b) , 902.
wilfully advising or concurring in, is liable to be struck off Roll, 899.
specialty debt, when breach of trust gives rise to a, 205 , 206, 906.
right of innocent trustee to indemnity is, 909.
specific performance not granted of contract which amounts to, 423.
stock, neglect by trustee to procure transfer of, 902, 903.
to register, 904.
to renew, 908.
tenant for life, by showing undue favour to, 291.
tenant for life participating in , liability of, 910 .
threatened, duty of co-trustee to prevent, 274.
tortious conversion of trust property, by, 892.
trade, by employment of assets or trust funds in, 339, 340, 342, 479. See
TRADE.
trader employing trust money in trade, liability of, 278.
trivial, may be overlooked by Court, 992.
vendor of property when liable to purchaser as for, 141 .
vesting order not made so as to lend sanction to, 1032.
1409
 INDEX.

[The references are to the star paging.]

BREACH OF TRUST - continued.
waiver of right to sue in respect of, 923, 925.
wasting property, by neglecting to convert, 298.
wilful default, account when granted on footing of, 904 et seq.
valuation, by want of care in making, on lending trust money on mort
gage, 324, 325.
BROKER.
forged letter of attorney, receiving payment by means of, 353.
trustee leaving exchequer bills in hands of, held liable for loss, 321 note (b) .
trustee may employ, in ordinary course of business, 255.
trustee who is, cannot profit by the trust, 280.
BUILDING.
conveyances for erection of, for religious or educational purpose exempt
from Mortmain Act, 97.
equity of stranger supposing land to be his own, 716.
knowing it to be another's, 716 .
erection of, on lands, when equivalent to purchase by trustees, 504.
trustees when empowered to expend money on, 576. See IMPROVEMENTS.
tenant building on landlord's land , 717 ; encouraged by landlord , 717.
trustee, by, empowered to expend money on repairs, &c. , 576. See IMPROVE
MENTS.
BUILDING LEASE .
charity estates, of, duration of, 546.
consent of Charity Commissioners to, 547.
power to grant, when Court will insert, in settlement under executory
trust, 127 , 128.
BUSINESS. See TRADE .
BUY IN.
trustees in bankruptcy and trustees for sale, whether they may, 437.
BUY UP.
trustee cannot buy up incumbrance for himself, 276 et seq.
application of rule to other persons in fiduciary position, 277 , 279 et seq.
BYE-LAWS.
power of making, will not authorise deviation from original intention of
charity, 535.
CAPITAL .
what is to be regarded as, and what income, 305, 682, 683, 914, 915.
See APPORTIONMENT.
CAPRICE.
cestui que trust, of, trustee not dismissed on, 849.
costs of action caused by caprice of trustee, 989.
Court does not act on, 837.
tenant for life, of, selling under Settled Land Act, 429, 557.
trustee, of, retiring from office, 671 , 672 .
CATHOLIC CHARITIES.
Charitable Trust Acts applicable to, 549.
CESTUI QUE TRUST.
abroad, resident, payment by trustee to, 353, 354.
purchaser whether bound to see that money is paid to, 476.
absolute owner, c. q. t. is, in equity, 572.
account, right of c. q. t. to , 674, 691. See ACCOUNT.
acquiescence by, when a bar to relief, 495, 496 , 922 et seq.
actions by, as to trust estate, 853, 854 ; at law c. q. t. regarded as a stranger,
234.
adult, duty of trustee to consult, 508, 573.
adverse title, trustee cannot set up, against c. q. t. , 285.
agent of trustee when accountable to c. q. t.,. 191 , 482 , 641 , 642.
1410
 INDEX .

[The references are to the star paging.]

CESTUI QUE TRUST - continued.
alien could only be, of real estate till office found, 44 ; secus since 33 Vict.,
c. 14 , 45.
alienation by, cannot be restrained , unless married woman, 693.
assignee of, may call for conveyance or transfer from trustee, 692.
but is bound by all equities affecting property transferred, 695 et seq.
assignment by, 692 et seq.
anciently not permitted, 3, 4 ; secus in later times , 10.
how c. q . t. may make, of equitable interest, 692.
c. q. t. may assign even a possibility, and without intervention of
trustee, 692.
attainted for felony, position of trustee, if c. q. t. is, 284.
authority from , to receive trust money, 352.
bankruptcy, when entitled to prove in, 234 , 241 , 242 .
whether he is true owner within order and disposition clauses, 245 .
bargain with, trustee cannot make, for own benefit, 277.
beneficial interest of, may be impounded to answer breach of trust, 911 .
bequest by, 720 et seq.
breach of duty by trustee, protection against, 853 et seq.
concurring in, liability of, 910, 918 st seq.
mere right to sue for, not assignable, 692.
remedy for, 846 et seq. See BREACH OF TRUST.
caprice of, trustee not dismissed on, 849.
charity may be, 46.
chattels, c. q. t. entitled to possession of, during his interest, 683.
bankrupt tenant for life, where c. q. t. is, 683.
chose in action, of, assignment by, 695 et seq.
concurrence of, in breach of trust, 495, 496, 918 et seq.
in direction as to disposition of trust property, 508.
confirmation by, of purchase by trustee or other breach of trust, 497, 498,
924 et seq.
consent of, 604. See CONSENT.
to discharge of trustee from office, 645.
contingent interest, right of c. q. t. to have, secured, 854.
contract for sale by, 423, 424.
conveyance, when c. q. t. should join in, 447.
when and how c . q. t. may require trustee to make, 508, 684 et seq.
See CONVEYANCE .
coroner, right of c. q. t. to vote for, 234, 681 .
corporation cannot be, of lands, without licence of Crown, 44.
costs of conveyance to, must be paid by, 688.
taxation of costs at instance of c. q. t. , 637 note (c) .
trustee, right of, to costs as against c. q. t., 986 et seq.
co-trustee who is, cannot hold co-trustee liable for joint breach of trust,
918.
Crown may be, 43.
death of, on, trustee must pay fund to his representatives, 346.
debt of, when chattel may be taken in execution for, 224.
debtor to estate, who is, effect of assignment by, 696.
devise by, requisites to , 720 et seq.
disability of, operation of Statute of Limitations how affected by, 867 et seq.
disposition of estate, c. q. t. has power of, 674.
distress of, confirmation obtained by, ineffectual, 498 , 926.
delay when excused by, 496 , 866, 870.
dividends, c. q. t. usually put in possession oi, by power of attorney, 684.
divorce of, effect of, on choses in action , 346 .
domiciled abroad, care to be taken in making payment to, 348.
ejectment, c. q. t . could not recover real estate in, 678, 867.
unless surrender could be presumed, 678 .
must have brought his action in name of trustee, 678, 868.
1411
 INDEX.

[The references are to the star paging.]

CESTUI QUE TRUST - continued.
ejectment, could not defend action by trustee, 678 ; but must have re
sorted to equity, 678 .
election by, under trust for conversion of property, 690, 953 et seq. See
ELECTION.
estate of, extent of, Chap. xxvI ., 674-691 .
properties of, Chap. xxvII., 692-832 .
executor of, when entitled to call for conveyance, 688.
expenses of trustee, when personally liable for, 642, 643.
failure of heirs or next of kin of, effect of, 282 et seq.
failure of trustee, remedy of c. q. t. against, 833 et seq.
following trust property, rights of c. q. t. as to, 857 et seq. See BREACH
OF TRUST.
franchise, parliamentary, right to, 235.
fraud of, breach of trust induced by, 919.
gift, cannot make, to trustee, 277.
heir of, when entitled to money to be laid out in land, 941 et seq. Se e
CONVERSION.
heirlooms, whether he may let for hire, 684.
husband of, appointed trustee, 41 , 1030.
ignorance of, laches when excused by, 496 , 866 , 870.
improvidence of, not a ground for withholding payment to him, 345.
infancy of, duties and powers of trustees, how affected by, 489. See
INFANT.
information, bound to give, to the trustee, 685, 686.
right of c. q. t. to call for, as to state of trust, 448, 691 .
injunction, right to, to restrain trustee from breach of duty, 855 ; though
damage not irreparable, 855.
inquiries of, trustee bound to answer, 448, 691 , 704.
inspection of documents, has right to , 449, 680.
judgment against, Chap. XXVII., sect. 7, 794-817 . See JUDGMENT.
judgment creditor of, right of, to take chattel in execution , 224.
juror, qualification of c. q. t. to be, 681.
jus habendi and jus disponendi of, 674.
laches of, when a bar to relief, 495, 496, 901.
trustee, of, does not prejudice c. q. t., 520.
land held adversely, must bring ejectment for in name of trustee, 678,
867, 868.
by party claiming by conveyance from trustee, action as to, 868.
land wrongfully sold by trustee, rights of c . q. t. in respect of, 902.
lease by, 678, 679.
legal estate, right of, to call for conveyance of, 18, 684 et seq.
legal proceedings, may require trustee to institute, on giving indemnity,
853.
lien of, for advances by him to trustees, 640, 641 .
in respect of breach of trust, 241 , 449, 892, 897.
Limitations, Statute of, when barred by, 866 et seq.
in action against stranger, 866 et seq. , 880.
in action against trustee, 876, 880.
possession by c. q. t., effect of, 881 , 882.
married woman, estate of, 738 et seq. See MARRIED WOMAN.
mistake by, when an excuse for delay , 866 , 870. See MISTAKE .
new trustee, application by, for appointment of, 1030.
when to be served with, 1033 .
notice to, by trustee, of intention to do particular act, 573.
parliamentary election , right of c. q. t. to vote at, 681 , 682.
pernancy of profits of trust estate, c . q. t. entitled to , 674 et seq.
possession by, effect of, as regards Statutes of Limitations, 881 , 882 .
possession, right of c. q. t. to, 674 ; in equity only, 677 ; at law was merely
tenant at will, 677, 881.
1412
 INDEX.

[The references are to the star paging.]

CESTUI QUE TRUST - continued.
possession, right of, chattels, as to, 683.
indemnity, when to be given by c. q. t., 686, 687.
married woman entitled for separate use, 676.
mistake, where c. q. t. in by, 882.
real estate, as to , 674.
tenant for life, equitable, 675, 676.
where c. q. t. entitled subject to a charge, 675.
privileges of, 681 et seq.
to serve as juror, 681.
to vote for coroner, 234, 681 .
to vote at parliamentary elections, 235, 681, 682.
proof by, in bankruptcy , 234, 241 , 242.
protector of settlement, may be, 682.
purchase from, by trustee when upheld, 487, 488.
purchaser is , sub modo before completion , 142 , 233.
real estate, of, action by, 678.
receiver, right of c. q. t. to appointment of, 982 , 983.
refund, when bound to, 356, 357.
release by, of claim for breach of trust, when effectual, 924 et seq.
release by, when trustee may require, 358.
remainderman, remedy of, in equity, 846 , 854. See REMAINDERMAN.
remedy of, for breach of trust, 857 et seq. See BREACH OF TRUST.
subpoena in chancery, to enforce trust, 16.
removal of trustee on application of, 849 et seq.
renewal of lease by trustee, remedy of c. q. t. in respect of, 185, 186. See
RENEWABLE LEASEHOLDS .
rents and profits, receiving, is bailiff of trustee , 881 , 882.
rights of, cannot be varied by act or neglect of trustee, 938, 939, 963.
sale by, to trustee, when upheld, 487, 488.
security from trustee, right of c. q. t. to, 854.
settled account with trustees, opening, 630.
share, aliquot, of c. q. t. when ordered to be paid into Court, 977.
simple trust, estate of c. q. t. under 674 et seq.
solicitor of, cannot bind him by contract with trustee, 488.
special trust, estate of c. q. t., 689 et seq.
each c. q. t. entitled to enforce, to extent of his interest, 689.
where one c. q. t., or all unanimous, special trust becomes simple, 687.
continues until election of c. q. t. known, 690 .
sport, right of c. 9. t. to, under old law, 681 .
sub modo, purchaser before completion is, 142 , 233.
suijuris, trustee bound to observe wishes of, 508, 573.
taxation at instance of, of costs of solicitor to trust, 637 note (c) , 642.
tenant at will, c. q. t. at law merely, 677.
when c. q . t. is, to trustee , 881 .
tenant for life, rights of. See TENANT FOR LIFE ; SETTLED LAND ACTS.
tenant in common, right of, to injunction against co -tenant, 679.
title, is bound to show, to trustee, 344.
title deeds, rights of c. q. t. as to custody of, 679, 680.
to inspection, 449, 680.
" true owner," whether he is, within Bankruptcy Act, 245.
trust, right of c. q. t. to enforce, 67 ; and see BREACH OF TRUST.
trust property, right to follow, in case of breach of trust, 857 et seq. See
BREACH OF TRUST.
trustee, right of c. q. t. to have proper, 846 ; and proper number kept up,
43, 846.
whether c. q. t. may be, 41 , 665.
whether husband of c. q. t. may be, 41 , 1030 .
unwillingness of Court to appoint c. q. t. or relative, 41 , 665, 666,
1030.
1413
 INDEX.

[The references are to the star paging.]

CESTUI QUE TRUST - continued.
voluntary settlement, under, action by, 853.
lands or chattels real, of, rights of c. q. t., 76.
volunteer, when Court will assist, 70.
voting at elections, rights of c. q . t. as to, 681 , 682 .
vouchers, is entitled to inspection of, on payment, 449.
who may be, Chap. III. sect. 3, 43-46.
widow of, not entitled to dower, 11 .
will, c. q. t. may dispose of his equitable interest by, 720 et seq.
CHAMBERS.
jurisdiction of chancery judges at, in case of charities with income over
£30, 931.
or of City of London charities , 931 .
questions affecting trusts now determined in, on originating summons,
350.
Trustee Acts, proceedings under, at chambers, 1027, 1030, 1034, 1035,
1040. See TRUSTEE ACTS.
Trustee Relief Act, proceedings under, at chambers, 1000, 1001.
CHANCELLOR.
application to, as visitor of charity, how made, 530 .
Ireland, Lord Chancellor of Great Britain, &c. , has no jurisdiction in
lunacy over lands in, 1039. 1
lunatics and idiots, his control over estates of, 1044.
Trustee Act, commission de lunatico inquirendo may issue under, 1038.
jurisdiction of Lords Justices under, 1039, 1044.
visitatorial power of Crown when committed to, 530.
CHANCERY, COURT OF.
Bankruptcy Act, jurisdiction to appoint new trustees under, 850.
corporate bodies, jurisdiction over, 528 et seq.
jurisdiction of, transferred to Chancery Division of High Court of Jus
tice, 17.
king's conscience, had no jurisdiction over, 30.
power imperative, in favour of what objects executed by Court, 834 et seq.
trusts, jurisdiction over, 16.
on failure of trustee, 833 et seq.
vicariously, how far Court can exercise jurisdiction , 835.
CHANCERY DIVISION OF HIGH COURT OF JUSTICE.
administration of trusts assigned to, 17.
charities, causes and matters relating to , assigned to , 528 note (a) .
portions, causes and matters for raising, assigned to, 421 .
CHANCERY FUNDS (AMENDED ORDERS ) , 1874, 1005.
CHAPEL.
endowment of, how transmissible at law, 85.
minister of, in case of dissenters may be removable at will of congrega
tion, 535.
election of, how effected , where no direction in endowment deeds, 534.
possession by, continued until hearing of cause, 534.
tenant at will of trustees, is, 534.
repair of, trust for, held to authorise rebuilding, 538.
trust for, before Statute of Mortmain, how carried into effect in equity, 85.
trusts of, trustees cannot change or depart from, 531 , 534.
trustees of, entertaining opinions contrary to founder's intention re
moved, 847.
trustees of, how appointed where no direction in endowment deed, 534,
852, 853.
CHARGE .
assignment of, to attend inheritance, cautions to be observed as to,
732, 733.
1414
 INDEX .

[The references are to the star paging.]

CHARGE - continued.
charity legacy, of, effect of, 155 et seq.
contingent legacy, of, effect of, 154.
debts, of, in will, effect of, 461 et seq., 825. See RECEIPT.
legal fee simple when passing by virtue of, 218.
power of sale and giving receipts, where it implies, 461 et seq.
Settled Land Act, effect of, on powers of sale and mortgage,
470.
trust estate, excluded by, from passing under devise, 227.
trust implied in devisee, 140.
uses, operation of statute of, not excluded by, 211.
where land sold by Court under, surplus treated as realty, 146.
declaration of trust, partial, distinguished from, 146.
devise by trustee in general terms, effect of, on charge, 227.
devisee or heir subject to, is impliedly a trustee, 140 .
discharge of land from, when money raised by trustee, 449.
duplication of charges, referential trust not to be construed so as to
create, 130.
duty, coupled with , is equivalent to express trust, 879.
election by person entitled subject to, to take property unconverted, 956.
exception from devise distinguished from devise subject to, 154.
distinction how far applicable to charity legacy, 155 , 156.
executor, power of, to sell real estate to raise, 461 et seq.
exoneration of property from, as between several purchasers, 717 et seq.
express trust, distinguished from , 878, 879 et seq.
secured by, barred under Real Property Limitation Act, 1874, 885.
failure of, devisee entitled to benefit of, 154.
charge of sum to be appointed and no appointment, 154.
failing after being raised , results as personalty, 155.
first, cannot be kept on foot by creator of second charge, 727, 728.
general and roving, postponed to specific, 718, 720.
inheritance, whether it can be made to attend, 732, 733.
intention of settlor, question of trust or charge depends on, 146.
judgment is, upon whole lands of debtor, 803, 804.
keeping on foot, mode of, 727 , effect of, 729, special cases of, 731 , 732.
for benefit of next of kin, 729 note (e) .
legacies, of, on land or other property, right of devisee or legatee on
failure of charge, 157 et seq.
Limitations, Statutes of, mere charge not an express trust within, 878 , 879.
secus as to charge coupled with a duty, 879.
not barred by, whilst secured by term unbarred, 880.
merger of, 726 et seq. See MERGER.
mortgage to raise, when proper, 426.
multiplication of, referential trust not construed so as to create, 130.
owner of, purchase of equity of redemption by, 728.
partial trust distinguished from, 146, 153.
payment off of, by owner or part owner, 730. See MErger.
portion, of, on settled estate, 418 . See PORTION.
power to, not a " usual " power, 127.
priority of, by giving notice, 702.
purchaser, how affected by, 726 et seq.
paying off, before completion , charge does not merge, 727.
right of, to insist on keeping charge on foot , 727.
"securities " for money, legal fee in mortgage when passing under, 228.
specific preferred to general , 720.
"subject thereto ," effect of, 154, 155.
implied, 155.
trust, partial, declaration of, distinguished from charge, 146.
trustee for sale, when he may apply purchase-money in paying off, 594.
Trustee Relief Act, owner subject to charge is not trustee within , 996.
1415
 INDEX .

[The references are to the star paging.]

CHARGES AND EXPENSES .
trustee when entitled to , 421 , 413, 634 et seq. , 987. See COSTS.
CHARGING ORDER, of stocks, shares, &c ., 806 et seq.
application for, how to be made, 807.
Court, what, empowered to make, 807 .
discharge of, 809.
dividends still payable to trustees where order made on partial interest of
c. q. t., 808.
effect of, 808 , 809.
enforcement of, by proceedings for foreclosure or sale, 809.
incumbrances, prior, not prejudiced by , 808 .
interest charged, amount of, not defined by, 807.
judgment payable in futuro, may be made in respect of, 808.
jurisdiction to make, in whom vested, 807 .
proceedings for having benefit of, cannot be taken before six months, 807.
secus, where to protect the interest of the judgment creditor, 808.
specific charges, ranks subsequent to, 808.
CHARITABLE TRUSTS OR USES. See CHARITY.
CHARITABLE TRUST ACTS, 547 et seq., 852. See CHARITY ; CHARITY
COMMISSIONERS .
CHARITY.
account of rents and profits of, when directed , 934 et seq.
advowson held in trust for parishioners is not a charity, 86.
alienation of charity property by trustees, not permitted , 539.
whether absolutely, or for reserved rent, 539.
not permitted by granting long, renewable, or reversionary terms, 539.
permitted under special circumstances, 540.
lease, sale, or exchange can now be made with consent of commis
sioners, 540.
alteration of scheme or purpose not permitted, 530 et seq.
notwithstanding power to make bye-laws, 535.
trust originally intended will be preserved, 533.
but letter may be contravened where spirit of trust preserved, 536.
or details of management varied as circumstances change, 539,
546.
Act of Parliament necessary for total alteration , 535.
how application for Act authorised , 535 , 536.
apportionment in favour of, as between pure and impure personalty, 951 .
Attorney-General, consent of, to compromise, 935.
to proceedings under Romilly's Act, 930 et seq.
Bankruptcy, District Court of, jurisdiction of, 852 note (d) , 932.
breach of trust for, Chap. xx. sect. 4, 927-937.
accounts of mesne rents, what, directed , 934 et seq.
Charitable Trusts Act, 1853 , jurisdiction under, 931 .
equity judge at chambers where income above £30, or below if
in City of London , 931 .
Charity Commissioners, consent of, to proceedings when required, 932.
commissioners under Statute of Charitable Uses , 927.
compromise with sanction of Attorney-General allowed in case of
hardship, 935.
corporation, property of, how attached , 936 , 937.
District Court of Bankruptcy and County Court, jurisdiction of, where
income not above £50 , 932.
appeal from, when allowed, 932 .
information, remedy for, is ordinarily by, 31 , 927.
where by bill, 927 note ( 1 ) .
relators joined on account of costs, 927.
Limitations, Statutes of, do not bar right to account, 934.
mistake , trustees acting from, not made to account, 936.
1416
 INDEX.

[The references are to the star paging.]

CHARITY- continued.
breach of trust for, parish, no retrospective account against, 936.
petition under Romilly's Act, 927 ; construction of Act, 928 ; cases
within, 929, 930.
appeal lies direct to House of Lords, 928.
Attorney or Solicitor- General, must be signed by, 928.
Attorney-General must be a party to subsequent proceedings, 930.
motion, subsequent proceedings may be by, 931 .
presumption of acquiescence, with regard to corporations and indi
viduals, 936.
removal of master, possession how recoverable on, 537 , 929.
retainer of charity funds, 539.
building leases , power to grant, 546.
Chancery Division, execution of charitable trusts assigned to, 528.
chapel, administration of trust for, 531 et seq., 847.
charge of legacy in favour of charity, effect of, 155 et seq.
on failure of charge, who entitled , 157 et seq.
Charitable Trusts Acts, 547 et seq.
charities exempted from, 548, 549.
leases under, 547. See infra, leases.
remedy under, for breach of trust, 931 et seq. See supra, breach of
trust.
Charitable Uses, Statute of, commission under, 927.
charter, jurisdiction of Court over charities established by, 528 et seq.
City of London Parochial Charities Act, 1883, provisions of, 537 .
commission of inquiry into , now obsolete, 927.
Commissioners under 58 Geo. 3, c . 91 , and 59 Geo. 3, c. 81 , 931.
Commissioners under Charitable Trusts Acts. See CHARITY COM
MISSIONERS .
construction of trust for, 531 et seq. See infra, trust.
conveyance to, formalities to be observed under Mortmain Act and
recent Acts, 96, 541.
upon secret trust for granter until death, 96.
County Court, jurisdiction of, 852 note ( d) , 932 .
cy pres doctrine in favour of, 837, 838.
application of, as against resulting trust, 161 .
definition of, 20, 528.
discretionary power, Court will freely exercise in favour of, 836.
duties of trustees for, 528 et seq. See infra, trustee .
ejectment of person ceasing to hold office under , 537.
Endowed Schools Act, 1869, provisions of, 537.
exemption of certain charities from Charitable Trusts Acts , 548, 549.
founder, wishes of, to be observed, 530 , 539, 546. See supra, alteration.
funds of, mixed with funds of another charity, recovery of, 895, 896.
general intention in favour of, carried into effect, 161.
gift to , by deed or will, when effectual, 96.
Governors of, cannot lease to one of themselves , 542.
information for removal of, improper, 529.
improvements by lessees, allowance for, 544, 546.
incorporated, government of corporation belongs to visitor, 528, 529.
management of revenue subject to Chancery, 529.
new donations distinguished from original endowments, as respects
visitatorial power, 529.
trustees for charities may now become, 547, 548.
information in name of Attorney- General when proper remedy, 31 , 927.
inrolment, conveyance to new trustee requires, no, 669, 670.
investment of monies of, 313, 541 , 542 .
accumulations of income, of, 541 .
whether in purchase of land , 541 .
or mortgage, 541 .
1417
 INDEX.

[The references are to the star paging.]

CHARITY- continued.
investment of monies arising from sale or exchange with consent of
Commissioners, 540, 541 .
proceeds of land, of, in railway debenture stock, 312.
real security, in, 313, 542.
jurisdiction of Court over, 528 et seq., 836.
laches when a bar to action for account, 934 et seq.
lands, proceeds of sale of, cannot be bequeathed to , 950, 951.
lapse of gift in favour of, 161 note (d) .
leases of charity lands.
Charitable Trusts Acts, how to be made under, 547.
consideration for, fines , rents, & c., 543.
adequate, should be, when granted, 543.
direction by founder that rent should not be raised, 543 .
tenant who dealt fairly not turned out, 544.
allowances to, for permanent improvements , 544.
under value, who shall compensate charity where lease granted
at, 544.
whether fines might have been taken for, 543.
covenants for trustee's private advantage, should not contain, 542, 543.
directions of settlor as to, must be strictly followed, 546.
discretionary powers to grant, may be controlled , 616 .
governors cannot lease to, or in trust for, one of themselves, 542.
relatives of trustees, to, unadvisable , 542 .
renewal of, tenant has no right to insist on, 544.
term of, agricultural leases should not exceed 21 years, 545.
building leases should not exceed 99 years, 546.
for years determinable on lives, sanctioned, 545.
so for lives on payment of fines , 546.
under Charitable Trusts Acts, 547.
unreasonable extent of term, 544, 545.
legal estate cannot be limited to objects of, 46 .
Limitations, Statutes of, application of, to charities , 871 , 884, 934.
majority of trustees of, may bind the rest, 259, 540, 547 , 592, 597.
mesne rents and profits, account of, when, and from what time directed,
934 et seq.
Mortmain Act, 9 GEO. II ., c. 36, trust for charity must comply with re
quirements of, 96. See MORTMAIN.
new trustees of, appointment of, 534, 850 et seq.
by Court under Trustee Acts , 1030, 1035.
Charitable Trusts Act, under, 852.
Charity Commissioners , sanction of, required , 852 , 933.
conveyance of land in mortmain need not be enrolled , 669, 670.
corporation, in place of, 851.
delegation by Court of power to appoint, 849.
direction to appoint, when reduced to a given number, 600, 601, 667.
Peto's Act, under, 852 .
Romilly's Act, under, 929.
where deed of endowment does not provide for appointment, 852, 853.
where trustees irregularly appointed , 848, 849.
notice, doctrine of, how far applicable to , 936.
officer of, proceedings for removal of, how to be taken, 537, 929, 933.
official trustees of charitable funds, 361 .
parishes, apportionment of charities on division of, 929.
payment or transfer of money, stock, &c., to , by order of Commissioners
is an indemnity, 361.
perpetuity, rule against, does not affect trust for, 20.
66 poor relations, " gift for, 836, 837 , 843 .
poor, trust for, how to be administered, 531 .
power to select objects of, may be severed from estate, 610 .
1418
 INDEX .

[ The references are to the star paging.]

CHARITY - continued.
power, discretion of donee of power, as to, when controlled by Court,
615, 616.
exercise of, by will, 616.
purposes of, must be strictly observed, 530, 531 ; but details of manage
ment may be varied, 539, 546.
real estate, bequest to, of proceeds of, 950, 951 .
conveyance of upon trust for, formalities necessary under Mortmain
Act, 96, 541 .
religious bodies, trusts for, 533. See infra, trust.
remedy for breach of trust, Chap. xxx., sect. 4, 927-937 . See supra,
breach of trust.
rents and profits of, account of, when and from what time directed , 934 et seq.
rents of lands of, raising , 543.
surplus rents, when applicable to charitable purposes, 161 , 162.
resulting trusts, how far legacies to charities result, 161 , 162 .
increased rents applicable as original gifts, 161 .
exceptions to rule, 162.
object of gift failing, resulting trust does not arise, but Court directs
application, 161 .
Roman Catholic charities are subject to Charitable Trusts Acts, 549.
Romilly's Act, petition under, 927 et seq. See supra, breach of trust.
sale of lands of, jurisdiction of Court to order, 930.
with consent of Commissioners, 540.
scheme for, alteration of, not permitted, 535.
distribution under power of selection, as to , 615.
Romilly's Act, Court has jurisdiction under, to settle, 929.
secret trust for, 63.
devise of legal estate is not invalid by reason of Mortmain Act, 66 .
secret trust for grantor of land to, until death, void, 96.
surplus funds not allowed to be expended unnecessarily, 538.
surplus rents of charity lands, when applicable to charitable purposes,
161 , 162.
tomb, trust for maintenance of, when charitable, 106.
trust for, construction of, more liberal than in ordinary trusts, 667, 836.
" chapel," 531 .
declaration of, where numerous contributors, 533.
departure from original trust, when permitted , 533.
failure of, not permitted, 161 .
" free grammar school," " free-school," 536.
lapse of time , when barred by, 871.
loans, amount of charitable, may be increased, according to value of
money, 539.
66 master, finding a,” 537.
"parishioners," for, 539.
perpetuity, rule against, does not affect, 20.
66 poor, relief of," 531 , 538.
66 poor relatives,"
836, 837.
"promotion of godly learning," 533.
public trust is synonymous with , 20.
purchaser without notice from purchaser with , bound by, 859.
rates, in aid of, 532.
religion, established form of, where trust executed in favour of, 533.
when in favour of dissenters, 533.
religious worship, primâ facie determined by trust deed, 533.
if not defined, then by usage, 533.
repairing and rebuilding, for , 538.
salaries, when augmentation or reduction may be made, 538.
secret trust for, 63.
such charity as trustees may appoint, trust for, valid, 106.
1419
 INDEX.

[ The references are to the star paging.]

CHARITY- continued.
trust for, unattested paper, by referring to will ineffectual, 52.
"worship of God," 533.
trustees for, appointment and removal of, 848. See supra, new trustees.
duties of, Chap. xxI ., 528-549.
entertaining opinions contrary to founder, removed , 847.
fitness of, Court how satisfied as to, 849.
incorporation of trustees, 547, 548 .
inhabitants of particular place, required to be, 848.
jurisdiction of Court in respect of, 1035.
majority of, binds minority, 259, 540, 547, 592, 597.
mistake, acting by, how far liable to account , 872, 934, 936 .
new trustees, appointment of, 534, 600, 601 , 667. See supra, new
trustees.
payment of dividends to two or more, 260.
quorum, Court sometimes appoints , 260.
religious views of, when to be considered , 42, 847, 933.
removal of, 848, 933.
sale of lands by, under Lands Clauses Act, 540.
transfer by, to official trustees, 361 .
Trustee Relief Acts, may pay money into Court under, 997.
use in favour of, is within Statute of Frauds, 54.
purchaser without notice from purchaser with , bound by, 859.
Statute of Charitable Uses, commission under, 927.
when it may be averred by parol, 52.
vesting order, jurisdiction of Court to make, as to charity lands, &c.,
-1035 . See TRUSTEE ACTS .
visitor, jurisdiction and office of, 528, 529, 530.
will of founder, directions of, must be strictly followed, 546.
CHARITY COMMISSIONERS.
advice, may give, and persons acting under, are indemnified , 933.
Agricultural Holdings Act, 1883, must consent to exercise of powers of,
547.
Attorney-General, they may certify cases for his interference, 931.
authority of, must be formally given, 933 note (ƒ) .
contentious cases, should not make orders in, 934.
Endowed Schools Commissioners' powers transferred to , 537.
exchange of lands, may authorise, 540.
exemption of certain charities from control of, 548, 549.
incorporation of trustees under certificate of, 547, 548.
inquisitorial powers of, 931 .
investment of monies arising from sale or exchange by, 540.
leases, may authorise building, &c ., 547 .
exceeding twenty-one years, trustees must have Commissioners'
sanction, 547.
new trustees, appointment of, their powers as to, 852, 933.
official trustee of charity funds, 361 , 933.
of charity lands, 933.
orders, powers to make, under Charitable Trusts Act, 1860 ...933.
proceedings, their consent when necessary before taking, 931 et seq.
sale of lands, may authorise, 540.
scheme, new, may provisionally approve, 535.
to be submitted to Parliament, 535 .
transfer of trust funds, may authorise, 361.
Trustee Relief Act, consent of Commissioners, whether necessary to pro
ceedings under, 932, 997.
trustees, powers as to appointment and removal of, 534 note (h) .
CHARTER.
charity established by, jurisdiction of Court over, 528, 530.
1420
 INDEX.

[The references are to the star paging. ]

CHATTELS .
agreement to settle, on same trusts as real estate, 115.
assets in equity, equitable chattels were always accounted, 826 .
bankrupt trustee in possession of, when subject to order and disposition
clauses, 242 et seq.
bequest of, upon trusts corresponding with real estate, 98 .
cestui que trust of, dying intestate and without next of kin, who are en
titled, 285.
custody of, duty of trustee as to, 294 et seq.
disclaimer of, may be by parol, 199.
entailed , cannot be, 94, 95.
execution against, for debt of trustee , 224 ; of c. q. t., ib ., 795, 796.
executor, powers of, to deal with chattels of testator, 477 et seq., 597.
executor of trustee, devolution of trust chattel on, 223.
executory trust of, how construed, in marriage articles, 115. See EXEC
UTORY TRUST.
in will, 122.
following, into hands of purchaser, 893.
forfeiture of, on conviction for felony, 28, 820.
heirs, chattels limited to A and his heirs are personal estate, 94.
inventory of, duty of trustee to make, 207.
judgment when a lien on , 810.
life estate in, limitation of, at law and in equity, 85.
limitation at law by deed, how far chattels capable of, 85 ; by will, ib.
in equity, by way of trust, chattels may be freely subjected to , 85.
married woman, of, rights of husband in respect to, 739 et seq. See
MARRIED WOMAN.
personal not within Statute of Frauds, sect. 7 , 53.
possession of c. q. t. when entitled to , 683, 684.
real, are within Statute of Frauds, sect . 7, 53 ; secus sect. 10, 802 .
assignment of, deed when necessary for, 693.
entailed, cannot be, 94 ; except term in trust to attend inheritance, 95.
life estate in, may be limited by way of trust, 85 .
vesting of, in new trustee, 650, 651 .
resulting trust, whether delivery of chattels gives rise to , 145.
on purchase in name of stranger, 163.
sale of, by executor, 477 , et seq.
sale of, in market overt, 860 , 893.
sale of, under Settled Land Acts, 566, 567.
settlement of, agreement or direction for, how construed, 115 , 116, 122 et seq.
See EXECUTORY TRUST.
settlement of, cannot be made to follow realty exactly, 116.
strict settlement, how effected , 98 .
specifically bequeathed, executor may sell, 478, 479.
tenant for life of, when entitled to possession, 683.
bankruptcy of, are not forfeited on, 683.
trust of, 4, 6, 53.
chattels may be subjected to limitations by way of trust, 85.
corresponding with trust of realty, how carried into effect, 115 et seq.
See EXECUTORY TRUST.
not affected by Statute of Uses, 6.
perpetuity, application of rule against, 98 .
when perfectly created, 69.
trustee of, duties of, generally , Chap. xiv. 287–362 .
CHEQUE.
trustee justified in accepting, in payment of deposit on sale, 437.
CHILD. See INFANT.
advance to, regarded as portion , 404 .
illegitimate, status of, 95, 177 , 402. See ILLEGITIMATE CHILD.
1421
 INDEX.

[The references are to the star paging.]

CHILD -continued.
maintenance of infant, 581 et seq. See MAINTENANCE.
mother liable for, 793.
portion to, 385 et seq. See PORTION.
purchase in name of, primâ facie an advancement, 170 et seq. See
ADVANCEMENT .
trust for children of A as B shall appoint, effect of, 838.
CHOSE IN ACTION.
assignment of, 72, 446, 447, 695 et seq.
assignable now by statute, 72 , 695 note (c) , 712 , 713 ; but assignment
must be by writing and notice must be given, 72 , 695 note (c),
712, 713.
assignee takes subject to equities, 695, 862.
priority of, by giving notice, 72, 702 et seq.
trustee, by, power of attorney how to be qualified , 446, 447.
breach of trust, right to sue for, how far assignable, 692.
debentures in company, 243.
equitable interest in chattel real is not, 747.
husband's power over wife's, 24, 739 et seq. See MARRIED WOMAN.
judgment recovered by wife is her chose in action , 747, 748.
married woman, of, 23, 24, 739 et seq. See MARRIED WOMAN.
notice of assignment, how it gives priority, 72, 702 et seq.
distinction between chose in action and real estate in this respect, 704,
705.
neglect by trustee to give, 903, 904.
order and disposition clause , not to be deemed goods within, 243.
payment of, into Court, under Trustee Relief Act, 997.
policy of life assurance, 243.
purchaser of, from trustee, holds subject to same equity as trustee, 862.
reduction of, into possession, by husband, 24, 739, 740 , 741 , 745. See
MARRIED WOMAN.
by trustee, 287, 288.
reversionary, trustee may concur witn persons having prior interest in
calling for transfer of, 288.
shares in company are not, within Bankruptcy Act, 243 ; secus equitable
interest in shares in names of others, ib.
trust formerly considered in nature of, 8.
secus in later times , 10.
trustee of, should reduce into possession, if possible, 287, 288.
vesting orders as to, powers of Court to make, 1014 et seq. See TRUSTEE
ACTS.
effect of, 1024.
CHURCH. See CHAPEL .
monument or window in, trust for repairing, valid as charitable gift, 106.
trust for, by will, how carried out in equity, 85.
trustees, appointment of, 542.
incorporation of, 542.
investment by, in Government or real securities, 316.
CHURCHWARDENS AND OVERSEERS .
parish property vests in, under 59 Geo. 3, c. 12, 532 note (1).
CIRCUITY .
Court of equity avoids, 688, 883, 891 .
trustees may avoid, 573.
CITY OF LONDON PAROCHIAL CHARITIES ACT, 1883, 473.
CLAIM. See ACTION.
adverse to c. q. t., trustee should not make, 285.
by third persons, right of trustee to investigate, 349.
1422
 INDEX.

[The references are to the star paging.]

CLASS .
general intention in favor of, aided by Court, 839 .
power, in favor of what class Court will exercise , 840 et seq.
presumption of release weaker in case of, 870, 923 .
time allowed to, for prosecution of rights, 496, 936.
CLERK IN HOLY ORDERS .
election of, under trust for parishioners, 86, 87.
mode of election, 88, 89, 257.
CO-ADMINISTRATOR .
on same footing as co-executor as to liability, 273.
CODICIL. See WILL.
CO-EXECUTOR. See EXECUTOR.
receipts, liable for joining in, pro formâ, 268.
unless joining be nugatory, 269 ; or ex necessitate, 272.
COHABITATION BOND, 106 note (b) .
COLLATERAL.
equitable powers may be, 598.
COLLECTOR.
trustees may employ, of debts , 632 , 633 ; of rents, 632 , 637.
COLLUSION. See FRAUD.
COLONIAL STOCK ACT, 1877, 322.
COLONY.
colonists carry out their country's law with them , 55.
but subsequent enactments do not follow them across the seas, 55.
lands in, not within Statute of Frauds, 55.
lands in, within Trustee Act, sects . 54, 56 ... . . . 1039.
COMMISSION.
agent, trustee who is, cannot charge, 280.
army agent, notice to, of charge on proceeds of officer's commission, 708.
charity, to inquire into, under Statute of Charitable Uses, 927.
de lunatico inquirendo, under Trustee Act, 1038.
executors in the East Indies, whether they may charge, 628, 629.
mortgagees, trustees, &c . , cannot charge, 628.
secus as to trustees for absentees of estates in West Indies, 628.
or if allowed to trustee by settlor, 630 , 631.
or stipulated for with c. q. t., 631 .
or with Court before acceptance of trust, 632.
payment of, by trustees , on sale by auction, 571 .
COMMITTEE OF LUNATIC.
charge for time and trouble, may not make , 628.
conversion of lunatic's property by, 965, 966.
office of, does not survive, 261 .
receipts for money, cannot sign , 355.
repairs, cannot make, without previous order, 597.
or after decree in administration action , 597.
Trustee Acts, when to be made a party to proceedings under, 1033.
COMMON LAW.
Courts have no jurisdiction over trusts, 15, 16, 224.
quære, whether they can notice breach of trust, 668, 669.
creation of trust at, Chap. v. sect . 1 , 51 , 52.
COMMON, TENANCY IN. See JOINT TENANCY ; TENANT IN COMMON.
COMPANY.
borrowing powers, directors of, must not exceed, 595.
conversion of shares in, where bequeathed in succession, 300.
directors of, breach of trust or misfeasance by, 191 , 279 , 595, 901, 903.
See DIRECTOR.
1423
 INDEX.

[The references are to the star paging.]

COMPANY -continued.
lease to, under power of leasing, by trustees, 595.
restraining orders under 5 Vict. c. 5, sect. 4, applicable to shares in, 971,
974.
shares in . See SHARES .
trading, powers of managers of, 595.
trustee of shares in, liability of, 239.
trusts of shares not usually noticed, 970.
Trustee Acts, bound by orders under, 1024 , 1043.
COMPENSATION.
breach of trust, from person who benefits by, 544.
next of kin of infant not entitled to , for necessary outlay on real estate,
968 .
undervalue of charity lease, in respect of, 544.
COMPLICATION.
account, in, relief granted in equity on legal title, 886.
trust, of, takes case out of Statute of Frauds, sect. 10, 802, 827.
COMPOSITION. See DEBT, trust for payment of ; CREDITORS' DEED.
creditors, with, trustee making, whether disqualified for office , 847 note (e) .
debts, of, powers of trustees to effect, 590 et seq.
terms of, in creditors' deed must be strictly observed, 513.
COMPOUND INTEREST.
tenant for life advancing fine for renewal of lease, allowed to, 373.
trustees when charged with, 341, 342 , 343.
COMPROMISE.
Attorney-general, with, in accounts of charitable trusts, 935.
claims against estate, of, power of trustees to effect, 591 , 592 .
married woman, on behalf of, jurisdiction of Court to sanction, 926.
COMPULSORY.
payment into Court, when directed, see Chap. XXXI. sect. 4, 976 et seq. See
PAYMENT INTO COURT.
COMPULSORY CHURCH RATE ABOLITION ACT, 1868.
church trustees appointed under, 542.
may invest in government or real securities, 316.
CONCEALMENT. See FRAUD.
breach of trust, of, makes co-trustee liable, 273, 274.
fraud, of, prevents bar to equitable relief, 868, 875, 878.
right to estate, of, account carried back to accruer of title, 891.
CONCURRENCE.
cestui que trust, by, in breach of trust, 918 et seq. •
trustee, by, in sale with other vendors, 430, 435, 619 , 620.
CONDITION.
common law, is part and parcel of the, 34.
legacy charged on devise by way of, if condition fail sinks for devisee's
benefit, 157.
married woman may fulfil, 34.
trust, when created by conditional words, 140.
CONDITIONS OF SALE .
trustees on sale by, what conditions proper, 435, 436.
CONFIDENCE .
personal, at first held indispensable in cases of trust, 2.
but secus in later times, 9.
trust in what sense said to be a confidence, 13, 14.
words expressing, may raise a trust, 131.
CONFIRMATION.
breach of trust, of, by c. q. t., 497 , 498, 924 et seq.
1424
 INDEX.

[The references are to the star paging.]

CONFIRMATION— continued.
breach of trust, infant, by, 497, 923, 925.
married woman, by, 497, 925 ; where restrained from anticipation,
497, 925, 926.
CONFLICT.
duty of, in trustee, 630.
rules of law and equity, between, the latter prevail, 574 .
CONSENT.
breach of trust, to , by c. q. t., effect of, 918 et seq.
direction to convert with consent of A. , held imperative, 948.
discharge of trustee, with consent of c. q. t., 645.
discretion, trustees must exercise, notwithstanding requisite consent given,
291 , 318.
infant, of, ineffectual, 742.
investment, to, under statutory powers, 318, 319, 329.
lord of manor, of, to vesting order , 1025.
married woman, of, to investment, when and how to be given, 318, 329.
to transfer to husband may be revoked, 742.
new trustee, of, to act, 1030 , 1031 .
power to be exercised with, of c. q. t. where one dies, 604.
previous to act, must be, not subsequent, 318, 319.
purchase to be made with, direction for, effects conversion , 948.
tenant for life , of, to investment, 311 , 318.
to exercise of powers of trustees when required under Settled Land
Acts, 470, 622 et seq.
trustees, of several, to investment, 318.
CONSIDERATION .
confirmation , how far necessary to support, 497.
existing debt, when a sufficient, 515.
instrument under seal, if voluntary, not enforced in favour of volunteer, 80.
meritorious, agreement or imperfect trust founded on, how far enforced , 81 .
assignment by felon is not supported by, 28.
parent cannot urge, against child, 81 note (a).
voluntary settlement not supported by, 76, 77, 81 , 82.
nominal, will not prevent resulting trust, 144.
release or waiver, for, what sufficient, 924, 925.
subsequent, voluntary bond or covenant may derive support from, 81.
trust perfectly created , is not necessary for, 67 .
valuable, where it exists , trust not averrable, 51 , 52 ; trust enforced, 67.
deed founded on , may be void as against creditors, 78.
expense incurred in respect of property amounts to, 75.
formalities of minor importance, where trust is founded on, 67.
CONSOLIDATION OF MORTGAGES , 330, 593. See Mortgage.
CONSTRUCTION.
devise, of, to uses, 219.
legal estate, as to, taken by trustee, 212 et seq. See LEGAL ESTATE.
powers of, 601 et seq. See POWER.
trusts, of, governed by same rule as legal estates, 109.
charities, for, 531 et seq. See CHARITY.
executory in marriage articles, 112 et seq.; in wills, 117 et seq. See
EXECUTORY TRUST.
CONSTRUCTIVE NOTICE, 709, 923. See NOTICE.
CONSTRUCTIVE TRUST, Chap. x., 180-195.
acquiescence, remedy of c. q. t. when barred by, 186.
agency agreement, trustee procuring renewal of, to his own firm, 186.
agent acquiring advantage for himself constructively a trustee , 187, 191,
279, 642.
1425
 INDEX.

[The references are to the star paging. ]

CONSTRUCTIVE TRUST - continued.
agent, but agent of trustee is not constructive trustee for c. q. t., 191 , 482,
641 , 642.
allowance for management in cases of, 629.
assuming to act as trustee, by reason of, 904.
attorney violating his duty, held bound by a constructive trust, 191 .
bankruptcy of trustee, how affected by, 239.
Bill in Parliament, money paid to tenant for life for not opposing, 190.
costs, order to sell estate for payment of, whether it creates a trust within
the Trustee Acts, 1025, 1026, 1040.
decree for sale, person to convey under, is trustee, 1025, 1026.
doctrine of, explained , 180.
equitable waste, in cases of, 188.
executor, when a constructive trustee, 1012.
factor, acquiring advantage for himself is constructive trustee, 187.
fine, when barred by, 858, 866.
fraud by heir, devisee or legatee, when it raises , 61.
fraud by agent or attorney, effect of, 191 , 192 .
Frauds, Statute of, how far applicable to, 193, 194.
distinction between trusts arising on a will and on a conveyance, 194.
implied trust and trust by operation of law, distinguished from , 108
note (1).
laches when a bar to enforcement of, 186, 863, 864, 872.
lease obtained under cover of tenant right, 861 ; and see infra, renewal.
Limitations, Statute of, runs in favour of constructive trustee, 877 , 878.
mesne rents and profits, and sub-fines, trustee renewing lease accounts
for, 185 .
mortgagee in possession, how affecting, 190 .
with notice of, is bound thereby, 858, 861 .
notice of trust , constructive trust by reason of, 192 , 193, 858. See No
TICE .
partner acquiring advantage for himself, constructively a trustee, 187 , 914.
payment into Court by constructive trustee, when ordered, 978.
profit, person in fiduciary character making, by his fiduciary position is
constructively a trustee , 180 , 187 , 275 et seq.
but partners of trustee are not liable as constructive trustees for
profits made by trust money, 914.
purchaser with notice of, is bound, 858.
renewal of lease , 180 et seq. See RENEWABLE LEASEHOLDS .
executor or trustee, by, 180.
expenses of, 184 ; how to be borne, 366 et seq.
how far annuitants should contribute to fine, 184.
trustees' lien for, 184.
mortgagee, by, 181.
tenant for life, by, or other person having partial interest, 181 , 363.
trustee cannot sell right of, 182 .
yearly tenant, by, 181 , 182.
resulting trust, Chap. IX. sect. 1 , 143-162 . See RESULTING TRUST.
reversion, purchase of, by trustee, 186.
salmon fishings, grant of, by Crown to trustees, 190.
solicitor, acting on instructions, is not affected with, 767 .
violating his duty, secus, 191.
time, may be barred by lapse of, 863.
title deeds, holder of, how far constructive trustee for remainderman,
192.
Trustee Act, within , what is , 1011 , 1012 .
vendor of shares after contract, affected with , 1011 .
volunteers and purchasers with notice from trustee, remedy against, 185.
waste committed, in respect of, when constructive trust arises, 187 et seq.
See WASTE.
1426
 INDEX.

[The references are to the star paging.]

CONTINGENT INTEREST .
costs of action by party claiming, 351 .
equitable, c. q. t. may assign, 10 , 692.
owner of, entitled to have it secured , 854 ; secus where possibility
only, 854, 855.
costs of action for, 351.
lands, in, alienable under 8 & 9 Vict. c. 106, 955 note (d) .
married woman, of, is alienable by her, 779.
payment into Court at hearing when ordered, 981.
trustee or mortgagee, of, power of Court to deal with, under Trustee Acts ,
1014 et seq.
CONTINGENT LEGACY.
portion not satisfied by, 407.
CONTINGENT REMAINDER .
abolished and re-enacted , 381.
destruction of, how formerly possible, 121 , 380 et seq.; how now, 121 ,
383, 384.
Fines and Recoveries Act, effect of, as to , 381 , 382.
freeholds, of, where legal, formerly required support of particular
estate, 84.
but not now, if capable of taking effect as executory limitation, 383,
384.
but equitable estates never required such support, 85.
legal limitations not construed as equitable in order to protect, 384.
trustees for preserving, duties of, Chap. xvI. 380–384.
limitation to, how usually framed and object of, 380, 381.
"and their heirs," whether it can be cut down, 217.
whether necessary since 8 & 9 Vict. , c. 186 . . . 121 , 383.
special trust to preserve not a use within Statute of Uses, 210.
may purchase trust property, 485.
receiver, may be, 280.
waste, duty of, to prevent, 121 , 383.
CONTINUANCE OF TRUST.
powe r during, 605.
46 continuing
" trustee, 658, 664.
CONTRACT.
assignment of equitable interest does not operate by way of, 73.
charging lands possessed at particular time raises implied trust, 140, 141.
conditional on approval of Court, how, and when to be entered into, 422
et seq., 501 .
conversion of property by contract for sale or purchase, 939, 943. See
CONVERSION .
informal trust for value enforced as, 67.
lands abroad , as to, when enforceable, 48, 49.
married woman, by, as to separate property, 759, 760.
under Fines and Recoveries Act, 645.
under Married Women's Property Act, 1882 , 760, 761.
private, trustees may sell by, 434.
purchase, for, on death of purchaser executor paid price but heir entitled
to purchase, 943 ; secus, now, ib.
remuneration, for, by trustee, 631 , 632.
sale, for, 141 , 142, 939, 943. See SALE.
raises implied trust, 141 .
on death of vendor, land descends to heir but purchase money goes
to executor, 943.
settlement, for, of particular property or property acquired during cover
ture raises implied trust, 140.
trustee for purchase may enter into, 499.
1427
 INDEX.

[ The references are to the star paging.]

CONTRACT — continued.
trustee for sale, by, sanction of Court when requisite to, 422. See SALE.
voluntary, under seal, effect of, 81 , 82.
CONTRIBUTION.
charities founded by voluntary, trusts of, how expounded, 533.
co-trustees, amongst, on breach of trust , 909.
claim for, may now create specialty debt, 909.
none in case of fraud, 253.
secus in favour of trustee in bankruptcy of bankrupt trustee, 916.
mortgaged estates, several, by, to discharge of incumbrances, 717 et seq.
renewable leaseholds, to fines on renewal of, 371 et seq. See RENEWABLE
LEASEHOLDS.
unequal, by joint purchasers, raises implication of tenancy in common, 165.
CONTROL.
powers, how far Court will control, 613 et seq.
trustee must not put trust property out of his own, 296, 297, 337.
retiring, should not part with, until successor appointed , 654.
CONVENIENT SPEED .
what it means, 289.
CONVERSION.
application for conversion of securities, on whom to be served, 309 , 311 .
bank shares, duty of trustees to convert, 289.
contract for sale or purchase, by, 806, 943.
Court, sale by order of, when conversion is effected by, 151, 152.
discretionary power of sale , where trustees have, 152.
infant's property, as to, 151.
Lands Clauses Act, under, 152.
lunatic's property , as to , 151 .
Partition Act, 1868, under, 151.
descent, course of, affected by, 824.
discretion of trustees as to, Court does not interfere with, 298, 304.
how to be exercised, 428 .
doctrine of, when directed by will, 150 , 953.
election to take property in unconverted state, 690, 953 et seq. See
ELECTION.
land directed to be converted into money, 690, 955.
money, into land, 690, 954.
how presumed or expressed, 961 et seq.
what persons are capable of electing, 953 et seq.
express trust for, must be strictly pursued , 298.
foreign bonds or stock, duty of trustee to convert, 288 , 289.
imperative direction when necessary in order to effect notional conver
sion, 947 , 948 , 951 , 952 .
improper, of investments, liability of trustee for, 334, 336. See INVEST
MENT.
income accruing before conversion, application of, as between tenant
for life and remainderman, 301 .
accumulation and investment, where there is direction for, tenant
for life takes income from end of first year, 301.
where investment directed he takes from testator's death , if funds
then invested, otherwise from time of investment if made in
first year, 301 , 302 .
discretion, where trustees have, as to time of conversion, 304.
proportion allowed to tenant for life, how determined , 303 .
reasonable fruit of property, tenant for life entitled to, 303 .
refund, tenant for life must, if he takes undue proportion, 334.
and if he is insolvent, semble trustees liable, 335.
reversionary, where property to be converted is, 305.
1428
 INDEX.

[The references are to the star paging.]

CONVERSION — continued.
India, assets in, duty of trustee to convert, 335.
Infant's property, of, when authorised , 967 et seq. See INFANT.
land directed to be converted into money, 949, treated as money, ib.
alien may take proceeds, 950.
charity cannot take, 950 , 951 .
election to take , as land, 690 , 955 et seq. See ELECTION.
felony, proceeds forfeitable for, if land in fact sold, 950.
secus after expiration of punishment, 950.
gavelkind lands, course of descent of, after conversion, 824.
general bequest of personal estate, passes by, 949.
heir, right of, to undisposed of proceeds of sale, 149, 150 .
imperative, direction must be, in order to effect conversion, 951. ·
judgment not binding on, 797 et seq.
mortgagee selling under power of sale, who entitled to surplus pro
ceeds, 952.
where mortgagee is trustee for sale, 952.
next of kin have no right where land is " at home," 949, 950.
land not considered at home if actually conveyed to trustees, 950.
option to purchase, effect of, 952.
personal representative of party entitled, land devolves on, though
conversion postponed, 949.
probate duty, is subject to, 949.
rents before conversion, how applicable, 949.
leaseholds, trustee when bound to convert, 298, 299, 370.
tenant for life of residue, to what income entitled where leaseholds
unconverted, 304.
long annuities, duty of trustee as to conversion of, 298, 300, 334.
lunatic's property, of, when authorised , 962 et seq. See LUNATIC .
money directed to be laid out on land, 939, treated as land iq.
curtesy, is subject to, 939.
devise of " lands," passages by, 941.
dower, quære whether formerly subject to, 939, 940 ; is now, 940.
election to take, as money , 690, 954 et seq. See ELECTION.
escheat, not subject to , 940.
forfeiture, not subject to , on conviction for felony, 950.
so where paid into Court under Act of Parliament, 950.
heir of c. q. t., when entitled to, 941 et seq.
heir of settlor or covenantor, when entitled as against his personal
representative, 942 et seq.
heir entitled if any person has an equitable interest, 942.
secus, if money is " at home," 944.
Hotchpot, not brought into, by child receiving orphanage share, 941 .
imperative, direction must be, in order to effect conversion , 947.
so considered where uses declared exclusively applicable to real
estate, 947.
notwithstanding power to invest on other security, 947.
direction to convert at " request," held imperative, 948.
judgment, is bound by, 941 .
legacy duty, is subject to, 941.
next of kin of settlor, right of, to undisposed of interest in the money,
152, 153.
whether resulting interest results as realty or personalty, 152.
question is determined by actual character of the property
in equity at the time when it results , 152.
personal assets, not accounted, and (formerly) not liable to simple
contract debts, 940, 941 .
will of c. q. t., how affected by, 940, 941 , 962 .
mortgage security, whether trustee or executor bound to convert, 291 , 300
note (d).
1429
 INDEX.

[The references are to the star paging.]

CONVERSION — continued.
option to purchase, whether exercise of, effects retrospective conversion, 952.
not as between vendor and purchaser, 952 note (c) .
optional direction for, effect of, 947, 948.
order for sale in administration action operates as, 951 .
partnership, share in, not immediately convertible, rights of tenant for
life of residue in respect of, 304.
personal property given in succession, duty of trustee to convert,
298 et seq.
where property wasting, 298, 299.
where property not wasting, but investment not authorised by Court,
300.
where property cannot be profitably converted, tenant for life takes
interest on value, 304.
where specifically given, or intention shown that property should be
enjoyed in specie, secus, 299, 300.
personal security, of investment on, 290, 291.
postponement of, by trustees, under discretionary power, 290.
reconversion, implied trust for, 433, 434.
by election of c. q. t., 953 et seq. See ELECTION.
renewable leaseholds, of, by trustees, 370.
rents before conversion, tenant for life entitled to, 949.
residuary property, of, when proper, 298 et seq.
retrospective, by exercise of option, 952.
reversionary interest, of, in favour of tenant for life, 305.
securities, duty of trustees to convert, 287 et seq.
shares in canal, insurance and railway companies, of, 289, 290.
in unlimited companies, of, 289, 290.
specie, direction for enjoyment in, effect and sufficiency of, 299, 300.
specifically bequeathed property, of, 299, 300.
tenant for life and remainderman, as between 301 , et seq. See supra, in
come.
time for conversion of securities by executors or trustees, 289, 299.
tortious, of trust estate by trustee, 240, 892 et seq., 963.
does not affect rights of c. q. t., 892 ; infant, 967 ; lunatic, 963.
right of c. q. t. to follow trust estate, 240, 241. See BREACH OF TRUST.
trustee, by act of, not permitted to vary rights of c . q. t. , 963.
unauthorised investment, of, 300.
wasting property, trustee bound to convert, where given to persons in suc
cession, 298, 300.
secus where intention that property should be enjoyed in specie, 299,
300.
will, conversion confined to purposes of, 150 , 953.
CONVEYANCE .
cestui que trust, right of, to call for conveyance, 684 et seq. See infra,
trustee.
Court, by order of, under Trustee Acts, 1020. See TRUSTEE ACTS.
form of, 447, 1020 .
Court of Common Pleas, under order of, 35 note (c) .
decree for, makes legal owner a trustee within the Trustee Act, 1026
dower, declaration to bar, effect of, 737.
uses to bar, effect of, 738.
equitable estates, of, usual form of, 693 ; precautions in, 701 et seq.
executor when entitled to call for, from heir, 943.
fraudulent intention of grantor, effect of, 145 .
"grant," effect of, in operative part, 441 , 687 .
mistake by grantor, effect of, 145.
new trustees, to, 650 et seq. See NEW TRUSTEES.
not necessary for completion of valid appointment, 650.
1430
 INDEX.

[The references are to the star paging.]

CONVEYANCE — continued .
parties to, when c. q. t. should join in, 447 .
when administration action is pending, 449.
trustee to bar dower when a proper party, 687 , 688.
Settled Land Act, under, by beneficial owner, 685, 686.
refusal to convey, power of Court to make vesting order in case of, 1041.
See TRUSTEE ACTS .
revocation of will by, 722.
Settled Land Acts, of land purchased under provisions of, 567 , 571 .
sole trustee, by, 431.
trust to convey is special trust, 210.
trustee, by, of legal estate.
appointment of new trustees, on occasion of, 650 et seq. See NEW
TRUSTEES.
assignee of c. q. t., on direction of, 692.
cestui que trust, on direction of, 684 et seq.
compellable to convey in parts, whether he is, 685.
costs of, 688.
description, by what, trustee bound to convey, 685.
form of, 685, 687.
liability of trustee refusing to convey, 685 , 686, 692.
lien of trustee for expenses, priority of, 639.
tenant in tail , not bound to convey fee simple to , 685.
trustee of equitable interest, to , 688.
undivided share, to owner of, 685 note (g).
trustee, by, under trust for sale, 441 et seq. See SALE.
trustee, to, on sale, how to be framed, 505 et seq.
vesting order operates as, 1014.
may be made notwithstanding conveyance is obtainable, 1031.
CONVEYANCING ACT, 1881.
acknowledgment under, of right to production of deeds, 443, 444.
consolidation of mortgages abolished , 330.
contract for sale of land, stipulations implied in, 500 .
covenants by trustees when implied, 442, 444.
debts and claims, power of trustees or executors to compound, &c., 591,
592.
disclaimer of power, 607.
"grant," use of word, in conveyance not necessary, 687.
infant, maintenance of, powers of Act as to , 582, 584.
management of land of, during minority, powers as to, 129, 578, 579,
580.
long term of years, conversion of, into fee simple, 328, 596, 784.
new trustees, power of appointing, conferred by Act, 648, 1030.
application of power to previous settlements, 648, 649.
number of trustees, augmentation or reduction of, 659, 663, 664.
vesting of property in new or continuing trustees, 652, 653.
payment of purchase money to trustees, 448.
power of attorney, duration and revocability of, 353, 354.
powers conferred by, to be deemed proper powers, 129.
powers of sale conferred by, 427 , 431 , 432 , 435, 436 .
receipts, 'power to give, conferred by, 452.
release of power, by donee, under sect. 52, 610 .
section does not apply to a power coupled with a duty, 610.
restraint against anticipation, discharge of, by Court, 785, 786 .
survivorship of trust or power under sect. 38 , 612 .
title, proof of, to be made on sale of land, 439 .
trust estates, devolution of, under sect. 30, 204, 226 , 233.
undertaking under, for safe custody of deeds, 444.
vendor, personal representative of, empowered to convey, 1011.
1431
 INDEX .

[The references are to the star paging.]

CONVEYANCING ACT, 1882 .
separate set of trustees, appointment of, of part of trust property, 667.
CONVICT.
administrator of property of, appointed by Crown, 29.
definition of, 28.
interim curator in absence of administrator , 29.
may not alienate property, 28.
may pay debts, 29.
revesting of property, 29.
CONVICTION.
felon, of, effect of, on property, 27, 28, 818, et seq.; under 33 & 34 Vict.
c. 23, 28, 29, 821. See FORFEITURE .
trustee, of, 249 ; does not work forfeiture of trust estate, 1036.
appointment of new trustee on, 1043, 1044.
COPIES.
accounts, of, whether c. q. t. entitled to, 691.
deeds, of, what copies new trustees are entitled to , 670.
documents, of, whether c. q. t. entitled to, 680.
voucher, of, whether c. q. t. entitled to, 449.
COPYHOLD.
admission to, fine on, 235. See infra, fines.
in excess of surrender how far void, 236.
appointment of person to convey, under Trustee Acts, 1025.
assets were formerly not, 825 ; unless blended with freeholds in one mort
gage, 800 note ( 1) .
secus now under 3 & 4 Will. 4, c. 104, 827.
conditional fee in, where no custom to entail, 47.
Court, assurance by order of, under Trustee Acts , 1019 , 1025 .
covenant to surrender, covenantor a trustee under Trustee Acts, 1011.
custom to entail, 47.
customary freeholds are in fact privileged copyholds, 248.
descent of, same in trust as legal estate , 47, 824.
devise of legal interest in, formerly by will unattested and unsigned , 721.
of equitable interest, 721 .
nuncupative will of, whether valid declaration of the uses of a sur
render, 53 note (c) .
disclaimer of, to avoid payment of fine, effect of, 237.
Dower Act does not affect , 733, 738.
enfranchisement of, power of trustee to affect, 796.
purchaser not entitled, to proof of title to make, 439.
entail of legal and equitable estate in, where possible , 47 .
where no custom to entail, how to be settled, 47 , 48.
equitable, how barred, 694.
equitable interest in , follows devolution of legal estate , 47, 824 ; how
devisable, 721 , 722.
escheat of, properly speaking, cannot take place, 248.
execution against , by elegit, 803.
fines on admission of trustee to, how and when payable, 235 et seq.
charged on trust estate , how raised, 379.
income of lord treated as , 682.
incorporated charities, how payable by, 548.
new trustee appointed by Court, on admission of, 1025.
payment of, not a condition precedent to admission, 235.
rate of, where co-trustees, 236.
tenant for life and remainderman, how to be borne as between , 378,
379.
trustee for sale, on death of, pending contract, how payable, 142 .
trustee paying , is entitled to reimbursement, 238.
trustee of a term of years, on admission of, 236.
1432
 INDEX.

[The references are to the star paging.]

COPYHOLD — continued.
Frauds, Statute of, declaration of trust of copyholds is within, 53
but not surrender to uses, 53 note (c) .
nor devise of legal estate, 721 , quære, as to equitable interest, 722.
free-bench, estate of trustees subject to, at law, 221 .
equitable interest not subject to, 733.
heir, customary, of trustee whether competent to execute trust , 233.
lord, when bound to admit , 284, 285 .
heriot when payable on decease of trustee, 235, 236.
investment on mortgage of, by trustees, 328.
joint tenants , fines on admission of, 236, 237.
legal estate in, when passing under devise to trustees, 211 , 212, 216, 218.
where freeholds and copyholds coupled together, 216 , 217.
lives , for, how they devolve under 1 Vict. c . 26, sect. 6, 165 .
how far purchase of, in name of stranger, raises resulting trust, 165.
how far in name of child , 172.
trustees should not purchase, 503.
lord bound by entry of trust on court roll, 248.
consent of, to vesting order, 1025.
lunatic, of, effect of enfranchisement of, 966-967 .
new trustee, fine payable on admission of, 235.
vesting of copyholds in, 652, 654.
purchase, trustees with power of, should not purchase copyholds for
lives , 503.
remainderman, admission of, rights of lord as to, 236
resulting trust on purchase of, 165, 172 .
settlement of, to correspond with limitations of freeholds in strict settle
ment, 47.
how to be effected where no custom to entail, 48.
surrender formerly required to pass legal estate by will, 721:
on what principle supplied in equity , 721 , 722.
termors for years, rights of lord as to admission of, 237.
trust, entry of, on court roll, effect of, 248.
trust, may be the subject of, 47.
trustee of, within Trustee Act, 1850, 1011.
uses of, are not within Statute of Frauds, 53 note (c) .
vesting orders as to, power of Court to make, 1019, 1025, 1041. See
TRUSTEE ACTS .
Wills Act, subject to , 722 .
CORONER.
cestui que trust in possession at one time voted for, 234, 681 .
trustee in possession votes for, 234, 235, 681.
CORPORATION.
alienation of property by, 22, 31 .
attaching property of, mode of, 936.
breach of trust by, 530, 531 , 902, 936. See CHARITY.
bye-laws, may make, but not so as to defeat object of foundation , 535,
capacity of, to stand seised to use or to be trustee, 2, 9, 14.
cestui que trust, may not be, of lands, without licence of Crown, 44, 95.
charity, incorporation of trustees for, 547, 548.
charity, trustees for, appointed in place of corporation , 851 , 852.
constructive notice, distinction between corporations and individuals as
affected by, 936.
costs, corporation being trustees , when ordered to pay, 994.
creation of trust by, 22.
Crown, licence of, necessary for conveyance to corporation upon trust, 32 ;
or upon trust for corporation, 44.
eleemosynary, where Crown visitors of, visitatorial power committed to
Lord Chancellor, 530 .
1433
 INDEX.

[ The references are to the star paging.]

CORPORATION— continued.
equity, amenable to Court of, 31.
loan to, trustee negotiating for, should not hand money to broker, 255.
municipal, are trustees of property under Municipal Corporations Act,
22, 31.
and cannot alienate without consent of Lords of Treasury, 22, 31.
mayor of, cannot profit by office , 279.
notice not readily imputed to, 936.
stocks of, investment in, by trustees, 320.
"true owner," cannot consent as, under Bankruptcy Act, 244.
trust for, 44, 95.
trustee, may be, 9, 31 .
use, could not stand seised to , 2, 31 ; secus as to trusts, 31 .
visited by Crown, through High Court of Justice, 530.
CORPUS.
costs of application for appointment of new trustees payable out of,
1038.
costs under Trustee Relief Act whether payable out of, 1003, 1004.
what is to be regarded as, and not income, 305, 682 , 683, 914, 915. And
see APPORTIONMENT.
COSTS. Chap. XXXII. sect. 5, 985-995.
accounts, of taking, trustee entitled to, 991.
secus, in case of misstatement, refusal to account, or other impropriety,
691, 990 et seq.
Act of Parliament, of application for, 536.
action, of, when allowed to trustee out of estate, 636 , 637.
unnecessary, trustee liable for costs of, 350, 993 .
administration action , of, are testamentary expenses, 546, 636, 644.
allowances to trustees, Chap. xxiv. 627–644.
expenses, for, 634 et seq. See EXPENSES.
time and trouble , for, 627 et seq.
appeal for, when trustee may present, 990, 1003.
appeal, of, trustee answerable for, 350.
appointment of new trustee, of improper, 618, 665, 669.
under Trustee Act, 1029 , 1030, 1033, 1038. See TRUSTEE ACTS.
apportionment of, in action against executor of defaulting executor, 992.
bankrupt trustee, of, 635 note (b ) , 991 , 992.
Bill in Parliament, of opposing, 580, 636.
breach of trust, of action for, 909, 989 et seq.
charges and expenses, trustee when allowed, 412 , 432, 634 et seq., 987. See
EXPENSES .
claim to trust fund , of improper, 349.
conveyance, of, from trustee to c. q. t., 685, 688.
refusal by trustee to make, at direction of c. q. t., 654, 655, 684, 685,
686.
copies of deeds, &c., of, supplied to trustees, 670, 1003.
corporation, against, pleading ignorance falsely, 994.
or suppressing documents, 994.
corpus or income, whether payable out of, 1003, 1004.
co-trustees, contribution between, 909.
creditors, of, in administration action , 987, 988.
as between plaintiff and residuary legatee, 988.
as between plaintiff and co-creditors, 988 .
decree, after passing of, trustee cannot get costs, 988.
deed, of, direction to pay, is implied, 641.
defaulting trustee, of, 635, 991.
defendant, trustee made, as necessary party, 985.
denying falsely claim of plaintiff, trustee pays costs, 993.
discharge in bankruptcy, trustees entitled to costs from date of, 992.
1434
 INDEX.

[The references are to the star paging.]

COSTS - continued.
disclaiming trustee, of, 198, 988.
disclaimer by pleading, 198, 989.
discretion of Court, are in, 986 note (c).
but this does not deprive trustee, &c., of right to costs, 987.
documents, trustee suppressing , pays costs, 994.
doubtful construction, in case of, 992.
point of law, 992.
dower trustee, of, as against mortgagee , 985.
enfranchisement of copyholds, of, may be charged on estate, 596.
estate, out of, may be given under Trustee Act, 1037.
excessive, how moderated, 638.
Executor, of.
account, of taking, when disallowed , &c ., 994.
creditors' action, in, entitled to costs in preference to plaintiff, 986.
rule at law formerly different, 986.
defaulting executor, of, 992.
denying assets falsely, deprived of costs, 993.
or relationship of next kin, 994.
improperly retaining balances, 992.
interest, where he is ordered to pay, as for breach of trust, 994, 995.
real estate, right to recover costs out of, where personal exhausted,
986.
set-off of debt of, against costs, 635.
trustee, of, suing to recover trust estate , 993.
expenses , allowance to trustee for, 634 et seq., 987. See EXPENSES.
extra, trustee who has been paid between party and party, where allowed,
636, 637.
fraud, trustee of deed tainted by, whether allowed his costs, 989.
fund in Court, out of, 986, 987 .
ignorance, trustee falsely pleading, pays costs , 994.
improper appointment of trustees, of, 665 , 669.
infant, trustee acting for protection of, against parent, 993.
information , of, relator responsible for , 927.
innocent trustee, of, guilty trustee ordered to repay, 990.
interest on, not allowed, 637.
inventory, trustee neglecting to make, deprived of costs , 207.
leasing charity lands with covenants for private advantage, trustee de
prived of costs, 542, 543.
legatee's suit, in, 988.
lien of solicitor for, 703. See SOLICITOR.
lien of trustee for expenses, 639, 640. See LIEN.
prevails over costs of administration action, 639.
lunatic mortgagee or trustee , of vesting order as to estate of, 1037.
misconduct, trustee guilty of.
loses right to reimbursement, 636.
pays costs or portion thereof, 990 et seq.
where misconduct discovered in progress of proceeding, 991 .
where proved only in part, 990, 992 ; or trivial, 991 , 992 .
purchase of trust property by trustee at auction, without fraud,
991 .
misstatement of accounts by trustee, 993.
mistake, trustee committing, when ordered to pay, 991 .
neglect of trustee, of proceedings caused by, 350, 546, 636, 990.
trustee neglecting to make inventory deprived of costs, 207.
new trustees, of appointing, unnecessarily or improperly, 618, 665, 669,
1035.
under Trustee Acts , 1029, 1030 , 1033, 1038.
official liquidator not entitled to same latitude as trustee , 991 .
Parliament, of proceedings in, when allowed to trustees , 580.
1435
 INDEX .

[The references are to the star paging.]

COSTS - continued.
party and party , as between, 985 , 987.
trustee receives, as against stranger, 985, 987.
and so in action for enforcing invalid trusts, 989.
payment out of Court, of petition for , where trustee respondent, 985.
petition, trustee cannot obtain order for costs by, after decree passed,
988 .
plaintiff, of, having no interest or interest which ceases, 351 .
portions, of raising, thrown on estate charged, 412.
professional charges, trustee not permitted to make, 630, 987.
purchase, improper, by trustee , of action to set aside, 494.
purchase, of, by trustees for purchase, 505.
receiver, expense of, falls on tenant for life , 984.
priority of costs and remuneration of, 984, 987.
recovered, how, by trustee as against c. q. t . or trust estate, 986. See
EXPENSES.
refusal to transfer trust estate, occasioned by, 654, 655, 684, 685, 686.
re-hearing, none for costs only, 988.
relators necessary in information on account of, 927 .
retaining balances improperly, trustee fixed with costs , 992.
retiring from caprice, trustee pays costs, 672 ; secus where retiring on
sufficient ground, ib.
sale by trustees to raise costs and expenses, 451 .
sale, order for, to raise costs, whether it creates trust within Trustee
Acts, 1025 , 1026, 1040 .
vesting order may now be obtained in chambers, 1040 .
scale, on higher not allowed merely because fund large, 1037.
separate estate, out of, 643 , 762.
set-off against, for debt of executor, 635.
set-off for, by executor against legatee, 696.
solicitor's lien, how affected by, 696.
setting aside deed , of, 989 , 990.
setting up title of his own, or trust different from existing one, trustee
pays costs, 994. See 285.
Settled Land Act, under, trustee may reimburse himself, 636.
severing in defence, costs of trustees, 260.
solicitor and client, as between, 987 .
allowed in matters between c. q. t. and trustee where fund in Court,
987.
creditors' and legatees' suits, in, where estate deficient, 988.
disclaiming trustee, not allowed to, 988.
insurance company, allowed to, paying in under Trustee Relief
Acts , 997.
solicitor, costs of, when trustee , 281 et seq., 987. See SOLICITOR.
c. q. t. obtaining taxation against, 637 note (c ) , 642 note (c).
professional charges not allowed to, when trustee, 281 , 987.
specific performance, in action for, trustee when entitled to charge, on
estate, 432.
taxation of, at instance of c. q. t., 637 note (c ) , 642 note (c).
tenant for life, incurred by, when allowed to trustees, 636.
tender of, to party whose appearance is unnecessary, 1002, 1004.
testamentary expenses, what are, 644.
trust to pay, how construed , 644.
trustee, of, as between himself and stranger, trustee on no better footing
than ordinary litigant, 985, 986.
as between himself and c. q. t., 986 et seq.
costs, charges, and expenses, when allowed , 412 , 432, 634 et seq., 987.
not appearing at hearing, may pay costs of day, and have cause
re-heard, 988.
secus after decree passed, 988.
1436
 INDEX .

[The references are to the star paging.]

COSTS - continued.
trustee, priority of, 987.
where fund in Court, 987.
trustee when ordered to pay, 346, 985, 989 et seq.
Trustee Acts, under, 1027 , 1035, 1037, 1038. See TRUSTEE ACTS.
Trustee Relief Acts, under, 1002 et seq. See TRUSTEE RELIEF ACTS.
unfounded claim, of, 349 .
unsuccessful application, of, trustee pays, 985.
void deed, trustee of, where entitled to costs, 989.
CO-TRUSTEES .
acknowledgment of debt by one, 259.
bankruptcy , all must prove in, 259.
bankruptcy of, liability of co-trustee for costs, 634, 635.
proof for trust debt how to be made, 915.
breach of trust, each is responsible to c. q. t. for whole liability and costs,
908 et seq.
each liable for concealing or permitting, 273.
following money into hands of co-trustee, 897.
permitting, is liable to be removed , 847 .
threatened by co-trustee, duty of trustee to prevent, 274.
cestui que trust one of, cannot hold others responsible for joint breach
of trust, 918.
contribution between, 909, 910.
conveyance , all must concur in, 260.
custody of chattels by, 295.
of deeds may be committed to one co-trustee, 681.
delegation of office to co-trustee, 252 et seq. See DELEGATION.
in case of discretionary trust, 257.
disagreeing, Court will exercise power, 835.
receiver appointed, 983.
dividends, receipt of, by one co-trustee, 226, 260.
duties, may not delegate discretionary, to co-trustees, 207.
following trust money into hands of, 897.
fraud of, co-trustee not liable for, 253.
indemnity clause, its effect as to co-trustees, 274, 275.
investment, in making, should not rely on statement of co-trustee, 265.
joint, their office is, 258.
must jointly give receipts for principal money, 259, 292.
but any one may receive dividends or rents, 260.
must all prove in bankruptcy, 259.
in public trusts majority binds, 259.
legal proceedings, should not sever in, 260.
lend, should not, to one of themselves, 316, 325 ; even where empowered
to lend on personal security, 316.
liability, one not liable for acts or defaults of another, 263.
nor for joining pro formâ in receipts, 264 ; provided he did not
actually receive money, 264, 265.
unless money permitted to lie in hands of co-trustee, 265.
lien for overpayment on interest of co-trustee, 910.
majority, how far acts of, binding, 259 , 260, 540, 547, 592, 597.
Mercantile Law Amendment Act, how affected by , 909.
notice to one trustee, effect of, 259, 706.
payment to, safe course is to pay into bank to joint account, 292, 447,
448, 473, 474.
professional, unprofessional must not rely on, 207.
quorum, Court sometimes allows a part to form, 260.
receipts for money by, 259, 292. See RECEIPT.
co-trustee joining in, when liable, 264, 265, 292.
rents, receipt of, by one co-trustee, 225, 260.
1437
 INDEX.

[ The references are to the star paging.]

CO-TRUSTEES- continued.
rents, but co-trustee having notice of misapplication is liable, 260.
sale, each trustee liable for conduct of, 424.
sale, by co-trustee improper, 503.
severing in action or defence, costs of, 260.
solicitor, co-trustee should not rely on, 207, 635.
nor in general employ him as solicitor to trust, 281 , 282, 635.
solicitor and counsel, should employ the same, 260, 261.
survivorship of office of, 261 , 262.
notwithstanding power to appoint new trustees, 262, 263 .
trust money, may not lend to co-trustees, 316, 325.
may not permit to remain, in hands of co-trustees, 265 , 292.
may not trust co-trustee even though a professional person, 207.
whether one co-trustee should permit another to receive, 292.
COUNSEL.
advice of, trustee acting under, how far protected , 207 note (a ) , 346, 347, 685.
cestui que trust entitled to copies of opinions of, 680.
co-trustees should act by same, 260, 261.
opinion of, as to disclaimer, trustee entitled to take, 198.
as to title, trustee for sale or purchase should take, 432 , 500.
trustee when bound to produce, 975, 976.
trustee when allowed fees paid to, 198, 636.
COUNTY COURT.
administration of trusts in, where value not more than £500, 362.
jurisdiction of, in charities whose income under £50, 852 note (d) , 932.
appeal from , to Chancery, when, 932 .
payment into, of trust funds not exceeding £500, 361.
proceedings in, under Trustee Acts, 1045 .
under Trustee Relief Acts , 998, 1008.
COURT.
Act of Parliament, sanction of Court to application for, 536.
advice, of, how obtained by trustee, 618 et seq.
appeal, of, constitution of, 17.
jurisdiction of judges of, in lunacy , 1039.
approval of, duties of person seeking to obtain, 487.
assignment of fund in, 711 .
Common Pleas, of, could dispense with husband's concurrence in execu
tion of deed by wife, 35 note (c) .
conversion by order of, 151 , 152.
discretion of trustee, when Court will interfere with, 523, 613 et seq.
equity, trustee cannot come into Court of, for own benefit, 284.
fund in, stop-order on, priority by obtaining, 711 , 712.
investment by, on mortgage formerly not ordered , 313 ; secus now, 308.
leave of, to concur in sale, 619, 620.
leave of, to institute or defend action, 597 .
mortgage, may direct money to be raised by, 427 .
power, when and how Court will exercise, 834 et seq.
powers of trustee, control of Court over exercise of, 613 et seq.
purchase by trustees of fund in, 505.
sale by, conduct of, to whom given , 449 , 450.
conversion when effected by, 151 , 152.
debts, for payment of, jurisdiction to order, 454 .
order for, binds equitable interests, 1010.
purchaser under, may apply for appointment of new trustee, 1032.
surplus proceeds of, devolution of, 151 .
sale to trustees for sale authorised by, 488, 489.
sanction of, when required to exercise of powers by trustees, 350 , 442, 449,
501, 503, 536, 617 , 618 , 669.
Settled Land Acts, powers of Court under, 560, 566 , 568, 569, 570.
1438
 INDEX.

[The references are to the star paging.]

COURT - continued.
Supreme Court of Judicature, constitution of, 17.
trust money may be paid into, 360. See PAYMENT INTO Court.
trustee appointed by, powers of, 471 , 472.
paying under order of, not entitled to release, 359.
validity of acts of, which Court would sanction, 573.
COVENANT.
annuity, to secure, how far a charge on covenantor's property, 141 .
cestui que trust, action by, to enforce, 853.
conversion by, 939, 942.
Conveyancing Act, 1881 , provisions of, as to covenant binding heirs, 206.
copyholds, to surrender, makes covenantor trustee within Trustee Acts,
1011 , 1041 .
executor, by, to whom lease granted for benefit of estate, 442, note (i) .
future property , to settle
avoidance of, under Bankruptcy Act, 1882 , 80.
execution creditor of settlor, right of, as against c . q. t., 224.
following money into land purchased by covenantor, 896 , 897.
implied trust arises by virtue of, 141 .
infant feme covert, by, 39.
trustee bound to enforce , 288, 902.
trustee entitled to assume due performance of, 207.
"grant " under Lands Clauses Act, implies covenants for title, 687.
"grant bargain and sale " under Yorkshire Registry Acts, 687.
heir or devisee when bound by, 206.
incumbrances, that property is free from, effect of, 718, 719.
indemnity, for, against covenants in lease, when to be given, 444, 445.
infant, by, effect of, 39.
land, to convey, on trust to sell, next of kin when entitled to benefit of,
949, 950.
lease, in, for trustees ' private advantage, improper, 542, 543.
money, to lay out, in purchase of land, heir when entitled to benefit
of, 942 et seq.
performance of, evidenced by receipt for rent, 439.
renewal of lease, for, trustee does not enter into , 425, 443 note ( 1 ) .
trustee legally liable on, 238.
neglect by trustee to enforce , liability for, 288, 902 .
production of title deeds, for, right of purchaser to, 438 , 443, 444.
quiet enjoyment, for, effect of, as exoneration of charge, 718.
satisfaction of covenant by subsequent gift or legacy, 401. See SATISFAC
TION.
seised, to stand, to use of stranger in blood, not enforced in equity, 80.
stock, to transfer, liability of trustee for not enforcing, 902.
trustees for sale, by, for title, 441 , 442.
to produce deeds, 438, 443, 444.
voluntary, carries consideration at law, 80.
cestui que trust, action by, to enforce, 853.
not specifically executed in equity, 80, 947.
may acquire support from valuable consideration ex post facto, 81
note (ƒ).
payable out of assets before legacies , 80 , 81 note (ƒ) .
to lay out money in land not enforceable by heir, semble, 947.
words, what, suffice to give rise to, 206.
COVERTURE . See MARRIED WOMAN.
CRANWORTH'S (LORD) ACT, 451 , 583, 647 , 648. See LORD CRANWORTH'S
Аст .
CRASSA NEGLIGENTIA. See NEGLIGENCE .
CREATION OF TRUST.
act of party, by, 21.
1439
 INDEX .

[The references are to the star paging.]

CREATION OF TRUST― continued.
cestui qui trust, existence of same, essential, 106.
charity, in favour of, 54.
chattels, of, 53.
copyholds , of, 53.
deed when requisite for, 52.
formalities requisite for, under Statute of Frauds, 55 et seq.
imperfect, where some further act is intended , 67.
intention by settlor to create trust essential , 82.
lands, of, 53 et seq. See FRAUDS , STATUTE OF.
law, by operation of, 21 .
legal interest must be actually vested in trustee where capable of trans
fer, 69, 70.
where property is incapable of transfer, quære, 70 et seq.
mortgage money, of, 54.
parol, by, when effectual, 51 , 53, 54, 65.
parties to, Chap. 1. 21-46.
settlor, who may be, 21 et seq. See SETTLOR.
trustee, who may be, 29 et seq.
precatory words, by, 130 et seq.
property, what may be subject of, Chap. IV . 47-50.
testamentary instrument when requisite for, 58, 60.
transmutation of possession not necessary where trust perfectly created,
67.
Wills, Statutes of, how affected by, Chap. v. sect. 3, 57–66.
writing when requisite for, 55 et seq.
CREDITOR. See DEBT.
acquiescence, when bound by, in purchase by trustee, 496.
administrator how protected against, 362 .
adoption of trust deed by, 513, 522 .
advertisement for, by executors , 362.
assets, right of creditor to recover, from legatees, 356, 357 .
business carried on by trustee, rights of creditor of, 639, 640.
confirmation, when bound by, 498.
costs of administration action by, 986, 987, 988.
enforcement of trust by, 515.
execution by, 794, 795 ; equitable, 795 et seq. See JUDGMENT.
execution creditor may purchase goods sold under execution, 490.
taking trust estate under execution , bound by trust, 224 , 245, 247.
executors, how protected against creditors of testator, 362 .
rights of creditor as against, 477 .
fraud upon, by agreement for preference, 523.
laches, when barred by, 923.
maintenance of debtor, how far entitled to benefit of trust for, 99 et seq.
married woman, of, restraint on anticipation when ineffectual as against,
769.
rights of, against separate property, 764, 771 , 773. See MARRIED
WOMAN.
pari passu, all creditors now rank, 206, 238, 525.
priority of, over legatee under trust for payment of debts and legacies,
523, 524.
over person claiming under voluntary bond or covenant, 81 note (ƒ) .
purchase, may, on sale by sheriff, 490.
receiver when appointed at instance of, 856.
separate property of married woman, his remedies against, 764, 773. See
MARRIED WOMAN.
settlements, voluntary or otherwise, when invalid as against, 77, 78, 81 ,
82, 518.
specialty, priority of, 524, 525 .
1440
 INDEX.

[The references are to the star paging.]

CREDITOR- continued.
subsequent, voluntary settlement when defeasible by, 77, 78 , 81 , 82, 518.
trust for payment of creditors, 509 et seq. See DEBT.
when irrevocable, 515, 516 .
their rights cannot be defeated by means of, 99 et seq.
voluntary settlement when void against, 77, 78, 81 , 82 , 518.
CREDITORS' DEED. See DEBT, trust for payment of debts
adoption of, by creditor, 513.
communication to creditor, effect of, 516 , 517.
disputed debt, 522.
fraudulent, when, under 13 Eliz. c . 5, 77 et seq., 510 , 518.
general words in, effect of, 510 note (a) .
inspector under, profiting by fiduciary character is constructively a
trustee, 187, 279.
mortgagee , proof by, 521.
new trustees of, appointment of, by Court, 1030.
time for creditors to come in, 522.
trustee of, making payment by mistake, not accountable, 349.
purchase of trust property by, when permitted, 489.
time when he should begin to act, 514.
whether revocable or irrevocable, 515, 516.
CRIMINAL ACT.
trustee whether liable for acts of agent or stranger, 294, 295.
CROWN. I
alien, when entitled to benefit of trust for, 45 , 95.
bona vacantia, Crown can sue for, without inquisition , 95 , 96.
where c. q . t. dies intestate and without next of kin Crown takes
residuary personalty, 161 , 285.
but executor where appointed takes as against Crown, 61 , 285.
cestui que trust, may be, 43.
conversion, excluded by doctrine of, 940.
Court of Equity has no jurisdiction over conscience of, 30.
debt, extent for, 817 , 818.
registration of, 809 .
search for, on purchase of land . 500 , 810 , 811 , 812.
escheat, claiming by, whether bound by Trustee Act, 12.
Exchequer, Court of, jurisdiction of, as affecting Crown, 30.
executor, right of, to residue as against, 61 .
extent from, what property bound by, 817 , 818. See EXTENT.
felon, rights of Crown on conviction of, 27 et seq.
forfeiture, taking by, whether bound by trust, 247.
Frauds, Statute of, whether bound by, 54.
gift by subject to , formalities requisite to , 43, 44 .
inquisition when necessary to perfect title of, 95, 819.
Intestates' Estates Act, 1884, sale under, of real estate to which Crown !
entitled , 44, 1040 .
licence of, required to conveyance to corporation upon trust, 32 .
or conveyance upon trust for corporation , 44.
parens patria, is, 927.
prize of war vests in, 22.
warrant for distribution of, does not constitute Crown trustee, 22.
recognizances to, registration of, 809 note (e) .
resulting trust in favour of, 22, 161.
sale of estate of, Trustee Acts extended to, 1040 note (a) .
Settled Land Acts, bound by exercise of powers of, 553.
statute, when bound by, 55.
trust, how it may create, 21 , 22, 52.
trustee, anciently could not sustain character of, 2.
secus in modern times, 9, 30.
1441

I
 INDEX .

[The references are to the star paging.]

CROWN - continued.
trustee, but quære as to power of enforcing trust against Crown, 30.
nor can Crown be trustee as respects treaty with another sovereign,
30 note (a).
Trustee Acts extended to trustees of private estates of sovereigns,
1013, 1040.
use, can declare, by letters patent, 52.
vesting order, when to be served with petition for, 1019, 1031 .
visitor of charity, when Crown is, and how powers exercised, 530.
will of sovereign, trust may be created by, 22.
CURTESY.
adverse possession of stranger excludes right of, 734.
death of wife, does not arise until, 748 note (i) .
dower distinguished from, 736, 737.
equitable estate, of, 11 , 723.
not where husband an alien, 733.
where feme covert had equitable seisin, 734.
notwithstanding trust for separate use, 735, 736.
money to be laid out in land, 734.
why curtesy and not dower allowed, 737 .
money to be laid out in land is subject to, 939.
seisin, what required to give, 723, 733 et seq.
tenant by, anciently not liable to execution of use, 3.
but held bound by trust, 9 , 10, 12 , 15 , 246 .
powers of, under Settled Land Acts, 553, 554.
trust estate, of, permitted, 11 , 221 , 733 .
use, not admitted of, 3.
CUSTODY.
title deeds, of, who entitled to, 679 et seq.
trust chattels, of, 294 et seq.
vouchers, of, 449.
CUSTOM.
descent, as to, governs descent of equitable interest, 824.
gavelkind, of, 25, 26. See GAVELKIND LANDS.
surrender to use of will, restraining, 721 .
CUSTOMARY FREEHOLDS .
copyholds, are now regarded as, 248, 721 .
devise of, how effected , 721 , 722.
equitable interest in, how devised, 722 .
Statute of Frauds , are within , 722.
CY PRES .
marriage articles, under, Court will execute settlement cy pres, 113.
DAMAGES .
mere right to, cannot be set off against debt, 701.
trustee, recovered against, when chargeable on trust estate , 638.
DAUGHTER.
advancement, doctrine of presumption of, applies to daughters, 177.
"heirs female," " heirs of body " or " issue " in marriage articles include
daughters, 114.
limitation to , how executed, 115 .
younger child, treated as, entitled to portion, 388.
DEATH.
cestui que trust, of, 346.
presumption of, by disappearance for seven years, 348, 349.
DEBENTURES AND DEBENTURE STOCK.
choses in action , are , within Bankruptcy Act, 243.
distinction between, considered as investment, 319.
railway company, of, trustees when authorised to invest in, 312, 319, 320.
1442
 INDEX.

[The references are to the star paging.]

DEBT.
accumulation of income for payment of, when lawful, 93 .
acknowledgment of, by one trustee, 259.
assets for payment of, what are, 825 et seq. See ASSETS .
assignable now under 36 & 37 Vict. c . 66, 72 ; but assignment must be in
writing and notice given, ib.
assignee of, bound by equities affecting assignor, 697.
notice to debtor to be given by, 697 , 702.
bond creditors cannot receive more than amount of penalty, 527.
breach of trust gives rise to , 906.
buying up debt on trust estate, trustee disqualified from, 276 et seq.
charge of debts, effect of, as to conferring fee in devises, 218.
makes land equitable assets, 825.
power to sell and give receipts when and in whom implied by reason
of, 461 et seq.
when barred under Statutes of Limitation , 878 , 879.
composition of, by trustee, or executor, 590, 591 , 592.
of his own debt, 479, 480 .
executor, duty of, to discharge debts out of assets, 338.
executor, from, to estate, duty of co-executor to get in, 273.
executor, sale or mortgage of assets by, for payment of his own debt,
479, 480.
devise to debtor does not create lien on estate, 912 .
husband when liable for debts of wife, 790, 793.
imprisonment for, defaulting trustee when liable to, 916 et seq.
infant, debts contracted by, for necessaries, 521. See INFANT.
interest on, when allowed under creditor's deed , 525 et seq. See IN
TEREST.
judgment, execution of, against equitable estate, 795 et seq. See
JUDGMENT.
Limitations, Statutes of, debts barred by, not revived by trust for pay
ment, 519. See LIMITATIONS, STATUTES OF .
executor may pay, before decree, 590 ; or retain his own
debt, 590.
statute will not run after commencement of trust, 520.
trust to sell and pay debts where no part of produce of sale
set apart, 520, 877 note (c) .
order of payment of, in administration of assets, 825 et seq. See ASSETS.
under trust for creditors , 523 et seq.
creditors paid pari passu in absence of contrary directions, 524.
creditors paid before legatees, 523, 524 .
whether trustee and executor may pay his own debt first, 525 .
outstanding, duty of trustees and executors to get in, 287 et seq.
payment into Court when ordered on admission of, 980.
purchase of, by trustee or other person in fiduciary position , 276 et seq.
real estate liable to payment of, 457.
release of, by trustee or executor , 590 , 591 , 592.
residue, as between tenant for life and remainderman of, how to be pro
vided for, 302.
retainer of, by executor or administrator, 273, 278, 590.
sale for payment of debts, powers of Trustee Acts in case of, 1025,
1026 .
satisfaction of, by subsequent advance or legacy, 405 note ( b) , 406 , 407.
small circumstances sufficient to rebut presumption of, 406 .
secret agreement by debtor with creditor, 523.
simple contract, by, 206, 524, 906. See SIMPLE CONTRACT.
interest on, when allowed under creditors' deed, 525.
specialty, by, 206 , 524, 906. See SPECIALTY DEBT.
carries interest to time of payment even though released by creditors'
deed, 527.
1443
 INDEX.

[ The references are to the star paging. ]

DEBT - continued .
tenant for life of residue not entitled to enjoyment in specie of, 300.
trade, trustee carrying on, is personally liable for, 238.
trust for payment of debts, Chap . xx. 509-527.
accumulation, by way of, excepted from Thellusson Act, 93.
act of bankruptcy, when committed by creation of, 511 et seq.
adoption of, by creditor, 522.
assignment executed abroad, 512 , 513.
communication to creditor, effect of, 516, 517.
creditor not bound by, in creditors' deed, unless terms strictly
fulfilled, 513 .
when entitled to benefit of creditors' deed, 522 .
debts payable under, 519 et seq.
where by deed, debts arising at date thereof, 519.
where by will, debts owing at death of testator, 519 ; unless
contrary intention , ib.
order of payment of, 523, 524, 525.
discretion of trustees to admit claims, 523.
equitable assets, land devised upon, is, 825.
executor, where trustee is also, 525.
fraud, avoided by, 509.
question of, is one of fact, 511 note (a) .
fraudulent conveyance by trader, 510 .
fraudulent, when trust is, within 13 Eliz. c. 5, 510 , 518.
interest, allowance of, 525 et seq.
irrevocable, when, 515.
if trustee be himself a creditor, 517.
legacy duty when payable by creditors under, 520.
Limitations , Statutes of, application of, 519, 520, 521 , 877 note (c),
878 .
mortgagee or other secured creditor, rights of, 521 , 522 .
personalty, out of, when nugatory, 509, 520, 521 .
post obit trust, whether recoverable, 518.
repudiation of, by creditor, 523.
resumption by trustees of property under creditors' deed, 523.
revocable, unless communicated to creditors, 516, 517.
nature of revocable trust , 517 .
time, trust for creditors who come in within certain , 522.
time within which trustee should execute, 457 et seq.
trader and non-trader, distinction between, under old bankruptcy
laws , 510.
abolished under recent Act, 514.
trustee, duties of, under Chap. xx . sect. 3, 519–527 .
cannot contest debt under creditors' deed for which he has per
mitted creditor to sign, 522.
enquiries by author of trust, he is bound to answer, 448.
purchase of trust property by, when upheld, 488.
time when he should begin to act, 514.
unclaimed dividends, trustees not entitled to, 525.
validity of, 509 et seq.
voluntary, how far revocable, 518.
will, by, how to be exercised, 460 .
for payment of debts out of personalty nugatory, 509.
secus out of realty, 509.
purchaser under, when bound to see to application of purchase
money, 456 et seq.
trustee, of, has no priority over others , 524.

DEBTOR'S ACTS (32 & 33 Vict. c. 62 ; 41 & 42 Vict. c. 54) , 900 note (b).
defaulting trustee when liable to imprisonment under, 916 et seq.
1444
 INDEX.

[The references are to the star paging.]

DECLARATION OF TRUST.
averment of trust at common law, 51 ; must not contradict or be repug
nant to instrument, 51.
charity, in favour of, 54, 533.
chattels, of, 53.
common law, at , 51 , 52.
conveyance to trustees, in case of, how to be made, 505, 506.
copyholds, of, 53.
deed when requisite for, 52.
formalities requisite to , under Statute of Frauds, 55 et seq.
Frauds, Statute of, 53 et seq.
interests within the Act, 53, 54, 55.
what formalities required , 55, 56, 57.
husband, gift by, to wife whether effectual as, 68 ; semble not, 69.
ineffectual transfer not held to operate as , 74.
lands, of, 53 et seq. See FRAUDS , STATUTte of.
lunatic or idiot, by, jurisdiction in equity to set aside, 26.
married woman, of realty of, in her favour, 780 .
mortgage, money of, 54.
parol, when sufficient, 51 , 53.
subsequent parol declaration does not affect, 54.
divisee made trustee on face of will, and parol declaration of trust
for stranger, 64, 65.
perfect, when, 67, 68.
reference, by, how to be framed, 506, 507.
testamentary instrument when requisite for, 58, 60.
transmutation of possession not necessary where trust perfectly created, 67.
unattested will inoperative as, 58.
Wills, Statutes of, effect of, Chap. v. sect. 3, 57–66.
writing when requisite for, 55 et seq.
DECREE.
account, for, does not operate as judgment, 804 note (a).
conveyance, for, under Trustee Acts, effect of, 1026.
costs , trustee should ask for, before decree passed, 988.
exchange, for, makes legal owner a trustee within Trustee Act, 1026.
judgment, has same effect as , 804.
lien, creates, upon real estate, 830 note ( ƒ) ; but see 810, 811.
partition, for, makes legal owner a trustee within the Trustee Act, 1026.
payment into Court before, when ordered , 977, 978 ; after, when, 979.
sale, for, makes legal owner a trustee within Trustee Act, 1025.
Court may make vesting order after, 1026.
specific performance, for, makes legal owner a trustee within Trustee
Act, 1026.
trustees, powers of, suspended by, 617.
secus, if action brought but no decree, 617, 618.
but decree does not release trustee from his duties , 618.
DE DONIS , STATUTE OF.
estate pur autre vie not within, 694.
estate tail created by, 693.
DEED.
acceptance of trust, whether it should be by, 205, 206.
chattel interest in lands (other than copyhold) , assignments of, void un
less by deed, 693.
construction of, in, earlier words held to prevail, secus in will, 212 .
custody of, may be committed to one trustee, 680, 681.
delivery of, 38, 75.
disclaimer of trust or estate, when requisite for, 197 , 198, 199.
of married woman's interest in land must be by deed acknowledged,
199.
1445
 INDEX .

[The references are to the star paging.]

DEED continued.
equitable interests usually assigned by , 693.
impeachment of, on petition under Trustee Relief Act, 1001, 1002.
infant, by, 38.
lunatic, by, when void, 26.
parties to , where good as between, though void as against others, 512.
title, of, 679. See TITLE DEED.
use, to prove, when required, 52.
will contrasted with, 58 ; and see 85 , 194.
instances of deed in form, testamentary in character, 58 note (b) .
DEFAULTING TRUSTEE. See BREACH OF TRUST.
costs of, 991 , 992.
when liable to attachment, 916 et seq.
DEFENCE.
equitable, recognised in all Courts , 678.
DEFENDANT. See Costs.
where legal process lost through default of, equity aids, 888.
DEFINITION.
settlement of, under Settled Land Act, 550 note (a) .
tenant for life, of, under Settled Land Act, 553, 622.
trust, of, 13 .
use, of, 2.
DELAY. See LACHES .
DELEGATION.
appointment of attorney or proxy, distinguished from, 258.
conveyance of trust estate does not transfer powers, 257.
discretionary trust, of, actually void, 257.
though to co -trustee or co-executor, 257 .
executors, distinguished at law and in equity as to, 256, 257.
office of trustee , of, not permitted, 252.
unless by settlor's direction, 253 , 254, 275.
or where moral necessity for it, e.g. transmission of money, 254.
where trustee acts as agent he cannot legally retain money , 254.
receipts, of power of signing, 471 .
trustee for sale may not delegate trust, but may employ agent, 254, 424.
DELIVERY.
deed, of, 38, 75.
money, of, voluntary, whether any resulting trust upon, 145.
DEMURRER.
Limitations, Statutes of, right to raise, by way of demurrer, 869.
pleading in lieu of, under new practice, 869.
DENIAL.
false, executor or trustee making, fixed with costs , 993.
DEPOSIT.
lien, by way of, is not subject to Bankruptcy Act, 244.
sale by auction, on, duties of trustees as to , 448.
title deeds, of, effect of, 246. See MORTGAGE , equitable .
trust money, of, with bankers of trustees, 295 et seq.
trustees for purchasing may make, 501.
DERIVATIVE EQUITIES .
trustees not liable for, without notice, 344 , 345.
DESCENT. See HEIR.
assets by, 10, 825.
broken, by devise upon trust to convey to heir, 824.
1446
 INDEX.

[The references are to the star paging. ]

DESCENT- continued.
equitable estate descends as legal estate , 823.
though there be lex loci, 823.
so in copyholds, gavelkind lands, &c., 824.
possessio fratris, 723, 824.
executory trust of gavelkind lands, under , 825.
half blood may now inherit, 824.
proceeds of sale of gavelkind lands descend to common law heirs, 821.
" DESIRE ."
may raise a trust , 130, 641 .
DEVASTAVIT, 251 , 356 , 357 , 479. See EXECUTOR.
DEVISE . See WILL.
consideration, a devise implies , 130 .
debts, for payment of, 509 .
equitable interest passes by, 720, 833.
in copyholds, 721 , 722.
estate contracted to be sold, legal estate in, when passing under, 233.
general devise, effect of, 226 ; as to trust estates, 226 ; as to estates con
tracted to be sold, 227.
implied by word trustee," 215.
land, of, includes money directed to be laid out on land, 941 .
legal estate, when passing under devise to trustees , 218, 219. See LEGAL
ESTATE.
mortmain, devise upon secret trust in, whether void at law, 63, 66 .
resulting trust for heir, when arising, 143, 149. See RESULTING TRUST.
"securities for money," mortgage in fee passes under, 228.
several, to, good as to one, void as to another, 63.
to alien and British subject upon trust, 40.
trust, of, 720 , 833 ; in freeholds, 720 ; in copyholds, 721 ; in customary
freeholds, 721 , 722.
trust estate when passing under , 226 et seq.
not when charge of debts or direction to sell , 227.
or complicated limitations, 227.
or gift to woman for separate use , 228.
trustee, to , when to be construed to pass fee simple, 220.
trustee, whether he ought to devise trust estate, 229 et seq.
where gift is to him and his " assigns," 231 et seq.
unlawful trust, upon, not void merely because trustee means to execute
trust, 63.
secus, if the devise had been procured by fraud, 63.
uses, to, when legal estate passes to trustee under, 219.
DEVISEE.
" assign " of trustee, whether devisee is, 231 , 232.
creditors, how far devisee a trustee for, 279.
debtor, of, liable to specialty creditor, 206 ; now to simple contract debts , 206.
declaration of trust, parol or unattested , not binding on, 59.
except in case of fraud , 61.
fraud by, constructive trusteeship created by, 61.
incumbrance, effect of purchase of, by devisee, 279 , 280.
receipt of, purchaser when discharged by, 465, 469, 470.
renewing lease, where devise subject to debts, holds for benefit of all
parties, 181.
retainer of debt by, 830 and note (d) .
secret trust, devisee must discover, 63, 64. And see UNLAWFUL TRUST.
trust, upon, where no trust declared, holds for heir or residuary de
visee, 65.
trustee, of, is bound by trust, 246 .
where sale to trustee set aside, is entitled to money, 494.
whether competent to execute trust, 230 et seq., 257.
1447
 INDEX.

[The references are to the star paging.]

DEVISEE continued.
unlawful trust, secret engagement by divisee to execute, 63.
vesting order as to estate of, when made, 1015. See TRUSTEE ACTS .
DEVOLUTION. See DESCENT.
equitable estate, of, 723, 823 et seq. See EQUITABLE ESTATE .
legal estate, of, in trustee, 221 et seq. See LEGAL ESTATE.
DIRECT TRUST. Chap. VIII. sect. 1 , 108-130 . See EXPRESS TRUST.
DIRECTION.
maintenance, as to , whether trust implied by, 137 .
trustee required to do act at direction of c. q. t., 614.
DIRECTOR.
accepting fully paid - up shares from promoter, liability of, 903, 904.
borrowing money in excess of powers, position of, 595.
breach of trust committed by company, director not personally liable for,
191.
notice to, of assignment of shares, 709.
paying dividends out of capital cannot plead Statute of Limitations, 901 .
profit, cannot make, by his office, 279.
DIRECTORY.
clause in will for settlement of chattels, 122 et seq. See EXECUTORY TRUST.
powers, 600, 601 .
DISABILITY.
persons under, when barred by Statutes of Limitation , 867 et se
trustee, of, statutes remedial of. See TRUSTEE ÁCTS.
to purchase trust estate, 484 et seq. See PURCHASE .
DISAGREEMENT.
co-trustees, between, Court exercises power in case of, 835
a ground for appointment of a receiver, 983.
DISCHARGE.
bankrupt, of, trust debt how far barred by, 915, 916.
executor, of, from office, 673.
receiver, of, 984.
trustee, of, from office, Chap. xxv. 645-673.
by application to Court, 670 et seq.
by appointment of new trustees by Court, 1032 .
by consent of c. q. t. , 645.
by virtue of special or statutory power, 646 et seq. See NEW TRUSTEES.
DISCLAIMER, 196 et seq.
acts , may be shown by, 198.
agent to trust, trustee disclaiming may act as, 198.
answer in Chancery, by, 198.
chattels , of, 199.
conveyance, disclaimer should not be by way of, 197.
copyholds , of, as affecting lord of manor, 237.
costs of disclaiming trustee, 198, 988, 989.
counsel, trustee may take opinion of, as to disclaimer, 198.
creditors' deed, by trustee of, 510.
deed, by, when requisite, 197 , 198.
delay, disclaimer should be made without, 197.
but need not be within any particular time, 197 .
disclaiming trustee may act as agent to trust, 198.
may purchase trust property, 485.
appointment of new trustee in place of, 656.
effect of, 200.
equity, in, by answer or at bar, 198.
by evidence of conduct, 198.
1448
 INDEX.

[The references are to the star paging.]

DISCLAIMER- continued.
failure of trustees by reason of, relief of c. q. t. in case of, 833.
form of, 197, 198.
heir of trustee, by, when effectual, 196.
heir taking by disclaimer of trustee, is trustee within Trustee Acts , 1016.
legal estate, what disclaimer will divest, 198.
disclaimer of, distinguished from disclaimer of office, 198, 200, 204.
married woman, by, 199.
new trustee, appointment of, in place of disclaiming trustee, 656 .
parol, effect of disclaimer by, as to chattel interest, 199.
freeholds, as to, when effectual, 199.
personal contracts, effect of disclaimer by trustee as to, 200.
pleading, by, 198.
power , of, 607.
exercise of, how affected by disclaimer of trustee, 200, 471, 606, 607,
835.
presumption of, from lapse of time, 202.
protector of settlement, by, under Fines and Recoveries Act, 200.
purchase of trust property by disclaiming trustee permitted, 485.
receipt need not be signed by trustee who has disclaimed , 471 .
receiver not appointed in consequence of disclaimer of one of several
trustees, 983, 984.
record, by matter of, formerly deemed necessary, 199.
refusal to act, whether equivalent to, 647 , 650, 656.
release with intention of disclaiming whether equivalent to, 197 , 608.
renunciation of probate, disclaimer does not operate as, 223.
to what extent evidence of, 197 , 202.
retrospective operation of, 200.
several trusts, whether trustee under, can disclaim one and accept
another, 204.
time within which disclaimer should be made, 197.
trust not defeated by disclaimer of trustee , 833.
Uses, under Statute of, 199.
voluntary trust, disclaimer of trustee does not avoid, 70.
DISCOVERY.
cestui que trust may require information as to state of trust, 448, 691 , 704.
fraud, of, time runs from, 868, 875, 878.
secret trust, of, when enforced, 63, 64.
DISCRETION.
conversion of property, as to , Court will not interfere with trustee's, 296.
creditors' deed, of trustees of, 523.
investment, as to, duty of trustees to exercise, 317 , 318, 322, 326.
payment into Court by trustee having, when ordered, 981 .
power, discretionary , exercise of, by trustees , 573, 613 et seq. See
POWER.
by Court in lieu of trustees, 836 et seq.
reasons for exercise of, trustee not bound to assign, 615.
but if he assign erroneous reasons Court will interfere, ib.
reluctance of Court to interfere with discretion of trustees, 296, 523, 614,
981 .
varying securities, as to, how to be exercised by trustees, 318.
DISCRETIONARY TRUST.
delegation of, by trustee, void, 257 ; even to co-trustee, ib.
examples of, 19.
execution of, by trustee, Court will not interfere as to mode of, 615.
infant cannot exercise, 37.
maintenance, trust for, discretion of trustees not interfered with by Court,
614, 615.
whether determined on bankruptcy of c. q. t., 99 et seq.
1449
 INDEX .

[The references are to the star paging. ]

DISCRETIONARY TRUST continued.
married woman may exercise, 33 ; formerly with, now without, concur
rence of husband, ib.
meaning of term explained, 18 .
purchaser from trustee cannot question exercise of, 426.
renewal of lease, for, how construed, 365.
trustees appointed by the Court, whether they may exercise , 471 , 472.
trustees exercising, may inquire as to wishes and opinions of those inter
ested , 257.
words importing mere discretion, not held to create trust, 135.
DISENTAIL, 381, 382, 694. See FINES AND RECOVERIES ACT ; TENANT IN
TAIL.
payment out of Court, disentailing deed when necessary before, 960, 961 .
vesting order, by, as to land of infant, 1010, 1016 .
DISPOSING POWER.
what is not included in term, as to judgments, 804, 805.
DISSEISIN.
cestui que trust, by, vests legal estate in trustee, 882.
equitable, 723 et seq.
may be of a trust, 724, 725.
outstanding term attending inheritance gained by, 250 note ( 1 ) .
DISSEISOR.
equitable owner could not sue, in own name, 15.
not bound by trust, 15, 250.
not bound by a use, 3.
DISSENTERS . See CHAPEL.
Court will execute trust for, if not contrary to law, 533.
how trusts of fund contributed by, are expounded, 533.
DISTRESS .
cestui que trust, of, effect of, as regards delay or acquiescence, 496, 498,
866, 870 , 926 .
DISTRIBUTION.
direction for, whether creating trust or power, 838 et seq.
trust fund, of. See Chap. XIV. , sect. 6, 344-362.
part of trust estate, of, effect of, 357.
power of selection , under, 842.
time of, regulates vesting of portions, when, 386 , 390 note, 393.
DISTRINGAS. Chap. XXXII., sect. 1 , 970-975.
charging order operates as, 807.
notice in lieu of, practice as to obtaining and serving, 973, 974.
applicable to all companies, 973.
effect of, where no trustee, 712.
origin and history of writ of, 971 et seq.
payment into Court " notwithstanding," 982.
restraining order under 5 Vict. c. 5, sect. 4, 971, 972 ; practice as to,
972.
applies to stock, shares in the Bank or any other company, 974.
special grounds necessary for obtaining, 974.
writ of, under 5 Vict. c . 5, sect. 5, 972 ; practice as to , 972 et seq.
applicable only to stock transferable at the Bank, 973 .
notice in lieu of, 973 et seq.
effect of, and how and when discharged, 973, 974.
DIVIDENDS.
Accumulation of, 301. See ACCUMULATION ; THELLUSSON ACT.
apportionment in respect of, on change of investments, 323.
bankruptcy, in, apportionment of, between capital and income, 914, 915.
See BANKRUPTCY.
1450
 INDEX .

[The references are to the star paging.]

DIVIDENDS — continued.
cestui que trust tenant for life of, usually receives , under power of attor
ney, 684.
charging order on partial interest of c. q. t., does not prevent payment of,
to trustees, 808.
co-trustees, payable to one of several, 225, 260.
direction to pay, to legatee does not authorise non-conversion of wasting
security, 299.
payment of, to " trustees or any two of them " when ordered, 260.
receipt of, by one co-trustee, 225.
vesting right to receive, powers of Court as to, 1022, 1023. See TRUSTEE
ACTS .
DIVORCE .
jurisdiction of Court to vary power to appoint new trustees, 670.
property of married women how affected by, 346, 785, 1041 .
DOCUMENTS . See DEED; Title Deed.
copies of, right of c. q. t. and trustee to , 449, 670, 680 . See COPIES.
production of, by trustee, right of c . q. t. to, 975, 976 . See PRODUCTION .
solicitor's lien on, 703. See SOLICITOR.
trustee suppressing, ordered to pay costs, 994.
DOMICILE.
personal estate regulated by law of, 348.
person domiciled abroad generally not a fit trustee, 40, 662 .
DOUBTFUL EQUITY.
purchaser whether bound by notice of, 860.
trustees, duty of, where equity doubtful, 350.
should decline to act without sanction of Court, 350.
will be allowed costs of application, 350.
DOWER.
account of, dowress may have, in equity on legal title, 890.
curtesy distinguished from, 736, 737.
declaration to bar, 737 , 738, 1015.
devise by husband, whether defeated by, 737.
Dower Act, 737 , 738 , 941 ; does not apply to copyholds, 733 , 738 ; but
does to gavelkind lands, 738.
equitable estates, out of, formerly not allowed , 11 , 733, 737 .
equitable fee subject to executory devise, dower attaches to, 738.
legal estate, dower attaches to, in feoffee to uses, 3.
in trustee , 221 .
Limitations, Statute of, action for arrears when bound by, 890, 891 .
money to be laid out on land, whether formerly subject to , 939, 940 ; is
now under Dower Act, 941 .
tenant in, bound by trust, 9, 12 , 15, 16.
but anciently not bound by use, 3.
trust, dowress bound in equity by, 9, 12, 15, 16, 246.
trust estate, out of, anciently allowed to widow of trustee, 8.
but not to widow of c. q. t., 11.
trustee to uses to bar, cannot be required to join in conveyance, 687 , 688 .
gets no costs in foreclosure action , 985.
uses to bar dower inoperative as to widow married since Dower Act, 738.
vesting order to uses to bar, when made, 1015.
DRAINAGE . See IMPROVEMENTS .
DRAINAGE ACTS .
charge under, effect of, on exercise of power of sale, 428.
DRUNKENNESS .
executor, of, 856 .
combined with poverty, a ground for injunction , 856 ; and appoint
ment of receiver, 983.
1451
 INDEX .

[The references are to the star paging. ]

DUPLICATION.
of charges, 130.
DURATION.
private trusts, of, limited by rule against perpetuities, 89, 97.
secus public trusts, 20.
trust for sale, of, 425.
DURESS .
effect of, as to acquiescence, confirmation, or release, 927. See 498.
DURHAM.
powers of Trustee Act extended to County Palatine of, 1021 ,
not in lunacy, 1021 note (c) .
DUTY OF TRUSTEE.
acceptance of office, consequent on, 206.
advantage, trustee must not derive, from trust, 275 et seq.
breach of trust by co-trustee, in case of, 273. See Co-TRUSTEES.
care, trustee should take same , of trust property as his own, 294.
cestui que trust can compel performance of, 853 et seq.
charities, for, 528 et seq. See CHARITY.
chattels personal, of, 287 et seq.
contingent remainders, for preserving, 380 et seq. See CONTINGENT
REMAINDER.
control, trustee must not place trust premises out of his own, 296, 297
337, 654.
convey, when trustee must, at direction of c. q. t., 684 et seq.
custody of trust chattels, as to, 294 et seq.
debts, for payment of, 519 et seq. See DEBT.
decree, not released by, 618.
distribution of trust fund, as to, 344 et seq.
expenses, to keep account of, 638.
impartial, should be, as between c. q. t., 423 , 850.
information, to furnish, to c. q. t., 448, 691 , 704 ; to Court as to trust,
993.
insurance, as to , 295, 580, 598. See INSURANCE .
investment, as to, 306 et seq. See INVESTMENT.
in bank, must be paid into trust account, 295.
lend to co-trustee, must not, 316, 325 .
nor leave money in co-trustee's hands, 273.
mix, trustee must not, trust premises with his own, 297, 298 ; or stranger's,
331 , 642.
moral rights against c. q. t. , 285.
mortgage, lending on, 324.
how much he should advance, 325.
notice, trustee of equitable interest should give, to holder of legal estate,
287.
outstanding property, and choses en action, to call in, 287.
protector, duty of bare trustee, who is, 382.
renewal of leaseholds, as to , 363 et seq. See RENEWABLE LEASEHOLDS.
repairs, 504, 574, 575 et seq.
retiring trustee, of, 653, 654, 655, 662.
sale, for, 422 et seq . See SALE.
settlement, impeachable, trustee must assume validity of, 286.
speculate, trustee must not, with trust property , 276.
summons by trustee for advice or direction of Court, 618 et seq.
trade, trustee must not employ trust money in, 276, 277 , 479.
trustee may be compelled to perform duties, 853 et seq.
EARMARK.
meaning of term as applied to money, 240, 892 , 893 ; to negotiable securi
ties, 241, 892.
1452
 INDEX.

[The references are to the star paging.]

EAST INDIA COMPANY.
securities of, 309.
EAST INDIA STOCK.
Government Stock, is not, 322 , 323.
investment in, by trustee, when proper, 308 et seq.
meaning of term , 309.
railway stock guaranteed by Indian Government, 308, 316.
EAST INDIES .
conversion of assets in, 335.
whether executors in, may charge commission, 628, 629.
ECCLESIASTICAL COURTS .
have no jurisdiction over trusts, 17.
EDUCATION.
trust for poor construed to include education, 538.
EJECTMENT. See ACTION.
cestui que trust could not bring, unless surrender presumed, 678.
equitable defence in action of, not formerly available, 678 ; secus now, ib.
schoolmaster, of, from school house, 537.
trustee may maintain action for, 678, 679.
formerly might even against c. q. t. , 678.
ELDEST SON.
portion, when disentitled to, 388, 389, 393.
younger child, when regarded as, entitled to portion , 386, 388 , 392.
ELECTION.
cestui que trust, by, as to having re-sale or re-conveyance of trust prop
erty purchased by trustee, 492.
charitable objects, of, not set aside on ground of mistake, 535.
clerk or incumbent, of, under trust of advowson for parishioners, 86 et seq.,
257.
decree for conveyance under doctrine of, effect of, under Trustee Act,
1026 , 1027.
doctrine of, applies to cases of satisfaction but not of ademption, 408.
heir bound to elect is trustee within Trustee Acts, 1012 .
married woman, by, 750 ; who is restrained from anticipation, 786.
members of parliament, of, who may vote in, 235, 681 , 682 .
minister of chapel, of, 534.
portionist when put to, 408.
property, as to taking, in converted or unconverted state, 953
et seq.
acts amounting to , 961. See infra, presumption.
contingent interest, by person entitled to, 957.
express declaration, by, 961 .
infant not competent to make, 954.
knowledge of c. q. t., what necessary to, 962.
lunatic not competent to make , 954.
married woman, by, 750, 954 et seq.
act in pais, she cannot elect by, 954 ; but might by fine, 954.
deed acknowledged, by, under Fines and Recoveries Act, 955.
fund in Court, as to , 750, 954.
money to be laid out in land bound by consent of, in equity, 954.
reversionary interest in money, to arise from sale of land, as to,
955.
or in legacy raisable out of land, 955.
separate property, in respect of, 956.
parol, by, may be, as between real and personal representatives, 962.
presumption of, 961 , 962 .
(1) where land directed to be converted into money, 961 .
by keeping land unsold, 961 .
1453
 INDEX .

[The references are to the star paging.]

ELECTION - continued.
property, as to taking, in converted or unconverted state.
presumption of, lease, where c. q. t. grants, reserving rent to himself
and his heirs, 961 .
possession, by entering into, and taking custody of title
deeds, 961.
(2) where money directed to be converted into land, 961 .
by changing securities, 961.
receiving money, 961 ; but not by mere receipt of income,
961.
will of c. q. t., by, 962 .
remainderman, by, when effectual, 956, 957.
subject to right of prior owner to call for conversion , 956.
where remainderman contingently entitled, 957.
tenant in common, by, 957 .
land directed to be sold , he cannot singly elect to take, as
money, 957.
money to be laid out in land, secus, 957.
portionists where put to election , 408.
tenant in tail, by, 957 et seq.
act in pais, by, 958, 960.
action or suit, by, as to money to be laid out in land, 957.
only where remainder limited to himself, 957, 958.
or with consent of remainderman, 957 , 958.
disentailing deed, by, under Fines and Recoveries Act, 959, 960.
payment out to tenant in tail under Lands Clauses Act, dis
entailing deed required on , 960, 961 .
petition, by, under 39 & 40 Geo . 3, c . 56, 959.
property, as to taking , under or against instrument, 408, 786 .
until made, special trust proceeds , 690.
ELEGIT .
equitable interest bound by, 797 ; formerly held otherwise, 10, 797.
what portion of trust estate might formerly be taken in execution,
799, 800.
equity of redemption, entirety of, might be taken in execution under,
800.
estate by, in trust for married woman, 747.
goods not to be delivered under, since Bankruptcy Act, 1883, 795.
moiety of lands only might formerly be taken in execution under , 799.
but now entirety under 1 & 2 Vict. c. 110, sect. 11 , 803.
origin of, 795.
receiver, whether a necessary preliminary to appointment of, by way of
equitable execution, 814.
remedy of, at law, by possession , 799 note (ƒ).
as to trust estate under Statute of Frauds, 802 , 803.
under 1 & 2 Vict. c. 110, 803 et seq.
tenant by, not bound by a use, 3 ; but is by a trust, 12, 246.
trust in nature of mortgage, against owner subject to, 801.
EMPLOY money, direction to, may authorise investment in trade, 319.
ENDOWED SCHOOLS ACT, 1869 ( 32 & 33 Vict. c . 56 ) , 536, 537.
ENFRANCHISEMENT.
copyholds, of, power of trustee to make, 596.
purchaser not entitled to proof of title to make, 439.
lunatic's copyholds, of, 966 , 967 .
renewable leaseholds, of, by trustee, 366, 370.
Settled Land Acts, under powers of, 555 .
ENTAIL .
chattels cannot be the subject of, 94, 95.
1454
 INDEX.

[The references are to the star paging.]

ENTAIL- continued.
copyholds , custom to entail, 47.
equitable interest, power to entail, depends on custom as to legal
estate, 47.
disentailing deed, enrolment of, 694.
equitable, how barred, 694.
history of, 693.
lands abroad, of, 49, 50.
married woman, of, how barred, 748, 780 , 784.
66
' proper entail on heir male," direction in will for, how construed, 118.
protector of settlement, functions of, 121 , 381 , 382. See PROTECTOR OF
SETTLEMENT.
quasi, of estate pur autre vie, properties of, 694, 695.
ENTIRETIES , husband and wife take by, 741 ; and see 753.
" EQUALITY IS EQUITY," 524, 837.
EQUITABLE ASSETS , 825 et seq. See ASSETS .
EQUITABLE ASSIGNMENT.
letter of advice that special credit opened as against goods, 83.
order and disposition clause, takes property out of, 702 note (c) .
when complete , 708.
EQUITABLE DEFENCE, 17, 678.
EQUITABLE ESTATE OR INTEREST. See CESTUI QUE TRUST.
account of rents and profits, right of equitable owner to, 888, 889.
adverse possession available against, 725.
assets, whether it was, prior to Statute of Frauds, 827.
subsequently to statute, whether legal or equitable assets, 828, 829.
assignment of, 73, 692 et seq.
assignable quality of equitable interest , 692 et seq.
assignee of, bound by equities, 695 et seq.
how effected, 693.
notice of, 701 et seq.
. not necessary as against settlor or between assignor and assignee,
74, 246 note (ƒ) , 701.
or subsequent volunteers or persons claiming general equity, 702.
but material as against trustee in bankruptcy, 702 , 703 ; or pur
chaser for value, 74, 246 note (ƒ) , 702.
precautions to be observed in case of, 704.
priority of time, 713 et seq.
copyholds, in , follows rules as to legal estate, 47.
how devisable, 721 , 722.
not subject to free bench, 733.
Courts, all, now recognise, 17.
curtesy of, 11 , 733 et seq. See CURTESY.
descent of, 723, 823 et seq. See DESCENT.
devise, passes by, 720 ; under old law devisable by parol, 720.
distinctions between, and legal, 45 , 46.
dower of, 11 , 733 et seq. See DOWER.
entail of, may be effected, 47, 693.
how barred, 694.
escheat of, 822.
execution against, 795 et seq. See JUDGMENT.
extent from Crown, is affected by, 817.
fee simple may be created without word " heirs," 108.
foreign property, in, 48.
intermediate, disregarded, unless trust special, 688.
judgment against, how carried into effect, 795 et seq. See JUDGMENT.
laches, doctrine of, applicable as between rival claimants to, 725.
1455
 INDEX.

[The references are to the star paging.]

EQUITABLE ESTATE OR INTEREST - continued.
land, in, writing necessary for conveyance of, 693 ; semble, deed not nec
essary, 693 .
legal estate contrasted with, 47 , 84 et seq.
limitation of, technical terms how far necessary, 109.
Limitations, Statutes of, application of, 865, et seq., 874, 876.
married woman, of, rights of husband in respect to, 739 et seq. See MAR
RIED WOMAN.
mortgage of, 330, 331. See MORTGAGE.
obtained by fraud, 696.
notice, how far necessary for transfer of, 74, 246 note (ƒ) , 701 et seq.
See supra, assignment.
possibility, though only amounting to , is assignable, 692 .
powers over, 598.
distinguished from legal, 598.
simply collateral or annexed to estate, 598, 599.
priority of owners of, 713, 862.
purchaser when bound by, 858 et seq. See PURCHASER.
restraint of alienation of, void except where c. q. t. feme covert, 693.
resulting to grantor, settlor, or testator, 143 et seq. See RESULTING TRUST.
sale by order of Court, bound by, 1010.
Shelley's case, rule in, application of, to equitable limitations, 109 et seq.
technical rules affecting legal estate, not applicable to, 84 , 85, 108.
effect of technical terms if employed, 109.
transfer of, notice should be given of, 701 et seq.
trust of, when perfectly created, 72.
trustee of, when entitled to conveyance of legal estate 688.
waste, arising from commission of, 187 et seq.
will, is devisable by, 720.
EQUITABLE EXECUTION.
receiver, by appointment of, 813 et seq.
EQUITABLE MORTGAGE . See MORTGAGE .
trustee should not lend on, 331.
EQUITABLE WASTE, 188, 190. See WASTE.
EQUITY.
assignee of equitable interest takes subject to every, 695 et seq.
better equity, meaning of, explained , 714 et seq.
Courts of, alone have jurisdiction over trusts, 16.
can act in personam, 48.
corporations amenable to, 30.
trustee cannot come into , for own benefit, 284.
doubtful, 350.
duty of trustee in case of, 350.
purchaser whether bound by, 860.
equal, meaning of expression, 713, 714.
"equality is equity," 524, 837.
intermediate, usually disregarded, 688 ; when not, ib.
order for sale binds equities, 1010.
personal, 49 note (c) .
priority in, 713 et seq.
rules of, to prevail where there is conflict between law and equity, 574.
secret, owner of, may by conduct be precluded from setting up, 716.
settlement, to, 740 et seq. See MARRIED WOMAN.
EQUITY OF REDEMPTION. See MORTGAGE.
assets , is, 827 et seq.
barred by lapse of time , when , 866.
chattels, of, may be taken under equitable fi. fo. , 796.
copyholds, of, where formerly liable as assets, 800 note (1).
1456
 INDEX .

[ The references are to the star paging.]

EQUITY OF REDEMPTION - continued.
Crown debt, may be sold for payment of, 818.
curtesy, whether subject to, 723.
distinguished from a trust, 248.
dower, not subject to, 11 , 733, 737.
escheat, did not, 823.
lord taking by escheat, 249.
forfeitable for treason, 820.
Frauds, Statute of, sect. 10, cannot be delivered in execution under, 802.
judgment creditor entitled to sale of entirety of, 800, 801 .
Limitations, Statutes of, when beginning to run against remainderman ,
866.
mortgage of, trustee should not advance money on, 330.
purchase of, by mortgagee, 277, 490, 727 . See MORTGAGEE.
purchase of, by trustee, improper, 503, 504.
release of, by trustee, when proper, 593.
sale of, trustee for, may sell subject to mortgage, 427.
ESCHEAT, CHAP. XXVI . sect. 10, 822 , 823.
copyholds not properly subject to, 248 ; nor customary freeholds, 248.
lord bound by trust entered on roll , 248.
equitable estate, of, 11 , 282 , 822, 823.
equity of redemption, lord taking by escheat bound by, 240.
formerly did not escheat, 823 ; secus now under Intestates' Estates
Act, 1884, ib.
felony, on, 27.
now abolished, 28, 1036.
legal estate in trustee formerly subject to, secus now, 221 , 240, 241 .
lord claiming by, whether bound by trust, 11 , 12 , 16, 247 et seq.
not bound by use, 3.
money to be laid out on land not subject to , 940.
mortgagee or trustee, estate vested in, does not, 250, 1036.
real estate escheating is assets in hands of lord, 240.
trust in fee of lands formerly not subject to, 11 ; but trustee retained the
estate, 282.
secus now under Intestates' Estates Act, 1884, 823.
vesting order, jurisdiction to make, as to estate escheated to Crown, 1031 .
ESCROW .
conveyance on sale when operating as, 75.
voluntary settlement retained by settlor does not take effect as, 75.
ESTATE FOR LIFE. See TENANT FOR LIFE.
ESTATE OF TRUSTEE . See LEGAL ESTATE .
ESTATE PUR AUTRE VIE, 165. See PUR AUTRE VIE.
ESTATE TAIL. See ENTAIL ; TENANT IN TAIL.
ESTOPPEL.
acquiescence, or concurrence in breach of trust, by, 918 et seq. See
ACQUIESCENCE.
Court of Equity rejects, 265.
recital, by, as affecting trustee, 201.
EVIDENCE. See AFFIDAVIT ; FRAUDS, STATUTE OF ; PAROL ; TRUSTEE
ACTS.
EXCEPTION.
devise, from, distinguished from charge, 154.
distinction how far applicable to legacies to charities, 155.
residue, out of, next of kin benefited by, 160.
EXCHANGE .
charity lands, of, with consent of Charity Commissioners, 540 .
decree for, makes legal owner a trustee within Trustee Act, 1026.
1457
 INDEX .

[The references are to the star paging.]

EXCHANGE - continued.
power of sale and exchange a 66 usual 39 power, 127 et seq.
whether it authorises partition, 427.
or signing receipts, 460 .
Settled Land Acts, under powers of, 555, 557.
EXCHEQUER BILLS.
Government securities, are not, 321 .
investment in, by trustees, 308 , 320, 321 .
EXCHEQUER, COURT OF.
transfer of equitable jurisdiction of, to Court of Chancery, 30 note (g).
whether it could relieve c. q. t. as against royal trustee, 29.
EXECUTED TRUST.
construction of, 111.
meaning of term , 111.
EXECUTION.
bankruptcy of debtor, creditor how affected by, 815, 816.
cestui que trust, for debt of, 224, 795.
chattels, of, by fi. fa ., 794, 795. See JUDGMENT.
from what time chattel interests in land bound, 795.
trust chattels , 224.
completion of, 815, 816.
creditor taking trust chattel in, bound by trust, 224, 245, 247.
whether he can by execution levy debt upon property subject to
voluntary trust for debts, 518.
equitable, 795 et seq.; against separate property of married woman ,
771 .
by appointment of receiver, &c. , 813 et seq.
executor, for debt of, against assets , 225 .
trustee, for debt of, 224, 245. See JUDGMENT.
writs of, at common law, 794.
EXECUTOR.
acceptance of office of, 201, 202.
executor having once acted cannot renounce, 202, 251.
but may renounce probate and claim legacy, 197.
having acted, deemed to have accepted trusteeship of real estate,
204.
having proved, cannot refuse to act in trusts, 203.
executor of executor administering to one testator must to other,
202.
accounts, costs of taking, when allowed to, 994.
is bound to keep, 975, 976.
acting as, acceptance of office by, 202, 203.
administration action, effect of, on powers and duties of executor, 449,
597, 598.
advertisement by, for creditors under 22 & 23 Vict. c. 35 , 362.
agent, employment of, by executor, when justifiable, 253.
executor acting as , not liable as executor, 264.
executor not required to take security from, 256.
allowance to, for time and trouble, 628 , 629, 631 , 632.
appropriation of legacy by, effect of, 204.
of securities to residuary legatee, 592.
assent of, to bequest, 205, 477 , 884.
assets, 825 et seq. See ASSETS .
cannot be taken in execution for executor's debt ( unless under special
circumstances ) , 225.
conversion of, by executor within what time to be made, 288 , 289.
duty of executor as to calling in, 273 , 278, 288, 335, 581.
legal and equitable, what are, 825 et seq.
1458
 INDEX.

[The references are to the star paging.]

EXECUTOR - continued .
assets, mortgage, executor may allow assets to remain on, 291.
but not on personal security, 290.
where legal proceedings would be useless he is not liable, 291 .
mortgage of, by executor, 477, 478.
not forfeitable for felony, 225 .
personal in hands of executor a species of trust property at common
law, 224.
sale of, by executor, 477 , 478.
vest in executor's executor, 202, 224 ; but not in executor's adminis
trator, 225.
voluntary interference with, is acceptance of office, 202 , 251 .
attorney, effect of signing power of, to get in testator's estate, 202, 203,
272.
banker of, bound to act according to his directions, 482 , 483.
bankrupt, goods in possession of, when devolving on trustee in bank
ruptcy, 244.
beneficial interest, where entitled to, 60.
beneficially interested, assignee of, bound by equities, 696, 697.
business, carrying on testator's, rights and liabilities of executor, 238,
479, 581.
cestui que trust, of, when entitled to call for conveyance, 688.
charge of debts on real estate, effect of, on powers of executor, 461 et seq.,
466, 467.
charge, may not make, for time or trouble, 628.
whether entitled to commission for administration in East Indies,
628, 629.
chattels, power of executor to deal with , 477 , 478, 479.
co-executor ―
assets, putting, into hands of co-executor, is liable, 271 , 296, 297.
banker, payment of money to co-executor who is, 253.
bankruptcy of, liability of co- executor for costs , 634, 635.
comparison of, with co-administrater and co-trustee, 268.
debt owing from co-executor, his duty as to calling in , 273, 291 .
delegation of duty by, to executor, 253 ; to stranger, 254.
devastavit of co-executor, liability for, 251 , 257 .
discretionary trust cannot be delegated to , 257.
indorsing bill of exchange payable to himself and another, 272.
leaving money in hands of, co-executor liable for, 273, 296, 297.
liability of, for acts of co-executor, 257 , 267 .
executor not generally answerable for acts or defaults of co
executor, 268.
necessary or nugatory acts, joining in, not usually liable, 255, 269,
272.
power of, to act without co-executor, 268.
receipts, joining in, pro formâ, not liable, 268.
representation of co-executor, he ought not to depend on, 272.
especially where testator long dead, 272.
survivorship of office of, 261 .
commission , when allowed to charge, 628, 629.
compounding debts and claims, power of executor as to, 591 .
constructive trustee, when deemed to be, 1012.
contract of sale or purchase by testator, effect of, 943.
conversion of assets, time within which he ought to effect, 288, 289.
costs allowed to , in creditors' action , 986. See COSTS.
in action by strangers, executors unsuccessfully contesting claim pay
costs , 993.
covenants, what may be required from executors of one who has agreed
to grant lease, 442.
by executors of lessee on assignment, 442 , 445.
1459
 INDEX .

[The references are to the star paging.]

EXECUTOR - continued.
creditors of testator, how protected against, 362 .
may be answerable to, though not to legatees, 271 .
rights of, as against executor, 477.
Crown, right of executor to residue as against, 61 .
debt of, assets when capable of being taken in execution for, 225.
retainer of, 590.
sale or pledge by executor to secure, 479, 480 , 481 .
debtor to estate, assignment of beneficial interest by, 696.
debts.
after payment of, must account for surplus, or is chargeable with
interest, 338.
barred by Statute, executor may pay, 590 ; but not after decree, 590 .
composition of, power of executor to effect, 591 .
contracted by executor in that character cannot be proved for as
debts of the testator, 238.
duty of executor to call in outstanding, 273, 278, 288, 290.
duty of executor to discharge, 338, 509.
decree, power of dealing with assets after, 449, 617 .
delegation of office by, 252 et seq. And see supra, co-executor.
derivative executor, duties and liabilities of, 202.
de son tort, renewing lease in own name is constructively a trustee, 180.
devastavit by, 251 , 479, 591 ; claim for, when barred, 356, 357.
executrix married woman, by, 769.
discharged, cannot be, from office, even by Court, 673.
but may be, from trusteeship, 673.
discretion of, how to be exercised , 257.
donee of general power, of, entitled to transfer of trust funds, 688.
secus in case of special power, 688.
drunken or dissolute, restrained from administering, 856.
East Indies, in, may charge commission, 628, 629.
equitable assets in hands of, what are, 828.
equitable mortgage by, 477.
executor of executor administering to one testator must to other, 202.
when competent to exercise power, 603.
foreign law, is not presumed to know, 347 .
fraudulent sale or pledge by, 478.
who may impeach, 483.
heir not favoured more than, 947.
heir of vendor a trustee for executor, 1016.
housekeeping expenses of testator, executor when justified in continuing,
288.
indemnity, what, he may require, as to leaseholds, 185, 238, 445.
India, conversion of assets in, 335.
executor in, may charge commission , 628, 629.
injunction against , when granted , 856.
interest, when chargeable with, 343, 344.
not charged during first year from testator's death, 343.
intestate, executor dying, assets vest in administrator de bonis non of
testator, 225.
land to be converted into money when devolving on, 949.
lease, has not in general power to grant, 425.
lease, renewing, cannot hold for own benefit, 180, 182.
lease to, how to be framed, 442 note (i) .
lease to testator, liability of executor under, 445, 446 .
leaseholds, may hold title deeds of, till all debts paid, 680.
legacy, appropriation of, by executor, 204, 581 .
executor renouncing may claim, unless attached to office , 197.
time for payment of, 581
to executor for trouble, 629.
1460
 INDEX.

[The references are to the star paging.]

EXECUTOR― continued.
legal assets in hands of, what are, 828.
legatees may be answerable to creditors, though not to executor, 356.
office of executor cannot be interfered with by, 477.
liability of, rule of law as to, 256. See supra, assets, co-executor,
debts, devastavit.
Limitations, Statute of, not bound to set up defence of, 590.
live stock of testator, executor should sell forthwith, 288.
lunatic, vesting order as to property of, power of Court to make, 1015.
married woman, executrix , powers, &c ., of, 224, 225, 769.
husband of, is trustee within Trustee Acts , 1021 .
married woman, of, under will in execution of power, 775.
merger of charge, how affected by, 729.
mesne rents, account of, against executor, 886.
money to be laid out in land, when entitled to, 944.
mortgage of assets by, 477 et seq.
may allow assets to remain on, 291.
where mortgagee has notice of impropriety, 479, 480.
mortgagee, of, may call on heir to convey, 943.
or obtain vesting order, 1019.
mortgagor, of, formerly bound to discharge debt out of personalty, 943.
next of kin, is trustee for, of undisposed of residue, 61 .
where no next of kin executor takes beneficially as against Crown, 61.
unless clearly mere trustee, 61 .
overpayment by, effect of, 356, 357.
option of purchase, cannot grant lease with, 425.
outstanding, should not allow assets to remain, 273, 278, 288, 290.
should not allow debts which carry interest to remain, 338.
partner of testator, accountability of, in respect of assets left in busi
ness , 278.
personal security, should not allow assets to remain on, 290.
pledge of assets by, 477 et seq.; to secure private debt, 479, 480, 481.
poverty of, does not prevent his administering, 856.
power when exercisible by executor of donee, 603 , 604, 609.
to " executors "" or to " A and his executors," by whom exercisible,
603, 604.
private debt, sale or pledge by executor to secure, 479, 480.
where he is joint specific or joint residuary legatee, or subject to a
charge, 480.
where he is sole specific or residuary legatee, 479.
where creditor has notice of unpaid debts of testator, 480, 481.
probate, can sell and give receipts before, 483.
effect of taking out, 201 .
executor when constituted trustee by proving will , 203, 204.
prerogative, whether term in trustee requires a, 224.
renunciation of, 197 , 201 , 202, 223.
profits, executor making, by assets, must account, 340.
promise of subscription by testator, executor whether bound to carry
out, 590.
proof by, in bankruptcy of trustee, 912.
purchase of assets by, improper, 490 ; secus where he never proves will, ib.
real estate, when empowered to sell, 461 , 466, 467 , 468.
receipts, liability of executor joining in, 256 , 268, 269, 272.
powers of executor to give, 447 et seq., 597.
receiver appointed where husband of executrix out of jurisdiction, 983.
or where executor a person of bad character, & c . , 983.
refund, legatee when bound to, monies wrongly paid to him, 356.
refusal by, to transfer stock, 1020, 1042 .
release, entitled to, on final settlement of accounts, 358.
effect of release by pecuniary legatee, 359.
1461
 INDEX.

[The references are to the star paging.]

EXECUTOR - continued.
renewal of lease by, in own name, 180 et seq.
rents and profits, account of, against executor of pernor, 886.
renunciation of probate by, effect of, 197 , 201 , 202, 223, 607.
equivalent to disclaimer of power, when, 607.
executor having accepted office cannot renounce, 202 , 251 .
retractation of, 223.
residuary legatee, powers of executor who is, 479, 480.
rights of, as against executor, 477.
settlement by executor with one of several, 357, 592.
when bound to refund overpayments, 356, 357, 592 .
residue, appropriation of securities forming part of, 592.
residue, right of executor to, prior to 11 Geo. 4 & 1 Will . 4, c. 40, 60.
parol evidence when admissible against title of executor, ib.
retainer by, of his own debt, though statute barred, 590 .
right of, not interfered with or enlarged by 32 & 33 Vict. c. 46, 831.
but ceases where estate is administered in bankruptcy, 832.
salary to, may be given by testator, 631.
sale of assets by, 477 et seq.
nominal price or fraudulent undervalue, at, 473.
private debt or advantage, to secure, 479, 480.
set-off by, against creditor of testator, 699.
against legatee, 696, 699.
sole, power when exercisible by, 604.
specific legatee, powers of executor who is, 479, 480.
specifically bequeathed property, sale of, by executor when valid, 477, 478.
where purchaser has notice of impropriety, 479.
stock how transferred by, 32.
stock standing in name of, vesting order as to, 1023.
subscription promised by testator, whether executor should pay, 590 .
surplus after payment of debts, is accountable for, or chargeable with
interest, 338.
and no excuse that he did not use the money, 339.
survivorship of office of, 261 .
tenant at will, of, procuring lease to himself, 182 .
time allowed to, for conversion of assets , 288, 289.
breaking up testator's establishment, 288, 581 .
lapse of, powers of executor how affected by, 481 .
legacies, for payment of, 581.
title deeds of leaseholds, right of executor to, 680.
trading with assets, liability of, 276 et seq., 339 et seq. , 479, 581.
trust estates vested in testator now devolve on , 222 , 233, 1018.
trustee, is primâ facie, for next of kin, 285 ; but not for Crown where no
next of kin, 285.
to perform duties of executor, appointment of, 912.
Trustee Acts, executor is trustee within, 1012.
when executor converts himself into trustee, 204, 205, 481 , 673, 884.
trustee, of, bound by trust, 246, 906.
declining to appoint new trustees, not liable for costs, 649.
powers vested in heirs or assigns of trustee exercisible by, 233.
right of, to decline to act in trust, 672 , 673.
specific bequest of trust property, whether executor with specific
legatee can execute trust, 231 .
trust estate now devolves on , although otherwise devised or be
queathed, 222, 226.
when competent to execute trust, 230, 233.
whether he can sign receipts, 483, 484.
trustee, who is, powers and duties of, 476, 525.
Trustee Relief Act, payment of money into Court under, 998, 1003.
vendor, of, empowered to convey, 1011 .
1462
 INDEX .

[The references are to the star paging. ]

EXECUTOR - continued.
windfall, when entitled to, 966 .
year allowed to, for conversion of assets, & c . , 289, 290, 343, 581 .
but legacy may be paid before expiration of, 581 .
EXECUTORY DEVISE.
contingent remainder converted into, by 7 & 8 Vict. c. 76, 383 ; but that
Act repealed, ib.
takes effect as, where practicable, under 40 & 41 Vict. c. 33, 383, 384.
EXECUTORY TRUST, 111 et seq.
alien, for, Crown cannot take advantage of, 45.
anticipation, in restraint of, 782.
Borough English lands, as to, 824.
construction of, in marriage articles, 112 et seq.
chattels, agreement to settle, on same terms as real estate , 115.
" heirs of body," construed limitation to eldest son as heir, and if no
son to daughters as co -heiresses, 115 .
notwithstanding death of son or daughter in parent's lifetime,
unless contrary implication , 115.
otchpot clause supplied, 117.
joint tenancy, words conferring, when construed as tenancy in com
mon, 117.
real estate, " heirs of body " or " issue " applied to, construed first
and other sons in tail as purchasers, 113.
exceptions where husband's property limited to heirs of body of
wife, 114 ; quære, however, since Fines and Recoveries Act,
sects. 16, 17, ib.
or where articles negative construction , e.g. by limitation of
part of estate to parent for life, remainder to first and other
sons in tail, 114.
"heirs female " construed " daughters," 114.
words supplied in articles, 117.
construction of, in post-nuptial settlements, 126.
construction of, in wills, 117 et seq.
chattels, as to, 122 et seq.
semble, that chattels bequeathed as heirlooms vest absolutely in
first tenant in tail though he die an infant , 123.
limitation over on tenant in tail dying under twenty-one,
when to be inserted , 123.
peerage, direction that heirlooms should go with, 124, 125.
real estate, as to , 117 et seq.
"heirs of the body," when construed to give estate tail to
ancestor, 118.
" A. for life and the heirs male of his body and their heirs
male successively," 118.
"proper entail on heir male ," 118.
"heirs of the body," construed " first and other sons in tail ," where
intention to that effect shown, 119.
contingent remainders, effect of limitation to preserve, 119.
direction for " strict entail ," 120 ; or strict settlement, 508.
direction that entail should not be barred, 119, 121 .
direction to settle " as counsel shall advise," 119.
life estate for separate use, 119, 782 , 824 , 825 .
" without impeachment of waste," where life estate is to be,
119, 120, 507, 508.
where testator directs settlement, but formally declares lim
itations, 122.
words indicating that ancestor was not meant to have a
power of disposition, 119 et seq.
contingent remainders, limitations to trustees to preserve, whether in
serted, 121 .
1463
 INDEX.

[The references are to the star paging.]

EXECUTORY TRUST - continued.
curtesy admitted of, where money to be laid out in land, 734.
daughters included in " heirs of body," or " issue," 115, 120.
duplication of charges, referential trust ought not to be construed so as
to effect, 130.
executed and executory trusts distinguished, 111.
gavelkind lands, as to, 121 , 122, 824, 825.
heirs of the body," how construed, 113, 115, 118.
distinguished from issue, 120.
intention of settlor, carried out in conformity with, 112.
marriage articles, in, distinguished from the like in will, 112, 113. See
supra, construction.
married women, direction in will for strict settlement on, 126.
meaning of term, explained , 111, 112 .
notice of, 860.
powers, what may be inserted in settlement under executory trust, 126
et seq.
proper," 128.
"usual," 127, 128.
protector, special, whether Court will appoint, under Fines and Recoveries
Act, 121.
strict settlement, meaning of term , 508.
waste, tenant for life not usually made dispunishable for, 120, 507.
will, in, distinguished from the like in marriage articles, 112, 113. See
supra, construction.
EXECUTRIX.
appointment of executor by, may be without husband's consent, 224.
husband of, powers of, to deal with assets , 225.
trustee, held to be, within Trustee Acts, 1021.
EXONERATION.
judgment or charge, of property from, as between purchasers , 718, 719.
personal estate, of, from costs, 644.
share of proceeds of land, of, from mortgage by legatee, 951 .
EXPECTANCY.
voluntary assignment of, whether it creates a trust, 74.
EXPEDIENT.
when Court deems it expedient to appoint new trustees, 1027 et seq.
EXPENSES. Chap. XXIV. , sect. 2, 634-644 .
account of, trustee should keep, 638.
where none kept, what allowance made, 638.
allowance for, to trustees, 634 ; even where express allowance for trouble,
637 .
or where trustee wrongfully appointed, 634.
cestui que trust when personally liable to trustee for, 642, 643.
costs of specific performance action against trustees, when allowed as, 432.
counsel, fees to , when allowed to trustee, 198, 636.
deed, of, direction to pay, is implied , 641 .
donee under voluntary settlement incurring expense not a volunteer, 75.
exoneration of personalty from, 644.
extra costs, trustee when allowed, 636, 638.
fines for renewal of leases, lien of trustee for, 184.
funds out of which expenses payable, 643, 644.
real and personal estate, as between, 642.
lien for, trustee when entitled to, 184, 639.
not where guilty of breach of duty, 640.
nor against moneys for public services in hands of Secretaries
of State, 642.
trustee's agents, eg solicitors or surveyors not entitled to, 641 ;
unless expressly so directed, ib.
1464
 INDEX.

[The references are to the star paging.]

EXPENSES - continued.
lien, remedy for enforcement of, 640, 642.
where trust extends to several estates, 642.
lying by, while expense incurred, effect of, 716, 717 .
moderated, charges may be, and how, 638.
necessary, what are, 987.
opposition to Bill in Parliament, costs of, when allowed to trustees, 636 .
reimbursement of, how made , 634 et seq.
out of what fund , 643, 644 .
release to trustees, of, 359.
renewal of lease, of, lien for, 184. See RENEWABLE LEASEholds .
sale, of, to be borne by purchaser, 440 .
Settled Land Act, under, allowed to trustee, 636.
"testamentary," includes costs of administration action, 644.
trust to pay costs, &c., construction of, 644.
void deed, under, 640 .
EXPRESS TRUST, Chap. VIII., sect . 1 , 108-130.
account of rents and profits from what time granted, 886 .
executed and executory , distinguished , 111 .
legacy after executor's assent is held on express trust, 884 .
Limitations, Statutes of, express trusts in general excluded from opera
tion of, 875 et seq., 901 .
Real Property Limitation Act, 1874, when subject to , 876 et seq.
mere charge is not, secus charge coupled with duty , 878, 879.
mortgage by way of trust for sale not an express trust within statutes,
880.
resulting trust when an express trust within Statutes of Limitations, 877.
technical terms not necessary for limitation of equitable estate , 108.
but if employed are taken in legal and technical sense, 109 .
EXTENT (FROM CROWN) Chap . XXVII., sect . 8, 817, 818.
equitable interest affected by, 817.
equity of redemption may be sold under, 818.
lands could not be sold under, at common law, 817 ; but may by statute,
818.
EXTINGUISHMENT.
power of, 605, 606, 609, 610. See POWER.
trust for sale, of, 425.
EXTRAORDINARY OUTLAY.
trustee, by, whether he can charge for, 638.
FACTOR. See AGENT.
Bankruptcy Act, operation of, as to goods in his possession, 240, 244.
followed, money may be, into hands of, 894.
profiting by his fiduciary position is a constructive trustee, 187.
selling for money payable at future day, 241 .
special property only vests in, 241 .
trustee who is, cannot profit by trust, 280.
FAILURE.
bank, of, trustee when liable for, 297.
cestui que trust, of, of personalty by death intestate without next of kin,
285.
of realty by attainder, 284.
by death, intestate without heirs, 282.
devise by, on trusts which fail, devisee entitled as against bare trustee,
284.
settlor, right of, to trust property, 284.
trustee, right of, to trust property, 282.
heirs, of, devolution of property in case of, 282. See ESCHEAT.
next of kin, of, of c . q. t. dying intestate, 285.
1465
 INDEX.

[The references are to the star paging.]

FAILURE- continued.
trustee, of c. q. t. protected against, 833 et seq.
death, by, 833.
direction to sell, and no person to sell named , 834.
for separate use and no trustee appointed, 834.
disclaimer, by, 833. See DISCLAIMER.
imperative power, 834 et seq. See POWER.
FALSE.
answer, by corporation (pleading ignorance) visited with costs, 994.
denial by agent of his character, 168.
by trustee of claim of c. q. t. visited with costs, 993.
FAMILY.
meaning of word, 133 ; in a will means children primâ facie, 133 note (c) .
trust for, of freeholds, how construed, 133.
FARM LEASE. See LEASE.
FATHER. See ADVANCEMENT ; PARENT.
FEE SIMPLE.
charge of debts, legal fee simple when passing by virtue of, 218.
conditional, 47 .
limitation in tail, where no custom to entail, construed as, 47.
devise to trustee, when to be construed to pass fee simple, 220.
equitable, word " heirs " not necessary to create, 109.
fee upon a fee, rule preventing, not applicable to trusts, 84.
grant or devise to two and the survivor and the heirs of the survivor,
effect of, 214.
legal, vested in trustee by trust to sell, &c., without " heirs," 213.
secus where gift to A upon trust to pay debts out of rents, 214.
trust to lease confers fee simple, 217.
what estate taken under grant to trustees and survivor and heirs of
survivor, 214.
under devise, 215.
where legal estate in first instance given to trustees and discretionary
powers superadded, 218, 219.
FELON, how far he may deal with chattels, 27. See CONVICT.
FELONY.
attainder upon, abolished, 28.
cestui que trust, of, 283.
equitable chattels , forfeiture of, 820.
forfeiture or escheat upon, 28, 818 et seq. See FORFEITURE.
abolished, 28, 821 .
outlawry upon, effect of, 28, 250.
prosecution for, necessity for, before taking civil proceedings, 898.
trustee, of, power of Court to appoint new trustee, 1043, 1044.
FEME COVERT. See MARRIED WOMAN.
FEME SOLE.
trustee, whether she may be appointed, 36, 37.
FENCING.
expense of, falls on corpus, 683.
FEOFFMENT.
infant, by, 25, 26.
lunatic or idiot, by, 26.
tenant for life, by, formerly worked forfeiture, 821.
use on, when it might be declared by parol, 52.
results to feoffee if without consideration , 163.
FIERI FACIAS. See EXECUTION ; JUDGMENT.
execution by, at common law, 794.
in equity, 795, 796.
1466
 INDEX .

[The references are to the star paging.]

FINE.
effect of, in cases of election, 954, 955.
infant, by, 25.
lunatic or idiot, by, 26.
non-claim, with, a bar against constructive trust in favour of a volunteer
without notice , 866.
no bar in case of notice, 858.
FINES.
copyholds, for admission to , 235 et seq. See COPYHOLDS.
payment of, not a condition precedent to admission , 235.
treated as income of the lord, 682.
lease of charity lands, upon, 543.
leases, on, under Settled Land Acts, 561 .
onerous, how they may be avoided when the estate devolves on several
trustees , 237.
renewal of lease, on, how to be raised, 366 et seq. See RENEWABLE
LEASEHOLDS .
annual, treated as income of tenant for life, 682.
under-leases, on , 371 .
FINES AND RECOVERIES ACT.
acknowledgment by married woman under, 22.
concurrence of husband when dispensed with , 35.
effect of conveyance in such case, 35 note (m) .
legacy charged on land , on conveyance of, 955.
reversionary interest in land directed to be converted, on conveyance
of, 955.
contingent remainders, trusts to preserve, how affected by Act, 381 , 382 .
contract, power of feme covert to, under Act, 645.
election under powers of, by feme covert, 955 ; by tenant in tail, 959, 960.
settlement where husband's property limited to heirs of body of wife,
114.
entail, married woman may bar, 780 ; or enlarge into fee simple, 784.
equitable estate tail, how barred under, 694.
protector of settlement under, 121 , 381 , 382 , 682. See PROTECTOR OF
SETTLEMENT.
irresponsibility of, 121 .
whether Court will appoint, in carrying out executory trust, 121.
vesting order need not refer to, 1013.
FIRM. See PARTNERS .
breach of trust of one partner, how far liable for, 902 , 913, 916.
set-off against, right of, how affected by change of firm, 698, 670.
trustee lending money to, becoming bankrupt, 916 .
FIXTURES.
trust property, on , trustee cannot buy up, for himself, 276.
FOLLOWING TRUST PROPERTY .
parol evidence admissible for purpose of, 169 .
right of c. q. t. to follow trust property wrongfully converted, Chap. xxx.,
sect. 2, 892-897. See BREACH OF TRUST.
trustee in bankruptcy, into hands of, 240, 912.
FORECLOSURE. See MORTGAGE .
FOREIGN LAW.
whether trustee or executor presumed to know, 347, 348 .
FOREIGN PROPERTY .
bonds of foreign Government not within Trustee Relief Act, 998.
boundaries of estates abroad, specific performance of articles for ascer
taining, 48.
entail of lands abroad , 49.
fraudulent conveyance of, relieved against, 49.
1467
 INDEX.

[The references are to the star paging.]

FOREIGN PROPERTY - continued.
injunction against taking possession of lands, 49.
mortgage of lands abroad, foreclosure of, 49.
movable, follows the person, 48.
real estate, Court will enforce natural equities and contracts provided
parties are within jurisdiction , 48 .
quare whether so as to trusts, 49, 50.
not where foreign law would make decree of Court nugatory, 49.
sale of land abroad ordered, 49 .
Scotch estate, equitable mortgage of, enforced , 48.
trusts of, how far effectual, 48, 49, 50.
as regards personal estate, 48 .
as regards real estate, 49.
FOREIGN SECURITIES .
conversion of property invested in, 300.
meaning of term , 321.
Trustee Relief Act, are not within , 998.
FOREIGNER.
will, foreigner may dispose of English property by, 27.
in case of personalty formalities according to law of domicile , 27
note (b).
FORFEITURE .
alienation or bankruptcy , on, 102 et seq., 556 , 680.
contingent remainder not destructible by forfeiture of previous estate,
121 , 383.
felony, outlawry, or treason, in case of.
abolition of, by recent statute except for outlawry, 28, 821.
chattels and goods, of, took place upon conviction, 28, 820.
felon may sell goods, &c ., before conviction, 28.
but not collusively to defeat rights of Crown, 28.
how far he may make a settlement, 28 .
equitable interests, of, none at common law in trusts of lands , 818.
quære, under 33 Hen. 8, c . 20, s . 2, 818 et seq.
equities of redemption within the Act, semble, 820.
alien, trust for, 95, 823 note (b ) , how Crown prosecuted its rights,
96.
chattels, in, 820.
wife of felon, trust for , 821.
executor, assets in hand of. exempted from, 226 .
husband, of, effect of, on wife's equitable term , 820.
land, of, took place upon attainder, 27 , 818.
secus if felon contingently entitled , 821 .
land directed to be converted, proceeds of, when forfeitable, 950.
money to be laid out on land not forfeitable as personalty, 821, 950.
outlawry, on, 28.
trustee or mortgagee, of property vested in, 247, 821 , 1036.
chattels subject to, at common law, 222 ; secus now, 222.
secus as to assets in hands of executor, 225.
freeholds subject to , at common law, 221 ; secus now, 221.
trustee beneficially interested , 1036.
trust estate, person taking, under forfeiture bound by same
equity as forfeitor, 247.
feoffment by tenant for life under old law, by, 821.
not where tenant for life only equitably entitled, ib.
order and disposition clause in bankruptcy, under, 242 et seq.
FORGERY .
letter of attorney , of, by broker, 353.
mortgage, trustee lending on forged , liable where negligent, 353.
trustee absconding on charge of, removable, 847 .
1468
 INDEX .

[The references are to the star paging.]

FORISFAMILIATION.
effect of, on trust for maintenance , 139.
FORMALITIES.
trust, for creation of, what formalities requisite, Chap. v., 51–66 .
common law, at, 51, 52.
Statute of Frauds, under, 53 et seq.
Statute of Wills, under, 57 et seq.
valuable consideration, where trust grounded on, formalities of minor
importance, 67.
will of foreigner disposing of English property, 27.
will, for execution of, 57 et seq.
FRAUD.
account in cases of, carried back to accruer of title, 888, 891.
mesne rents, of, in equity though upon legal title, ib.
agent, or attorney, by, gives rise to constructive trust, 191 , 192.
allowance for repairs and improvements not made to person guilty of, 492.
appointment, fraudulent, trustee suspecting, whether compellabie to
convey, 686.
trustee , of, 668.
assignee of equitable interest affected by fraud of assignor, 696.
bankruptcy, discharge in, does not release fraudulent trustee, 992 .
benefit from, party to fraudulent contract cannot derive, 862.
concealed, whilst fraud is, time does not run against defrauded person,
868, 875, 878.
confirmation obtained by means of, 497.
conveyance, fraudulent, as against creditors, 77 et seq. , 510, 518.
absolute as against grantor, 145.
act of bankruptcy by making, 512, 514, 518.
delay not a bar to action to set aside, 873 note (e).
of estate abroad relieved against, 49.
for creating votes, 105 .
costs in cases of, 991.
co-trustee, of, trustee not liable for, 253.
creditors, settlement in fraud of, when invalid, 77 et seq., 510, 518.
delay in bringing action for relief against, effect of, 868, 875, 878.
devisee by, promising to provide for child of testator, 61.
when trust is raised by, 65.
only where devisee takes beneficial interest, 65.
discovery of, time begins to run from, 868 , 875, 878.
discretion of trustee, fraudulent exercise of, controlled by Court, 616.
executor, fraudulent dealing with, 478 et seq.
expenditure, by allowing another to incur, 717.
heir, by, in procuring estate to descend on false representation, 61.
infant not protected from consequences of, 39, 355, 919.
joint tenant, by, effect of, 63 ; devise procured by, wholly void, 63.
laches, effect of, where plaintiff alleges fraud, 864, 872 .
land abroad, fraudulent conveyance of, relieved against , 49 .
lapse of time, effect of, in cases of fraud , 864, 868, 872.
legacy obtained by, intention of testator must be executed, 61 .
Limitations, Statutes of, when they begin to run in cases of, 868 , 875,
878.
married woman, by, 739, 784 , 919, 920 ; protected against, 759, 784, 919.
mistake of another man, by encouraging, 717 .
money obtained by, right to follow, 897.
parol , may be established by, 63 ; and see 167.
partner, by, 902 , 916.
pleadings, where charged in, defence whether by demurrer or plea, 869.
possession, fraudulent, is adverse, 864.
power on, 616, 686.
1469
 INDEX.

[The references are to the star paging.]

FRAUD - continued.
power on, when Court will interfere in cases of, 616.
powers of executor vitiated by, 478.
preference, fraudulent, in creditors' deed, by secret agreement, 513, 523.
making good trust money is not, 897.
secret equity, by person entitled designedly concealing, 716 .
tenant in common by, devise procured by, may be good as to co-tenant, 63.
trust void on ground of, recovery of trust property where, 106.
by fraudulent settlor, ib.; by person claiming through him , ib.
trustee not liable for fraud of co -trustee, 253.
criminal proceedings against fraudulent trustee, 898.
discharge in bankruptcy does not release fraudulent trustee, 916.
trusteeship created by, 61 , 62, 63, 65, 862 , 864.
trusts originated by, 1 .
vitiates any transaction , 478, 509.
voluntary settlement procured by, 75.
FRAUDS , STATUTE OF, Chap. v., sect . 2, 53–57.
affidavit, trust may be evidenced by, 56.
answer in chancery, when sufficient declaration of trust , 55, 56.
antenuptial agreement as to wife's realty signed by husband not sufficient, 57.
assets by descent under sect. 10, what are, 827 et seq.
assignments of trust, writing necessary for, 55, 693.
bill in chancery, whether declaration of trust might be by , 56 note (a).
charitable trusts are within, 54.
chattels real are within, 53.
but not chattels personal, 53.
colonial lands, whether within, 55.
copyhold, declaration of trust of, is within , 53.
but not surrender to uses, 53 note (c) , 721.
Crown whether bound by, 54.
defence of, must be specially pleaded, 55 .
devises of land, as to, 57.
elegit under sect . 10, 802, 803.
formalities required by, for creation of trust, 55 et seq.
fraud, not pleadable in aid of, 54.
implication of law, trusts arising by, are not within, 167, 193 et seq.
indemnity, verbal promise of, not within the statute, 349.
interests within the Act, what are, 53 et seq., 693.
letters, &c ., to constitute sufficient declaration of trust must relate to sub
ject matter and nature of trust must be clear, 56.
parol evidence of surrounding circumstances admissible, 56.
memorandum, when sufficient evidence under, 55.
money secured on mortgage is not within , 54.
" party by law enabled to declare trust, " who is, 57.
pleaded, must be, under present practice, 55.
recital in bond, trust may be evidenced by, 55.
signature, what, necessary to satisfy, 56, 57.
unsigned paper, reference to, 57.
subsequent acknowledgment in writing, when sufficient for creation of
trust, 55.
trust estate how far assets under sect . 10 of Act, 827 et seq.
when to be taken in execution at law under same section , 802 , 803.
trust of lands, formalities required for declaration of, 55 et seq. See infra,
writing.
wills, provisions of statute relating to , 57, 720.
repealed but principles established by cases under, still applicable, 66.
writing, trusts to be proved by, not declared in , 55.
what, is sufficient, 55, 56, 57.
relation to subject matter of trust and nature of trust must be clear, 56.
money may be followed into land by parol, 896.
1470
 INDEX.

[The references are to the star paging.]

FRAUDULENT CONVEYANCE, &c., 77 et seq., 510, 514 , 518.
FRAUDULENT PREFERENCE, 897. See BANKRUPTCY.
FRAUDULENT TRUSTEES' PUNISHMENT ACT, 898.
FREEBENCH .
equitable estate in copyholds, does not attach to, 733.
legal estate in trustee, attaches to, 221.
FREE GRAMMAR SCHOOL (see 3 & 4 Vict. c. 77) , 536.
FREEHOLD.
disclaimer of, how to be made, 197 et seq. See DISCLAIMER.
estate for life may be devised to trustee notwithstanding 1 Vict. c. 26, 220.
legal estate in, when passing under devise to trustees, 211 , 212, 216.
where freeholds and copyholds descend together, 217.
FRIENDLY SOCIETY.
loan by trustees of, on improper security, 333.
FUND.
in Court, assignment of, 711 , 712. See STOP ORder.
meaning of term , " funds," 322.
trust fund, assignment of, 702 et seq. See NOTICE.
FUNERAL EXPENSES .
priority of, in administration of assets in bankruptcy, 832.
wife, of, out of separate estate, 773.
GAME ACT ( 22 & 23 Car. 2, c. 25) .
qualification under, extended to c. q. t. of lands , 681 .
GAMEKEEPER.
must not be appointed for pleasure of trustees, 275.
GARNISHEE .
trust debts vested in , not affected by attachment, 225.
trust money, garnishee order not made absolute as to, 245 .
but money may be ordered into Court pending inquiry, 245.
GAVELKIND LANDS.
descent of money arising from sale of, 824.
of equitable interest in, 824.
Dower Act extends to, 738.
feoffment by infant under custom of Kent, 25, 26.
settlement of, under executory trust in articles, how made, 121 , 122.
GENERAL ORDERS . See RULES OF Court.
distringas, as to , 973.
interest on simple contract debts, as to giving, from decree, 526 note (d).
investment, as to, of cash under control of Court, 308, 309.
stop order, as to proceedings for obtaining, 712.
GENERAL WORDS .
trust estate, not construed to pass, 225.
GIFT.
chattels, delivery of, whether a gift or creating a resulting trust, 145.
equitable interest, of, 73.
husband, by, to wife whether effectual as declaration of trust ; semble not,
69.
effectual as gift since Married Women's Property Act 1882, 69.
exception as against creditors, ib.
imperfect, Court will not give effect to , as trust, 74.
power, words of, distinguished from words of gift, 838 et seq.
stock, transfer of, whether gift or resulting trust, 145 .
stranger, to, person sui juris may freely make, 71 :
" trust " and " trustee," use of terms, does not necessarily exclude a bene
ficial gift, 148.
trustee cannot except, from c . q. t., 277.
1471
 INDEX.

[The references are to the star paging.]

GOVERNMENT ANNUITIES ACT, 1882 , 32.
GOVERNMENT SECURITY.
Bank of England stock is not, 307.
Exchequer bills are not , 321 .
investment on, when proper, 307, 314, 502. See INVESTMENT.
meaning of term, 322.
GRAMMAR SCHOOL.
trust for, how carried into effect, 536.
GRANDCHILD.
advancement for, presumed , 177 .
GRANDFATHER.
whether regarded as being in loco parentis, 391 note (a) , 395, 402.
GRANT.
whether inserted in conveyance by trustees, 441 , 687.
word " grant " does not imply warranty, 687.
use of, now not necessary for conveyance, 687.
GRANTEE.
mala fides by, effect of, 145.
GREEK BONDS .
investment in, 322.
GROUND RENTS .
lending on security of, power of trustee as to, 325.
whether trustees may purchase, 502 , 505.
GUARDIAN.
administration granted to , limited to appointing new trustees , 657.
advantage, cannot gain, by his office, 279.
co-guardian, payment to, trustee not discharged by, 614, 615.
infant cannot be, 37.
office survives as to testamentary guardians , 261 .
secus joint guardians appointed by Court, 262 note (a) .
receipt by, for legacy of infant, when a good discharge, 355.
trustee, is, to extent of property come to his hands , 279.
HARDSHIP.
Court will not enforce against trustees a contract which involves, 441 .
HEIR.
advowson, right of presentation to , when devolving on heir, 275.
cestui que trust attainted, whether his heir may sue trustee, 284.
cestui que use, of, right to sue subpoena descended to , 3.
chattel interest resulting to heir devolves on his personal representatives,
143.
chattel, limitation of, to A. and his heirs, 94.
common law heir when entitled to proceeds of sale of gavelkind lands,
824.
contract of sale or purchase by testator, how affected by, 943.
conversion, cannot claim by virtue of, under will of ancestor, 953.
creditors, how far heir a trustee for, 279.
customary, when trust estate devolves on, 824.
when competent to execute trust, 233.
disclaimer by, 196, 197 .
equity of, as against executor, 729, 942 et seq.
failure of, 822 , 823. See ESCHEAT ; TRUSTEE ACTS .
trustee accidentally advantaged by failure of heirs of c. q. t., 282 et
seq. favoured, whether, more than executor, 947.
fraud by, inducing ancestor to allow estate to descend, 61.
" heirs," use of, as word of limitation. See HEIRS ; HEIRS OF THE BODY.
incumbrance, effect of heir purchasing, 279, 280.
1472
 INDEX .

[The references are to the star paging. ]

HEIR continued.
infant, of vendor who has contracted to sell real estate, whether a con
structive trustee for purchaser, 1011 .
legacy to, will not alone prevent a trust from resulting, 147 .
land directed to be converted into money , heir when entitled to, 950 , 953.
See CONVERSION.
Limitations, Statute of, heir when barred by, 874 , 875.
as to resulting surplus rents under express trust, 877.
lunatic, of, interest of, how far regarded by Court, 963 et seq. See
LUNATIC.
money to be laid out on land, heir when entitled to, 941 et seq., 953.
See CONVERSION.
merger of charge, heir benefited by, 729.
mortgagee of, entitled as against residuary legatee who neglects to assert
title, 861.
executor may call for conveyance from , 943 .
mortgagor, of, formerly entitled to have debt discharged out of person
alty, 943 .
persona designata, when he may claim as, 110, 953.
personal representative to be deemed “ heir " within the meaning of trusts
and powers, 233.
personal representatives of, chattel interest resulting to heirs devolves
on, 151.
power when exercisible by heir of donee, 609.
power of sale when exercisible as against, 611.
may be exercised by personal representative of last surviving
trustee, 233.
severance of estate by co-trustee, how affected by, 237.
receipt of, purchaser when discharged by, 465, 466, 468, 471 .
resulting trust in favour of, when it arises, 63, 65, 143 , 147 , 149 , 154. See
RESULTING TRUST.
whether resulting interest devolves as realty or personalty, 150,
151. See CONVERSION.
retainer of debt by, 830, and note (d) .
secret trust, right of heir to discovery as to, 64.
settlor, heir of, when bound by trust, 834.
specialty debts, heir how liable to, 206.
trust attaches upon conscience of, where no trustee named, 834.
trustee, of, originally not bound by a use, 2.
but afterwards held bound, 2.
bound by trust, 246 ; whether he can disclaim, 196.
contract for purchase of trust property not enforceable by, 487.
descent to, 723.
where sale to trustee set aside , whether entitled to purchase-money,
494, 495.
whether competent to execute trust, 230.
Trustee Acts, heir when deemed to be trustee within, 1011 , 1012 , 1016 , 1017.
undisposed of proceeds of conversion, heir when entitled to , 149.
unlawful trust, right of heir to discovery as to, 64.
use, is bound by a, 2.
younger child, heir not regarded as, entitled to portion , 386, 392 .
HEIRLOOMS.
bequest of, to same uses as chattels in strict settlement how construed,
122 et seq. See EXECUTORY TRUST.
cestui que trust, rights of, in respect to, 683, 684.
not forfeited on bankruptcy of, 683.
sale of, under Settled Land Acts, 566 , 567, 684.
suspension of vesting of, how affected, 123.
tenant for life entitled to use of, 123, 683, 684.
1473
 INDEX.

[The references are to the star paging.]

" HEIRS ."
blended real and personal estate, meaning of " heirs " in disposition of,
133.
devise to, cannot be cut down to chattel interest, 214.
equitable estate, devise of, without word " heirs " may give the fee, 109.
secus a grant by deed , 109.
grant or devise to two and survivor and heirs of survivor, 214.
"heirs female," construction of, in marriage articles, 114.
" heir male," construction of, in will, 118.
trust for sale, devise upon, confers fee without word " heirs," 213.
66 HEIRS OF THE BODY."
construction of, in marriage articles as to chattels , 115 .
as to freeholds, where construed " first and other sons," 113, 860.
in wills, where construed first and other sons, 119. And see EXECU
TORY TRUST.
daughters included under designation of, 115, 120.
equitable entail may be created without use of the words, 108.
husband's property, limitation of, to heirs of body of wife, 114.
" issue," not synonymous with, 120.
purchaser without notice whether bound by construction of the term, 860.
HERIOT.
when payable as to copyholds on death of trustee, 235, 236.
HIGH COURT OF JUSTICE .
constitution of, 17.
HINDE PALMER'S ACT ( 32 & 33 Vict. c . 46) , 206, 238, 525, 831 .
HOPING.
may raise a trust, 131.
HOTCHPOT.
clause, supplied in carrying out executory trust in marriage articles, 117.
money to be laid out in land held not liable to be brought into, 941.
HOUSEHOLD GOODS .
trust of, right of c. q. t. to use goods, 683, 684.
HOUSEKEEPING.
expenses of testator, when executors justified in continuing, 288.
wife not bound to contribute to, from separate estate, 778.
HOUSE PROPERTY.
loan by trustees on mortgage of, 325.
purchase of, by trustees, when justifiable, 502.
HUSBAND . See MARRIED WOMAN.
administration to wife, small sums paid to husband without taking out, 354.
breach of trust of wife, formerly liable for, 33 ; secus since Married Wo
men's Property Act, 1882 , ib.; unless he interferes, ib.
cestui que trust, of, sometimes appointed trustee, 41 .
cestui que use, of, could not sue subpoena, 3.
concurrence of, to execution of trust by wife, when necessary, 34, 36.
power of Court to dispense with, 35.
debts of wife, liability of husband for, 790 , 793 .
disentailing assurance of wife's land , concurrence of husband in , 780 .
executrix, husband of, might administer assets during coverture, 34.
secus now under Married Women's Property Act, 1882 , 36.
gift by, to wife, 68, 755 ; whether valid as declaration of trust, 68 ; semble
not, 69.
now valid as gift, both at law and in equity, 69 ; exception as against
creditors , 69.
gift to, by wife, of separate property when presumed , 777, 778.
gift to , when regarded as portion to wife, 405.
1474
 INDEX .

[The references are to the star paging.]

HUSBAND- continued.
insurance by, for benefit of wife and children, 789, 792.
title deeds of wife's lands, trustee in bankruptcy of husband whether en
titled to. 680 .
tort, husband and wife cannot sue each other for, 761.
trustee of wife's separate property, formerly construed to be, 754, 834.
gift to husband and another upon trust (inter alia) for wife not gift
for her separate use, 757.
trustee parting with possession to husband, liability of, 902 , 903.
wife's property, how far he may dispose of, 739 et seq. See MARRIED
WOMAN.
chattels real, equitable, 23, 746, 747.
choses in action, 23, 24, 789 et seq.
wife's separate property, what arrears of, can be claimed from husband,
776, 777.
pin money, 777.
undisposed of, husband surviving is entitled to , 774, 775.
HUSBANDRY LEASE. See LEASE.
IDIOT. See LUNATIC.
IGNORANCE . See MISTAKE .
acquiescence defeated by, 918 ; and so confirmation, 497 , 926.
breach of trust when excused by, 889, 904.
laches excused by, 496, 870 , 926.
law, ignorance of the, 497 , 926.
order and disposition clause does not apply where true owner ignorant
that he is such, 244.
plea of, by corporation trustees of a charity, where false, entails costs, 994.
presumption of waiver, how far rebutted by, 870.
release defeated by, 185, 186 , 870 .
statutory bar not prevented by, from running in equity, 866.
trustee, of, as to his true character, 244, 889, 904.
trustee pleading falsely, ordered to pay costs, 994.
ILLEGAL TRUST. See UNLAWFUL TRUST.
ILLEGITIMATE CHILD.
advancement for, presumed on purchase by father in his name, 177.
future, trust for, invalid, 95.
except where child can take as persona designata, 95.
trust by will for, quære as to, 95 note (d) .
putative father of, may place himself in loco parentis, 402.
IMAGINARY VALUE.
trustee not charged with, 908.
IMBECILITY . See LUNATIC.
IMMORAL TRUST, 105. See UNLAWFUl Trust.
IMPEACHABLE SETTLEMENT.
trustee may assume validity of, 346.
IMPERATIVE POWER, 600 , 834 et seq . See POWER.
direction for conversion when held imperative, 947 , 948 , 951 .
" shall and may, " force of, in Act of Parliament, 262 note (b).
IMPERFECT TRUST, 67 et seq. See VOLUNTARY SETTLEMENT.
IMPERTINENCE.
charge of misconduct on part of trustee, is not, where, 847.
IMPLICATION .
acceptance of trust, of, 201 , 203 , 205, 251 . See ACCEPTANCE OF TRUST.
costs and expenses of deed, of direction to pay, 641.
devise by, 215 , 217, 218.
power by, 434, 454. See EXECUTORY TRUST.
1475
 INDEX .

[The references are to the star paging.]

IMPLICATION - — continued.
reconversion by, where land directed to be taken as personalty, 433, 434.
trust by, 130 et seq. See IMPLIED TRUST.
trustee by, who is, where no trustee named, 834.
words " subject thereto " implied, 155.
IMPLIED TRUST. See CHAP. VIII., Sect. 2 , 130-142.
agreement to settle property, by reason of, 140.
charge of debt or legacy, heir or devisee taking under, is impliedly a
trustee, 140. See CHARGE .
condition, by use of words importing, 140.
constructive trust, distinguished from, 108 note ( 1) .
contract for sale, how it arises under, 141 , 142. See PURCHASE.
conversion, for, is question of intention , 948 .
gift of personalty with limitations appropriate to realty, 948.
costs and expenses, direction that devisee should be allowed, held to imply
trust, 149.
covenant or agreement to settle property, when raised by, 141 .
Frauds, Statute of, not applicable to, 167 , 193 et seq.
heir, attaches to conscience of, where no trustee named, 834.
maintenance of children, when trust implied under gift for, 137 , 138. See
MAINTENANCE.
operation of law, trust by, distinguished from implied trust, 408 note ( 1 ) .
partial trust, in case of implication of, the surplus does not result, 137.
precatory words, by use of, 130 et seq.
implication of trust in such case now rather discouraged, 137.
not a question of mere grammatical import, 135, 136.
uncertain words, no trust created by, 82, 132 .
reconversion, for, 433 , 434.
resulting trust, where trust implied but objects unascertainable, 133. See
RESULTING TRUST.
none where trust is partial only, 137.
trustee under, not bound so strictly as by common trust, 136.
may be tenant for life only, 136 ; or mere trustee taking no beneficial
interest, 137.
uncertainty, where there is, no trust is implied, 132 .
unless uncertainty arises from want of evidence as to whole in
tention of settlor, 132, 133.
objects of trust, of, 133.
subject matter of trust, of, 134 .
IMPOUNDING.
beneficial interest of c. q. t. to answer breach of trust, 911 .
IMPRISONMENT.
for debt abolished, 916.
exception in case of trustee ordered to pay money in his possession, 917.
IMPROVEMENT OF LAND ACT, 1864 (27 & 28 Vict. c. 110) , 577. See
STATUTES.
investment under provisions of, 329 , 330.
IMPROVEMENTS.
advice as to, Court will not give, under Lord St. Leonards' Act, 620.
Agricultural Holdings Act, under, 563, 564, 595, 596.
allowance for, where contract is set aside , 491 .
charity lands, to tenant of, 544, 546.
ornamental improvements, not made for, 575, 576 .
purchase by trustee, in case of, 493 ; no allowance in case of fraud, 492.
wrongful sale by trustee, 902 .
charity lands, of, 538, 544 , 546 .
Improvement of Land Act, under, 577.
infant, to lands of, 575, 579, 968 .
1476
 INDEX.

[The references are to the star paging.]

IMPROVEMENTS- continued.
joint tenant, lien of, for improvements, 165.
lasting, lien of trustee for, 184, 576 , 577 , 640 ; even where trust deed void,
640.
when sanctioned by Court, 575.
lunatic's estate, of, when allowed out of personalty, 965, 966. See
LUNATIC.
ornamental, by trustee, expense of, not allowed, 575 , 576 .
purchase of land, out of money held on trust for, 575, 576 .
Settled Land Acts, under powers of, 505, 560, 561 , 563, 575.
tenant for life, by , 574, 575 et seq.
right of, to have moneys for improvements raised out of corpus, 577 .
trustees when justified in applying money for, 504, 575 et seq.
INABILITY.
trustee, of, to act, 659.
INACTIVITY.
trustee, of, whether ground for appointing receiver, 984.
INCAPACITY.
trustee, of, when a ground for appointing new trustees , 658, 847.
or for appointing receiver, 982, 983.
INCOME.
accumulation of, 89 et seq. See ACCUMULATION ; THELLUSSON ACT.
during minority of infant, 579, 582 , 584, 585.
application of, accruing before conversion, as between tenant for life and
remainderman, 301 et seq. See CONVERSION.
debts recovered, what proportion of, is, 914 , 915.
payment of, to two or more trustees, 259.
what is to be regarded as corpus and what as income, 305, 682 , 683, 914,
915, 1003 , 1004. See APPORTIONMENT.
INCOME TAX.
trust for payment of, lawful, 105.
trustee omitting to deduct, cannot afterwards do so, 349.
INCONVENIENCE .
relief when refused after lapse of time on ground of, 870 et seq.
charitable trustees, in action against, for account, 934 et seq.
INCREASE . See AUGMENTATION.
INCUMBRANCE . See CHARGE ; MORTGAGE.
equitable, purchaser having notice of, is bound, 858.
merger of, 726 et seq. See MERGER .
purchaser should keep charges on foot, 727.
priority of, by giving notice, 702, 704.
purchase of, by heir, devisee, joint tenant, or tenant for life, effect of,
279, 280.
by mortgagor, 728.
trustee cannot buy up, for himself, 276 et seq.
INDEBTEDNESS.
settlor, of, only a circumstance of fraud, 78.
INDEMNITY.
Bank of England, to , on complying with orders under Trustee Acts, 1043.
bond of, on appointment of new trustees, 359.
on distribution of trust fund, 349.
against breach of trust, 319, 668.
business of testator, executor carrying on , is entitled to indemnity, 238.
cestui que trust bringing action in name of trustee must give, 853.
gaining by breach of trust must indemnify trustee pro tanto, 910 .
Charity Commissioners, persons acting under advice of, are indemnified ,
933.
1477
 INDEX.

[The references are to the star paging.]

INDEMNITY— continued.
charity funds, trustees paying, to official trustee are indemnified, 361 .
clause of, in trust deeds or wills , effect of, 274 ; special , 274, 275.
Court, trustee acting under sanction of, obtains, without release, 359.
executor when entitled to, 185, 238, 445 .
instalments, future, trustee under Trustee Relief Act not indemnified
as to, 996.
leaseholds, in respect of, when trustees and executors can require, 185,
238, 445, 446.
indemnity fund usually set apart, 445.
promise of, not within Statute of Frauds, 349 note (g) .
remainderman, to be given by in respect of back rents, 687.
trust for, not void for perpetuity, 98 .
trustee when entitled to , 349, 358, 910.
incurring legal liability at request of c. q. t., 642, 643.
where no actual loss incurred, 643.
cannot require fund to be kept in Court under Trustee Relief
Act, 999.
out of fund appointed by feme covert, 919 et seq.
trustee may be required to give, if suspected of intention to act unfairly, 854.
INDIA. See EAST INDIES .
assets in, conversion of, 335.
executor in, may charge commission , 628, 629.
railway stock, investment in, when proper, 308.
stock, 308.
INDICTMENT .
withdrawal of, against fraudulent trustee, 898.
INFANT.
account when directed in favour of, 886, 888, 889, 890.
accumulation of income of, during minority, 579, 582 , 584, 585.
acquiesce, cannot , in breach of trust , 496, 918, 923 ; e.g. purchase by
trustee, 496.
advancement to, what is, 171 , 588 note (b) . See ADVANCEMENT.
when trustee may make, 588, 589. See ADVANCEMENT.
assurance by, may be avoided , 38 .
attorney, cannot be, in suit, but might be to deliver seisin , 37 .
bailiff, cannot be, 37 .
breach of trust, cannot commit, 39 ; or concur in, 496, 918, 923 ; or re
lease, 925.
unless guilty of fraud, 39.
protected after attaining majority until he has full information, 925.
capacity, has no legal, 37.
chattels, delivery of, by infant voidable only, 38.
confirm, cannot, breach of trust , 923 , 925 ; or purchase by trustee, 497.
consent by, to change of investment, 37.
constructive trustee, when deemed to be , within Trustee Acts, 1012.
conversion of property of, 967 et seq.
in general not permitted, 967.
position of infant as to , distinguished from that of lunatic, 967.
mortgage, &c., paid off out of his money, considered personalty, 968.
necessary outlay for realty when thrown on personalty, 968.
e.g. keeping up house, option to purchase at given price, repairs,
968, 969.
purchase money of devised estate, paid out of personalty, 968.
sale, by order of Court, effect of, 151 , 152.
seisin changed from ex parte maternâ to ex parte paternâ on renewal of
lease, 968.
timber cut, proceeds of, how applicable, 967 , 969.
whether realty or personalty, 967, 969 note (d).
1478
 INDEX.

[The references are to the star paging.]

INFANT - continued.
covenant by, effect of, 39 ; infant feme covert, by, to settle property, ib.
day to show cause, whether to be given to, 1026.
debts contracted by, for necessaries, 521 .
deed by, effect of, 25, 38 ; quære, whether void or voidable, ib.
delivery of goods by, voidable only, 38.
disability of, effect of, 37 .
how remedied under Trustee Acts, 1015, 1016 , 1027 , 1041 , 1042. See
TRUSTEE ACTS .
discretion, has not any legal, 37.
election, is not competent to make, 954.
estate tail of, barred by vesting order, 1016 .
executor, might formerly have acted as , 37 ; cannot appoint, 26.
exoneration of estate of, 968. See supra, conversion.
feoffment by, not void, but voidable, 25 , 38.
by custom of Kent infant may make for value and semble without,
25, 26.
fine levied by, formerly reversible only during minority, 25.
fraud, not protected from consequences of, 39, 355, 919.
gift to, presumption that he takes beneficially, 39.
guardian ad litem to, appointment of, 1000 .
guardian of, powers of, 355, 614. See GUARDIAN.
guardian to a minor, cannot be, 37.
improvements on lands of, 575, 968.
investments allowed to be retained where for benefit of infants, 290.
joint tenancy, whether infants can sever, 117.
jurisdiction, out of, vesting order as to interest of, 1021 .
land of, person entering on, is bailiff for infant, 886.
legacy to , appropriation of, 592 .
maintenance out of, 582 et seq.
payment of, how to be made, 355, 360.
Limitations, Statutes of, when barred by, 868 , 891 .
lord of manor, may give effect to custom, 37 .
maintenance of, 581 et seq. See MAINTENANCE .
discretion of trustee as to , 614.
majority, protected by Court after attaining , 925, 993.
management of land of, during minority, statutory powers as to , 578, 579,
580.
married woman, cannot consent to transfer of her property to husband,
742.
covenant by, to settle property, 39, 766.
may appoint attorney, 39.
receipt by, for accumulations of income, 579.
Settled Land Acts, exercise of powers under, 569.
ministerial acts, may perform, 37 ; e.g. as lord of manor he may give effect
to custom, 37.
mortgagee, vesting order of interest of, under Trustee Acts, 1014 et seq.
See TRUSTEE ACTS .
costs of, 1037.
parental influence, protected against, after majority, 993.
payment to, by trustee, how to be made, 355.
into Court of money belonging to , 360, 1036 .
portion, appointment of, to infant of tender years viewed with suspicion ,
400.
power of attorney by, void, 38.
power simply collateral, may exercise, 37, 599.
and in gross, as to personal estate, 37 , 599 , 600 .
but, semble, not as to real estate , 37.
unless intention to the contrary apparent, 38.
presumption that he takes beneficially, 39.
1479
 INDEX.

[The references are to the star paging.]

INFANT - continued.
purchase in name of, by parent, held to be for advancement, 171.
purchase of trust property by trustee for, 490.
ratification by, after majority, of voidable covenant, 39, 766.
receiver, cannot be, 37.
recovery of, formerly reversible only during nonage, 25.
release, not competent to give, 925.
relinquishment of office by trustee, he cannot consent to, 645.
rents and profits, account of, where decreed in favour of, 886, 888, 890.
account barred unless brought within six years after majority, 886.
carried back to accruer of title, 888.
but where defendant ignorant of true character as trustee,
only to action brought, 889.
legal title, infant may sue in equity for account on , 886 , 890.
repairs of real estate of, expenses of, how defrayed , 968 , 969.
retainer of investment where beneficial to infant, 290.
sale of estate of, by the Court, to whom surplus money belongs , 151 .
under Lands Clauses Act, 151.
under Partition Act, 151, 152.
seisin, may be attorney to deliver, 37.
seneschal, may appoint, 37.
Settled Land Acts, exercise of powers under, 554, 569.
steward of manor, cannot be, 37.
but acts by him in this capacity cannot be avoided, 37.
stock of, power of Court to make vesting order as to, 1041 , 1042.
tenant for life, powers of, under Settled Land Acts, 554, 569, 575.
timber cut on estate of, proceeds whether realty or personalty, 969.
trust, how far he can create, 25.
created by him would not be enforced to his prejudice , 25.
requiring exercise of discretion, he cannot execute, 38.
trustee, infant ought not to be appointed , 37.
costs of, under Trustee Act, 1037.
substitution of new trustee for, 1027.
vesting order as to interest of, 1015 , 1016 , 1041 , 1042.
trustee for, how he may purchase trust property, 489, 490.
unsound mind, of, power of Court to deal with interest of, 1015, 1020.
use upon a feoffment or recovery, an infant might declare, 25.
ward of Court, is constituted, by order for maintenance under Trustee
Relief Act, 1002 .
will of, 26 , 940 note (g) , 967, 969 ; formerly he might make will of per
sonalty if 14 years of age, 26 , 967 .
but not of money to be laid out on land, 940.
INFLUENCE.
undue, voluntary settlement will be set aside for, 75.
INFORMATION.
Attorney- General, in name of, when proper remedy, 31 , 927.
advowson vested in trustees for parishioners, not proper in case of, 86.
charities, for breaches of trust as to, 927 .
corporation, against, for removal of governors, not sustainable, 528,529.
but in case of maladministration Court interposes, 529.
cestui que trust may require, as to state of trust, 448 , 691 , 704.
INHABITANTS .
election of clerk by, 86.
trustees required to be, of particular locality, 848 .
INJUNCTION .
breach of trust, to restrain, 855 et seq.
cestui que trust entitled to, whether damage reparable or not, 855.
where co-trustee should apply for, 274.
equitable tenants in common, between, 679.
1480
 INDEX .

[ The references are to the star paging.]

INJUNCTION — continued.
husband, to restrain, from entering house of wife, 778.
improper sale to restrain whether c. q. t. may have, 435, 855.
whether mortgagee, 435 note ( d ) , 855 note (c) , 856.
lands abroad, to restrain taking possession of, 49 .
married woman, against, to restrain dealing with separate property, 772.
partial owner, on application of, 855.
payment into Court notwithstanding injunction, 982.
solicitor, against, who has bought up mortgages, 856.
timber, account of, not granted unless injunction prayed for, 886.
trustee insolvent, bankrupt, or dissolute against, 855, 856.
INNOCENT TRUSTEE .
costs of, guilty trustee ordered to pay, 990 .
INQUIRY.
assignee of equitable interest should make, of trustee, 704.
cestui que trust, by, trustee must answer, 448, 691 , 704.
Charity Commissioners, by, 931 .
incumbrancer, by, as to existence of previous charges , 705.
loss of trust fund, as to, and as to steps to be taken for recovery, 672.
purchaser, by, as to incumbrances, &c., 459 note (a) .
trustee, by, when called upon to convey legal estate, 685, 686.
trustee, to be made by, before accepting office, 207 , 670, 706.
Trustee Relief Act, under, when directed, 999 et seq.
INQUISITION.
when necessary to perfect title of Crown, 95, 819.
INROLMENT.
conveyance, of, under Statute of Mortmain, 96, 97.
disentailing assurance of equitable estate in copyholds, 694.
INSOLVENCY. See BANKRUPTCY.
cestui que trust tenant for life, goods left in possession of, not forfeited,
683.
equity to settlement of feme covert as against assignees, 742 .
limitation over on, effect of, 103, 104 .
maintenance, trust for, at discretion of trustees, how far assignees take
under, 99, 100.
proof under, 412 et seq. See BANKRUPTCY, proof in.
trustee, of, not an absolute disqualification , 40, 658, 847.
but is ground for appointing a receiver, 982.
his discharge barred trust debts, 915 , 916 .
injunction against insolvent trustee, 855.
INSPECTION.
accounts, of, right of c. q. t. to, 690.
documents, of right of c. q. t. to, 680.
vouchers, of, right of c. q. t. to, 449.
INSPECTORSHIP.
deed of, does not create forfeiture under clause divesting property on
bankruptcy, 102.
inspector under creditors' deed cannot profit by office, 279.
INSTRUMENTAL TRUST.
meaning of term explained, 18.
INSURANCE .
company, shares in, given in succession should be converted , 300 .
payment by, of monies into Court under Trustee Relief Act, 997.
executor not liable for neglecting to insure property, 295.
liable for allowing policy to drop, 598.
fines for renewal, payment of, secured by policy, 369, 370.
on admission of copyholds, to provide fund for, 237.
1481
 INDEX .

[The references are to the star paging.]

INSURANCE - continued.
investment in purchase of annuity with life policy, 319.
lien of trustee for monies advanced for premiums, 903.
life of another, on, 105 ; upon trust for person not interested in the life,
invalid, 105.
maintenance or advancement by means of policy of, 587 , 588.
mortgagee not allowed for, in absence of stipulation, 580 ; but see note
(a) .
Married Women's Property Acts, under, for benefit of wife and children,
789, 792.
policy of, chose in action, is, within Bankruptcy Act, 243.
letter offering to settle, held to constitute voluntary settlement of, 71 .
mortgage of, implies power to give receipts, 453.
notice of assignment of, neglect to give, 903.
what sufficient, 709.
settlement of, in fraud of creditors, void, 80 .
premiums when to be paid out of income, 580.
receipts of trustee for insurance monies, company when discharged by,
293.
Statute 14 Geo . 3, c . 48 , effect of, 105.
trust, upon, invalid where c. q. t. not interested in the life, 105.
trustee when justified in insuring trust property, 580 .
INTENTION.
settlor, of, carried into effect in construction , & c. of trusts, 84.
Statute of Uses, operation of, notwithstanding contrary intention of
settlor, 209.
INTEREST. Chap. XIV. , sect. 5, 338-344.
accumulations of, under Thellusson Act, 90 et seq.
advances by trustee, on, 637.
allowance of, to trustee, 577 , 637 note (d) .
arrears of, what recoverable under Statutes of Limitations, 875, 882 et seq.
balances, on, may be asked for on further directions, 905.
bankruptcy, trustee in, when charged against , 338.
compound, charged where accumulation directed, 343.
contribution to fine for renewal of lease, computed on, 373, 374.
defaulting trustee where charged with, 341 , 342 .
trustee who is banker not allowed to charge, 281.
costs, interest on , not allowed to trustee, 637.
debts, on, what allowed under trusts for creditors, 525 et seq.
de die in diem, accrues, 787.
executor, against, for monies improperly retained, 338, 339, 340.
from what period charged, 343.
not during first year after testator's decease, 343 .
not charged on money that never came to hand, 344.
or lying idle through mistake, 344.
executor decreed to pay, whether he pays costs also, 994.
fines for renewals, what interest charged on contribution for , 372 , 373, 374.
income, not charged on arrears of, 338.
Jamaica, in, allowed at 6 per cent. , 341 note (a).
legacy, on, allowed to child by way of maintenance from death, 410.
in other cases from end of first year, 410.
mesne rents and profits, account of, not decreed with interest, 890.
nor where purchase by trustee set aside, 491 .
mistake, trustee making, when excused from paying interest, 349.
motion for payment into Court, when ordered on, 980 .
portions, what interest raisable in respect of, 409 et seq.
not allowed where portions charged on rents, 410.
allowed though portions not vested, 410.
rate of interest, 409 et seq.
1482
 INDEX.

[The references are to the star paging.]

INTEREST — continued .
proof for, by c. q. t. on bankruptcy of defaulting trustee, 912.
rate of, £4 per cent. charged against trustee retaining trust money, 340.
£5 per cent. where direct breach of trust, 341.
or money employed in trade, 340 , 342. See infra, " trade."
when allowed by way of maintenance is in discretion of Court, 410
et seq.
receiver when charged with, 339.
rents, not charged on, 491 .
repairs, on money borrowed for, 577.
simple contract debt, on, 525.
solicitor, allowed to, on money employed in buying up incumbrances, 276
note (ƒ) .
specialty debts , on, 527.
trade, on money employed in, by trustee, 340, 342 .
c. q. t. has option of £5 per cent . or actual profits, 340.
whether with rests , 342.
money lodged at banker's in trustee's name considered as so em
ployed, 340.
waste, in cases of, wrongdoer when and from what period charged with,
188, and note (ƒ) , 578.
INTERESTED PERSON.
not a proper trustee, 40, 665, 666.
INTESTACY.
cestui qui trust, of, as to personal estate without next of kin, executor
when entitled, 285.
as to real estate without heirs, whether trustee entitled , 282.
not so entitled now under Intestates ' Estates Act, 282 , 283.
limitation of action for recovery of personal estate of intestate, 885.
mortgagor in fee, of, without heirs, mortgagee entitled, subject to mort
gagor's debts, 283, secus now, ib.
purchaser in fee, of, without heirs, after purchase money paid, but before
conveyance, vendor keeps money and estate, 283.
trustee, of, as to trust estate, effect of, 229.
widow of intestate, where no next of kin, only entitled to moiety, 285.
INTESTATES' ESTATES ACT, 1884 (47 & 48 Vict. c. 71 ) .
Court empowered to alter sale of lands of Crown, 44, 1040 .
escheat, extension of law of, to equitable estates, 282, 823.
INTIMIDATION.
release or confirmation obtained by, 498, 926.
INTRUDER.
not bound by a use, 3.
INVENTORY.
when trustee should make, of chattels, 207.
trustee neglecting to take, may be deprived of costs, 207.
INVESTMENT.
accommodation loan, trustees should not invest by way of, 317 , 324.
Act of Parliament, under, directing special mode of investment, 311.
advice of Court as to, may be obtained by trustee, 619 et seq.
advowson, in purchase of, 503.
annuity, in purchase of, with policy on life, 319.
application for, service of, 311.
apportionment of dividends on change of investment, 323.
"approved securities," in, 326 .
bank or government annuities, in, when proper, 314, 418 , 562 .
conversion of securities into, when directed by Court, 298, 300.
trustee should not sell out, to invest in irregular funds, 334.
1483
 INDEX.

[The references are to the star paging.]

INVESTMENT — continued.
bank, private, trustees may deposit to trust account at, for temporary
purposes, 295.
but not otherwise, 296.
bank stock, in, 307 et seq. See BANK STOCK.
calling in, duty of trustee as to, 287.
direction to call in securities " not approved of by executors," 291.
"to convert with all convenient speed," 289
hazardous investment, 290.
liability of trustee improperly calling in trust investment, 336.
cash under control of Court, of, in what securities permitted , 308.
charity money, of, 540, 541 , 542.
Colonial securities, in, 322 .
Colonial Stock Act, 1871 , under, 322.
Compulsory Church Rates Abolition Act, 1868, under, 316.
consent, with, of tenant for life , 311 , 318, 614 ; or other person, 318 , 329 ;
what consent sufficient, 318, 319, 329.
consols, in, 314, 334, 418.
continue investments, power to , effect of, 320, 326 , 334 .
control, trustee must not put money out of his own, 296.
or under control of co-trustee or co-executor, 296, 297, 337.
conversion of, trustee or executor when bound to make, 287 et seq. See
CONVERSION.
copyholds, in purchase of, 503.
copyholds, on mortgage of, 328.
corporation stocks, in, 320.
co-trustee, trustee should not lend to, 316, 325.
trustee making investment should not rely on statement of, 265.
debentures or debenture stock of railway company, in, 312, 319 , 320, 562.
decree in administration action suspends trustee's power, of, 617.
discretion of trustee as to, Court will not in general control , 614.
how to be exercised , 317 , 318 , 322 , 326 .
dividends, apportionment of, on change of investment, 323.
drainage of settled lands, in, 504.
East India stocks, in, 307 et seq., 316, 322 .
equitable mortgage, trustee should not lend on, 331.
equity of redemption, in purchase of, 503, 504.
exchequer bills, in , 308, 320, 321.
foreign bonds, in, 321 .
foreign railway company, in bonds of, 322.
fund in Court, of, 308.
" funds," meaning of term , 322.
General Orders, Court empowered by recent Act to issue, as to investment
of cash under its control, 308.
government securities, in, 307 , 314, 321 , 322, 502 , 562.
"government or good securities," meaning of term, 334.
government or parliamentary stocks or funds, what are, 322.
Greek bonds, in, 322.
ground rents, in, 325, 502, 505.
house property, in, 325, 502.
improper investment, liability incurred by, or by non-investment,
334 et seq.
capital, as to, where money improperly retained, 335.
where no direction to invest, 298 , 313 .
where express direction to invest in funds and neglect so to
do, 335.
where direction to invest in funds or real security, 335, 336.
when stock improperly sold out, 336 .
insufficient security , realization of, not directed in absence of c. q. t.,
908.
1484
 INDEX.

[The references are to the star paging.]

INVESTMENT — continued.
improper investment, interest, trustee when chargeable with, Chap.
XIV., sect. 5, 338-344. See INTEREST .
trustees of friendly society, by, 333.
India stock, in, 308.
inquiry, trustee should make, as to value of security, 324, 499.
as to value of reversion , 328.
as to title of borrower, 324, 500.
Ireland, on real security in , 313, 328, 329.
joint mortgage, on, 326.
judgment not a " real security," 327.
Land Improvement Act, on charges under, 329.
existing charge under, does not preclude trustee from lending, 330.
leaseholds for lives, on, 327 ; for years, 327 , 328.
loan to co-trustee, trustee should not make, 316, 325.
Local Loans Act, 1875, under, 320.
long annuities, in , 334, 502.
Lord St. Leonards's Act, under, 307.
market price of day, trustees justified in dealing at, 323.
Metropolitan Board of Works stock, in, 316.
Mexican bonds, duty of trustees to convert, 288 .
mines, in purchase of, 503 .
mix, trustee must not, trust property with his own, 297 , 298 ; or with
stranger's , 331, 642 .
mortgage, on, 312 et seq. See infra, real security.
duty of trustee making, 499.
navy £5 per cents., in, 334.
new buildings, in erection of, 504.
new £3 per cent. annuities, in, 314, 315.
outstanding, duty of trustee to call in , 287.
part with trust money, trustee should not, except on delivery of security,
331 .
personal security, Court will not invest on, even where express power, 317.
exécutor should call in investments on, 290.
trustee should not invest on , 306 , 316 , 327.
unless where express authority, 316 ; what equivalent to such
authority, 316.
trustee " required " to invest on, 317.
trustees of friendly society investing on , security valid but a breach
of trust, 333.
power of, must be strictly followed , 326.
however large, trustee must exercise discretion , 322.
where no express power, trustee should invest in £3 per cents. , 314.
especially where successive estates, 298.
power to vary securities implied in, 460.
private company, in stock of, 307.
public securities, in, 314, 316.
purchase of land in, under trust, 499 et seq. See PURCHASE .
railway bonds , duty of trustee to convert, 289.
railway bonds, mortgages or debentures, in, when authorised, 312, 326 .
real security, in,
under power authorising such investment , 323 et seq.
buildings used in trade, 325.
Court would not formerly order investment, 313.
equity of redemption, trustees should not lend on security of,
330, 331.
existing mortgages, trustee may retain, if sufficient, 291 .
form of mortgage by trustees, 331 ; of transfer, 332, 333.
freehold lands, not more than two-thirds of actual value should
be advanced, 325.
1485
 INDEX .

[ The references are to the star paging.]

INVESTMENT - continued.
real security , in,
under ground rents , in, 325, 502 , 505.
house property, in, 325 , 502.
Ireland, mortgage of land in, when proper, 313.
joint mortgage, 326.
leaseholds for lives, trustees should not invest in, 327.
renewable for ever, they may, 327.
leaseholds for years, quære, whether proper investment, 327, 328.
mortgage to three jointly, 326 .
personal security, with judgment entered up, not a proper in
vestment , 327.
precautions to be taken in lending on, 324, 325.
railway debentures or mortgages, 312.
reversion, 328.
road bonds and mortgages of tolls, 326.
Scotland, lands in, 313, 329.
second mortgage , trustees should not lend on, 330.
stock, trustees may sell out, and invest on mortgage, 323.
even though the stock has fallen in price, 323 .
should not do so for mere accommodation as to secure
equal amount of stock and interim dividends, 324.
secus, where security for equal amount and interim interest,
324 .
under trust for purchase of lands, 499 et seq. See PURCHASE.
value and title, duty of trustee to inquire as to, 324, 325, 499.
what proportion of value trustee should advance, 325, 328.
where not expressly authorised , 313 .
quære, whether trustee might formerly invest upon, 312 , 313.
not where expressed direction to invest in funds, 313.
may now invest in real securities in United Kingdom unless
expressly forbidden, 313.
receipts, power to give, whether implied by power to invest, 460.
reduced annuities, in, 314, 315.
repairs and improvements of settled lands, in, 504.
retention of, by trustees under direction to retain, 320, 326, 334.
improper, liability of trustee for, 335, 336.
reversion, on mortgage or purchase of, 328.
road bonds, on, 326.
Scotch securities, in, 313, 329 .
second mortgage, on, 330.
Settled Land Act , 1882, under provisions of, 311 , 312, 562.
shares in canal, insurance or railway companies , in , 319.
where shares can stand in one name only, 320, 326.
solicitor, trustee should not place money with, for investment, 353
note (b) . See SOLICITOR.
should not, when lending, employ borrower's, 337.
South sea stock or annuities, in, 306, 307 .
statutory powers of investment by trustees, 307 et seq.
whether applicable where consent of tenant for life required, 311 .
or to moneys paid into Court under special Acts of Parlia
ment, 311.
stock mortgage, whether trustees may invest on, 323, 324.
surveyor, employment of, by trustees lending money on mortgage, 324.
temporary, in Exchequer bills , 321 .
tenant for life, apportionment in respect of dividends in favour of, on
change of investment, 323.
power exercisible with consent of, 311 , 318, 614.
trustee must not favour, at expense of remainderman, 317, 318, 333.
varying securities in favour of, 318.
1486
 INDEX .

[The references are to the star paging.]

INVESTMENT — continued.
terminable securities, in, 298 et seq., 320.
timbered estate, in purchase of, 502.
title, trustee should enquire into, 324 , 325, 500.
tolls, on mortgages of, 326.
trade or speculation, trustee must not invest in, 319.
Trustee Relief Act, of monies paid into Court under, 999, 1005.
unauthorised, duty of trustee to convert, 300, 302.
undivided share, on mortgage of, 328.
value, trustee should enquire as to, of mortgage property, 324, 499.
what proportion trustee should advance, 325 , 328 .
varying securities, power of, implied in power of investment, 460 .
when Court will insert, in settlement under executory trust, 127.
trustees who have power of, may sell out stock and invest on mort
gage, 323, 324.
wasting securities, duty of trustee as to conversion of, 298 et seq.
IRELAND.
investment by trustees in real security in, authorised , 313.
rate of interest in, 409.
vesting order as to lands in, 1039 note (e) .
ISLE OF MAN.
investment on real security in, 313, 328, 329.
ISSUE.
construction of word, in marriage articles, 113, 115.
daughter included in, 114, 115 , 120 .
"heirs of the body," distinguished from, 120.
portion, where gift to issue is regarded as, to the parent, 405.
purchase, a word of, and not of limitation, 120 .
Trustee Relief Act, directed on petition under, 1002 .
JAMAICA.
commission for management of estates in , 628.
JOINT.
account, payment to , 296.
account clause, in mortgage to trustees, 332.
contract, effect of disclaimer as to, 200.
liability of co-trustees for breach of trust is joint and several, 908 et seq.
office, co-trustees exercise, jointly, 257.
JOINT TENANTS.
copyholds, of, fine payable on admission of, 236.
devise to, if it be void for fraud as to one is void as to all, 63.
two joint tenants, where one is an alien, 40 .
to two and survivor and heirs of survivor, effect of, 214.
executory trust, words of joint ownership when construed tenancy in com
mon, 117.
marriage articles, in, 117.
wills, in, not so construed, 126.
except where testator a parent or person in loco parentis, 126.
forfeiture by one joint tenant of chattels, 223 .
grant to two and survivor and heirs of survivor, joint tenancy whether
implied, 214 .
improvement of property by one, lien for, 165.
incumbrance, effect of joint tenant purchasing, 280.
infants, whether they can sever joint tenancy, 117.
marriage articles, in, construed tenancy in common, 117.
mortgage, advance by several on, joint tenancy not implied, 164.
partnership, jus accrescendi excluded in cases of, 164, 165.
purchase by several who contribute equally, joint tenancy implied, 164, 165.
secus, where contribution unequal, 164, 165.
renewal of lease by one joint tenant in his own name, effect of, 181.
1487
 INDEX.

[The references are to the star paging.]

JOINT TENANTS ―- continued.
rents, receipt of, by one co -trustee, 225.
severance of joint tenancy by trustees, 225.
vesting order in favour of, 1017 , 1031 .
wife of, not entitled to dower, 737 .
JOINTURE .
power to charge, not authorised in executory trusts under " usual powers,"
127.
separate use, may be limited to, and made inalienable during present
coverture, 758.
JUDGMENT, Chap. xxvII., sect. 7, 794-817.
annuitant, against, 805.
attachment of debt, 815 , 816.
bankruptcy of debtor , judgment or execution creditor how affected by,
814, 815 , 816.
charge on land under 1 & 2 Vict . c. 110 , 327, 803 et seq.
charging order on stocks and shares, 806 et seq.
chattel interest not affected by, until actual seizure whether legal or
equitable, 795, 796.
common law, at, effect of, 794.
covenant to settle future property, effect of, as against judgment creditor,
224.
decree of court of equity when operating as, 804.
delivery in execution, does not affect land until, 812.
what amounts to, in equity, 812, 813.
execution of, at law, 794, 795.
equitable chattel, as against, 224, 796, 815.
equitable interest, as against, by elegit, 796 et seq.
by fi. fa., 795, 815.
by levari facias, 794.
moiety of, only, could formerly be taken in execution, 799.
entirety of equity of redemption, 800, 801.
entirety now under 1 & 2 Vict. c. 110, sect. 11 , 803.
proviso against suing in equity until year after judgment, 806.
land must now be delivered in execution, 812 et seq.
receiver, by appointment of, 813, 814.
whether elegit, &c., must be actually sued out, 814 , 815 .
stocks and shares, against, 806.
when complete, 816.
exoneration from, what agreement or covenant amounts to, 718.
firm , against, several liability of partners not merged in, 909.
Frauds, Statute of, execution of trust estate by elegit under, 802.
whether equitable elegit may be had where no legal elegit under
statute, 802 , 803 .
Ireland, in, 808 note (ƒ) .
land to be converted into personalty whether bound by, 797 , 805, 806.
married woman, against, form and effect of, 770, 771 , 787.
in favour of, is chose in action, 747, 748.
money to be converted into land is bound by, 941.
mortgage, right of judgment creditor to redeem, 797, 800, 813, 815.
mortgagor, against, 800, 801 , 805, 813, 814.
binding on surplus proceeds of sale of mortgaged property, 799, 805.
notice of, how far material as against purchaser, 803, 810, 811 , 816 .
priority of, in administration of assets, 835, 830 note (ƒ) .
priority of judgments, 816 ; in register county, 816.
priority of equitable incumbrance over, 246 note (ƒ) .
purchaser for valuable consideration , judgment creditor is not, 246
note (ƒ).
purchaser, who is, within 23 & 24 Vict. c. 38, 811.
1488
 INDEX .

[The references are to the star paging.]

JUDGMENT — continued.
purchasers, as between, incidence of, 718.
receiver, equitable execution by appointment of, 813, 814.
register county, priority of judgments as to lands in, 816.
registration and re-registration of, 804, 809, 812, 816.
necessary for priority in administration of assets, 831 note.
sale of land, remedy by, when available to creditor, 812 , 814.
search for, to be made by purchaser of land, 500, 810, 811.
settled and unsettled estates, incidence of judgment, as between, 718.
statutes, recent, relating to -
1 & 2 Vict. c. 110, 803 et seq.
2 & 3 Vict. c. 11 , 809, 810.
3 & 4 Vict. c . 82 , 810.
18 & 19 Vict. c. 15, 810, 811.
22 & 23 Vict. c . 35 , 811.
23 & 24 Vict. c. 38, 811.
27 & 28 Vict. c. 112, 812 et seq.
surplus proceeds under trust for sale or power of sale in mortgage,
whether bound by, 799, 805.
tack, right of judgment creditor to, 800.
trustee, against, whether chattel may be taken in execution of, 224.
trustee, estate of, judgment binding on, 245 .
but c. q. t. will be protected in equity, 245.
Trustee Act, when judgment makes legal owner trustee within, 1025, 1026 .
vendor, against, after contract to sell, 797 et seq.
vesting order in aid of, 1025 , 1026 , 1040.
Westminster, under Statute of, effect of, 795.
JUDICIAL SEPARATION.
choses in action of married woman how affected by, 346, 740, 757.
JURISDICTION.
Crown, Court of Equity has no jurisdiction over conscience of, 30.
executor out of, vesting order as to interest of, 1023.
foreign property, as to , 48 et seq.
equity can enforce trust of personal property, if parties within the
jurisdiction, 48.
and of lands if parties within and no obstacle to execution of
decree, 48.
but not if such obstacle exist, 49.
lands abroad , jurisdiction to enforce equities, contracts or trusts of, 49, 50.
parties out of, may now be served abroad, but this does not enlarge right
to relief, 49.
payment by trustee to c. q. t., out of, 353, 354, 476.
receipt by trustees pending residence of c. q. t., abroad, 476.
receiver appointed when trustees all out of, 983.
service on parties out of, 49 , 1034 .
trustee residing out of, 40, 1030 ; new trustee appointed instead of, 646,
649.
though appearing by counsel may be treated as out of, 1016.
vesting order as to interest of, 1016 et seq. See TRUSTEE ACTS.
whether persons residing out of, may be appointed trustees , 659, 662,
1030.
what is necessary to found, 49 (g) .
JUROR.
cestui que trust of lands, when qualified to be, 681.
JUS ACCRESCENDI.
excluded in cases of partnership, 164, 165.
JUS DISPONENDI .
of c. q. t., 674, 684 et seq. See CONVEYANCE.
1489
 INDEX.

[The references are to the star paging.]

JUS HABENDI.
of c. q. t., 674 et seq. See POSSESSION.
JUST ALLOWANCES .
direction for, when given, 278, 890.
KENT, custom of, 25, 26. See GAVELKIND LANDS.
KING. See CROWN.
KNIGHT OF THE SHIRE. See MEMBER OF PARLIAMENT.
LACHES . See ACQUIESCENCE : LIMITATION OF ACTION.
account, right to, when barred by, 495, 496, 870 et seq., 889.
acquiescence, distinguished from, 874.
breach of trust, right to relief for, when barred by, 495, 496, 901 , 922 et seq.
cestui que trust, by, in setting aside sale to trustee, 495, 496.
charitable trust, in case of, 934.
constructive trust, when a bar to enforcement of, 186, 863, 864.
creditor, by, in not suing executor, 923.
creditors, by, in not suing to set aside voluntary settlement, 79.
creditors' deed, time limited in, for creditors to come in is not of the
essence, 522 .
disclaimer of trust, in making, effect of, 197.
equitable interest, by person entitled to , 725.
executor or administrator, of, in payment of debts, 343.
fraudulent conveyance, action to set aside, not prejudiced by, 873 note (e).
ignorance, mistake or poverty, when excused by, 496, 866, 870.
incumbrancer, by, where whole beneficial interest absorbed by prior incum
brancers, 923.
interest when charged against trustee guilty of, 338 et seq.
legal right to set aside transaction not affected by, 873 note (e) .
purchase by trustee, when a bar to action to set aside, 495, 496 , 872.
resulting trust on purchase in name of another barred by laches of pur
chaser, 170.
remainderman, when imputed to, 379, 866, 873, 923, 924.
tenant for life , by, as to renewal of lease, 379.
trust for payment of debts no excuse for, 520.
trustee, of, cestui que trust, not to be prejudiced by, 520, 734.
in enforcing covenant, 288, 902, 903.
in getting in trust property, 288.
in investing trust property, 266, 338, 734.
in keeping up policy, 903.
LANCASTER.
powers of Trustee Acts extended to county palatine of, 1021.
but not in lunacy, 1021 note (c) .
LAND. 1
" at home," when land is considered to be, 949, 950.
converted, directed to be, taken as money, 939 et seq. See CONVERSION.
devise of, will pass money to be laid out on land , 941 .
discharged from trust where money has been raised, 449 .
portion charged on, failing, sinks for benefit of inheritance, 398 et seq., 412.
tortiously sold by trustee, c. q. t. may require purchase of other lands of
equal value, 902.
or may take proceeds of sale with interest, 902 .
or present estimated value of lands sold, allowing for improvements,
902.
trust money tortiously invested in, by trustee, may be followed, 892 et seq.
LAND IMPROVEMENT ACT, 329, 330.
LAND TAX .
lunatic's estate, of, redeemable by sale of timber to be cut, 964.
1490
 INDEX.

[The references are to the star paging.]

LANDS CLAUSES ACT.
66 absolutely entitled, " trustees for sale are, within the Act, 447.
"grant " in conveyance under, implies covenants for title, 687.
improvements, application of purchase money in, 504.
investments of purchase money under powers of Settled Land Acts , 562 .
leaseholds which tenant for life entitled to enjoy in specie, application of
compensation for, 299 note (b).
payment out of Court under, to tenant in tail, 960, 961 .
to trustees appointed under Settled Land Acts, 565.
trustees' costs of petition for, 985, 986.
sale of infants ' property under, 152 .
surveyor under, trustees cannot appoint one of themselves to be, 258.
LAPSE, 159 et seq., 520. See LEGACY.
LAWFUL TRUST. Chap . VII., sect. 1 , 84-94. See UNLAWFUL TRUST.
LEASE.
advice of Court as to granting of, may be obtained by trustee, 619.
agricultural, duration of, 545.
building, duration of, 546.
cestui que trust, by, effect of, 678, 679.
charity lands, of, 542 et seq. See CHARITY.
company, to, under power of leasing, 595.
covenants in lease to testator, indemnity of executor against, 445.
for private advantage of trustee, improper, 542.
equitable tenant for life, by, 676 , 677.
executor, by, 425.
executor of lessee, liability of, 445, 446.
landlord allowing tenant to build when compelled to grant lease, 717.
lives, for, whether trustee may grant, 545 , 546.
non-entry on cesser of, by mistake, 887.
notice of, presumed from recital of surrender, 185.
option of purchase, trustee must not lease with, 425.
power to grant, 595.
control of Court over exercise of, 613.
effect of, in determining legal estate taken by trustee, 219.
improvements by tenant not to be taken into account in estimating
best rent, 595.
mines , of, 505, 553, 682. See MINES .
Settled Estates Act, under, when conferred on trustees, 622.
" usual power," is a, 127, 128.
including building or mining leases where beneficial, 127 , 128.
purchaser of, shall assume its validity, 439.
renewal of, by trustee, tenant for life or other limited owner in own name,
180 et seq., 363 et seq. See RENEWABLE LEASEHOLDS .
covenant for, trustee must not enter into , 425.
specific performance of contract for, vesting order to give effect to, 1026.
tenant for life, by, under Settled Land Acts, 555, 557 , 677 note ( a) , 682 , 683.
tenant right, lease obtained under cover of, is subject to equity of origi
nal term, 861.
trust to lease confers fee-simple on trustee, 217.
trustees, their power to grant, generally, 595.
must not grant to or for benefit of themselves, 486.
for sale cannot grant, 425 , 595.
LEASEHOLDS.
assignment of, by trustees, covenants to be entered into on, 444, 445.
to new trustees, how effected, 650, 651 .
conversion of, duty of trustee as to, 298 et seq.
when bequeathed in succession, trustee should convert, 298.
unless contrary intention can be collected, 299.
tenant for life to what income entitled, 304.
1491
 INDEX .

[The references are to the star paging.]

LEASEHOLDS - continued.
executor, right of, to indemnity against liabilities under, 445 , 446 ; and see
185, 238.
freehold title, lessee or assign not entitled to proof of, 438.
insurance of, against fire, executor not bound to effect, 295.
investment on security of, when proper, 327, 328.
legal estate in, when passing under bequest to trustees, 216.
where freeholds and leaseholds coupled together, 217.
long term , conversion of, into fee simple, 328, 596.
renewable, 180 et seq., 363 et seq. See RENEWABLE LEASEHolds .
sale of, proof of title on, 438 , 439, 440 .
settlement of, on trusts to correspond with freeholds, 125. See EXECUTORY
TRUSTS .
title deeds of, executor may hold, until all debts paid, 680.
trustee of liable for covenants, 238 ; but entitled to be indemnified out of
trust estate, 238.
trustees for sale of, cannot require covenant of indemnity from purchaser,
444 .
vesting order as to, 1018, 1026, 1031.
LEGACY.
abroad, where legatee is, money may be paid into Court, 360.
accounts, legatee may require inspection of, but no copy, 691.
ademption of, by subsequent advance to child, 401 et seq.
administration, what legacies will be paid without suing out, 354.
annuity, for purchase of, when legatee may claim immediate payment,
574, 690.
appropriation of, by executor , 204, 205, 581, 696.
assent to, by executor, 205 , 477 .
capital and income of residue, how to be apportioned between, 302.
charge of, on land, when discharged , 449.
on particular property, distinguished from exception, 154.
power of selling or mortgaging to raise, in whom vested, 467, 468.
who entitled on failure of charge, 154 , 157 et seq.
charity, to, out of sale monies, 950.
child, to , regarded as portion unless otherwise expressed , 404 .
class, to maintenance when allowed out of, 589.
conditional or contingent charge of, 154, 157 .
tenant for life entitled to income of, until contingency happens, 302.
costs of legatee's action, 988.
co-trustee, of, lien on, for contribution, 910.
creditor of testator, right of, to recover assets from legatee, 36.
devised real estate, out of, which lapses or is void , sinks for benefit of
devisee if by way of charge, 157 .
if by way of exception, results to heir, 157 .
or falls into residuary devise under 1 Vict. c. 26, s. 35 , 159.
whether it can pass under a gift of residuary personalty, 159.
duty on, 441 , 520, 949. See LEGACY DUTY.
executor, to, for trouble, 629.
executor may claim, though he renounce probate, 197 .
might disclaim, and take commission for trouble as to estate in East
Indies, 629.
powers of executor who is also legatee, 477, 478.
following trust money into hands of legatee, 906.
fraudulent sale by executor, legatee may impeach , 483 .
heir, to, will not necessarily rebut resulting trust, 147.
infant, to, how to be paid, 355, 360 ; appropriation of, 592 ; maintenance
when allowed out of income of, 582 et seq.; out of capital, 585.
interest on, when paid out of reversion which has fallen in, 305.
when allowed by way of maintenance, 410 , 582 et seq.
1492
 INDEX.

[The references are to the star paging.]

LEGACY- continued.
lapse, charitable legacy, of, 161 note (d) .
none of legacies to creditors in satisfaction of debts, 520.
lapse of, given out of proceeds of sale of realty, effect of, 159, 160.
Limitations, Statute of, legacy when barred by, 884, 885 , 901.
over payment of, legatee when bound to refund, 356, 357.
parol declaration of trust of, 65.
partner, to, may be set off against debt owing by firm , 701 .
payment of, legatee may claim, when exclusively interested in legacy,
690.
time for, 581.
where legatee deceased, 354.
where legatee infant, or beyond seas, 360.
portion, regarded as, to a younger child, 404.
not where contingent only, 407.
refund, legatee when bound to, 357.
release, whether legatee bound to give, 358, 359 ; effect of, when given,
359, 924.
residuary legatee, executor who is, powers of, 479 , 480 .
lien on estate, when entitled to, 477.
refund, when bound to, 357.
settlement of account with one, 357, 592.
set off, between legatee and executor, 696 , 699.
specific legatee, right of, to enjoyment of income in specie, 299.
trust for payment of debts and legacies, effect of, 456, 457, 458, 459, 523.
See DEBT ; RECEIPT.
trustee of, may be attesting witness to will, 275 note (c) .
LEGACY DUTY.
creditor when liable to pay, 520.
debts proved in bankruptcy of which payment is directed by will are
subject to, 520.
land converted in equity is subject to, 949.
money to be laid out on a purchase of land is subject to, 941 note (ƒ) .
secret trust, duty payable by apparent beneficial owner who holds upon,
62 note (b).
trustees can pass estate free from , 441.
LEGAL ESTATE . Chap. XII., 209-250.
account when granted at instance of owner of, 886, 890.
assignment of, trustee may make, 246. See infra, conveyance.
but assignee bound by trust, unless purchaser without notice, 246.
bankruptcy of trustee, how affected by, 239, 240, 242.
trustee in bankruptcy taking, is bound by trusts, 239, 240.
burdens annexed to legal estate in trustee, 234 et seq. See infra, privileges.
cestui que trust, action by, for protection of legal estate, 853.
cestui que use empowered to pass, by 1 Ric. 3, c. 1 ...4, 5.
charge of debts on, not sufficient to exclude operation of Statute of Uses,
211.
legal fee when passing by virtue of, 218.
charity, secret trust for, devise of legal estate good, but equity acts on
conscience of devisee, 66.
charity trustees, majority of, may pass legal estate, 259, 540, 547.
legal estate vested in new trustees without conveyance, 851, 852.
chattel interest, trustees when held to take, 220.
chattels, devolution of, to administrator or executor of trustee, 223.
subject to trust, 246.
codicil substituting " trustee," effect of, 215.
commensurate with trust if possible, 213 et seq.
contingent remainder, existence of, does not shew that trustee takes legal
estate, 384.
1493
 INDEX.

[The references are to the star paging.]

LEGAL ESTATE― continued.
conveyance of, does not transfer powers of trustees, 257 , 258.
not essential to valid appointment of new trustee , 650.
right of c. q. t. to call for, 382, 383, 684 et seq.
right of trustee to make, 225.
copyholds, in, when passing under devise to trustees, 211.
surrender to use of will formerly necessary to pass, 721.
curtailed from nature of trust, 215 et seq.
curtesy, is subject to, in trustee, 11 , 221 ; but tenant by, bound by trust,
9, 10, 12, 15, 246.
devise or bequest of, trustee might make , 226 , 229 ; secus now since Con
veyancing Act, 1881 , 226, 229.
general devise, when it passed under, 226 , 227, 228.
devisee whether competent to execute trusts, 230 et seq.
notwithstanding devise or bequest, vests now in personal representa
tives of trustee , 226, 229.
devolution of, in trustee. Chap. XII ., sect . 2, 221 .
under Conveyancing Act, 1881 , 222 , 226 .
under Municipal Corporations Act, 852.
under Peto's Act, 852.
discretionary powers superadded to devise to trustees, effect of, 218, 219.
disseisin by c. q. t., effect of, 882.
disseisor of trustee not bound by trust, 15, 250.
dower, legal estate in trustee is subject to , 221 ; but dowress bound by
trust, 9, 12, 15, 16, 246.
enlarged, when, by nature of trust, 213.
equitable interest compared with, 45, 46.
escheat, estate in trustee formerly subject to , secus now, 221 , 250.
copyholds and customary freeholds, as to , 248.
equity of redemption, as to , 248.
lord taking by, whether bound by trust, 247 et seq.
executor, right of, to call for conveyance of, 466.
when empowered to convey , 222 , 466, 469.
fee simple, when trustee takes, without word " heirs," 213, 218, 219 , 220.
forfeiture, estate in trustee formerly liable to, secus now, 221 .
but lord was bound by trust, 247 .
equitable interest, how affected by, 820, 821.
getting in, duty of trustee as to, 287.
grant or devise to two and survivor, effect of, 214, 215.
heir, devolution of trust estate to, 246 ; bound by trust, 246.
husband getting in, of wife's equitable interest, effect of, 747 , 750, 751.
indefinite chattel interest, trustee not to be deemed to take, under simple
devise to him, 220.
judgment against mortgagee, effect of, 805 note (d) .
against trustee binds trust estate, but c. q. t. protected, 245.
lease, trust to, confers fee simple, 217.
secus where power of leasing not intended to affect the fee, 219, 220.
legal personal representative, devolution of trust estate upon, under 44 &
45 Vict. c. 41 , 222, 226.
maintenance, provision for, held to show intention to pass legal estate, 211.
majority of charity trustees empowered to convey, 259.
mortgages, in, distinction between, and trust estates, 228.
net rents, trust to permit A. to receive, 211.
" pay or " permit to receive, " trust to, whether legal estate passes by,
210, 211 , 212, 216.
persons taking, bound by trust, 246 et seq., 833.
priority by reason of, abolished by 37 & 38 Vict. c. 78, but restored by 38
& 39 Vict. c. 87, 863.
privileges and burdens annexed to legal estate in trustee, 234 et seq.
actions, trustee brings, 234 , 241 .
1494
 INDEX.

[The references are to the star paging.]

LEGAL ESTATE― continued.
privileges, bankruptcy, trustee proves in, 234 .
copyholds, trustee pays admission fine to , 235 et seq., but is entitled
to reimbursement out of trust estate, 229.
living, trustee presents to, 234.
rates, trustee liable for, 235.
steward of manor, trustee appoints, 234.
title deeds, as to, 679, 680. See TITLE DEEDS .
trading, trustee, amenable to bankrupt laws, 238.
vote for coroner, whether trustee entitled to, 234.
not for member of parliament, 235.
purchase, trustees for, should get in legal estate, 504.
purchaser without notice cannot protect himself by getting in, 858.
quantity of, taken by trustees, 212 et seq.
determined by nature of trust, 213.
rules restricting limitation of, not applicable to trusts, 84 ; e.g. rule that
no fee can be upon a fee, ib.; or no life estate in chattels , 85 .
sell, trust to, confers a fee, 213.
special trust, conveyance upon, not within Statute of Uses, 210.
supplied on account of trust, 213.
transfer of, when necessary in order to constitute trust, 69 et seq.
trust, legal estate sufficient for execution of, implied , 213 .
but not carried further than the complete execution of the trust
requires, 213.
persons taking legal estate bound by trust, 246 et seq., 833.
trustee cannot come into Court of equity to recover, 284, 285.
" trustee," devise whether implied by use of word, 215.
uses, devise to, when legal estate passes to trustees under, 219.
Uses, Statute of, when legal estate executed by, in c. q. t. , 209.
separate use, trust for, is executed by statute, 210.
special trusts not within, 210. See SPECIAL TRUST.
trust to pay rents to A. executed by statute, 210.
to permit A. to receive rents, secus, 210, 211.
to pay unto or permit A. to receive , quære , 212.
vesting the legal estate in the trustee, 209 et seq.
wills, in gift under, legal estate supplied or enlarged by reason of charac
ter of trust, 213.
Wills Act, enactment of, as to estate taken by trustees, 220.
LEGAL POWER.
distinguished from equitable, 572, 598.
LEGAL TITLE.
relief upon, when granted in Court of equity, 886.
LEGATEE. See LEGACY.
LESSEE. See LEASE.
not prejudiced where purchase by trustee for sale set aside, 492 .
LETTER.
declaration of trust by, when sufficient, 56.
parol evidence admissible as to circumstances under which writ
ten, 56.
LETTERS PATENT.
necessary for declaration of trust by Crown , 21 , 52.
LEVARI FACIAS.
execution under, 794.
writ of, not to be in future issued in civil proceeding, 795.
LEX LOCI, 49 .
descent of trust is subject to, 698.
1495
 INDEX.

[The references are to the star paging.]

LIEN.
agent, of, on trust estate for his charges, 641 .
bank, of, on shares in names of trustees , 715.
cestui que trust, of, on property into which trust estate is tortiously con
verted, 241 , 892, 894, 897.
for advances by him to trustees , 640, 641.
none against land properly sold for proceeds misapplied, 449.
costs of suit when postponed to lien or trustee for expenses, 639, 640 .
creditor having specific lien , proof of debt by, 521.
whether he releases by executing trust deed for payment of debts,
521 , 522.
decree creates, on real estate, 830 note (ƒ) ; but see 810, 811 , 817.
deposit by way of, is not forfeited on bankruptcy of banker, 244.
devise to debtor, whether created by, 912.
improvements, for, by trustee, 184.
joint tenant, of, for improvements, 165.
judgment creditor, of, on lands of debtor, 801 , 813. See JUDGMENT.
land abroad, against, not enforceable , 49.
legacy of trustee who has committed a breach of trust is subject to, in
favour of co-trustee, 910.
married woman's contract does not create , on separate property, 764.
monies in hands of Secretaries of State for public purposes, against, 642.
policy monies, on, for payment of premiums, 903 .
purchaser, personal representative of, dying without heir after payment
of purchase money, and before a conveyance, has a lien on the estate,
283.
with notice of lien, bound by, 858.
renewal of lease, in respect of, 181 , 371 , 377.
residuary legatee, of, on estate, 477 .
solicitor, of, for costs, 696, 785. See SOLICITOR.
specialty creditor has not, upon estate, 524.
specific preferred to general, 718, 720.
tenant for life, of, renewing lease, for contribution from remainderman,
184, 371 , 377.
trustee, of, for expenses, &c., 638 et seq.
breach of duty, trustee committing, not entitled to, 640, 643.
contribution, for, against, co -trustee, 910 , 912 .
costs of purchase, for, on purchased estate, 505.
creditors of business carried on by trustee, when entitled to benefit
of, 538, 639.
improvements, for, 184, 640.
overpayment, for, on interest of c. q. t., 356.
persons employed by trustee have no lien upon trust fund, 641.
secus if trustee positively directed to employ particular agent,
641 .
policy monies, on , for monies advanced for premiums, 903.
priority of, over costs of action , 639, 640.
remedy for enforcement of, 640, 642, 643.
renewal of lease, in respect of expenses of, 184.
several estates, held on same trusts under same instrument, are sub
ject to, 642.
secus where trusts or instruments different, ib.
void trust deed , under, 640.
vendor, of, for purchase money, 714.
heir of vendor bound to discharge, 943 note (c) .
may be postponed to equitable mortgage, 714.
notice of, purchaser having, is bound, 858.
waiver of, by proof in bankruptcy, 912.
LIFE. See TENANT FOR LIFE.
1496
 INDEX .
•
[The references are to the star paging.]
LIMITATION.
action or suit, of. See LIMITATION OF ACTION ; LIMITATION, STATUTES
OF.
chattels how far capable of, at law, by will, 85 ; by deed, ib.
by way of trust, 85.
executory trust of chattels, what limitations directed under, 115.
See EXECUTORY TRUST.
gift of personalty with limitations appropriate to realty, 948.
over, on alienation or bankruptcy, effect of, 101 et seq. See ALIENATION ;
BANKRUPTCY.
personalty , of, cannot be made, so as to knit same entirely to realty, 116.
words of, how far required to create equitable fee under will or deed, 109. ·
LIMITATION OF ACTION.
account, action for, 871 , 886 et seq., 889, 890.
acquiescence, by, 873 et seq.
( 1) when act done with full knowledge of plaintiff, 873 .
when he stands by without objecting, 873.
secus if party dealing with property knew the real owner's rights,
874.
analogy, by, to Statutes of Limitation, 864 et seq.
distress, ignorance, mistake or poverty, delay not excused by, 866.
concealed fraud, in cases of, 868.
period of limitation adopted by Court, 864 et seq.
five years in case of fine by volunteer without notice of con
structive trust, 866.
remainderman of equity of redemption, as against, 866.
twenty years equitable bar by analogy to Statute of James, 865.
constructive trust may be barred by lapse of time, 863, 864, 872.
delay, by reason of, 869 et seq. See infra, laches.
devastavit, claim against executors for, when barred, 356 , 357.
fraud, in cases of, 868, 869.
ignorance of rights, when an excuse for delay, 866 , 870.
inconvenience, on ground of, 870 et seq.
account against trustees of charity, 934 et seq.
when parties dead and vouchers, &c., lost, 871 .
whether mere lapse of time a bar, 872.
laches in application to Court, by reason of, 869 et seq.
accounts between partners, as to , 872.
constructive trust, to enforce , 186, 863 , 864, 872.
fraud, in cases of, 868, 869.
purchase by trustee or solicitor, to set aside, 495, 496, 872.
reversionary interest, in respect of, 872, 873 , 923.
specific performance, for, 872.
Statute of Limitations , when there is, 873.
trust for payment of debts does not justify , 520.
mistake when an excuse for delay, 866 , 870.
poverty when an excuse for delay, 866 , 870.
presumption, by, of release or other act, after lapse of time, 869 et seq.
charities, as to, 936.
class, as against, does not easily arise, 870.
corporation, against, not readily made, 936.
distress or poverty of persons entitled , effect of, 870.
favoured in law, 870.
ground of, for purpose of quieting possession, 869, 870.
ignorance of rights, effect of, 870.
mistake as to rights, effect of, 870.
period of, 870.
release when presumed, 870 et seq.
statute, by, 874 et seq. See LIMITATION, STATUTES OF.
1497
 INDEX .

[The references are to the star paging.]

LIMITATION, STATUTES OF, 874 et seq.
absence beyond seas, effect of, 875.
account, formerly not applicable to action for, 871.
action of, how affected by statutes, 886 et seq., 889 , 890.
acknowledgment of debt by one trustee, effect of, 259.
acquiescence, effect of, not interfered with by, 875, 876.
agent when entitled to benefit of, 901 .
arrears of rent, as to action for, 875, 882 et seq., 890.
express trust, in case of, c. q. t., might recover all, 882, 883.
but secus now under Real Property Limitation Act, 1874, 883.
where express trustee ignorant of his true character, 889.
period of limitation of action for, limited to six years , 882 .
breach of trust, action in respect of, how affected by statutes, 897, 900,
901 , 906.
cestui que trust and trustee, application of, as between, 876 , 880.
not in case of express trust, 876.
volunteer claiming under trustee , 876.
cestui que trust or trustee and stranger, apply as between, 866 et seq., 880.
quære, where c. q. t. an infant, 868.
charge distinguished from express trust, 878, 879, 902 .
coupled with duty, 879.
express trust, 875 note (b) , 879, 890, 901 , 902.
of debts, when barred, 878.
charities how affected by, 884, 934.
constructive trust not saved by sect. 25...877 , 878.
covenants and contracts, application of statutes to, 867.
debts, charge for payment of, when barred, 878.
executor, whether liable for paying statute-barred debts, 590.
trust for payment of, effect of, 519 et seq., 877 , note (e) , 878.
whether when trustee is barred, c. q. t. is also barred, 520, 867.
demurrer, whether the subject of, 869 note (b) .
directors of company paying dividends out of capital cannot plead, 901.
disability of c. q. t., effect of, 867 et seq., 876.
term of six years now allowed after cesser of, 875, 876.
disseisin by c. q. t., 882.
dower, arrears of, action, for when barred, 891.
express trust, in case of, 520, 863, 874, 875, 885, 901 , 902.
distinguished from charge, 878, 879.
time when beginning to run against assignee of trustee, 876.
what is, within the Act, 520, 877, 878.
fraud, statute runs from discovery of, 868, 875, 878, 901.
ignorance of rights does not prevent operation of, 866.
infant, action by, for account, when barred , 891 .
interest, arrears of, action for, when barred, 875, 882 et seq.
intestate, right to personal estate of, how affected by recent Act, 885.
laches , bar from, where statute applies, 873, 901.
land or rent, action to recover, when barred by, 874, 875.
lands, equitable claim to , when barred , 865 , 867 et seq.
legacy, action to recover, when barred, 884, 885.
married woman, when time begins to run against, 761.
whether applicable to action against separate property of, 772.
mesne rents and profits, action for account of, how affected by, 886 et seq.
mistake does not prevent operation of, 866.
money charged on land, action for, when barred , 885.
mortgagee, when time runs in favour of, 866.
next of kin, action by, when barred, 885.
pleaded, must be, 356, 869.
cannot be by person having notice of trust, 867.
possession, adverse, 282.
cestui que trust, by, effect of, 881 , 882.
1498
 INDEX.

[The references are to the star paging. ]

LIMITATION, STATUTES OF - continued.
possession, trustee, by, who pays rent, &c. to wrong person is the pos
session of the rightful c. q. t., 882 ; and no adverse possession by wrong
ful recipient, 882.
poverty of plaintiff does not affect operation of, 866 .
purchaser, as against, 876.
under marriage settlement, 876.
purchaser for value without notice of trust may rely on , 876.
receiver whether express trustee within, 885 note (c) .
redemption, action for, when barred, 866 .
remainderman, when time begins to run against, 866 , 875.
rent, action to recover, when barrred by, 874, 875, 882 et seq.
rents and profits, action for account of, how affected by, 886 et seq., 889,
890.
residue, or share of, action for, when barred, 884.
resulting trust, when an express trust within, 877 .
reversionary, where right of c. q. t. is, 876.
solicitor receiving money, whether he can plead, 901 note (b) .
tenant at will, application of statutes to, 881.
but c. q. t. not to be deemed , 881 .
trust, 874 et seq. See supra, express trust.
trust to sell and pay debts, 520.
trustee allowing, to run, when responsible, 288.
volunteer claiming under trustee cannot rely on, 876.
waste, action in respect of, when barred, 188 , 189.
LIQUIDATOR.
official, costs of, 991.
LIS PENDENS .
effect of, upon powers of trustee, 669. See ACTION.
trustee appointed during, should be sanctioned by Court, 669.
may during lis pendens solicit discharge by petition or motion, 672.
LOAN.
charitable, amount of, adjusted according to value of money, 538, 539.
investment on , 306 , 316 , 327. See INVESTMENT.
trustee, by, in breach of trust, borrower how affected with notice , 862.
LOCAL LOANS ACT, 1875.
investment under, 320.
LOCKE KING'S ACT.
share of proceeds of land is not an interest in land within , 951.
LOCO PARENTIS .
ademption, presumption of, applies only to persons in, 402 .
advancement, presumption of, applies to relatives to whom purchaser in
loco parentis, 177.
but not to strangers, 178.
intention to assume parental character, how evidenced, 402 , 403.
portions, doctrine of, whether confined to persons in, 389 et seq.
satisfaction, presumption of, applies only to persons in, 402 .
who regarded as being in, 391 note (a) , 402 .
LONDON, CITY OF, PAROCHIAL CHARITIES ACT, 537.
LONG ANNUITIES.
conversion of, by trustees, when compulsory or desirable, 298, 300 , 304.
enjoyment of, in specie, direction for, when sufficient, 300.
investment in, by trustees undesirable, 334, 502 .
LORD CHANCELLOR. See CHANCEllor.
LORD CRANWORTH'S ACT (23 & 24 Viet . c. 145) .
appointment of new trustees under powers of, 647, 648.
maintenance of infant, powers as to, 583.
power of trustees to give receipts, 451 .
1499
 INDEX .

[The references are to the star paging.]

LORD CRANWORTH'S ACT - continued.
repeal of, 294, 315, 366, 434, 436, 437, 452, 591 .
LORD OF MANOR. See COPYHOLD.
consent of, to vesting order, when necessary, 1025.
escheat, taking by, whether bound by trust, 11 , 12, 16, 247 et seq.
infant, may give effect to custom , 37.
LORD ST. LEONARDS ' ACT (22 & 23 Vict. c . 35) . See STATUTES .
advertisement for creditors under, 362.
assignment of chattels real, &c., to assignor and another, 651.
charge of debts or legacies, effect of, 464, 467, 468, 469.
investment under, 307 , 329.
petition under, for advice, &c. , 352, 618 et seq..
power of attorney, trustee paying under, when exempt from liability, 354.
receipts, power of trustees, &c., to give, 451.
LORDS JUSTICES .
jurisdiction of, in lunacy, 1044.
LOSS.
trust property, of, trustee when liable for, 294 et seq. , 907 et seq.
LOTS .
abstract of title, right to, on sale in lots, 440.
resale in, of trust property purchased by trustee, 493.
whether trustee for sale may sell in, 437 .
LUNACY . See LUNATIC.
LUNATIC.
administration of trust in lunacy refused , 1014 note (e) .
committees of, are regarded as mere bailiffs, 261. See COMMITTEE OF
LUNATIC.
contingent right of, power of Court to discharge, 1014 et seq.
conversion of property of, 963 et seq.
benefit of lunatic, conversion only allowed where it is for, 963, 965.
copyholds, enfranchisement of, 966, 967.
Partition Act, sale under, does not effect conversion, 151.
personalty applied in aid of realty, 966.
charge on realty, to pay off, 966.
fines on renewal or admission , to defray, 965.
improvements, for, 965, 966.
necessary repairs or expenses , for, 966.
real estate sold for payment of debts , 964.
timber, proceeds of, applied to pay debts , redeem land tax, &c., 964.
cut on estate ex parte paternâ applied for benefit of estate ex
parte materna, 964.
felled tortiously by stranger, proceeds belong to next of kin , 966.
purchased, should not be, for repairs, & c. , where it might be cut,
965.
surplus proceeds belong to next of kin, 964 .
deed of, when void, 26 ; feoffment voidable by heir , 26.
disability how remedied where lunatic mortgagee, trustee, & c. , 1013, 1014.
See TRUSTEE ACTS .
election , lunatic cannot make, 954.
feoffment of, voidable by heir only, 26.
fine or recovery by, valid unless reversed, 26.
foreign, dividends only paid to curator of, 999.
heir of founder of charity being lunatic, visitatorial power exercised by
Crown, 530.
husband, concurrence of, in wife's deed when dispensed with, 35.
infant, position of, distinguished from lunatic's, 967.
jurisdiction of Lords Justices in lunacy, 1013, 1039.
maintenance of, directed out of fund which most for his benefit, 965.
1500
 INDEX.

[The references are to the star paging.]

LUNATIC - continued.
maintenance of, discretion of trustee as to, 614.
mortgagee, vesting order as to property of, 1013, 1014 et seq. See TRUSTEE
ACTS.
payment into Court of money belonging to, 1036.
payment to committee of, 355.
personal representative, power to make vesting order as to property of,
1015.
reconversion of property of, 964.
recovery by, valid unless reversed, 25.
tenant for life, exercise of powers of Settled Land Act, by, 552, 558.
trust declared by, Court may set aside, 26.
but would not interfere against purchaser without notice, 26.
trustee, appointment of new trustee in place of, 1013 , 1028.
vesting order as to interest of, 1013 et seq., 1020 note ( d) , 1026 , 1034 .
Trustee Acts, proceedings under, when to be in lunacy and when in chan
cery, 1013, 1015, 1029, 1030.
Trustee Relief Act, repayment ordered to guardians out of lunatic's funds
of expenses incurred for his support, 997.
vesting order as to lands or stock of, 1013, 1014 , 1026, 1034. See TRUSTEE
ACTS.

MAINTENANCE, 581 et seq.

accumulation , out of, form of order for, 587.
class of persons, out of legacy to, 589.
Conveyancing Act, 1881 , powers of maintenance under, 579, 582, 584.
should be expressly excluded where infant takes for life only , 584.
creditors, when entitled to benefit of trust for maintenance of bankrupt,
99 et seq., 690.
where trust for benefit of bankrupt and another, 99 .
where trustees have a bare discretionary power, 100.
when entitled to charge under 1 & 2 Vict. c. 110, 805.
direction to co-trustees to apply income for, not terminated by death of
one, 261.
directions as to, when Court will give, 619.
discretion of trustees as to, not in general interfered with by Court, 614.
gift to parent for maintenance of children, whether trust for children
implied, 137 et seq.
infant, to, when allowed, 582 et seq.
accumulation, trust for, effect of, 587.
capital, out of, 585.
contingent, where legacy is, 583.
interest of legacy, out of, 410 et seq. , 582.
whether trustee should allow, when father alive, 586 ; whether to
mother after death of father, 586 , 587.
legal estate, provision for maintenance held to show intention to pass, 211 .
Lord Cranworth's Act, powers of, when applicable, 583 .
lunatic, of, 614, 965. See LUNATIC.
past, when allowed , 582 , 586.
payment to guardian, trustee when discharged by, 614, 615.
policy of assurance, by means of, 587 .
power of, statutory, 129, 579, 582, 583.
power of, whether authorised by executory trust silent as to powers, 126,
and see note (g) .
when Court will insert, in settlement under executory trust, 127.
savings out of, allowed to wife on separation belong to her absolutely,
774.
Settled Land Act, 1882, powers of trustees under, 129.
trust for, bankruptcy of c. q. t., effect of, 99 et seq., 690.
cestui que trust cannot call for transfer of proportionate share, 140.
1501
 INDEX.

[ The references are to the star paging.]

MAINTENANCE - continued.
trust, duties , &c., of person bound by trust, 138 , 139 .
forisfamiliation of child , trust ceases on , 139.
majority of infant, whether trust ceases on, 139.
nature and effect of, 138, 139, 805.
to apply rents for , is a special trust, 210 .
to " provide suitably " for younger children, held not too vague, 117.
words sufficient to create , 137 et seq.
trustee may expend money for, if c. q. t. incapable, 581 .
but more prudent course is to apply to the Court, 581.
right to sue trustee, whether assignable, 139.
Trustee Relief Act , order under, constitutes infant ward of Court, 1002.
MAJORITY .
cestuis que trustent, of, cannot consent to trustees' relinquishment of
trust, 645.
charity trustees , of, binds minority, 259, 540, 547, 592, 597.
creditors, of, whether they can sanction purchase by trustee, 498 .
infant protected by Court after attaining, 925 .
trustees , of, when they may bind the rest, 259 , 540, 547, 592, 597.
may pay money into Court, 361, 997, 1007 .
MALINS'S ACT ( 20 & 21 Vict. c . 57) .
assignment under, effect, of, 23.
choses in action of married woman , powers of, as to, 23, 24.
whether Act applies to choses in action in possession, 23 .
does not apply to share under an intestacy, 23.
or to interest arising under power created before Act, 23.
MANAGEMENT.
See POWER.
advice of Court as to, how obtained by trustee , 618 et seq.
allowance for , when made to person in fiduciary position , 628 et seq.
infant's land , of, by trustees during minority , 578 et seq.
MANDAMUS.
lord of manor, to , to admit heir of trustee, 285.
MANOR. See LORD OF MANOR.
trustee of, appoints steward but must observe directions of c. q. t., 234.
MANSION HOUSE .
lease or sale of, under Settled Land Act , 560.
repair or rebuilding of, by trustees, 576.
MARKET OVERT.
owner's title to goods sold in, barred , 860, 893.
but if they come to trespasser again the owner may seize them, 860.
MARRIAGE.
forfeiture, when it creates, under clause against alienation, 102 .
valuable consideration, is , 876.
MARRIAGE ARTICLES .
executory trusts in, construction of, 112 et seq . See EXECUTORY TRUST.
distinguished from executory trusts in wills, 112 .
money to be laid out in land where bound by, 939.
notice of, how far binding on purchaser , 860 , 861 .
renewable leaseholds , of direction to renew implied in, 365.
MARRIED WOMAN.
accounts , may settle, with trustee though restrained from anticipation,
786.
acknowledgment of deed by, when necessary , 22 , 35.
acquiescence by, 496 , 918 et seq.
not bound by, in purchase by trustee, 496 .
except as to separate property where no restraint on anticipa
tion, 496, 919.
1502
 INDEX.

[The references are to the star paging.]

MARRIED WOMAN - continued.
acquiescence by, not bound by, quære where restrained from anticipation,
911, 919, 925, 926.
separate property, in husband's receipt of, 777 et seq.
action against, 770 et seq.
action by, as to separate property, 759.
since Married Women's Property Act, 1882, 759, 760 , 761 , 791 et seq.
advancement for, presumed on purchase by husband in her name, 177.
Agricultural Holdings (England) Act, 1883, powers of married woman
under, 793.
alimony allowed to , is inalienable, 750.
annuity to married woman by Commissioners , 791 .
antenuptial debts, is now liable for, 769, 787.
liability of husband in respect of her, 790 , 793.
assets, property subject to her power ·of appointment when available as,
919 et seq .
attachment against, where answering separately as to separate property,760.
attorney, may appoint , 39, 762 .
bankrupt, cannot be made, 790 note (b) , unless trading separately from
husband, 791 .
bare trustee may convey as feme sole, 36.
bill of exchange by, binds separate estate, 761, 763.
bond by, binds separate estate , 761 , 762 , 763.
breach of trust by, husband liable for, 33 ; except in cases within Married
Women's Property Act , 1882, ib.
liability of married woman's separate estate for, 768 et seq. , 911 , 919
et seq., 925.
none, in case of restraint against anticipation , 787 , 911 , 919, 925, 926.
business, husband permitting wife to carry on, effect of, 755.
chattels personal of, husband's right to , 739.
chattels real of, husband's power over, 24 ; if equitable, 746, 747.
where interest contingent, 746.
effect of husband's forfeiture upon, 820.
children, her liability for maintenance of her, 793.
choses in action of, powers of disposition over, 23, 24.
alienation of, how far marriage of feme is, 102.
divorce, judicial separation , or protection order, how affected by, 346.
husband, power of, to create trust sub modo, 24.
taking out administration , is entitled to undisposed of, 775.
Married Women's Property Act, 1882, under, 24.
possessory choses, equity to settlement out of, may be waived under
Malins's Act, 23, 25.
reduction of, into possession , 24 , 739, 740 , 741 , 745.
reversionary choses, under Malins's Act, 23.
survivorship of, to her, on husband's death, 744 et seq.; none by
Scotch law, 347 .
company, is liable as contributory in winding up of, 769.
compromise on behalf of, jurisdiction of Court to sanction, 926.
confirmation by, of breach of trust formerly, inoperative except as to
separate property without restraint, 497.
secus now under Married Women's Property Act, 1882, 497.
consent of, to investment, when and how to be given, 318 , 329.
to transfer to husband may be revoked, 742.
contingent interest, may alienate, 779.
contract by, 761 et seq.
husband, with, in equity, allowed, 754.
incapacity of married woman to contract, 761 , 918.
formerly absolute except as to her separate property without
restraint, 761 .
secus now under Married Women's Property Act, 1882, 762, 769.
1503
 INDEX .

[The references are to the star paging.]

MARRIED WOMAN - continued.
contract by, intention , in contravention of, 765, 766.
real estate, as to , under Fines and Recoveries Act, 761.
verbal, how far separate property bound by, 764 et seq.
written, as by bond, bill of exchange, promissory note, effect of,
761.
when necessary, 765.
conversion of property of, by sale under order of Court, 151 , 152.
conveyance by, 34, 35, 36.
concurrence of husband, power of Court to dispense with, 35.
covenant by, when infant, ratification of, 776.
creditor of, his remedies against separate property, 764, 773. See infra,
separate property.
curtesy, right of husband as tenant by, 733 et seq. See CURTESY.
death of, rights of husband on , 752.´
debts, antenuptial, husband when liable for, 790, 793.
separate property when liable for, 768. See infra, separate prop
erty.
desertion of, by husband, effect of, 743, 744.
devastavit by, 769.
disclaimer by, of interest in land, how effected , 199, 200.
discretionary trust, is competent to exercise, 33.
disentailing assurance of lands of wife, 748 .
divorce of, property how affected by, 346 , 785.
dower, her right to, 733 et seq. See DOWER.
earnings of, protected, 25.
are her separate property, 751 , 773, 788.
divisible on death among creditors pari passu, 773.
election by, 954. See ELECTION.
could not make, by act in pais, 954.
might by fine or consent in Court, 954, 955.
or under Fines and Recoveries Act, 955.
may now under recent Act, 956.
personaity, to take fund in Court as, 750.
when restrained from anticipation , whether competent, 786.
elegit, estate by, in trust for feme covert, 747 , 748 .
engagements by, 761 et seq. See supra, contract.
enlargement of estate by, is not alienation, 784.
entail in favour of, how and when barrable, 748, 780, 784.
entireties, husband and wife take by, 741 ; and see 753.
equitable chattels real of, rights of husband in respect of, 746.
equitable interest of, generally, 738 et seq.
equity of, to settlement.
antenuptial debts, is subject to, 739.
arrears of income, whether it attaches to , 743 , 747.
asserted, how, 741 , 749.
assignee of husband for value , as against , 742.
assignee of life estate, as against , 744.
none unless wife deserted at time of assignment, 744.
choses in action, out of, 739.
equitable chattels real, out of, 746, 747.
equitable freeholds, out of, 748.
extent of, 742 et seq.
what proportion usually settled, 742 ; sometimes the whole, 743.
form of settlement , 744.
liberty to wife to apply for payment of capital to her, 744.
fraud, where she is guilty of, 739.
fund under £200, out of, 742.
husband's act alone does not affect, 748.
life interest of wife, out of, 744.
1504
 INDEX .

[The references are to the star paging.]

MARRIED WOMAN - continued.
equity of, to settlement.
Married Women's Property Act, 1882, alteration of law effected by,
751.
origin of, 740.
outstanding term, out of lands subject to, 750.
personal to wife, equity is, 741 note (b) .
possessory fund not actually distributable, out of, 741.
release of, out of her personal estate in possession, 23.
must be by her in Court, 741 , 742 .
out of possessory chose in action under Malins's Act, 23, 24, 741
note (ƒ).
reversionary, while fund is, equity does not arise, 745.
survivorship, right by, distinguished, 744, 745.
term, of, held in trust for her and forfeited by husband's felony, 821.
trustee in bankruptcy of husband, as against, 742.
trustee whether justified in paying fund into Court under Trustee
Relief Act, 1002 .
waiver of, by wife , 741 , 742.
execution against, 771 , 772.
executor of, did not take separate property jure representationis, 775.
executory trust for settlement in favour of, how carried out by Court, 126.
executrix, assets in hands of, husband formerly could dispose of, 225 ;
secus now, 225 note (b) .
she may make a will of such assets without husband's consent,
224.
and transfer stock, 36.
devastavit or breach of trust, liability for, 769.
husband of, held a trustee within Trustee Acts, 1021.
vesting order in favour of, 1015.
where husband abroad, receiver appointed , 983.
feoffment of estate vested in her upon condition, she might make, 34.
Fines and Recoveries Act, conveyance under, operation of, 22 , 35, 955.
concurrence of husband effectual though he has assigned his interest
or become bankrupt, 780.
fraud by, 739, 784 , 919 , 920 .
freeholds of, rights of husband in respect to, 749 et seq.
funeral expenses of, whether payable out of separate property, 773.
gift by husband to wife, effect of, 68, 69, 755.
to husband, by wife , of separate property when presumed , 777, 778.
guarantee by, binds separate property, 761 .
housekeeping, not bound to contribute to , from separate property, 778.
infant, covenant by, to settle property, effect of, 39, 766.
may appoint attorney, 39, 762.
ratification of contract by, 766.
receipt by, for accumulations of income, 579.
Settled Land Acts, exercise of powers under, 569.
waiver of equity to settlement cannot be made by, 742.
insurance for benefit of, under Married Women's Property Acts, 789, 792.
jointure to, may be made inalienable during present coverture, 758.
judgment against, form and effect of, 770 et seq., 787.
judgment recovered by, is chose in action, 747 , 748 .
judicial separation, effect of order for, on her property, 346, 746, 755.
legacy to, cannot as against assignee be set off against debt of husband,
701.
legal estate, she could not at common law pass, 34 ; secus since recent
Act, 36.
effect of getting in, in wife's equitable term , 747, 750.
Limitations, Statute of, when beginning to run against, 761 .
whether applicable to action against separate property, 772.
1505
 INDEX.

[The references are to the star paging.]

MARRIED WOMAN - continued.
loan by, to husband, 760, 791.
long term , enlargement of, by feme into fee simple, 784.
maintenance of her children, her liability for, 793.
Married Women's Property Acts, 751 et seq ., 788 et seq . See those titles.
mortgage term in trust for, whether assignable by husband so as to carry
beneficial interest, 748.
next friend, may now sue without, 759.
outstanding term makes estate sufficiently equitable to entitle wife to set
tlement, 750.
over payment of, restrained from anticipation, 357 note (ƒ).
payment out of Court to, on separate examination, 954, 955.
pin money, arrears of, whether recoverable from husband, 776 note (†) ,
777, 778.
policy of insurance, may effect, on own life or life of husband, 792.
power, she may execute, simply collateral appendant or in gross, 33, 599.
she may release under Fines and Recoveries Act, 455.
when her appointment under, constitutes appointed property assets,
919 et seq.
promissory note by, binds separate estate, 761 , 763.
protection order, effect of, on choses in action, 346, 740, 757.
protector of settlement, she is, where legal freehold limited to her sep
arate use, 781.
real estate of, what estate husband has in, 748, 749.
held in trust for sale, husband's receipt for purchase money, 750.
separate use in respect of, 779 et seq.
receipt by, acting as trustee, 34, 36, 474.
restraint against anticipation, 693, 781 et seq.
absolute gift followed by, 783.
acquiescence, cannot be defeated by, 496, 919.
arrears of income, does not attach to , 787.
received by husband, what recoverable by wife, or her repre
sentatives, 776 et seq.
breach of trust, property fettered by restraint not liable for, semble,
787, 919, 925, 926.
confirmation of breach of trust precluded by, 497.
debts before marriage, does not prevent liability for, as respects her
own property settled by her, 768, 769, 772, 782.
determination of coverture, ceases on, 782.
but property does not become available for payment of antece
dent debts, 771 , 787.
discharged, where the clause has once attached, could not be, even
by Court of equity, 785.
but now under Conveyancing Act, 1881 , Court may dispense
with, where it is for wife's benefit, 785.
divorce, effect of, on , 784.
election, whether feme restrained from anticipation is competent to
make, 786.
enlargement of estate is not alienation , 784.
estate tail, enlargement of, into fee simple not prevented by, 784.
executory trust, in settlement under, clause when inserted by
Court, 126.
fraud in the feme will not prevent its operation, 785.
interest due but not payable is affected by, 787 .
legal estate, right of feme becoming discovert to call for convey
ance of, 383.
marriage, upon, the clause operates during the coverture, 686, 782.
Married Women's Property Act, 1882 , how affected by, 787.
nature and effect of, 24, 761 , 762.
origin of, 754, 781 .
1506
 INDEX .

[The references are to the star paging.]

MARRIED WOMAN - continued.
restraint against anticipation.
over-payment of married woman, 357 note (ƒ) .
perpetuity, may be void for, 98, 786.
power of appointment, how far it affects restraint, 782, 783.
reversionary, where interest of married woman is, 784.
savings from income are not subject to, 774.
solicitor, lien of, notwithstanding, 785.
words appropriate for creation of, 781 .
reversionary interest of, 740, 745.
necessarily survived to her, 740 , 745.
how affected by Married Women's Property Act, 1882, 751 , 752.
savings of wife, 773, 774, 775.
separate property of, 753 et seq.
accumulation of income by married woman requiring husband to
support her, 778.
acknowledgment of conveyance of, unnecessary, 760 .
action in respect of, how to be brought, 759.
administration of, on feme's decease , 774.
answer as to, wife may put in separate, 760 ; and is bound by sub
mission in, 759.
antenuptial agreement signed by husband not sufficient to create
trust of fee, 57.
arrears of, 758, 776 et seq.
received by husband, what recoverable by wife or her represen
tatives, 776 et seq.
where wife non compos, 777.
whether distinguishable from arrears of pin-money, 777.
assets, is administered as equitable, but quære, 773.
assignment of, good against creditors , 773 .
attachment, wife liable to, where answering separately as to separate
property , 760.
breach of trust, impounding property to answer, 911 .
separate property when liable for, 919 et seq.
contingency, whether alienable pending, 779.
contract of wife, when binding separate property, 760 et seq.,. 919
et seq.
after acquired property, as to, 762, 767.
appointment, does not operate by way of, 763, 764.
infancy, contract made during, may be ratified, 766 .
but ratification binds only property then held by her, 766.
purchase, contract for, enforced, 762.
written contract, when necessary, 765.
conveyance, when c. q . t. restrained from anticipation is entitled to call
for, 686.
corpus expended by husband with assent of wife, treated as gift by her, 778.
corpus, may extend to, or to income beyond coverture, 779.
costs out of, 643 , 762.
created by what words, 755, 756.
what words insufficient, 757.
trust must be clearly expressed , 754 .
creditors may bring action for payment out of, after feme's death, 773.
paid pari passu out of, 764, 773.
curtesy of, allowed, 735 et seq.
but may be defeated by disposition by wife, 735.
debts, before marriage, separate property when liable to, 769.
destroyed, separate use may be , during discoverture, 758.
election as to, married woman competent to make, 956.
engagements of feme when binding on, 761 et seq., 919 et seq. See supra,
" contract. "
1507
 INDEX.

[The references are to the star paging. ]

MARRIED WOMAN- continued.
expenses of trustee, separate property of c. q. t. when liable to, 643.
feme sole, married woman considered as, as regards separate estate, 24, 759.
as to realty, 779.
funeral expenses whether thrown upon , 773.
gift of, to husband, what amounts to, 777 , 778.
husband receiving corpus, prima facie trustee for wife, 778.
gift by husband to wife, 68 , 69, 755.
injunction against husband interfering with, 778.
injunction to restrain her from dealing with, not granted before judgment,
772.
inventory of, when trustee ought to make, 207.
judgment against, form and effect of, 770, 771 , 781 , 803 note (c).
legal estate, what, trustees take, where limitations for separate use ,
210 et seq.
wife may direct conveyance of, after husband's death, 686.
liabilities of feme covert in respect of, 760 et seq. See supra, “ breach of
trust ; " "contract. "
life estate, her power over her, 744.
Limitations, Statute of, whether feme can plead, 772 .
loan of, by wife to husband, 760, 791 .
marriage, upon, the separate use operates, 757.
effect of second marriage, 758 ; as to arrears , 758.
Married Women's Property Act, under, 751 et seq.
mortgagee of husband bound by trust for separate use, 861.
origin of, 754.
personal estate survives to husband in marital right, 775.
corpus of, where alienable by wife, 779.
possession, when c. q. t. entitled for separate use is entitled to , 676.
practice as to , in proceedings in equity, 759.
real estate settled to separate use, whether feme may dispose of corpus of,
770, 779, 780.
she may bar entail in, 780.
receiver of, at instance of creditor, 771 .
revivor of separate use upon subsequent marriage, 758.
savings out of, belong exclusively to wife, 773.
invested in purchase of land, devolve on heir, 775.
out of household monies belong to husband, 774 .
separate use, destruction, suspension, and revivor of, 757, 758.
devise for, does not pass trust estate of testator, 228 .
trust for, whether a use within Statute of Uses, 210.
where life estate for, rule in Shelley's Case not applicable, 119.
words necessary for creation of, 755 et seq.
sequestered, may be, for disobedience to order of Court, 760.
settlement of accounts in respect of, 759.
statutory. See MARRIED WOMEN'S PROPERTY ACTS .
submission in pleading in respect of, wife bound by, 759.
suspension of separate use on death of husband, 758.
trespass against, right of married woman to sue for, 778.
trustee for, allowing husband to get possession, liability of, 902.
trustee of, not necessary, 754, 755 ; but husband is construed to be
trustee, 754, 834.
trustees with discretion to apply for maintenance of, may pay to her
for separate use, 757.
undisposed of, survives to husband, 774 , 775.
will, feme covert may dispose of separate estate and accumulations by,
774, 775.
separated from husband, moneys advanced to, for necessaries , 768.
set-off of debt of husband against her assignee, 701 .
Settled Land Acts, exercise of powers of, by married woman , 569.
1508
 INDEX.

[The references are to the star paging. ]

MARRIED WOMAN - continued.
settlement by, fraudulently obtained, will be set aside, 759.
solicitor, she may retain, 761 , 762, 785.
stock, registration of, in name of feme, 788, 792 .
transfer of, by married woman being trustee, 36.
survivorship, her right by, cannot be defeated by assignment to husband
of prior life interest, 744, 745.
cases as to, have a bearing since Married Women's Property Act,
1882, 751.
term of years belonging to, rights of husband in respect to, 746, 747, 748.
tort, she may sue in respect of, under recent Act, 761, 769.
but husband and wife cannot sue each other, 761.
she could not strictly speaking commit, 769 ; secus now, 769.
trade, may carry on, separately from her husband, 788 .
trespass, action for, by wife against husband or stranger, 778.
trust, power of married woman to create, 22, 23.
as to real estate, formalities formerly requisite, 22 .
since Married Women's Property Act, 1882, 23.
trustee, may be, but not advisable to select her, 33.
concurrence of husband formerly necessary, 34 ; but not now, 34, 36.
power of Court to dispense with, 35.
husband of, is trustee within Trustee Acts, 1012 , 1015 .
receipts, whether she could sign, 34.
she can now under Married Women's Property Act, 1882, 36.
sale, may exercise discretion as to, 34.
stock, may transfer as though feme sole, 36.
wages and earnings of, protected, 25.
are her separate property, 751, 773, 788.
widow, payment of small sums to, without taking out administration , 354.
will of, 751, 753, 774, 775, 776 , 949.
MARRIED WOMEN'S PROPERTY ACT, 1870, 788 et seq.
insurance under, for benefit of wife and children , 789.
real estate descended on married woman, 25, 789.
repealed by Married Women's Property Act, 1882, 25, 791.
restraint on anticipation , separate property liable for antenuptial debts
notwithstanding, 768.
wages and earnings of married woman, protection of, 25 , 788.
MARRIED WOMEN'S PROPERTY ACT, 1874 , 790, 791.
MARRIED WOMEN'S PROPERTY ACT, 1882 , 751 et seq., 791 et seq.
See MARRIED WOMAN.
action by married woman , 760 , 761 .
contract by married woman, effect of, 762 , 765, 767 .
curtesy, right of husband to, out of wife's separate property, 736.
debts, liability of husband for, 793.
disclaimer by married woman, whether authorised by Act, 200.
general power, execution of, by will, effect of, 922.
gift by husband to wife, valid, 69 ; exception as against creditors, ib.
insurance under, for benefit of wife and children, 792 .
mother, liability of, for maintenance of children, 793 .
ratification by infant feme covert, 39.
restraint against anticipation not rendered inoperative by, 787.
separate property liable for antenuptial debts notwithstanding, 787.
rights of husband in wife's property, how far excluded by , 751 et seq., 791
et seq.
as to property of wife, the title to which accrued before commence
ment of Act, quære, 751 , 752.
after death of wife, rights of husband not excluded, semble, 752.
trust, married woman can create, without consent of husband, 23, 24.
and execute trust, pass estate , and sign good receipt, 34, 36 .
1509
 INDEX.

[The references are to the star paging. ]

MARRIED WOMEN'S PROPERTY ACT, 1882- continued.
wages and earnings of married woman are her separate property, 751 , 773.
will, power of married woman to dispose of property by, 753, 776 note (a) ,
922.
MARSHALLING SECURITIES, 719, 720.
right of judgment creditors to marshall inter se, 719 note (ƒ) .
MAYOR.
profit, cannot make, by his office, 279.
MEETING HOUSE.
trust for, 534, 535. See CHAPEL.
MERGER . Chap. XXVII., sect. 4, 726-733.
charge, of, on purchase of estate, 726 et seq.
by owner of charge and estate mortgaging estate, 732.
payment of charge, and subsequent acquisition of fee, 732.
purchaser, to prejudice of, how avoided, 727.
contingency, may be made to depend on, 727.
contingent remainders not destroyed by, 121 , 383.
debt, of, in judgment, 909.
doctrine of, in equity, 726 ; prevails now, over legal doctrine, 733.
equitable estate, of, in legal estate, 14.
only where estates, co -extensive and commensurate , 14.
inheritance, whether the charge can be made to attend the, 732, 733.
intention, is question of, in equity, 726 et seq.
parol evidence of, admissible, 729.
mistake by person paying off charge, 732.
notice, materiality of, in equity, 726, 727 .
presumption of, when it arises, 730 et seq.
where tenant in fee, in tail, or for life' pays off charge, 730 , 731 .
purchaser paying off charge pending contract, 727.
trustee, assignment to, not necessary to prevent merger, 727.
not sufficient to exclude presumption of merger, 731 .
MERITORIOUS CONSIDERATION. See CONSIDERATION.
MESNE RENTS AND PROFITS . See RENTS AND PROFITS .
METROPOLITAN BOARD OF WORKS STOCK.
investment in, 316.
MINES AND MINERALS .
account of profits of, may be sought in equity on legal title, 886.
acquiescence when a bar to remedy of c. q. t ., in respect of renewed lease,
186 .
lease of, by tenant for life, 503, 555, 682, 683.
by trustee, 595.
portion, when to be raised out of produce of, 418, 420.
purchase of, under powers of Settled Land Acts, 563 .
sale of surface apart from, 432, 433.
or of minerals apart from surface, 433.
tenant for life , powers of, to work, under Settled Land Act, 190.
to sell, 433 ; to lease, 555, 682 , 683.
trustees not justified in purchasing mining property, 503.
selling under power cannot reserve minerals, 432, 433.
except with previous sanction of Court, 433 .
working of mines on land of infant may be continued by, 578.
waste by working, improperly, 190. See WASTE.
MINISTER.
chapel, of, 534, 535. See CHAPEL.
MINISTERIAL TRUST.
meaning of term explained, 18.
1510
 INDEX.

[The references are to the star paging. ]

MISAPPLICATION. See BREACH OF TRUST.
MISCONDUCT OF TRUSTEES . See BREACH OF TRUST.
cestui que trust not prejudiced by, 938, 939, 963 .
costs , trustee when deprived of, or made to pay, 636, 847 , 986, 990 et seq.
See COSTS.
loss occasioned by, must be borne by trustee, 907.
receiver, when Court will appoint, on misconduct of trustee, 982.
removal of trustee on ground of, 846 , 847 , 1028.
costs, trustee when ordered to pay, 847 , 848.
MISDEMEANOUR.
fraud of trustees is a, 898.
outlawry for, effect of, 28, 250.
MISREPRESENTATION. See FRAUD.
account of rents and profits, where plaintiff kept out of estate by mis
representation, 891 .
trustee, liability of, for making, as to accounts, 993 .
to purchaser of equitable interest, 704.
MISTAKE.
account of mesne rents and profits in cases of, 887 et seq.
against trustees for charities refused on ground of mistake, 934 , 936.
legal title, account upon, granted in equity on ground of mistake, 887 .
breach of trust when excused by, 349, 900 , 907 , 934.
building on land of another by mistake, effect of, 716, 717.
election of recipients of charity not set aside on ground of, 535.
encouragement of, by legal owner of property, when equivalent to fraud,
717.
grantee not permitted to take advantage of mistake by grantor, 145.
law, of, whether ground for relief in equity, 497 , 498.
Limitations , Statutes of, mistake does not prevent, from running in
equity, 866.
merger not presumed in case of mistake, 732.
non entry on cesser of lease for lives by mistake, 887.
notice of assignment, in giving, when fatal, 710.
overpayment by, 356.
payment by, trustee making, not charged with interest, 349.
presumption of release rebutted by, 870.
recital in trust deed, in, trustee whether affected by, 201 .
rectification of settlement on ground of, 114.
trust when supported on ground of, 65.
trustee, by, as to rights of parties is at his own expense, 344.
charitable trustee not made to account, 872 , 934 , 936.
costs of trustee who has occasioned suit by innocent mistake , 991 , 992 .
investing in bank stock instead of bank annuities, 307.
person assuming office of trustee accountable as such, 207 , 208.
when an excuse for non-investment, &c. , of trust funds , 339, 344 .
where no wilful default, not a ground for his removal, 849.
voluntary settlement executed under, may be set aside, 75, 145.
MIXING TRUST FUNDS .
trustee mixing trust funds with own money, effect of, 297, 298, 893, 894,
895.
cestui que trust must prove in bankruptcy of trustee, 241 .
trustee should not mix trust fund with rights of strangers, 331 , 642.
MIXTURE OF TRUST AND POWER.
distinguished from trust with power annexed, 19 ; and see 600, 836.
MONEY.
at home, 944, 946 .
attachment of trust debt, 245.
1511
 INDEX.

[ The references are to the star paging. ]

MONEY - continued.
bills and notes, distinction between , and money, 892.
co-trustee should not permit, to be in hands of co-trustee, 265.
deposited, may be, in bank to trust account, 295.
ear-marked , when, 240, 892 , 893.
followed in equity, where, 240, 892 et seq.
into land even by parol, 896 .
mixed with trustees' money, 893.
paid into bank on account of trustee, 894.
land, money to be laid out in, treated as land, 943 et seq. See CONVER
SION.
cestui que trust may elect to take it as money, 699. See ELECTION.
results, on failure of purpose, to next of kin , 152 , 153 .
legacy of, not adeemed by subsequent settlement of land, 404.
notice in lieu of distringas is applicable to , 974.
payment of trust money into bank, must be to account of trust, 256. See
BANK.
scrivener, now obsolete , 82.
single trustee, whether it may be paid to, 355 et seq.
transmission of trust money, how to be effected , 256.
trust to raise money is a special trust, 210.
and confers fee simple upon trustee, 217.
MORTGAGE.
agreement to give, for past debt, whether enforceable, 515 note (b).
assets may be left outstanding on, by executor, 326.
assets, of, by executor, 477 et seq.
calling in, clause against, should not be inserted in mortgage by trustees,
331, 332.
enquiry directed as to propriety of, 300 note (d) .
cautions in lending on, what trustees should observe, 324, 325.
charge of debts or legacies, to give effect to, 467, 468. See SALE.
consolidation of, 330.
whether trustees bound to enforce, 593, 594.
copyholds, whether trustees should lend on mortgage of, 328.
costs, dower trustee of mortgagor not entitled to , against mortgagee, 985.
discharge of, by trustee of settled estate, 594.
equitable, assignee of, bound by equities affecting assignor, 696.
executor, by, of assets, 477.
husband, by, of wife's lands, 750.
lands in Scotland, of, 48.
overrides subsequent judgment, 246 note (ƒ) ;
priority of, where title deeds improperly dealt with by legal owner,
715, 862.
purchaser affected with notice of, is bound thereby, 858.
trustee, by, in breach of duty inoperative as against c. q. t., 862.
trustee should not invest on, 331.
vendor's lien postponed to, 714.
executor, by, of personal estate, 477 et seq.
with or without power of sale, 477 .
of real estate, charged with debts or legacies, 467 , 468 , 470.
fines on renewal of lease, to raise, 367 , 368, 370, 371 .
foreclosure decree , vesting order to give effect to, 1016 , 1026 .
foreign lands, of, jurisdiction to order foreclosure, 49.
forged by solicitor, trustee lending money on, held liable, 353.
husband, by, of wife's chattel real, 746, 747.
infant's realty, of, whether relieved by his personalty, 968.
investment on, by trustees, 312, 323 et seq. See INVESTMENT, real
securities.
charity, of accumulations and other monies of, 541 , 542.
1512
 INDEX.

[The references are to the star paging. ]

MORTGAGE , investment on by trustees. - continued.
conversion of, by executor or trustee, when to be made, 291 .
Court, formerly not ordered by, 313 ; secus now, 308.
power of trustees to make, 308, 312.
release of part of security by trustee, 593.
statutory powers of trustees as to, 308 , 312.
trust how kept out of sight on mortgage or transfer, 332, 333.
where disclosed, 333.
valuation of security, duty of trustees as to , 324, 499.
what proportion of value trustees may advance, 325, 328.
joint account clause in mortgage by trustees, 332.
judgment creditor may redeem, 797 , 800 , 813, 816 .
right of, against entirety of equity of redemption, 800 .
against surplus proceeds under power of sale, 799.
to tack, 800.
lands abroad, jurisdiction to order foreclosure of, 49.
lapse of time, equity of redemption when barred by, 866.
leaseholds, whether trustee should lend on mortgage of, 327, 328.
legal estate when passing under general devise by mortgagee , 228, 229.
lunatic's realty, of, not discharged out of personalty, 966 .
reconveyance of, how to be made, 966.
money, trust of, may be by parol, 54.
new trustee, vesting of mortgage in, 652, 654.
policy, of, implies power to give receipts, 453.
portion, to raise, 413, 418 et seq.
power of sale in―
assigns , who are, within meaning of, 431 , 603.
concurrence of mortgagor not required to exercise of, 447.
improper exercise of, injunction to restrain, 435, 855 .
statutory under 23 & 24 Vict. c. 145, 431 ; under 44 & 45 Vict. c. 41,
s. 19 , 331 note (c) , 431 , 432.
surplus under, is personalty or realty of mortgagor according as sale
takes place before or after his death, 952.
whether bound by judgment against mortgagor, 799 .
survives when the advance is joint, 431 .
tender of principal and interest, may not be exercised after, 855
note (c).
trustees should insist on insertion of, in mortgage to them, 331.
whether authorised by power to mortgage, 426 , 427.
whether by power to raise money by sale or mortgage, 426 ,
427.
priority of, how affected by notice, 704 et seq.
by improper dealing with title deeds, 715.
realisation of, by executor or trustee, when necessary, 291 .
reconvey, by what description mortgagee should, 685 .
reconveyance, lunatic's property, of, how to be made, 966 .
vesting order in lieu of, 1019.
release of part of security, whether trustees may make, 593.
renewal of lease, to raise fines payable on, 367, 368, 370, 371.
sale by trustee to pay off, 594.
second, trustees should not invest on, 330.
solicitor of mortgagor buying up, injunction to restrain sale by, 856.
stock mortgage, whether trustees should lend on, 323, 324.
stock, trustees may transfer, to mortgagor, 573, 574.
tacking securities to legal estate, 330, 800 .
tenancy in common implied in equity on advance by several, 164.
tenant for life, by, under Settled Land Acts, 557, 558.
term of years, for long, why formerly preferred, 328 .
transfer of, by mortgagees being trustees to new trustees, how framed ,
332, 333 .
1513
 INDEX.

[The references are to the star paging.]

MORTGAGE continued.
trust for sale, by way of, is not express trust within Statutes of Limita
tion, 880.
trust for sale, distinguished from, 952, 953.
trust how kept out of sight on mortgage or transfer by trustees, 332,
333.
trust to, will not authorise sale, 426 ; survives, 430.
to sell, whether it authorises mortgage, 425 , 426.
whether mortgage included in word trust under Trustee Act, 1012,
1017.
trustees, whether they may invest on, without a power, 312.
trustees, to, by one of themselves not allowed, 325.
wilful default, plaintiff in redemption action need not allege, 905.
MORTGAGEE .
charge, may not, for time and trouble, 628, 632 .
charge, whether he may buy in, for his own benefit, 727.
constructive trust, bound by notice of, 858, 861 .
covenant for title by, 442.
disability of, how remedied, 1014 et seq. See TRUSTEE ACTS.
equity of redemption , mortgagee buying, may keep his charge on foot as
against intervening incumbrancers, 727.
vested in mortgagee on death of mortgagor intestate without heirs,
283, 823.
secus now under Intestates' Estates Act, 1884, ib.
executor of, may call on heir to convey, 943.
heir, of, whether bound by title of residuary legatee, 861 .
infant, vesting order as to interest of, 1014 et seq.
injunction against, to restrain improper sale, 435, 855 .
insurance, cannot expend money for, in absence of stipulation, 580 ; but
see note (a ).
judgment against, effect of, 805.
legal estate in, vests on death in legal personal representative , 229.
Limitations, Statute of, when beginning to run in favour of, 866.
lunatic, vesting order as to interest of, 1014 et seq.
notice to , of subsequent incumbrance, effect of, 345.
possession, mortgagee in, how far constructively a trustee of rents and
profits, 190, 191 .
power of sale, mortgagee not a constructive trustee of, 190 .
proof by, in administration, bankruptcy or under creditors ' deed , 521 .
purchase by, from mortgagor, upheld, 277 , 490.
merger of charge how obviated in case of, 727.
receipts, power of mortgagee to give, 431 .
renewal of lease by, effect of, 181 , 183 .
rents and profits, accountability of mortgagee in possession for, 190.
sale by, 431 , 447.
good, though part of purchase money remain on mortgage, 431 .
separate use, trust for, binds mortgagee of husband, 861 .
title deeds, what conduct in relation to , will postpone legal mortgagee, 715
transfer by mortgagee in possession, effect of, 191 .
trust, notice of, when affected with, 861 , 878.
trustee, in what sense mortgagee is, for himself and his executors, 15.
or as respects purchase of equity of redemption , 277.
or for mortgagor, 880.
vesting order as to estate of, power to make, 1019, 1020.
MORTGAGOR .
death of, intestate and without heirs, effect of, 283 , 823.
heir of, might formerly require exoneration out of personalty, 943.
judgment against, effect of, 800, 801 , 805, 813, 814. See Judgment.
notice of trust, having, should see to application of trust money, 344.
1514
 INDEX.

[The references are to the star paging.]

MORTGAGOR — continued.
purchasing under power of sale in first mortgage lets in subsequent in
cumbrancers, 728.
rents, is not accountable for, until notice from mortgagee, 345.
surplus proceeds of sale whether personalty or realty of, 952.
MORTMAIN.
accumulations from charity estate, investment of, 541.
in purchase of land , 541 ; on mortgage, 541 .
Act merely prescribes mode of alienation, does not prohibit it, 46 .
charity, trust of land for, what formalities required for creating, 96.
how varied by recent acts , 96.
devise upon trust to sell and pay part of proceeds to charity, effect of, 148
note (e).
enrolment of conveyance under 9 Geo . 2, c. 36. . . 96, 97 , 541, 699, 670.
exemptions from , 97.
buildings for religious or literary societies, 97.
parks, schools and museums, 97.
recreation grounds, 97 .
legacy to charity charged on realty, 155 et seq.
licence in, for conveyance to corporation upon trust, 32 .
not required on re-investment of charity funds, 540, 541.
mortgage by charity trustees not avoided by 9 Geo. 2, c. 36, 541.
partner, interest of, in proceeds of realty is within statute, 148 note (e) .
requirements of statute of, 96, 541 .
secret trust for charity, discovery by devisee , 63, 64.
trust whether void at law or only in equity, 65.
trusts originated by desire to evade statutes of, 1.
MOTHER.
doctrine of advancement applies to, 178 .
liability of, for maintenance of her children, 793.
MOTION.
discharge of trustee, for, 672.
foreclosure absolute, to make, whether Court will declare mortgagor trus
tee for mortgagee , 1026 .
payment into Court, for, 976, 977. See PAYMENT INTO COURT.
Romilly's Act, proceedings under , subsequent to petition may be by , 931 .
MOVABLES.
governed by lex domicilii, 48.
MULTIPLICATION OF CHARGES , 852.
MUNICIPAL CORPORATION. See CORPORATION.
MUNICIPAL CORPORATIONS ACT (5 & 6 W. 4 , c . 76) .
alienation by corporations, only with consent of Lords of Treasury, 31.
charity, appointment of trustees for, in place of corporation , 851 .
MUNICIPAL CORPORATIONS ACT, 1882 , 852.
MURDER.
escheat and forfeiture on conviction or attainder for , 27 , 28, 284.
NATIONAL DEBT COMMISSIONERS.
trust, not affected by notice of, 32 .
NATURALIZATION ACT, 1870, 27.
NAVY 5 PER CENTS .
investment in, 334.
NE EXEAT.
writ of, against trustee, 900.
NEGLIGENCE.
agent, of, trustee whether liable for, 638.
breach of trust by reason of, 902 et seq. See BREACH OF TRUST.
1515
 INDEX.

[The references are to the star paging.]

NEGLIGENCE - continued.
calling in trust estate, as to , 287 et seq.
costs of trustee in case of. 989.
investment, in making, 306 et seq.
legal proceedings caused by, trustee liable for costs of, 546 , 636, 637.
premiums, to pay, 903.
reimbursement, right of trustee to, lost by negligence, 638.
transfer, to enforce, 902 , 903.
trustee, of, rights of c . q. t. not prejudiced by, 938, 939, 963.
NEGOTIABLE INSTRUMENT, 241.
NEPHEW.
advancement for, presumed, 177 .
NEW BUILDINGS.
erection of, equivalent to purchase of lands, 504.
NEW SHARES .
trustees cannot accept, unless expressly authorised , 596 .
NEW TRUST.
created without intervention of new trustee, 73.
NEW TRUSTEES, Chap. xxv. , 645–673.
abroad, in place of trustee permanently residing, 847, 1016 , 1033.
absconding trustee, in place of, 847, 1033.
action for appointment of, whether c. q. t. should bring, 1030.
appointed by Court, powers of, 608.
could not formerly exercise arbitrary powers, 608.
will not be empowered to appoint new trustees, 849.
appointment of new trustee in place of, 646 note (a) .
appointment of, by Court, 846 et seq.
application for, when to be made at chambers, 848 .
cestui que trust when entitled to , 846 , 847.
costs of, 669, 847 , 868. See infra, costs.
principles on which Court acts in selecting, 850.
Trustee Act and Trustee Extension Act, under, 853, 1027 , 1028 , 1043,
1014. See infra, Trustee Acts.
under power, 655 et seq. See infra, power.
when complete, 650.
Bankruptcy Act, appointment under, 850, 1027 , 1028 .
bankruptcy of trustee a ground for appointing, 658, 847, and note (e) ,
850 , 1027, 1028 .
breach of trust, trustee should not retire in favour of one who intends to
commit, 668.
trustee permitting co-trustee to commit, removed , 847.
caprice of c. q. t., appointment not governed by, 837, 849.
cestui que trust not usually appointed , 41 .
right of, to appointment of new trustees, 846.
where interest of c. q. t. reversionary, 846.
where trustee dies in testator's lifetime, 846.
chapel, meeting house , &c ., of, how appointed , 852 .
where trustees entertain opinions contrary to founder's intention,
847.
charitable trusts, appointment of new trustee, to act in, 850 et seq.
See CHARITY.
requires sanction of Charity Commissioners, 852.
where corporation are trustees, 851 .
where deed of endowment does not provide for appointment of, 852,
853.
Charitable Trusts Act, appointment of new trustees under, 852.
chattels real how vested in , 650, 651 .
consent by, to act, how evidenced, 1030.
1516
 INDEX.

[The references are to the star paging.]

NEW TRUSTEES --continued.
Conveyancing Act, 1881 , appointment of new trustees under, 618, 652.
conviction of existing trustee for felony, a ground for appointing, 1043,
1044 .
copyholds, of, fine when payable on admission of, 235, 1025.
costs of appointment of.
corpus, are payable out of, 669.
improper appointment, 618, 665, 669.
remainderman , when thrown upon, 1029.
tenant for life often pays, where there is no fund, 669 .
trustee removed for misconduct, in lieu of, 847 , 848.
death of existing trustee when a ground for appointing, 846 , 847.
expedient to appoint, when Court considers it to be, 1027 et seq.
felony, conviction of trustee for, a ground for appointing, 1043, 1044 .
fitness of, Court how satisfied as to , 1030, 1031 .
evidence as to, when required, 1028
husband of c. q. t. sometimes appointed , 41 .
not appointed trustee of own marriage settlement, 41 .
impartial, exercise of powers should be , 668.
ineffectual appointment of, effect of, 669 ; powers of old trustees remain, ib.
infant, in place of, 1027.
inquiries to be made by, before accepting office, 207 , 670, 706.
irregularity in appointment of existing trustee, when a ground for ap
pointing, 848.
not when a long time has elapsed , 848 , 849.
jurisdiction, person to be appointed should be within the, 662.
legal estate, transfer of, to new trustee, 650 et seq. See infra, vesting
property.
lis pendens, after decree in, trustee should not exercise power without
sanction of Court, 617 , 669.
Lord Cranworth's Act, appointment of new trustees under, 647 , 648.
lunacy, order may be made in, for appointment of new trustees, 1014 ,
1029.
without being made in Chancery, when, 1029.
lunatic, in place of, when appointed, 1015 note ( a) , 1028 note (b) .
misconduct of existing trustee , when a ground for appointing, 847 , 848 .
misunderstanding of duty by existing trustee a ground for appointing,
849.
motion, application by, for discharge of trustee , 672.
Municipal Corporations Act, appointment of new trustees under, 851.
no existing trustee, where there is, appointment of trustee to act, 846 .
number to be appointed , 659 et seq.
Conveyancing Act, 1881 , under powers of, 648, 659, 663, 664.
directory power, under, 667.
one in place of several, appointment of, improper, 659, 662.
cases in which such appointment has been supported, 660.
one of two trustees retiring, appointment of co-trustee to be sole
trustee improper, 662.
one retiring, could not appoint two successors, 659 ; unless authorised,
659 ; secus now, 659.
original number, whether to be kept up, 661 et seq., 667 , 846.
Court does not limit itself to , €61 , 662 .
several in place of one, appointment of, when proper, 659, 660, 664.
two trustees retiring, appointment of single successor improper, 662.
where no new trustee can be found, 671 .
persons proper for office of -
cestui que trust or near relative undesirable, 665, c. q. t. sometimes ap
pointed by Court, 666 .
donee of power, whether he can appoint himself, 666.
jurisdiction, should be within, 662.
1517
 INDEX.

[ The references are to the star paging.]

NEW TRUSTEES- continued.
petition for appointment of, proceedings on, 1030 et seq.
where action pending, 672, 1034.
policy of assurance, of, effected under Married Women's Property Act,
1882, 792.
power to appoint -
administration action, how affected by pendency of, 617, 618, 669.
construction of, in various cases
"acting " trustee, who is , 655, 656, 665.
" continuing " trustee , 658, 664.
departing the United Kingdom, 659 ; does not include temporary
absence, 659.
"executors," how to be exercised by, 656, 657.
"incapable to act," meaning of, 658.
does not extend to bankruptcy , 658 ; or residence abroad, 658.
"other trustees," meaning of, 665.
"refusing " or " declining, " meaning of, 647, 656.
includes disclaiming, 656 ; and retiring after having acted,
656.
payment into Court under Trustee Relief Act is equivalent
to, 656.
"retiring " trustee or trustee " desirous of being discharged," 999.
" said trustees," meaning of, 665.
" survivor," " surviving trustee," 655 et seq. , 662, 664.
"unfit," meaning of, 658 ; extends to bankruptcy , 658.
when number reduced to three, 600.
Conveyancing Act, 1881 , under, 648.
application of, to previous settlements, 648, 649.
form of, usual form and suggested additions, 646, 647.
where several sets of trustees, 647.
jurisdiction of Court to extinguish or vary, on decreeing dissolution
of marriage, 670.
mode of appointing under, 664 et seq.
where power to surviving or continuing trustees , and both or sur
vivor retire, two appointments usual, 664.
secus where power to surviving , continuing or other trustee, 665.
trustee surviving testator may appoint new trustee in place of
one who predeceased testator, 657.
statutory powers , 647 et seq., 850 et seq.
trustee appointed by Court, not given to, 849.
trustee retiring should see that power contemplates precise case, 654.
should not part with fund before complete appointment of suc
cessor, 654, 655.
where there are more than two trustees, secus now under Convey
ancing Act, 653, 654.
vesting trust estate in new trustee , 650 et seq. See infra, vesting
property in new trustee.
when Court will insert, in settlement under executory trust, 127, 128.
powers of new trustees -
appointed by Court, 608.
appointed under power, 670.
reappointment of, for purpose of making vesting order, 1028 .
rectification of invalid appointment of, 663 .
refusal to act by existing trustee, a ground for appointing, 847.
to transfer to new trustees, 655.
relative of c. q. t. objected to , 666.
religious opinions of trustee for charity, when regarded, 42.
residence abroad of existing trustee, a ground for appointing, 646, 649.
several trusts , of, when separate trustees may be appointed, 666, 667, 1030
note.
1518
 INDEX.

[The references are to the star paging.]

NEW TRUSTEES - continued.
stamp on appointment of, 653.
semble double duty payable on appointment by deed, and transfer, 653.
statutory powers for appointment of, 647 et seq. , 850 et seq.
surviving trustee, right of, to call for appointment of new trustee, 346.
transfer of trust property to, 650 et seq., 1014 et seq. See infra, vesting
property.
whether new trustee is actually such prior to transfer, 649, 650.
Trustee Acts, appointment of new trustees under, 853, 1027, 1028, 1043 ,
1044.
application for, how to be made, 1033.
consent to act, how to be given, 1030 note.
costs of application for, 1038 note.
evidence in support of petition for, 1021 , 1028, 1030, 1031 , 1033.
parties to application for, 1032 , 1033.
petition for amendment of, 1033.
dismissing, 1034 .
proceedings on, 1033 et seq.
vesting order on, 1031. See infra, vesting.
vesting property in new trustee
bank annuities, 650.
charity, legal estate vested in trustees for, without conveyance, 851.
chattels real, 650, 651.
copyholds , 652, 654.
mode of, upon appointment of trustees under power, 650 et seq.
upon appointment by Court, 1014 et seq. See TRUSTEE ACTS .
money in funds, & c . , 650, 652, 1014 et seq.
mortgage securities, 652, 654 , 1014 et seq.
two deeds when necessary, 650 et seq.
vesting order does not affect liability of old trustees, 1032.
NEXT OF KIN.
cestui que trust dying intestate without leaving, 285.
charge, keeping on foot, for benefit of next of kin , 729 note ( e) .
conversion directed by will not construed to confer any right on , 150 , 953 .
covenant to convey land on trust for sale, when entitled to benefit of,
949, 950.
executor denying relationship of, ordered to pay costs , 994.
executor when trustee for, 60, 61 , 285.
followed, trust money may be, into hands of, 906 .
land to be converted into money, next of kin not entitled where land " at
home," 949, 950.
Limitations, Statutes of, when barred by, 885.
lunatic, of, interests of, how far regarded by Court, 963 et seq. See
LUNATIC.
money to be laid out in land , next of kin entitled to undisposed of interest
in, 152. See RESULTING TRUST.
nearest of kin, " next of kin " construed as equivalent to , 844.
persona designatæ, when they may claim as, 953.
personalty given upon trust to be afterwards declared , next of kin enti
tled to , 60.
proceeds of sale of land, next of kin not entitled to undisposed of, 150, 160.
even where it is directed that proceeds shall be personal estate, 150 .
refusal by, to take out administration , 1023.
residuary gift, where will contains , no resulting trust for next of kin , 160 .
unless part of personal estate is expressly excepted from residue, 160 .
trustee, of, where sale of land set aside, whether entitled to money, 494,
495.
NOTES ( BANK).
may be followed in equity, 892. See BANK.
1519
 INDEX.

[The references are to the star paging.]

NOTICE .
army agent, to, of charge on proceeds of officer's commission, 708.
assignment, of, when necessary, 701 et seq. , 903.
debt, on assignment of, 697.
equitable interest, on assignment of, 74, 246, 345 , 702.
precautions to be taken on, 704.
to person whose interest it is to suppress assignment, ineffectual, 707,
709.
bond, by assignee of, to obligor, 698.
borrower, how affected by, where loan improper, 862.
breach of trust, of, effect of, 862, 897, 901 , 913 , 923.
cestui que trust, to , of intention to do particular act, 573.
chose in action, on assignment of, 702 , effect of, ib.
neglect to give, liability of trustee for, 903, 904.
company, to, what sufficient, 709, 710.
constructive, c. q. t., to, of breach of trust not a bar to relief, 923.
solicitor of trustee, notice to, not notice to trustee, 709.
corporation, to, not readily presumed, 936.
debt, on assignment of, 697 .
distringas, in lieu of, practice as to obtaining , 973 et seq.
equitable interest, on assignment of, 74 , 702 ; effect of, 74, 345, 702.
as against settlor immaterial, 74, 246 note (ƒ) .
as against purchasers material, 74 , 246 note (ƒ) .
executory trust, of, 860.
form of, should be clear and distinct, 710.
fund in Court, on assignment of, 711, 712. See STOP ORDER.
implied against volunteer, 16, 857.
incumbrance, of, to prior mortgagee, effect of, 345.
insurance office, to, what sufficient, 709, 710.
judgment, of, when material as against purchaser, 803, 810 , 811 , 816.
immaterial as between judgment creditors, 816.
lease, of, presumed from recital of surrender, 185.
Limitations, Statutes of, cannot be set up by person having notice of
trust, 867.
marriage articles, of, how far binding on purchaser, 860, 861 .
merger, equitable, how affected by, 726 et seq.
mistake, when vitiated by, 710.
parol, by, must be explicit, 710.
policy of assurance, of assignment of, 903.
priority by giving, 702 et seq.
assignees of choses in action, as between, 74, 246 note (ƒ) , 702.
doctrine of, whether applicable to real estate, 704, 705.
trustee in bankruptcy, as against, 702.
not where debt recoverable at law by bankrupt, semble, 702.
production of documents by person bound by notice of trust, 976.
purchaser, to, of breach of trust, 423, 424, 457 , 459, 858 et seq.
purchaser with or without, 858 et seq. See PURCHASER.
railway shares, on transfer of, 705 note (a) .
real estate, doctrine of notice how far applicable to, 704, 705.
recitals, presumed from, when , 185.
shares in company, on assignment of, 709, 859.
solicitor having lien on documents not bound to give, 703.
solicitor, implied notice from both parties employing same, 337.
trustee, of, notice to , not notice to trustee, 709.
trust, of, to vendor, practice of conveyancers as to giving, 505, 506.
trustee, by, when necessary to be given, 710.
equitable interest, trustee of, should give notice to holder of legal
estate , 703.
where assignor or assignee holds on trust, 706.
trustee, to, 344, 701 et seq.
1520
 INDEX .

[The references are to the star paging.]

NOTICE- continued.
trustee, to, assignment, of, effect of, 345.
not necessary to complete assignment as between assignor and
assignee, 701 .
but necessary to make trustee liable who pays under original
title , 702.
fund in Court, where trust funds consist of, 711 , 712.
mortgage, of, effect of, 345.
one of several trustees, notice to , is good during his life, 706.
but not after his death, nor where trustee is assignor, 707.
paramount title, notice by holder of, 285.
person about to become trustee, notice to, 708.
Settled Land Acts, of intention to exercise powers of, 557 et seq.
shares in company, where trust fund consists of, 709.
time of giving, 707.
trustee receiving, not bound to communicate notice of own incum
brance, 707.
written or unwritten, whether to be, 709, 713.
voluntary assignment of equitable interest, notice whether requisite on,
74, 708.
volunteer, notice of trust presumed against, 16, 857.
want of, is not a defect in title, 707 .
will, of, purchaser not prejudiced by, 478.
NUMBER OF TRUSTEES , 43, 659 et seq. See NEW TRUSTEES .
Conveyancing Act, 1881 , provisions of, as to, 648, 659, 663, 664.
four only allowed of bank annuities , 43 ; except in special cases, 43.
original, whether to be kept up, 661 et seq. , 667 , 846, 1029, 1030.
OCCUPATION RENT.
trustee charged with , 491.
OFFICE OF TRUSTEE, Chap. XII ., 251–286.
acceptance of, effect of, 251. See ACCEPTANCE OF TRUST.
co-trustees, not liable for each other's acts and faults, 263 et seq. See Co
TRUSTEES .
co-trustees, office of, is joint, 258 et seq. See Co-TRUSTEES.
Court assumes office where no trustee appointed, 835.
delegation of, by trustee, 252 et seq. See DELEGATION.
discharge from, how trustee may claim, Chap. xxv., 645-673. See DIS
CHARGE.
disclaimer of, distinguished from disclaimer of estate, 198. See DIS
CLAIMER.
personal benefit, trustee must not derive from office, 180, 275 et seq. See ⚫•
CONSTRUCTIVE TRUST.
survivorship of, 261 et seq.
OFFICIAL LIQUIDATOR.
not entitled to same latitude as trustee as to costs, 991.
OFFICIAL TRUSTEE.
charity, of funds of, 361 , 933. See CHARITY.
of lands of, 933.
OPERATION OF LAW.
trusts resulting by, distinguished from implied and constructive trusts ,
108 note (1).
Frauds, Statute of, how affected by, 193.
intention expressed or presumed that grantee or devisee should not
take beneficial interest, 147.
purchase in name of third person, by reason of, 163 et seq.
voluntary conveyance, by reason of, 144. See RESULTING TRUST.
OPINION.
charity commissioners , of, is an indemnity, 933.
1521
 INDEX.

[The references are to the star paging.]

OPINION - continued.
counsel, of, trustee acting under, how far protected, 207 note (a) , 346,
347, 685. See COUNSEL.
cases for, and opinions, trustee when bound to produce, to c. q. t.,
975, 976.
Court, of, how and when obtained, 350, 352, 618 et seq.
religious, trustee of chapel holding, contrary to those of founder, 42.
OPTION.
conversion of property, effect of optional direction for, 947, 948.
whether exercise of option to purchase effects retrospective conver
sion, 952.
trustee or executor cannot grant lease with option of purchase, 425.
ORDER OF COURT OF EQUITY. See DECree ; Judgment.
contingent right, discharging, 1014 et seq. See TRUSTEE ACTS.
conversion, how far effected by, 151 , 152, 951.
judgment, has the same effect as, 804.
ORDER AND DISPOSITION, 242 et seq. See BANKRUPTCY.
ORDERING AND DIRECTING.
may raise a trust, 131.
ORDERS, GENERAL. See GENERAL ORDERS ; RULES OF COURT.
ORIGINATING SUMMONS .
questions affecting trusts may now be determined by means of, 350.
ORPHANAGE SHARE.
money to be laid out on land in favour of child, formerly not brought
into hotchpot, 941 .
OUTLAWRY.
civil proceedings in, now abolished, 284 note (h).
felony, upon, equivalent to attainder, 28 , 250 .
forfeiture or escheat upon, 250 ; none for treason or felony, secus, misde
meanour, 250.
misdemeanours and civil actions, in, a contempt of Court, 28 , 250.
trustee, of, 250.
OVER-PAYMENT.
by trustee or executor, effect of, 356, 357.
PAPISTRY ACTS.
purchase in contravention of, does not give rise to resulting trust, 167.
PARAMOUNT TITLE.
notice of, to trustees, effect of, 285.
PARCELS.
by what description trustee should convey, 685.
whether trustee can be required to divest himself of trust estate in, 685.
PARENT AND CHILD. See INFANT.
advancement, presumption of, on purchase by parent in name of child,
170 et seq. See ADVANCEMENT.
influence of parent, child protected against, after attaining majority, 993.
maintenance of child, duty of parent to provide for, 586.
meritorious consideration, parent cannot urge, against child, 81 note (a).
portions, doctrines as to, applicable as between parent and child, 389 et
seq., 402 .
PARISH ; PARISHIONERS.
account, retrospective , not directed against, 936 .
acquiescence, parishioners whether bound by, 870, 923.
action by, to set aside nomination of clerk, 927 note ( 1 ) .
advowson, trust of, for parishioners, how carried into effect, 85 et seq.,
257, 927.
1522
 INDEX.

[The references are to the star paging.]

PARISH ; PARISHIONERS - continued.
charities, apportionment of, on division of parish, 929.
clerk, election of, primâ facie in trustees, 86 ; when in parishioners, ib.
" parishioners and inhabitants," meaning of, 86 et seq., 539 ; of " chiefest
and discreetest," 87 ; of " ratepayers," 88.
property of, when vested in churchwardens and overseers, 532.
qualification of " parishioner," how gained, 539.
trust for poor of parish, how carried into effect, 85, 531 , 532.
PARLIAMENT.
Act of, necessary for total alteration of scheme of charity, 535.
application to, costs of, when allowed to trustees , 580.
Bill in, money paid for not opposing, how treated, 190.
costs of opposition to, when allowed, 580 , 636 .
fagot voters, conveyances for purpose of creating, 105.
member of, trustee cannot vote for, 235 , 681 ; but c. q. t. may, 235, 682.
resulting trust not implied in evasion of Act of Parliament, 166.
splitting votes, conveyances, &c. for purpose of, 105.
PARLIAMENTARY SECURITIES.
investment in, 308 , 315, 316. See INVESTMENT.
meaning of " parliamentary stocks and funds," 322, 323.
PAROL ; PAROL EVIDENCE. And see WRITING.
acceptance of trust, parol evidence admissible on question of, 205.
ademption, to rebut or raise presumption of, 403.
advancement, parol evidence to prove or rebut presumption of, when ad
missible, 175, 176.
chattels personal, trust of, may be declared by parol, 53, 54.
Crown, parol evidence not admitted to prove declaration of trust by, 21 .
declaration of trust requiring writing, parol evidence of surrounding cir
cumstances admissible, 56.
not affected by subsequent declaration, 54.
approval of draft declaration does not amount to, 54.
disclaimer by parol , whether effectual, 199.
election, whether it may be evidenced by parol, 962.
equitable interest formerly transferable by, 693, 720.
executors, how far formerly admitted against title of, to residue, 60.
following trust property, admissible for purpose of, 169, 896.
fraud, in cases of, 64.
investment of trust money in land, whether capable of proof by, 169.
loco parentis, of intention to place oneself in , 402 , 403.
merger, intention as to, capable of proof by, 729.
presumption of law may be rebutted by, 147.
purchase in name of another, to prove, 167 , 168. See RESULTING
TRUST.
purchaser, nominal, after death of, whether admissible, 168 , 169 .
resulting trust not rebutted by, when devisee or grantee is expressly made
trustee, 59, 147, 149.
secus, when mere presumption of trusteeship , 60, 147.
or in case of purchase in name of stranger, 169.
whether admissible against defendant's denial by answer, 168 ; whether
after his death , 168, 169 .
satisfaction, to rebut or raise presumption of, 403.
secret trust, parol evidence to show, when admissible, 62 , 64.
trust, when capable of being declared by, 51 et seq., 61 .
when capable of being rebutted by, 59, 60, 147 et seq.
when parol evidence is admissible to prove, 144, 145.
trustee under parol trust, whether entitled to release under seal, 358.
use when capable of being declared by, 51 , 52.
will, parol trust cannot be declared upon property given by, 58, 59.
except in case of fraud, 61 .
1523
 INDEX.

[The references are to the star paging. ]

PARTIES.
conveyance, to, by trustee or c. q. t., 447 , 685 et seq. See CONVEYANCE.
duty of trustee to see that proper parties are before the Court, 351.
service of, on application to the Court for advice , 618 , 619.
on petition under Trustee Acts, 1019, 1025, 1033 et seq.
suits relating to trusts, to , 970, 975.
PARTITION.
judgment for, makes legal owner a trustee within Trustee Acts, 1026.
power of, when inserted by Court in settlement under executory trust, 127,
128.
power to concur in, conferred by Settled Land Acts, 555, 557.
power to sell or sell and exchange, whether authorised by, 427.
PARTITION ACTS.
sale of real estate of infant or lunatic under, proceeds still realty, 151 .
and so formerly as to married woman, 152.
but since Act of 1876, sale with married woman's consent operates
as a conversion , 152 .
PARTNER.
account against, in respect of assets of deceased , 277, 278.
account by, against estate of deceased partner when barred by laches , 872.
breach of trust by co-partner, when liable for, 902, 913, 916.
change of firm, right of set-off how affected by, 698.
deceased partner, partner trading with assets of, how far liable , 277, 278,
894.
following assets employed in trade , rights of c. q. t. as to, 894.
interest of, in proceeds of real estate, is within Statute of Mortmain, 148
note (e).
judgment against firm does not cause merger of separate liability , 909.
jus accrescendi excluded as between co-partners, 164, 165.
manager of partnership, unauthorised borrowing by, 595.
notice to, is notice to partnership, 709.
payment by trustees to, how to be made, 355.
production of documents by co-partners of trustee or executor, 976.
profiting by his fiduciary relation is constructively a trustee, 187 , 277.
purchase, may, from representatives of deceased partner, 490 .
renewing a lease is trustee for partnership, 181 .
set-off by members of firm , 701 .
share in partnership forming part of residue, income attributable to ten
ant for life, 304.
solicitor, who is trustee, cannot employ his partners to act for trust, 281 ,
282.
unless by the articles he is precluded from profiting thereby, 282.
surviving partner, whether in fiduciary relation to deceased, 277 note (i) .
Lord Westbury's views as to, ib.
time and trouble, surviving partner cannot charge for, 628.
trading with assets of deceased partner, must account for profits, 277.
but not for extra profits if he did not know he was a partner, 278.
or has bona fide settled partnership accounts, 278.
trustee, of, cannot purchase trust estate, 486.
when liable for breach of trust by co-partner, 902, 913, 916.
trustee who is, account against, for share of profits arising from trust
money, 277 note (a) , 894.
PATENT.
declaration of trust by Crown must be by, 48.
equities in respect of, enforceable as of other personal property, 167.
registration of patents for inventions, 167.
notice of trust not allowed on register, 167.
PATENTS , DESIGNS AND TRADE MARKS ACT , 1883, 167.
1524
 INDEX .

[The references are to the star paging.]

PAYMENT. See RECEIPT.
assignees of bankrupt, by, mode of, 255.
bank, into, to account of trust, 255, 474.
charity, of trust money of, to official trustee , 361 .
Court, into, 976 et seq. See PAYMENT INTO Court.
investment in consols considered equivalent to, 418.
legatee, when he may claim payment of legacy to buy annuity , 574, 690 ;
or where accumulation directed, 689.
small sums , of, when allowed without taking out administration , 354, 355 .
sole trustee, to, 355, 356.
trust to " pay 39 or to "pay or permit to receive," whether legal estate
passes by, 210, 212, 216.
trustee, by, 352 et seq.
to agent, 353.
to c. q. t. abroad, 353, 354.
to husband of feme covert, 902, 903.
to infant, 355.
to lunatic, 355.
to mortgagor, 331.
to partner, 355.
trustees, to , of purchase or other money, how to be made, 292, 447, 448,
473, 474.
will, in pursuance of directions contained in, 271.

PAYMENT INTO COURT. Chap. XXXI., sect. 3, 976-982.

account, title of, 998 note (b).
admission, upon, when ordered , 977 et seq.
answer, formerly on admission in, 977 , 978.
but now upon any admission direct or indirect, 978.
payments not mentioned in pleading may be verified by affidavit,
980.
title, admission of, formerly necessary, 978.
sufficiency of admission, 979 et seq.
admission of receipt of money sufficient, 979.
fund need not be in defendant's hands, 979.
admission from which liability merely inferred not generally
sufficient, 980.
nor where trustees mean forthwith to apply fund, 981 .
trustee or executor, admission by, that he owes a debt to the estate,
980 .
application for, how made, 976.
balance, of, where payments have been made, 980.
compulsorily, when ordered , 976.
debtor to estate, by, not ordered, 980.
unless executor or trustee, 980.
decree, after, 979.
distringas, " notwithstanding " notice in lieu of, 982.
equity to settlement, where trustee thinks feme covert entitled to , 742.
executor, after discovering debts of testator allowed to have money paid
out again, 998.
must pay in to limited and not to general account, 998.
and money paid in to general account may be carried over, 998.
hearing, at, ordered though refused on motion, 981 .
infant, of money of, 360, 1036.
injunction against transfer, " notwithstanding," 982.
lunatic, of money of, 1036 .
majority of trustees, by, how made, 361 , 997 , 1007 .
motion for, proceedings on, 976, 977.
order for, whether an order of course, 981.
parties, what, must be before the Court, 976, 977.
1525
 INDEX .

[The references are to the star paging.]

PAYMENT INTO COURT — continued.
policy monies, of, 997.
purchaser, by, when permitted , 996.
where there is power of sale but not of signing receipts , quære, 996.
rise in price of stock, after payment in and investment, 492.
stakeholder, of money in hands of, 977.
time, what, allowed for, 981 .
title of party applying for, 976.
partial title sufficient, 977.
possible title sufficient, where all parties before Court, 977.
where applicant's title clear Court has ordered defendant to pay in
only his share, 977.
trustee or executor, by, when ordered on admission, 977 et seq. Sec supra,
admission.
Trustee Relief Acts, under, proceedings on, 998 et seq. See TRUSTEE
RELIEF ACTS.
trustee paying in under, is trustee " refusing or declining to act, " 999.
whole fund should be paid in, 999.
PAYMENT OUT OF COURT.
Lands Clauses Act, under, 565, 960 , 985. See LANDS CLAUSES ACT.
married woman, to, upon her separate examination, 954.
examination dispensed with where sum less than £ 200 , 955.
tenant in tail, to, under Lands Clauses Act, 960 , 961 .
"PAY THE RENTS ."
trust to, not within the Statute of Uses, 210.
"PAY UNTO OR PERMIT AND SUFFER TO RECEIVE."
whether within Statute of Uses, 210 et seq.
PEERAGE .
settlement of property to accompany peerage, directions for, how carried
out, 124, 125.
powers proper to be inserted in, 127.
trust of, cannot be created, 47 note (a) .
PENSION.
from Crown to A, trust of, cannot be raised by parol for B, 52.
PERFECT TRUST.
requisites for creation of, 67 et seq.
voluntary assurance, under, 67 et seq. See VOLUNTARY SETTLEMENT.
PERISHABLE PROPERTY, 300. See WASTING PROPERTY.
PERJURY.
agent denying his character may be indicted for, 168.
"PERMIT AND SUFFER ' A ' TO RECEIVE RENTS."
within the Statute of Uses, 210.
PERNANCY OF PROFITS.
right of c. q. t. to, 674 et seq.
PERPETUITY.
accumulation, trust for, leading to perpetuity when void, 89, 90, 97.
charitable or public trusts not affected by rule against, 20.
contingent remainders, application of rule against perpetuity to, 384.
direction for leasing charity land under true value is void for, 544.
indemnity, trust for, against perpetual outgoing, 98.
management, trust for, during minorities when void, 98.
power how affected by rule against, 97 , 98, 605.
restraint on anticipation may be void for, 98, 786.
trusts when obnoxious to rule against, 89, 97 .
PERSON.
equity attaching to the , 48 note (c) .
1526
 INDEX.

[The references are to the star paging.]

PERSONA DESIGNATA.
when heir or next of kin may claim as, 953.
PERSONAL CONTRACT.
disclaimer of, 200.
PERSONAL ESTATE .
blended real and personal estate, effect of gift of, 150 , 159.
conversion of, by trustee, 963. See CONVERSION.
direction that residuary real estate shall devolve as, effect of, 951 , 952.
gift of, will not pass undisposed of proceeds of sale of testator's lands, 159.
unless proceeds directed to be taken as personal estate , 159.
or intention collected from will specially worded, 159.
secus where testator himself entitled to money, 949.
whether it will pass lapsed legacies from proceeds of sale of real es
tate , 159, 160.
pure personalty, when lands directed to be converted, proceeds will not
pass as, 950, 951.
settlement of, cannot be made to follow realty exactly, 85, 116.
strict settlement of, how effected, 98, 116.
testator, of, must, properly speaking, be such at his decease, 159.
PERSONAL REPRESENTATIVE . See EXECUTOR.
proceeds of real estate to be converted pass to , 949.
trust and mortgage estates now devolve on, 226.
trustee, of, action against, for trustee's breach of trust, 906.
PERSONAL SECURITY.
assets must not be left outstanding upon, 290, 291.
investment upon, by trustee improper, 306 , 327 ; unless under express
power, 316. See INVESTMENT.
PERSONALTY. See CHATTELS ; PERSONAL ESTATE .
PETIT TREASON.
escheat and forfeiture of property upon conviction or attainder for, 27,
28, 284.
PETITION.
advice of Court, for, under Lord St. Leonards's Act, 352, 618 et seq.
discharge of trustee, for, 672.
equity to settlement, to enforce, 741.
Lord St. Leonards's further relief Act, under, 352 , 618 et seq.
new trustees, for appointment of, 851 , 1030. See TRUSTEE ACTS.
under Bankruptcy Act, 850 .
where real property in trust for charity, 851 .
restraining order, for, 971.
Romilly's Act, under, 851 , 928.
service of, 433 note (b) , 1033, 1034.
stop order, for, 711 , 712.
Trustee Acts, under, 1030, 1031 , 1033 et seq . See TRUSTEE ACTS .
Trustee Relief Acts, under, 361 , 1000, 1006. See TRUSTEE RELIEF ACTS.
PETITION OF RIGHT.
remedy by, where Crown is trustee, 30.
PETO'S ACT ( 13 & 14 Vict. c. 28) , 852, 853.
PIN-MONEY.
arrears of, whether recoverable , 776 note (r) , 777, 778.
savings out of, belong to husband , 774 .
PLEADING.
Frauds , Statute of, when defendant must plead, 55.
Limitations, Statute of, how to be pleaded, 356, 869.
presumption, in matters of, 871 .
1527
 INDEX .

[ The references are to the star paging.]

POLICY OF INSURANCE. See INSURANCE .
chose in action, is, within Bankruptcy Act, 243.
lien on policy monies for payment of premiums, 903 and note (ƒ) .
Married Women's Property Acts, under, for benefit of wife and children,
789, 792.
mortgage of, implies power to give receipts, 453 note (b) .
notice of assignment of, what sufficient, 709.
payment of monies into Court under Trustee Relief Act, 997.
trustee of, rights and duties of, 903.
POOR OF PARISH.
limitation to, void at law, 46, 85.
trust for, how carried into effect, 85, 531, 532 , 538.
POOR OR NECESSITOUS RELATIONS.
gift to, how construed, 836 note ( 1 ) , 843.
power of distribution amongst, how construed, 836, 843.
POOR LAW GUARDIANS .
repayment to, of expenses incurred for maintenance of lunatic, 997.
PORTION. Chap. xvII ., 385-421 .
accumulation of income for raising, what permissible under Thellusson
Act, 93.
ademption of legacy, by subsequent advance by parent or person in loco
parentis, 401 et seq.
advancement by way of portion, definition of, 588 note (b).
advances to children regarded as portions, 404, 588.
amount to be raised for, 408 et seq.
annual rents and profits , when to be raised out of, 420.
Chancery Division, causes as to portions assigned to, 421 .
contingent, where fund is, interest of portionist is, 397.
costs of raising, 412.
daughters treated as younger children, 388.
distribution, period of, when the time for ascertaining portionists, 386,
390 note, 393.
doctrine of, whether applicable only to parents and persons in loco
parentis, 389 et seq. , 402.
double portions, rule against, 403, 406.
eldest child , when regarded as younger, 386 , 388, 392.
eldest daughter treated as younger child, 388.
eldest son, when disentitled to portion, 388, 389, 393.
even where estate is insufficient to meet charges upon it, 388.
election, persons entitled to portions put to, 408.
heir not considered a younger child, 386, 392.
income or corpus, whether raisable out of, 419, 420.
interest on, when portionist is entitled to, 409 et seq.
entitled although portion not vested, 410.
but not where portion raisable out of annual rents, 410.
rate of, 409 ; allowed by way of maintenance, is in discretion of
Court, 410 et seg.
investment of, in consols, equivalent to payment, 418.
land, portion charged on, failing sinks for benefit of inheritance, 398
et seq., 412 .
legacy to child regarded as, 404.
loco parentis, doctrine of portions, whether confined to persons in, 389
et seq .
maintenance, when allowed through corpus of portion not vested , 583.
mines, may be raised out of, 418, 420 .
mode of raising, 418 et seq.
mortgage, when to be raised by , 418 .
undivided shares, by mortgage of, 421 .
1528
 INDEX.

[The references are to the star paging.]

PORTION - continued.
portionists, who are, 386 et seq.; when estate is settled on an eldest son,
386 et seq.
where it is not so settled, 392 et seq.
power to appoint, exercisible in favour of children of tender years, but
such appointment viewed with suspicion, 400.
power to charge, when Court will insert, in settlement under executory
trust, 127.
presumption as to vesting of, 394 et seq.; when rebutted by language of
instrument, 397.
presumption of ademption or satisfaction of, 403.
provisions for raising, excepted from Thellusson Act, 93.
raisable from time to time, how to be raised, 420, 421 .
rents and profits, how and when to be raised out of, 419 , 420.
where raisable out of, interest not allowed, 410.
vesting of portion, 399, 400 .
residuary bequest to child regarded as, 405.
reversion, when raisable out of, 412 et seq.
sale or mortgage, whether to be raised by, 418, 420.
satisfaction of, by subsequent gift or legacy, 401 et seq.
second son succeeding to estate disentitled to portion, 387.
stranger, doctrine of portions whether applicable to gift by, 389 et seq.
strangers may indirectly profit by doctrine of, 407 , 408.
timber, when to be raised out of proceeds of, 418 , 420 .
time for ascertaining parties entitled to, 386, 390 note, 393.
time for raising, 412 et seq., 417, 421 .
time of vesting of, 394 et seq.
title deeds , trustees of term for portions not entitled to custody of, 421.
trust to " provide suitably " for younger children held not too vague, 117.
vesting of, 385, 393, 394 et seq.
at what time portions vest, 394 et seq.
where portional fund has to be created, 397.
where settlement silent as to vesting, 397 , 398 .
where portion raisable out of rents, 399, 400 .
younger child when treated as eldest, 386 et seq., 392.
POSSESSIO FRATRIS, 723, 824.
POSSESSION.
adverse, of equity of redemption, bars all claim, 725.
of wife's realty, excludes husband's curtesy, 734.
trustee and c. q. t., as between , cannot exist, 863.
secus, in case of constructive trust arising by fraud, ib.
cestui que trust, of, operation of Statute of Limitations how affected by,
881 , 882.
right of, to possession, 674 et seq.
as to chattels, 683, 684.
as to lands, 674.
recognised in equity only, until recent Act, 677 .
rent, arrears of, indemnity to be given in respect of, 686, 687.
equity, action in, when barred by long possession, 863, 872. See LIMITA
TION OF ACTION.
purchase by trustees of estates in, 505.
reduction into possession of married woman's choses in action, 24, 739
et seq., 745. See MARRIED WOMAN.
tenant for life, equitable, when entitled to , 675 .
transmutation of, where necessary to creation of a trust, 67 et seq.
trustee, of, is possession of c. q. t., 863 , 864, 880 , 882.
trustee for sale should not give up, before payment of purchase money,
441.
whether receiver appointed if he do so, 984.
1529
 INDEX.

[The references are to the star paging.]

POSSIBILITY.
cestui que trust of mere possibility cannot maintain action , 854.
in a trust assignable, 692.
POST.
" assign in the," meaning of expression, 246 ; bound by trust, 246.
POST OBIT.
trust for creditors, whether revocable, 518.
POST OFFICE SAVINGS BANK.
trust money may be paid into, 361.
POVERTY.
executor, of, whether ground for injunction or receiver, 856.
laches whether excused by, 866, 870.
presumption of release of right, its effect as to, 870.
statutory bar runs notwithstanding, 866.
trustee, of, whether ground for injunction or appointment of receiver,
856, 983.
POWER.
administration action, effect of, on powers of trustees, 449, 617, 618.
advancement, of, when Court will insert, in settlement under executory
trust, 127. And see ADVANCEMENT.
alienation by trustee, whether power will remain after, 608, 609.
annexed to estate or office of trustee, 19, 598.
survivorship of, 610 et seq.
anticipation, should not be exercised by, 615.
appendant, married woman may exercise, 33.
appointment under
married woman, by, effect of, 919 et seq.
perpetuity, when void for, 98.
when appointment fails, the property results to the appointor, 153.
arbitrary, when exercise of power is, 600, 612, 613.
power does not survive, 612, 613.
assets of appointor, when property appointed is, 919 et seq.
assign within meaning of, who is, 431 , 603.
new trustees are, 608.
assignment of estate of donee of power, exercise of power how affected
by, 607, 608.
attorney, of, 353, 354. See ATTORNEY.
bare power and power coupled with trust distinguished , 600, 611.
borrowing powers of directors of company, 595.
building leases, to grant, 546.
when inserted by Court in settlement under executory trust, 127, 128.
ceases when settlement is at an end, 605, 606.
charity, control of Court over trustees of, 616.
collateral, 19, 598.
infant may exercise, 37, 599.
married woman may exercise , 33, 599.
consent to exercise of, 604.
bankruptcy of person whose consent required, 589, 622.
under Settled Land Acts, what required, 621 et seq.
construction of.
" assigns," power to A. and his assigns, 603.
"continuance of the trust," power during, 605.
" executor," power to, 604.
" executors," power to trustee and his executors, 603.
" heirs," power to A. and B. and their heirs, 601 , 602 .
' survivor," power to trustees and survivors, 604 ; to trustee and
survivor, 604.
" trustees," " trustees for the time being," 604.
1530
 INDEX.

[The references are to the star paging.]

POWER- continued.
continuing or retaining investments, of, effect of, 320, 326.
continuing trustee, when exercisible by, 606 , 607.
contract not to exercise, 610.
coupled with trust, 600, 610, 611 , 613.
Court, control of, over power, 613 et seq., 834 et seq.
mere discretionary powers not interfered with by Court, 613.
except where there is fraud or misbehaviour or trustees decline
to exercise discretion, 616.
when and how Court will exercise power, where donee fails to exer
cise same, 834 et seq.
where power is testamentary, 840 ; where not merely testamen
tary, 840 et seq.
where subject of gift incapable of division, 844 et seq.
wherever possible, Court will execute power, 844.
decree in action for execution of trusts suspends powers of trustees, 449,
617.
secus the mere institution of action, 617, 618 .
defective execution of, by married woman, aided , 920.
delegation of, 252 et seq., 471 .
directors of trading company, power of, to borrow money, 595.
directory, what powers are, 600 , 601 .
as to number of trustees, 667.
disclaimer of, 607.
trust, of, effect of, upon exercise of power, 606, 607 , 835.
release with intention of disclaiming, effect of, 608.
discretionary, 572, 573, 613 et seq., 836 et seq.
conversion, to make, does not change nature of property in equity, 951.
See CONVERSION.
Court cannot interfere with exercise of mere discretionary powers,
613, 837.
secus if trustee "authorised and required," 614, 839 .
or where there is fraud, misbehaviour, or trustees decline to ex
ercise discretion, 616, 835.
sale by Court where trustees have discretionary power effects
conversion , 152.
legal estate taken by trustee, effect of power in determining, 218,
219.
mixed trust and power, mode of execution , discretionary, 19.
renewal of lease, for, how construed, 365.
whether trustees exercising, should state reasons for choice, 615.
distinction between different kinds of, 572, 598.
distribution, of, distinguished from power of selection , 838 , 839, 842 .
duration of, 605 , 606, 609 , 610.
equitable distinguished from legal powers, 572, 598.
may be annexed to estates or simply collateral, 598, 599.
exchange, of, quære whether a proper power, 128, 129.
execution of, prevents resulting trust, 153.
restrained by Court, in what cases, 855, 856.
takes fund out of settlement, though not entirely disposed of, as to
beneficial interest, 153.
executor of donee, when exercisible by, 603, 604, 609.
executory trust, what powers may be introduced in settlement under, 126
et seq.
extinguishment of, 605 , 606.
where real and personal estate coupled together, 609, 610.
by married woman , 783.
form, matter of, may be dispensed with to avoid circuity, 573, 574.
formalities, trustee should see that requirements as to, are strictly com
plied with, 688.
1531
 INDEX.

[The references are to the star paging.]

POWER - continued.
fraud, interference of Court in cases of, 616.
fraudulent appointment, trustee suspecting, whether compellable to con
vey, 686.
general and special, distinguished, 572.
donee of general, executor of, may call for transfer of appointed
funds , 688.
secus in case of special power, 688.
gift, words of, distinguished from words of power, 838 et seq.
gross, in, married woman may execute, 33.
in what cases infant can, 37 , 599, 600.
heir of donee, when exercisible by, 609.
imperative, when exercise of power is, 600.
breach of trust by neglecting to exercise, 904.
failure of donee of, Court protects c. q. t. against, 834 et seq.
mixed trust and power, exercise of power imperative, 19.
improvements, to make, 575 et seq. See IMPROVEMENTS.
infant, when he may exercise , 37.
investment, of, must be strictly construed , 326 . See INVESTMENT.
Court will not in general control discretion of trustees as to, 614.
jointure, to charge, 758.
when Court will insert, in settlement under executory trust, 127.
leases, power of trustees to grant, 595. See LEASE .
whether Court will insert power in settlement under executory trust,
127. See LEASE.
legal distinguished from equitable, 572 , 598.
legal estate taken by trustees, effect of powers as determining, 218, 219.
maintenance, to apply income for, 579, 582 et seq. See MAINTENANCE .
creditors of c. q. t. how far entitled to benefit of, 99 et seq.
discretion of trustees not interfered with by Court, 614, 615.
whether Court will insert power in settlement under executory trust,
127.
management, of, distinguished from powers which confer personal privi
leges, 127.
of land of infant during minority, 578 et seq.
sanction of Court to exercise of, how obtained, 618 et seq.
married woman may exercise , 33, 775.
when exercise of, renders appointed property her assets, 919 et seq.
mere power, meaning of, 600, and see 839 ; does not survive , 601 , 602,
610, 611.
mining leases, to grant, 505, 553, 682. See MINES.
when inserted by Court in settlement under executory trust, 127,
128.
mixture of trust and power, 19, 836.
moral considerations, trustees exercising powers must not regard, 606.
mortgage powers may be exercised by assigns, 603.
mortgagee, statutory powers of, 431 , 432.
new trustees, power to appoint, 646 et seq. See NEW TRUSTEES.
administration action, how affected by pendency of, 617, 618 , 669.
donee of, whether he may appoint himself, 666.
statutory, under Lord Cranworth's Act, 647.
under Conveyancing Act, 1881 , 648 et seq.
application of, to previous settlements, 648, 649.
survivorship of trust notwithstanding existence of, 431 .
usual form of, 646.
when Court will insert, in settlement under executory trust, 127 , 128.
new trustees , powers exercisible by, 608, 647, 670. See NEW TRUSTEES.
non-execution of, Court will not aid, 834.
notice to c. q. t. of trustee's intention to exercise; 573.
objects of, must be gathered from whole instrument, 842 .
1532
 INDEX.

[The references are to the star paging.]

POWER - continued.
partition, of, when Court will insert, in settlement under executory trust,
127, 128.
perpetuity, rule against, application of, to power, 97, 98, 605.
appointment when obnoxious to, 98.
restraint on anticipation, affecting to impose, 98.
personal representative of donee, when exercisible by, 609.
portions, to appoint, how to be exercised, 400.
portions, to charge, when Court will insert, in settlement under executory
trust, 127.
"proper," what is, in settlement, 128 , 129.
under Conveyancing Act, 1881 , 129 .
receipts, of signing, 450 et seq. See RECEIPT.
reimbursement, powers of trustee as to, 594.
"relations," to appoint amongst, how construed, 842 et seq.
whether in default of appointment they take per stirpes or per capita,
843.
power of selection implied, where not implied in case of " children,"
843 note (ƒ).
release of, 610.
donee may release by deed under Conveyancing Act, 610.
but not where power coupled with a duty, 610.
married woman, by, 783, 955.
release, to make, of equity of redemption or mortgage, 593.
repairs to make, 574, 575. See REPAIRS.
request for exercise of, how to be testified, 429, 430.
resulting trust of appointed fund in favour of donee of power, 153.
retirement of trustee by virtue of, 646, precautions to be observed on, 654.
revocation, of, is personal to donee, 612.
sale, of. See SALE.
advice of Court as to exercise of, 619, 620.
authorised under settlement by reference, 128, 130.
discretionary, when exercise of power is, 613.
duration of, 605, 606 .
executory trust, when Court inserts power in settlement under, 127
et seq .
implied, when, 434.
improper exercise of, injunction to restrain, 435, 855.
mortgage, in, 431 , 432, 603. See MORTGAGE.
partition not authorised by, 427.
but is by power of sale and exchange, 427.
personal representative of surviving trustee empowered to exercise,
233.
receipts, power to give, whether implied in, 460 .
settlement, in, effect of usual power, 427 , 428 .
statutory, 428, 429, 431 , 432.
surplus proceeds, whether bound by judgment against mortgagor,
799.
survivorship of, 431 , 611 , 612 .
trust for sale distinguished from, 451 .
selection, of, distinguished from power of distribution, 838, 839, 842.
not interfered with by Court , 615.
Settled Land Act, 1882 , restrictions imposed by, on powers of trustees,
621 et seq. See SETTLED LAND ACTS.
advice of Court as to exercise of powers under, how obtainable,
620, 621.
severance of estate from, 610.
simply collateral, 598.
special distinguished from general, 572.
Statute of Uses, anterior to summary of law as to, 611 note (1) .
1533
 INDEX.

[ The references are to the star paging.]

POWER - continued.
statutory --
new trustees, to appoint, 647 et seq. , 850 et seq.
receipts, to give, 293, 451 , 452.
sale, of, in mortgage, 431, 432 .
in settlement, 428, 429.
tenant for life, of, under Settled Land Act, 1882, 129, 428, 429, 436,
553, 555.
strict, distinguished from directory, 600.
survivorship of, 261 , 431, 610 et seq.
arbitrary power does not survive, 612, 613.
Conveyancing Act, 1881 , under , 261 , 612 , 613.
disclaimer of trustee, on, 606, 607.
mere power to several does not survive, 601 , 602 , 610, 611.
power annexed to trust survives , 610, 611 ; secus where not so an
nexed, 612.
power given to trustees by name, 612.
trust or power created by instrument subsequent to 31st December,
1881 , survives, 261 , 612, 613.
tenant for life, consent of, to exercise of powers, when required, under
Settled Land Acts, 621 et seq.
tenant for life, of, how affected by his sale or mortgage, 668.
under Settled Land Act, 1882, 129, 428, 429, 436, 553, 555.
testamentary, in whose favour Court will exercise, 840.
time for exercising, trustee must not anticipate, 615.
trust distinguished from, 451, 839 et seq.
trust, mixture of, and power, 19, 836.
distinguished from trust to which power is annexed, 19.
words of recommendation, &c ., whether trust or power is created by,
135 et seq.
"usual," what is , 127 et seq.
varying investments, of, 318, 323. See INVESTMENT.
vesting order cannot be made as to , 1013 note (e) .
will in exercise of, by married woman, 775.
PRACTICE. Chap. XXXII., 970-975.
alterations in, by recent rules, 350 et seq.
application to Lord Chancellor by petition to Great Seal where the Crown
is visitor of charity, 530.
appointment of new trustees, in proceedings for, 645 et seq.
charging order, as to obtaining, 807 et seq.
County Court, transfer of suit to, 362. And see COUNTY COURT.
distringas, on application for, 970 et seq.
Lord St. Leonards' Acts, under, 618, 619.
notice in lieu of distringas, as to obtaining, 973 et seq.
originating summons, questions affecting trusts determined by means of,
350.
payment of money into Court, as to, 976 et seq See PAYMENT INTO
COURT.
production of documents by trustee, as to , 975, 976.
receiver, as to appointment of, 982 et seq.
restraining order on stock, shares, &c ., as to obtaining, 971 , 972, 974.
special case, as to determination of questions by, 352.
stop orders, as to obtaining, 712 .
Trustee Act, under, 1009 et seq. See TRUSTEE ACTS.
Trustee Relief Act, under, 996 et seq. See TRUSTEE RELIEF ACTS.
wilful default, account with, not ordered on further consideration where
omitted at hearing, 905.
PRECIPE .
equitable tenant to, 694.
1534
 INDEX .

[ The references are to the star paging.]

PREACHER.
gift to find a, 530.
PRECATORY TRUST.
children, in favour of, how executed, as to females, 132 note (a) .
doctrine of, does not apply to wills only, 132.
recommendation to employ particular person does not amount to, 641 .
uncertainty as to object or subject matter of trust, does not arise in
cases of, 133.
what words sufficient to create, 130 et seq., 839.
PRE-PAYMENT.
of trust money to trustees, 288.
PRESENTATION.
tenants in common of advowson must cast lots for, 276.
trust to purchase for particular person, whether simoniacal, 104 .
trustee may delegate mere act of, to proxy, 258.
trustee of advowson presents but must have directions of c. q. t., 234, 275 ,
PRESUMPTION.
acceptance of trust, of, by lapse of time without disclaimer, 201 .
account, of settlement of, 870 et seq.
ademption and satisfaction, of, 403.
advancement, of, 170 et seq. See ADVANCEMENT .
corporation , of notice to , not readily made , 936.
death, of, by disappearance for seven years, 348, 349 .
disclaimer of trust, of, by lapse of time without acting, 202.
election by c.q. t., of, when it arises, 961 , 962.
gift, of, by wife to husband of separate property, 777, 778.
infant, gift to, presumption that he takes beneficially, 39 , 40 .
law, of, may be rebutted by parol evidence, 147.
where new property made over to new trustees of old settlement, 145.
limitation of action by presumption of release or other act after lapse of
time, 869 et seq.
merger, of, when it arises, 730 et seq.
purchase of estate by trustee at price corresponding with trust money in
his hands, 896.
release, of, when it arises, 870.
vesting of portions, as to, 394 et seq.
PRINCIPAL AND AGENT. See AGENT.
PRIORITY .
creditor, of, over legatee, 524 ; over volunteer, 81 note (ƒ) .
creditors, of, inter se, in administration of assets, 825 et seq. See ASSETS.
fund in Court, of incumbrancers on, 711 , 712. See STOP ORDER.
judgment creditors, of, 246 note (ƒ) , 816, 825, 830 note (ƒ) .
legal estate, by obtaining, 330, 863 .
mortgagees, of, 704 et seq., 715. See MORTGAGE .
notice, by giving, 702 et seq. See NOTICE .
"6 qui prior est tempore potior est jure ," 713, 862.
time, by, 713 et seq., 862.
title deeds, by possession of, 714.
PRISON.
trustees of, not ratable, 235.
PRIVATE CONTRACT.
trustees may sell by, 434.
PRIVATE TRUST.
duration of, 20.
PRIVILEGED COMMUNICATIONS.
what are, 976.
1535
 INDEX.

[The references are to the star paging.]

PRIVILEGES .
cestui que trust , of, 681 et seq. See CESTUI QUE TRUST.
trustee, of, 234, 235.
PRIVITY.
estate, of, at first held essential to existence of trust, 2.
but secus in later times, 9.
meaning of, explained , 3, 15.
as regards c. q. t., 3.
person, trust annexed in privity to, 16.
personal between plaintiff and defendant required to found jurisdiction
as to foreign property, 49.
PRIZE OF WAR.
vests in sovereign, 22.
warrant, royal, for distribution of, does not constitute Crown a trustee, 22.
PROBATE . See EXECUTOR.
acceptance of trust by proving will, 201 , 203.
act, executor may, before taking out, 483.
effect of taking out, 201 et seq.
executor may sell and give receipts before, 483 ; but purchaser not bound
to pay, ib.
executor's title evidenced by, 483.
prerogative probate, whether term in trustee requires a, 224.
renunciation of, effect of, 197 , 201 , 202, 223.
sovereign, will of private property of, not admitted to, 22.
will of married woman appointing proceeds of land is entitled to, 949.
PROBATE DUTY.
payable on proceeds of land to be converted into money, 949.
PRODUCTION OF DOCUMENTS , 975, 976.
accounts, duty of trustee to produce, 975, 976.
cestui que trust entitled to , from trustee , 975.
but trusteeship must first be established , ib.
covenant for, by trustees, how to be framed, 443.
mortgages, of, upon which trust fund invested, 975.
opinions of counsel, trustee must produce , 680, 975.
unless they are part of his defence, 976.
trustee suppressing documents ordered to pay costs, 994.
vouchers, duty of trustee to produce, 449, 691 .
PROFIT.
set-off, defaulting trustee cannot, against loss , 907 .
trustee must not make, from his office, 180, 275 et seq., 668. See CoN
STRUCTIVE TRUST.
same rule applies to agents, guardians, directors and promoters of
companies, and other persons in a fiduciary position, 279 et seq.
PROFITS OF TRADE .
account of, what included in, 278.
partner trading with assets of deceased partner must account for, 277.
stranger trading with trust money not answerable for extra profits beyond
principal and interest, 278.
trustee or executor trading with trust estate must account for, 276, 277,
340 et seq.
PROHIBITION.
against spiritual Court interfering in a trust, 17.
PROMISE TO SUBSCRIBE, by testator, effect of, 590 .
PROMISSORY NOTE .
assignment of, upon trust, without indorsement, 72.
indorsement and delivery of, with view to testamentary disposition does
not create trust inter vivos, 82.
1536
 INDEX.

[The references are to the star paging. ]

PROMISSORY NOTE - continued.
married woman, by, binds separate estate, 761 , 763.
trustees may not invest on security of, 306.
voluntary, creates debt, when, 80 , 81 note (ƒ) .
PROMOTER.
company, of, is a constructive trustee, 279.
PROOF.
bankruptcy, in, 234, 912. See BANKRUPTCY.
mortgagee, by, in administration action, bankruptcy and under trust deed
for creditors, 521.
trustee, in bankruptcy of, 241 , 912 et seq.
" PROPER POWERS."
to tenant for life, what powers authorised by, 128, 129.
PROTECTION ORDER .
effect of, on married woman's chose in action, 346, 740 , 757 .
PROTECTOR OF SETTLEMENT , 381 , 382.
alien cannot be appointed, 382.
bare trustee is not, of settlement subsequent to Fines and Recoveries Act,
382.
bare trustee, who is, duties of, 382.
consent of, to disentailing deed, required, 381 .
to vesting order under Trustee Act, 1016.
death of, 382 note (a) .
disclaimer of office by, how to be made, 200.
dowress is not, 382.
equitable tenant for life in possession is, 682 .
executory trust, whether Court will appoint protector to settlement in
pursuance of, 121 .
irresponsibility of, 121.
married woman is, where legal freehold limited to her separate use, 781.
number of protectors, not to exceed three , 382.
power of appointment of new protectors, may be given, 382.
trustee, protector is not, in respect of his power of consent, 382.
PROVING WILL. See PROBATE .
PROXY.
appointment of, distinguished from delegation of office, 257.
election of clerk or incumbent, trustees ought not to depute , to proxy,
257.
PUBLIC POLICY.
trust in contravention of, not permitted, 94.
where not contravened, Board will execute trust, 84.
PUBLIC TRUST. See CHARITY.
majority of trustees of, may bind the rest, 259, 540, 547, 592, 597.
meaning of term explained, 20.
perpetuity,
66 not confined within limits of law against, 20.
' public purposes," meaning of, 20.
are all in a legal sense charities, ib.
remedy for enforcement of, is by information , 31 .
PUBLIC WORKS LOANS ACT, 1875.
payment into Court under, 997.
PUR AUTRE VIE.
copyholds for lives, devolution of, under Wills Act, 165.
De Donis, estate pur autre vie not within statute of, 694.
leaseholds for lives, devolution of on personal representative, 165 note (m).
quasi entail, how barred , 694, 695.
special occupant, heir taking as, may disclaim , 197.
1537
 INDEX .

[The references are to the star paging.]

PURCHASE .
agent, by, parol evidence of agency not admissible when no part of con
sideration paid by employer, 168.
charges, subject to, precautions in case of, 727.
charity lands, of, when set aside, 540.
child, in name of, effect of, 170 et seq. See ADVANCEMENT.
contract of, by testator or intestate, effect of, 806, 943 .
contract of, power of trustee to enter into, 499 , 500.
debt, of, by person in fiduciary relation to debtor, 276 et seq.
deposit on, trustees may make, 501 .
equitable interest, of, notice necessary to complete, 704.
fixtures, of, on trust property by trustee, 276.
heir, by, of debt or incumbrance, 279.
incumbrance, of, by trustee, 276 ; or heir or devisee, 279 ; or by joint pur
chaser, 280.
money, duty of purchaser to see to application of, 451 et seq.
payment of, to trustees, how to be made, 447 , 448.
whether purchaser may pay, into Court under Trustee Relief Acts, 996.
mortgagee, by, of mortgagor's wife's right of dower, 277.
resulting trust, when created by purchase in name of third person, 162
et seq. See RESULTING TRUST.
Settled Land Acts, under powers of, 559, 565, 570. See SETTLED LAND
Acts.
tenant for life, by, of incumbrance on settled estate, 280, 731 .
of lands with borrowed money afterwards paid out of settlement
money, 896 .
trustee, by, from c. q. t. when upheld, 487 .
'trustee, by, of land out of trust monies, 896, 897.
lien of c. q. t. in such case, 897.
trustee, by, of trust property, 484 et seq.
account against trustee, 491 , 494.
agent for another, trustee cannot purchase as, 486.
auction, at, not permitted, 484, 485, 489.
cestui que trust, trustee may purchase from , if relation of trustee and
c. q. t. dissolved and no concealment, 487 .
confirmation of purchase by c. q. t., 497, 498 .
consideration not necessary, 497 .
requisites of, 497 , 498.
costs of action to set aside purchase , 494, 991 .
co-trustee, trustee cannot purchase from, 484.
nor sell to self and co-trustees, 503.
creditors, purchase by trustee for, not permitted, 489.
deterioration, compensation for, payable by trustee, 491.
devise by trustee before sale set aside, effect of, 494.
disclaiming trustee, by, permitted, 485.
fairness of transaction not a justification, 485.
laches when a bar to relief, 495 et seq., 872.
distress of c. q. t., delay when excused by, 496.
ignorance, delay excused by, 496.
infant or married woman not barred by, 496.
name of another, in, not allowed, 484.
nominal trustee, by, permitted, 485.
partner of trustee cannot purchase, 486.
purchaser without notice, trustee purchasing from, is bound by trust,
859, 860.
reason of rule against, 484 et seq.
reconveyance, right of c. q. t. to, on payment of purchase-money and
interest at £4 per cent., 491.
without prejudice to bonâ fide lessees, 492 .
rents, account of, against trustee, 491 .
1538
 INDEX .

[The references are to the star paging. ]

PURCHASE, trustee, by, of trust property — continued.
repairs and improvements, allowance to trustee for, if sale set aside,
491, 493.
resale, right of c. q. t. to , 492.
trustee, where no advance, held to his purchase, 493.
whether resale in lots can be required , 493.
setting aside purchase, what terms imposed in case of, 490 et seq.
purchase-money, whether belonging to heir or personal represen
tative of trustee, 494, 495.
shares, remedy of c. q. t. in case of, 494.
time within which relief must be sought, 495 et seq., 872.
trustee paying money into Court not entitled to rise in stock, 492.
trustee, by, under trust for purchase of lands, Chap. xIx. , 499–508 .
advowson, purchase of, improper, 503.
contract, power of trustee to enter into, 499 , 500.
conveyance by, how to be framed, 505 et seq.
copyholds for lives, purchase of, 503.
costs of purchase, how to be raised, 505.
co-trustee, purchase from, 503.
deposit, trustee justified in paying, 501.
disclosure of trust how avoided, 505 .
drainage of settled lands, expenditure on, 504.
equity of redemption , purchase of, 503, 504.
fund in Court, out of, 505.
ground rents, purchase of, 502 , 505.
house property, purchase of, 502.
impeachment for waste, tenant for life when to be subject to, 507,
508.
legal estate, duty of trustee to get in, 504.
mines, purchase of, apart from surface, 503.
new buildings, erection of, equivalent to purchase, 504.
repairs and improvements, not equivalent to purchase, 504.
reversion, purchase of, 505.
tenant for life, purchase from, whether justifiable, 503.
timbered estate, purchase of, 502 .
title, duty of trustee to procure good , 500, 501.
trustee contributing part of purchase-money, 506.
value of purchased property, duty of trustee to see to, 499.
trustee, from, by co-trustees , 503.
value, for, without notice, defence of, when applicable, 3, 16, 246, 726,
727 , 833. See PURCHASER.
wife, in name of, effect of, 170 et seq . See ADVANCEMENT.
PURCHASER .
accidental damage to estate purchased must be borne by, 141 .
administration action, pending, should not purchase from trustees, 457.
application of purchase-money, when bound to see to, 451 et seq. See
RECEIPT.
attorney, power of, when irrevocable in favour of purchaser, 353 note (c) .
breach of trust, with notice of, 423 , 424, 457 , 459.
cestui que trust, from, may apply for transfer of legal estate, 1012.
cestui que trust sub modo, purchaser is, 142.
charges, keeping on foot, 727 et seq.
paying off, pending contract and before completion does not work
merger, 727.
charity estate, of, where sale improvident, 540.
chattel, of, when compelled to restore to rightful owner, 860, 893.
not concerned to see to application of money, 477 .
chose in action, of, from trustee bound by same equity as trustee, 862.
constructive trust, bound by notice of, 858, 861. See infra, trust.
covenants by vendor with, what may be required , 438.
1539
 INDEX .

[ The references are to the star paging.]

PURCHASER -continued.
death of, intestate and without heir, after payment of price , effect of,
283 et seq.
discretion of trustee cannot be questioned by, 426.
doubtful equity, whether bound by, 860 et seq.
equitable interest, of, enquiries and notice to be made and given by, 704.
priority of, over general and roving charge, 720.
equity to settlement of married woman as against, 742.
executor, from, not bound to pay purchase-money before probate, 483.
exoneration of property from charges as between several purchasers, 718,
719.
expenses to be borne by, 449.
heir of the body taking as, 113, 114, 119.
heir taking as, 824, 953.
improvement to estate purchased, is entitled to benefit of, 142.
incumbrances, how he may protect himself against, 727.
whether vendor must answer enquiry as to, 459 note (a) .
joint, lien of, for improvements, 165.
judgment creditor is not, 246 note (ƒ) .
who is purchaser as against, 811.
judgment, onus of, when thrown on latter of two purchasers, 718.
legal charge, purchaser bound by, whether with or without notice, 15.
legal estate, priority by obtaining, 863.
legatee, from, cannot be made to refund, 356.
lien, with notice of, bound , 858.
lien of, for improvements as against co-purchaser , 165.
lunatic or idiot, from, without notice , 26.
mortgagee with power of sale, from , 855 note (c).
notice, importance of, as between purchasers, 702 et seq., 859 et seq.
notice, purchaser with, cannot obtain priority by giving notice or obtain
ing stop order, 711 , 712.
notice to, of intended breach of trust, effect of, 457 , 459, 478 et seq.
of will, 478.
payment by, to trustees, how to be made, 292, 447, 448, 473, 474.
to person who has ceased to be owner, 705.
propriety of sale by trustee, when bound to see to , 450, 451 .
receipt of trustee , when discharged by, 451 et seq. See RECEIPT.
release of mortgage by trustee, purchaser not bound to see to propriety
of, 593.
requisition by, as to incumbrances, 459 note (a) .
security to trustee, being solicitor, for costs set aside even as against
purchaser, 630.
time, lapse of, purchaser from trustees when put on enquiry by, 457 et seq.
trust, whether bound by, 246, 857 et seq.
purchaser of legal estate with notice is bound, 858.
rule applies to constructive trusts, 858 ; equitable incumbrance,
858 ; or lien, 858.
and conveyance by fine, 858.
but not to purchaser with notice from purchaser without,
859.
purchaser of legal estate without notice, not bound , 246, 833, 85
although he purchased from purchaser with notice, 859.
but rule does not apply to charitable use, 859 .
Statute of Limitations runs in favour of, 876.
purchaser of equitable interest, 858.
renewed lease, purchaser of, from trustee when bound by construc
tive trust, 185 .
shares, purchaser of, without notice before registration, 859.
sufficiency of notice,-
presumed from recitals , when, 185.
1540
 INDEX.

[The references are to the star paging. ]

PURCHASER continued.
trust, sufficiency of notice,
whether purchaser bound by notice of doubtful equity, 860 ; or
of title long neglected, 861.
trustee selling to purchaser without notice, and then becoming owner,
trust revives, 860.
value, for, without notice, 3, 16, 246, 833, 858 et seq. See supra, trust.
voluntary settlement of realty not binding on, 81 , 82 .
QUALIFICATION.
cestui que trust, of, to be a juror, to sport, to vote for member of Parlia
ment, 681.
coroner, to vote for, 234, 235, 681 .
trustee, of, 29 et seq.
QUANTUM OF ESTATE .
taken by trustee, 212 et seq. See LEGAL ESTATE.
QUASI TENANT IN TAIL.
how he may disentail, 694, 695.
QUASI TRUSTEE.
costs of, 989.
person assuming to act as trustee, liability of, 904.
person reaping benefit of breach of trust is, 344.
QUEEN. See CROWN.
QUEEN'S BENCH.
civil corporations visited by, 530.
QUI PRIOR EST TEMPORE POTIOR EST JURE, 713, 862.
QUORUM, 260.
RAILWAY DEBENTURES OR MORTGAGES .
investment in, by trustees, when authorised, 312 , 319, 320, 326.
foreign railways , 322.
RAILWAY SHARES .
notice on assignment of, 705 note (a) .
retention of, by executors, when justifiable, 289, 300.
RATEPAYERS . See PARISHIONERS.
RATES.
tenant for life must pay, during his life, 683.
trust in aid of, when constituted, 532.
trustees liable to , unless holding exclusively for public purposes , 235.
REAL PROPERTY LIMITATION ACT, 1874 , 875 et seq.
REAL SECURITIES .
investment in, by trustees, 308, 312, 313. See INVESTMENT ; MORTGAGE.
REALTY.
conversion of, by trustee, 963. See CONVERSION.
costs payable out of, 644.
distinction between, and choses in action, as regards doctrine of notice.
704, 705.
effect of blending, into one fund with personalty in a will, 150, 159 .
REASONS .
trustees need not assign, for exercise of their discretion, 615.
REBUTTER.
advancement, of intention of, 176.
presumption of law, of, by parol evidence, 147. See RESULTING TRUST.
purchase in name of stranger, of presumption arising on, 171.
RECEIPT.
administrator, of, after lapse of time , 481 , 482.
where there is a charge of debts, 467, 468 .
agent or attorney, signed by, 453.
1541
 INDEX.

[ The references are to the star paging.]

RECEIPT -continued.
purchaser from trustee not in general discharged by, 447, 448.
assignee, by, when a sufficient discharge, 346.
breach of trust, receipts of trustees intending to commit, 457 , 459 , 481 et seq.
receipt whether effectual after commission of, 472.
cestui que trust abroad, in case of, 476.
charge of debts, power to give receipts implied by, 461 et seq.
who are empowered to give receipts by virtue of, 461 et seq.
devisee, under beneficial devise with charge of debts, 464.
concurrence of executor whether necessary, 465.
executor, where devise is to trustees, 461 .
where no devise of estate , 465 et seq.
where simple devise lapses, 468.
where estate subjected to various limitations, 468 , 469.
heir cannot give good receipt, semble, 465, 466.
tenant for life, concurrence of, whether necessary under Settled
Land Act, 470.
trustee, where estate devised to him, 461 et seq.
concurrence of executor whether necessary, 463 et seq.
chattel, on sale of, purchaser not bound to see to application of purchase
money, 477, 478.
except in cases of fraud or collusion, 478 et seq.
co-administrators on same footing as co-executors, 273.
co-executor liable for joining in, 256, 268.
unless his joining be nugatory, 269.
or ex necessitate, 272.
conformity, trustee joining in receipt for sake of, not liable, 264 , 265, 292.
but rule more restricted than formerly, 292 note (c).
co-trustees.
all must join in giving receipt , 259, 471.
even co-trustee who has conveyed estate to the others, 471 .
secus co-trustee who has disclaimed, 471.
co-trustee joining but not actually receiving money not liable , 264, 265.
unless he permits money to lie in hands of co-trustee, 265 et seq.
joint receipt conclusive at law of actual receipt, 265.
onus probandi that co-trustee did not receive money, 265.
devisee, of, purchaser when discharged by , 465, 469, 470.
executor, of, purchaser when discharged by, 466, 467, 477 et seq., 597.
executory trust silent as to powers whether it authorises power to give
receipts, 126 note (g) .
guardian of infant, of, when a good discharge, 355.
heir at law, of, purchaser when discharged by, 465 , 466, 468, 471.
husband of married woman, of, when required, 34 , 36.
infant, of, representing himself to be of full age , 355.
in full of all claims, effect of, 358.
insurance monies , for, 292 , 293, 453 note (b) .
investment, power of, whether power to give receipts implied by, 460.
liability for joining in, 264 , 265. See supra co-executor, co-trustees.
married woman , of, who is trustee, 34 , 36, 474.
mortgagee, statutory power of, to give receipt, 451.
official trustees of charitable funds, of, 361.
partner, of, 355.
power to give receipts.
delegation of, 471.
express, effect of, 453 .
extraneous monies, does not extend to, 474.
implied by charge of debts, 461 et seq. See supra , charge of debts.
implied by direction for immediate sale, 454.
ex gr . when present distribution of proceeds cannot be made, 454.
or c. q. t. are infants, 454.
1542
 INDEX.

[The references are to the star paging.]

RECEIPT - continued.
power to give receipts .
quære as to c. q. t. abroad, 455.
implied by power of investment and varying securities, 460.
but not by mere power of sale and exchange, 460 .
implied by special trust annexed to purchase money, 455.
er gr. to pay debts, 456.
or debts and legacies, 456 ; even though purchaser knows debts
are paid, 458, 459.
secus, where for particular debts, 456 ; or legacies only, 457 .
implied on assignment of policy by way of mortgage, 453 note (b) .
intention of settlor at date of instrument, depends on, 458 .
statutory power, 293, 451 , 452.
subsequent events or lapse of time, not affected by, 458 et seq.
title, is question of, 453 note (a) .
purchaser when discharged .
executors, by receipt of, 466, 467, 477 et seq.
principle on which purchaser required to see to application of money
considered, 452 , 453, 475, 476.
several capacities, where vendor is interested in, 476.
several purchasers, practical directions where there are, and no power
to give receipts, 475.
trustees, by receipt of, 292, 447 , 448 , 450 et seq.
rent, for, evidence that covenants in lease performed, 439.
single trustee , of, when sufficient, 355, 356.
statutory power to give, 293, 451 , 452.
tenant for life, concurrence of, when necessary under Settled Land Act ,
470.
time, lapse of, purchase from administrator or executor after, 481 , 482.
from trustee after, 457.
power to give receipts a question of intention at date of deed, 458.
trustees.
actual receipt of purchase money by, whether essential , 447, 448.
appointed by Court, their power to give receipts, 471 , 472.
assignee of, whether he can give receipts, 471 , 472 .
breach of trust, whether receipts effectual after, 472.
or if given by trustee intending to commit breach of trust , 294.
executor or administrator of, whether he can give receipts, 483, 484.
married woman, who is, whether she can give receipts, 474.
purchase money, whether they must actually receive, 473, 474 .
pure personalty, distinction between, and monies payable en sales or
mortgages, whether there is, 292, 293.
signature of, must be of all trustees, 257 , 471 .
signature of, trustees bound though money not actually received, 288.
statutory power of, to give receipts, 293, 451 , 452 .
stock, trustee entitled to receive, cannot give receipt for cash , 453.
where no money passes to trustee, 473.
varying securities, power of, implies power to give receipts, 460.
RECEIVE .
trust money, how trustees should, 288, 291 , 292, 473, 474.
trustee may receive money before due, 288.
RECEIVER. Chap. XXXII. sect. 4, 982-994.
abroad, where trustee or executor is, when appointed, 983, 984.
appointment of, by Court, at instance of c. q. t., 982 et seq.
where all concur, 982.
where individual c. q. t. applies to the Court, 982 .
not appointed on slight grounds, 983.
where tenant for life allows property to fall into disrepair, 238.
at instance of judgment creditor, 813 et seq.
/ 1543
 INDEX.

[The references are to the star paging.]

RECEIVER- continued.
bankruptcy or insolvency of trustee, a ground for appointment of, 982.
creditors ' action, in, where executor threatens to prefer one creditor, 856.
danger to trust estate, a ground for appointment of, 856, 952.
depositing trust money in bank, held liable, 296.
disagreement by trustees, a ground for appointment of, 983.
discharge of, not ordered at mere instance of party procuring appoint
ment, 984.
except where the purpose has been answered, 984.
disclaimer by one trustee, not a ground for appointment of, 983.
drunkenness of executor, when a ground for appointment of, 983 .
equitable execution by appointment of, 813, 814.
whether elegit must be actually sued out, 814, 815.
expense of, falls on tenant for life, 984.
incapacity of trustees to act, a ground for appointment of, 982, 983.
infant cannot be appointed, 37.
interest, charged with, for improper retainer, 338, 339.
leaseholds, of, to provide for renewal fine, when appointed, 378, 379, 854.
Limitations, Statutes of, whether he is express trustee within, 885 note (e) .
married woman, of separate property of, at instance of creditor, 771 .
where executrix is, and husband resident abroad, 983.
misconduct of trustee, a ground for appointment of, 982, 984.
poverty of trustee or executor, when a ground for appointment of, 983.
purchase by, of trust estate, not permitted, 486 .
remainderman, appointed on application of, 854.
remuneration of, priority of, 984, 987 .
renewable leaseholds, of, where tenant for life neglects to renew, 854.
security to be given by, 813.
when dispensed with, 814.
time or trouble, he cannot charge for, 628.
trustee cannot be appointed at a salary unless mere trustee to preserve
contingent remainders, 280.
RECITAL .
correctness of, when to be presumed, 438, 439.
declaration of trust may be proved by, 56.
false, effect of, 685, 989.
notice by, of surrender of former lease, 185.
trustee executing deed should see that recitals are correct, 201 , 685.
RECOGNISANCES.
purchasers, how far bound by, 809.
receiver, by, 982.
RECOMMENDATION.
words of, whether sufficient to raise implied trust, 130 et seq., 641.
RECONVERSION.
election of c. q. t., by virtue of, 953 et seq. See ELECTION.
implied trust for, 433, 434.
lunatic's property, of, 964.
RECONVEYANCE, 685, 966, 1019. See MORTGAGE .
RECORD.
disclaimer by matter of record not necessary, 199.
RECOVERY.
contingent remainder formerly defeated by means of, 380.
equitable entail, its effect on, 694.
how it must have been suffered , 694.
infant, of, formerly only reversible during nonage, 25.
lunatic or idiot, of, formerly valid unless reversed, 26.
trustees to preserve, when they could have prevented, 381 .
vacation, could not be suffered in, 957.
1544
 INDEX .

[The references are to the star paging.]

RECREATION GROUND.
conveyances for, exempted from Mortmain Act, 97.
RECTIFICATION.
appointment of new trustees, of, 663.
settlement, of, 113. See SETTLEMENT.
REDEMPTION.
action for, when barred, 866.
wilful default need not be alleged, 905.
equity of, 248. See EQUITY OF REDEMPTION.
REDEMPTION OF LAND TAX.
of lunatic's estate, may be effected from proceeds of timber, 964.
REDUCTION.
married woman's choses in action, reduction of, into possession, 24, 739 et
seq., 745. See MARRIED WOMAN.
salaries, of, power of trustees as to, 538.
trust property, of, into possession, duties of trustees as to, 287 et seq.
REFERENCE .
words of, creation of charges by, 130.
creation of trusts by, 506 , 507.
REFUND .
legatee when bound to, 356, 357.
REFUSAL .
trustees, by, to act, 647, 656 ; how remedied under Trustee Acts, 1022 et
seq., 1041 et seq.
to convey or transfer at request of c. q. t., 685, 686, 692.
REGISTRATION.
breach of trust by neglecting to effect, 904.
Crown debts, of, 809.
deeds, & c. , of, in register counties, 500, 501 , 816.
designs, of, 167.
incorporation of charity trustees, of, 547, 548.
judgments, of, 500 , 804, 809, 812 , 816. See JUDGMENT.
patents, of, 167.
shares, of, after notice of trust, 859.
ships , of, 166.
trade marks, of, 167.
REGULATION OF FORCES ACT, 1871 , 708 .
REIMBURSEMENT, 634 et seq. See EXPENSES ; LIEN.
RELATIVE.
cestui que trust, of, should not be appointed trustee, 41 , 666.
meaning of term " relations , " 133, 134 , 836, 837.
" poor relations," bequest in favour of, how construed , 836 note (1 ) ,
843.
power to appoint amongst relations, how construed , 842 et seq.
how executed by Court, 843 et seq.
trust for relations, how construed, 133 , 134, 836.
trustee, relative is not desirable as, 665.
trustees, whether they should grant leases to their relatives, 542.
RELATORS .
necessary in information on account of costs, 927.
RELEASE.
assignee having power to give receipts can call for payment without ten
dering, 346.
breach of trust, in respect of, by c. q. t., 924 et seq.
by married woman or infant, 925, 926.
1545
 INDEX .

[The references are to the star paging.]

RELEASE - continued.
cestui que trust, by, in ignorance of his rights, 185, 186 , 926.
consideration, what sufficient for, 925.
co-trustee, of one, discharges other, 915 ; secus as to covenant not to sue,
915.
creditor, by, by accepting composition, 521 , 522.
debts, power of trustees or executors to release, 591 , 592.
equity of redemption, whether trustee may release, 593.
executor entitled to, on final settlement of accounts, 358.
married woman, by, of her equity to a settlement, 741 .
of power, 783, 955.
mortgage security, release of part of, whether trustees may make, 593 .
power, of, under Conveyancing Act, 1881 , 610.
presumption of, when made, 870.
principal, of, discharges surety, 934.
seal, under, its effect and whether trustee may require, 358.
trust, from, how trustee can obtain, 251. See RELINQUISHMENT.
trustee, expense of release to, and by whom prepared, 359.
paying under direction of Court not entitled to release , 359.
paying to other trustees, whether release can be required by, 359.
released by, of part of security, 593.
release by, with intention of disclaiming, operates as disclaimer,
608.
right of, to demand release, 358 ; under seal or not, 358.
validity of, determined on hearing of originating summons, 350.
void transaction, in respect of, invalid, 924.
RELIEF. See TRUSTEE RELIEF ACTS.
RELIGION.
established, when Court executes trust in favour of, 533.
RELIGIOUS BODY.
trust in favour of, how construed and administered, 533 et seq.
RELIGIOUS DOCTRINE .
trustee of charity for preaching, should hold same, 42 .
RELINQUISHMENT OF TRUST. Chap. xxv., 645–673.
Bankruptcy Act, when new trustee appointed on petition under, 850, 1027,
1028.
consent, by, of all c. q. t. if sui juris and in esse, 645.
Court, by application to, 846.
by representative of deceased trustee, 673.
where no new trustee can be found, 671.
application how made and costs of, 669, 672, 847, 848.
power, by virtue of special , 646, 654 et seq.; statutory, 647 et seq.
REMAINDER, CONTINGENT. See CONTINGENT REMAINDER.
REMAINDERMAN. See TENANT FOR LIFE.
acquiescence by, 379, 923.
copyholds, of, fine payable on admission of, 236.
costs of appointing additional trustee at instance of, 1029.
election by, when effectual, 956, 957. See ELECTION.
equity of redemption, of, when time runs against, 866.
Limitation, Statutes of, application of, as against, 866, 873, 875, 876.
whether sect. 25 of 3 & 4 W. 4, c. 27 , abridges right of c. q. t. in re
mainder, 876, 877.
possession to be given to , on cesser of particular estate , 686.
on giving security as to back rents, ib.
prepayment to, when authorised by Court, 140.
remedy of, by action, to have number of trustees filled up, 846.
for appointment of receiver, 854.
renewable leaseholds, of, apportionment of fines between him and tenant
for life, 371 et seq.
1546
 INDEX.

[The references are to the star paging.]

REMAINDERMAN - continued.
renewable leaseholds, compensation to remainderman, where tenant for
life has neglected to renew, 370, 379.
laches not imputable to him during life of tenant for life , 379.
remedy of, where tenant for life neglects to renew, 854.
service on, under Trustee Relief Act, when necessary, 1001 , 1004.
Settled Land Acts , position of, under, 556, 557, 559, 565, 566.
trustee must not favour tenant for life at expense of, 291 , 317 , 318, 333 .
wilful default, cannot sue for, in respect of prior estate , 906.
REMEDY.
cestui que trust, of, is in Chancery, 16.
not in common law Court for breach of implied contract, 17.
not in spiritual Court, 17.
for breach of trust, 857 et seq . See BREACH OF TRUST.
trustee, of, in case of breach of trust -
against c. q. t., 370, 371 , 910.
against co-trustee, 273, 274, 847.
where construction of trust doubtful, 352.
REMOTENESS.
trust when void for, 89, 97. See PERPETUITY.
REMOVAL.
charity, of officer of, possession how recoverable on, 537.
trustees, of, 846 et seq., 1028, 1038. See NEW TRUSTEES.
REMUNERATION.
contract by trustee for, 631, 632.
specific allowance for, does not exclude allowance for expenses, 637.
RENEWABLE LEASEHOLDS , 180 et seq. Chap. xv., 363-379.
account of rents and profits against trustee of, 185.
accumulations for renewal, who entitled to, when renewal cannot be ob
tained, 370.
Acts of Parliament, renewals under, 365.
agent of trustee, cannot renew for his own benefit, 182.
articles for settlement of, direction for renewal implied in, 365.
charges, trustee making renewal impossible by his own act is bound to
give effect to , 187.
charity lands, tenant of, cannot demand renewal, 544.
conveyance of, to trustees and their heirs upon trust for A., A. takes
absolute interest, 109.
covenant for perpetual renewal, devisees in trust not bound to enter into,
442 note (i).
discretionary power to renew, construction of, 365.
"it shall be lawful for trustees to renew," 365.
fines and other expenses on renewal, 366 et seq.
annual rents, whether to be raised out of, or by mortgage, 366 et seq.
where fund pointed out by settlor, 366 et seq.
where no direction by settlor, 371 et seq.
apportionment of, how made, 371 et seq.
actual enjoyment, tenant for life and remainderman pay in pro
portion to, 373.
Court will not act on speculative calculations, 372 .
leaseholds for lives, in case of, 374 et seq.
leaseholds for years, in case of, 371 et seq.
compound interest allowed tenant for life on his share, and
for what period, 373 , 374.
tenant for life having had no enjoyment does not pay, 374.
contribution to, 372.
annuitant, whether bound to contribute, 184, 185 .
security for, given by tenant for life , 374, 377, 378.
1547
 INDEX.

[The references are to the star paging.]

RENEWABLE LEASEHOLDS — continued.
fines and other expenses on renewal .
leaseholds for lives, in respect of, how to be raised, 366 et seq.
annual rents and profits , whether out of, 368, 369.
raising by way of insurance, 369, 370.
leaseholds for years, in respect of, how to be raised, 366 et seq.
" out of rents and profits," 366, 369.
"out of rents and profits or by mortgage," 367 et seq.
lien of tenant for life for, 184, 371, 377.
lien of trustee for, 184.
mortgage, when and how to be raised by, 367 et seq., 371 .
tenant for life of reversion when entitled to, 682.
incumbrances created by trustee must be discharged by him, 185.
indemnity, right of trustee to, on assigning renewed lease to c. q . t ., 185.
joint tenant, renewal by, in own name , 181 .
liability of trustees and tenant for life neglecting to renew, 363 et seq., 378 .
Limitations, Statutes of, run in favour of devisee renewing , 878.
mortgagee, renewal by, in own name, 181.
he cannot hold for his own benefit, unless renewing bonâ fide with
full notice to mortgagor, 181 , 183 .
notice of intention to renew, sufficient if served on one trustee, 259.
obligation to renew, 363 et seq.
partner, renewal by, in own name, 181 .
person renewing lease in own name, when a constructive trustee, 180
et seq., 363, 378.
reversion, tenant for life of, when entitled to fines, 682.
trustee purchasing, held a constructive trustee, 186.
trustee when empowered or bound to purchase, 366, 370.
right of renewal, trustee may not sell, 182.
where corporation being lessors have sold to an individual, 187 .
statutory power of renewal, 365.
successive estates, obligation to renew not necessarily imposed by limita
tion of, 363, 364.
tenant at will or at sufferance, renewal by executor of, 182.
tenant for life, renewal by, in own name, 181.
or other person having limited interest, 181 , 182.
where holding on yearly tenancy, 181 .
when regarded as trustee , 363 , 378.
when liable for renewal fines, 370.
trustee, renewal by, 180 et seq.
he cannot renew for his own benefit, ib.
even though landlord refuse to renew to c. q. t., 183.
nor sell right of renewal, 182.
remedy of c. q. t. against purchaser and others claiming under trustee,
185 .
statutory powers of, as to renewal, &c., 365 , 366.
RENTS AND PROFITS .
account of, when directed by Court of Equity, 885 et seq.
charity, against trustees for, 934 et seq.
complicated, where account is, 886.
death of accounting party, whether directed after, 886.
dowress, in action by, 890, 891.
equitable title, where plaintiff recovers on , 888, 891.
form of order for, 890.
fraud, in case of, 888, 891.
infant, in action by, 886, 888 , 890 , 891 .
legal title, in respect of, 886 , 890, 891.
mines, in respect of, 886.
mistake, in cases of, 887 , 889.
1548
 INDEX .

[ The references are to the star paging.]

RENTS AND PROFITS― continued.
account of, mortgagor, against, 345.
period from which account directed, 887 .
tenant for life, against, 371. See TENANT FOR LIFE.
timber, in respect of, 886.
trustee, against, right of c. q. t. to, 674.
trustee, against, who has purchased trust estate, 491.
accumulation of, 89 et seq. See ACCUMULATION ; THELLUSSON ACT.
adverse possessor bonâ fide, what account directed against, 888, 889, 891 .
arrears of rent, security for, when possession delivered to remainderman,
686.
what recoverable under Statutes of Limitation , 875 , 882 et seq., 890.
assignee of trustee, account against, 890.
cestui que trust in receipt of, is bailiff of trustee, 881 , 882.
charitable trusts, account when directed in case of, 934 et seq.
compromise with Attorney- General, 935.
inconvenience, bar to account from, 934.
mistake of trustees, effect of, 936.
charity estate, of, increasing surplus, how applied , 161 , 162.
commission on receipt of, when allowed, 632.
constructive trustee, account against, when directed , 185, 886 et seq.
accruer of title, primâ facie from time of, 889.
1 but not further back than six years before institution of suit, 887,
889.
when directed only from institution of suit, 888, 889.
adverse possession bonâ fide, in case of, 888.
laches, in case of, 889.
conversion of estate, prior to , tenant for life receives, 949.
direction to pay, whether conferring right to enjoyment of leaseholds in
specie, 299.
dowress allowed to proceed in equity on legal title, 890.
executor when accountable for, 886.
express trust, in cases of, account runs from time when rents withdrawn,
888.
secus where trustee ignorant of his true character, 889.
fee simple, " rents and profits " when equivalent to, 419 , 420.
form of order to account for, 890.
fraud, a ground for ordering an account of, 888, 891.
impounding, to procure renewal of lease, 379.
infancy of plaintiff, a ground for ordering an account of, 886 , 888, 890.
laches, in cases of, from what time account directed , 889.
Limitations, Statutes of, right to account how affected by, 889 , 890.
meaning of term , 419, 420.
mortgagee in possession, how far accountable in respect of, 190, 191 .
mortgagor, when accountable for, 345.
occupation rent, trustee when charged with, 491 .
person to account, 890.
portions when raisable out of, 419, 420.
raisable out of, when vesting, 399, 400.
interest not allowed on, 410.
purchase by trustee for sale, account of profits on, 491 .
rack rent, trustee occupying charity land charged with, 542.
receipt of, by one co-trustee, 225, 260.
renewal of lease, liability of trustee to account, 185.
fines for, when to be paid out of rents, 366 et seq.
repairs, trust to apply rents in making, 577.
RENUNCIATION.
probate, of, 197, 201 , 202 , 223. See EXECUTOR.
trust, of, not permitted after acceptance, 251 , 252.
1549
 INDEX.

[The references are to the star paging.]

REPAIRS.
allowance for, when made to trustees, 491 et seq., 544, 546, 574, 575 et seq.
upon setting aside purchase by trustee for sale, 491 , 492 .
to tenants of charity lands , 544.
chapel, trust for repairing, effect of, 538.
direction to keep in repair, how to be carried into effect, 575, 576.
infancy of beneficial owner, may be executed notwithstanding, 575, 578.
infant's lands, upon, may be made out of his personalty, 968 .
or by mortgage or sale of realty, 968, 969.
lunatic's lands, upon, may be made out of his personalty, 966. See
LUNATIC.
rebuilding, whether authorised by power to repair, 576.
tenant for life, by, are his own voluntary act, 574.
neglecting to repair, cannot be interfered with by trustees, 574.
trust to apply rents in making, is a special trust, 577.
trustee, when justified in applying trust money for, 504, 574, 575 et seq.
REPAYMENT.
trustee or executor, to , when ordered, 356.
REPUGNACY.
gift over when void for, 10.
REPUTED OWNERSHIP, 242 et seq. See BANKRUPTCY.
REQUEST .
direction for conversion upon, held imperative, 948.
purchase to be made at, 948.
sale to be made at, 429, 430.
words of, when held to give rise to a trust, 131 et seq.
66' REQUIRED."
to lend, 317 , 614 .
to purchase, 328.
RE -SALE .
of property purchased by trustee for sale, upon what terms ordered, 492,
493.
RESERVED BIDDING.
assignee selling for less than the, 434.
RESIDUE .
bequest of-
accumulation void under Thellusson Act passes under, 92 .
ademption and satisfaction , doctrines of, apply to residuary gifts , 405.
lapsed or void legacy out of proceeds of sale of lands when passing
under, 159, 160.
portion, is regarded as satisfaction of, 405.
resulting trust of proceeds of sale of land does not pass under, 159.
unless such proceeds directed to be taken as personal estate, 159.
charity, gift to, apportioned as between pure and impure personalty, 951 .
construction of word " residue " as to real estate, 155, 156, 158, 159.
conversion of, where given to persons in succession, 298 et seq. See CoN
VERSION.
devise of, effect of, 155, 156, 158 , 159.
accumulations void under Thellusson Act, whether passing under, 92.
resulting trust in real estate whether passing under, 159.
trust estate, whether passing under, 226 et seq.
devisee of, takes under devise or trust, where no trust defined by will, 59.
distribution of estate, 358, 592, 593.
" executor, residuary," meaning of, 159.
executor who is residuary legatee, powers of, 479, 480.
legatee of, and next of kin, distinction between claim of, to undisposed
of interest in converted property, 160 .
legatee of, overpaid, when bound to refund, 356, 357, 592.
1550
 INDEX.

[The references are to the star paging.]

RESIDUE - continued.
legatee of, takes under present law in case of specific bequest with in
sufficient declaration of trust, 60.
settlement with one of many residuary legatees, effect of, 357, 592 .
tenant for life of, and remainderman, relative rights of, 298 et seq. See
CONVERSION.
RESIGNATION.
incumbent, of, stipulation for, illegal, 105.
RESTRAINING ORDER. See CHARGING ORDER ; DISTRINGAS.
under 5 Vict. c. 5, sect. 4, 971 et seq.
practice as to, 972.
special grounds necessary for obtaining, 974.
transfer into Court ordered notwithstanding, 982.
RESTRAINT.
alienation, against, 98, 99.
bad generally as regards equitable estates, 98 et seq., 689, 693.
lease, in, how it affects powers of Court to make vesting order without
landlord's consent, 1031 note (d) .
anticipation of income by married woman, against, 693, 781 et seq. See
MARRIED WOMAN.
RESULTING TRUST.
Act of Parliament, in evasion of, not implied, 166.
advancement, presumption of, on voluntary conveyance to wife or child,
144.
or purchase in name of wife or child, 170 et seq. See ADVANCEMENT,
appointed fund results to donee of power, 153.
charge, distinction between, and partial trust, 146 ; or exception from
gift, 154.
on failure of charge devisee takes benefit, on failure of trust heir
takes, 154.
charities, in gifts to, 161, 162. See CHARITY.
chattel interest resulting to heir devolves on heir's personal representa
tives, 143.
chattels, on delivery of, when it arises, 145.
consideration, nominal, will not prevent, 144.
conveyance of property without consideration, upon , 144.
to wife or child, presumed to be an advancement, 144.
by son to father to facilitate raising of money, 144.
costs and expenses, direction that devisee shall be allowed , 149 .
Crown, in favour of, when it arises, 22 , 161.
death of settlor intestate and without heir or next of kin , in case of, 161 .
descent of, follows course of descent of legal estate, 823.
executor, for, when it arises , 143 .
grantor, for, when it arises, 143, 284.
heir at law , for, when it arises, 143 , 149 .
heir not to be excluded on mere conjecture, 147 .
intention of settlor governs decision as to , 146 .
investment in names of trustees of marriage settlement does not give rise
to, 145.
joint tenants, on voluntary conveyance by, equitable interest results in
joint tenancy, 144.
land devised on trust to sell, undisposed of proceeds result to heir not
to executor, 149.
notwithstanding direction that proceeds shall be considered person
alty, 150.
or that " nothing shall result to the heir at law ," 150 .
whether resulting interest devolves as realty or personalty, 150 , 151.
where trusts entirely fail, devolves as realty, secus, where par
tially, 151 .
1551
 INDEX .

[The references are to the star paging.]

RESULTING TRUST - continued.
legal estate, by conveyance or other disposition of, without disposing of
equitable interest, 143 et seq.
Limitations, Statutes of, when an express trust within, 877.
marriage settlement, under, whether it arises . 145 .
mistake by grantor, grantee not permitted to take advantage of, 145.
money to be laid out in land, undisposed of interest in, results to next
of kin, 152.
who take as realty or personalty according to the nature of the prop
erty in equity at the time when it results , 152.
Papistry Acts , resulting trust not presumed where forfeitable under, 167 .
parol evidence when admissible to rebut presumption of, 59 , 60 , 147 et seq.
partial trust, declaration of, distinguished from charge, 146.
on declaration of, equitable interest undisposed of results, 146 .
where words raise, by implication , surplus does not result, 137 .
Patents, Designs and Trade Marks Act, 1883 , effect of, 167.
personal estate, effect of residuary bequest of, 160.
policy, under settlement of, providing that bonuses should not vest in
trustees, 701.
presumption, by, of intention of settlor to exclude legal owner from en
joyment, 144.
presumption of, how rebutted , 59, 60, 147 et seq., 170.
where trust appears on face of will, 65.
purchase in name of child, wife, or near relative, 170 et seq. See
ADVANCEMENT.
raises presumption of advancement, 170, 171.
but such presumption may be rebutted by evidence tending to
support resulting trust, 175, 176.
purchase in name of stranger, 163 et seq.; resulting trust generally
created by, 163 .
copyholds for lives, how far rule applies to purchase of, 165.
joint purchase, the rule applies to, 164.
where purchasers contribute equally, joint tenancy implied, 164.
where unequally, tenancy in common, 165.
Papistry Acts , effect of, 167.
parol evidence, purchase provable by, though otherwise expressed in
deed, 167.
or against defendant's denial , 168.
or after death of nominal purchaser, semble, 168 , 169 .
but evidence must be clear, 168 ; but may be circumstantial
merely, ib.
secus where purchase by agent and no money paid by principal, 168.
parol evidence to rebut presumption, admissible, 169.
subsequent declarations, effect of, 170.
purchase in evasion of Act of Parliament or for giving votes, no trust
implied on, 167, 168.
ship, purchase of, in name of stranger, 166, 167 .
tenancy in common implied in case of joint loan, 164.
or where two possessed of mortgage term purchase equity of
redemption, 164.
unequal contribution by purchasers, effect of, 165.
relationship of parties, how far a material consideration , 146, 147.
sale, trust for, as to proceeds undisposed of under, 149.
secret trust for charity, where donee agrees to hold upon, 63.
settlor, for, when it arises, 143 .
on death of c. q. t. intestate and without heirs , quære , 284.
ship, of, formerly not implied , 166 ; secus since recent Acts, 166 , 167 .
stock, on transfer of, 145 .
technical phraseology not regarded in face of contrary intention , 146.
time, effect of, in barring presumption, 171 .
1552
 INDEX.

[The references are to the star paging. ]

RESULTING TRUST - continued.
" trust," conveyance upon , and no trust declared, 148.
"trust " and "trustee " do not necessarily exclude a beneficial gift, 148.
uncertainty of objects of trust, in case of, 133.
unlawful trust, on failure of, settlor may recover property, 106.
unlawful trust, secret engagement to hold upon, resulting trust for heir
at law, 63.
voluntary conveyance, under, 144.
conveyance of whole estate to stranger, as to effect of, quære, 144
note (b).
votes, on purchase for giving, not implied, 167.
will, where no trust appears on, and no fraud, devisee takes beneficially,
59.
but where devisee is made by will a trustee but no trust declared
beneficial interest results, 59, 60.
where trust for stranger declared by parol , 64, 65.
written instrument, trust resulting under, cannot be rebutted by parol, 149.
RETAINER.
charity fund, of, by trustee, in own hands, 539.
executor, by, of balance improperly, 992.
of costs, 986.
of statute barred debt, 590.
of surplus estate , 338.
executor's right of, not affected by abolition of distinction between
specialty and simple contract debts , 831 .
but ceases upon administration of estate in bankruptcy, 832.
heir at law or devisee, right of, to retain debt how affected by 3 & 4 Will.
4, c. 104, 830, and note (d) .
investment, of, by trustees, 290 et seq., 328. See CONVERSION ; INVESTMENT.
personal representative of insolvent trustee, by, 906.
receiver, by, of rents in his hands, 339.
solicitor, of, by married woman, 762 .
trust funds, of, by trustees in bankruptcy, 338 .
by one trustee, co-trustee should not permit, 292.
trustee, by, of beneficial interest under the trust, 911 , 912.
RETIREMENT.
representatives of trustee, right of, to retire from trusteeship, 672 , 673.
trustee of, from office, Chap . xxv., 645-673 et seq. See RELINQUISHMENT ;
NEW TRUSTEES .
as to part only of trust, 667.
in consideration of premium or in favour of trustee who intends to
commit breach of trust, 668.
where no new trustee can be found, 671 .
where trust has become complicated , 672 .
RETIRING TRUSTEE . See NEW TRUSTEES.
concurrence of, in appointment of new trustee, not necessary, 663, 664.
duty of, to see that new trustee is appointed, 653 et seq., 662.
inquiries to be made of, 670, 706 .
meaning of term, 668.
power of, to appoint new trustees, 664.
trustee paying fund into Court under Trustee Relief Act is a, 999.
REVERSION.
Bankruptcy Act affects chattels in, 244.
chose in action, reversionary, duty of trustees as to getting in, 288.
married woman's, rights of husband in respect to , 740, 745 .
conversion of, in favour of tenant for life, 305.
investment by trustees on mortgage of, 328.
laches, effect of, in suit to set aside purchase of, 872 .
legacies paid out of, what interest payable in respect of, 305.
1553
 INDEX.

[The references are to the star paging.]

REVERSION — continued.
Limitations, Statute of, operation of, as against reversioner, 866 , 873, 875,
876. See REMAINDERMAN.
married woman , of, 740, 745, 955.
mortgage of, whether trustees may lend on , 328.
order and disposition clause applies to, 244.
portions how and when raised out of, 412.
purchase of, by father in name of child presumed to be an advancement,
171 .
purchase of, by trustee, improper, 505.
by trustee of leasehold interest, effect of, 186.
purchase money of, apportionment of, as between tenant for life and re
mainderman, 305, 565, 566.
renewable leaseholds, of, how far trustee purchasing is constructive
trustee, 186.
power and duty of trustee to purchase, 366, 370.
sale of, by trustee concurring with owner of prior estate, 430.
separate use as to, effect of, 779.
tenant for life of, rights of, as regards income, 682.
title to, when to be deduced to purchaser, 439, 440.
trustee purchasing, when a constructive trustee, 186.
REVERSIONER. See REMAINDERMAN.
REVOCABLE .
trust, 22, 516. See DEBT, trust for payment of.
REVOCATION.
power of, given to trustees by name, does not survive, 612.
voluntary settlement, of, by sale for value, 75, 76.
not by subsequent voluntary deed, 75.
will, of, 722.
ROAD BONDS, investment in, 326.
ROBBERY.
trust property, of, trustee when liable for, 294.
ROMAN CATHOLIC CHARITIES, 549.
ROMILLY'S ACT (52 Geo . 3, c. 101) , 927 et seq.
construction of, 927.
new trustees of charity, appointment of, under Act, 851 , 852, 929.
proceedings under, 851 , 927 et seq.
ULES OF COURT, 1883.
0. xi ... 759 .
O. xi. r. 1 ... 49 note.
O. xvi . r. 16 ... 474, 759.
O. xvi. rr. 48 et seq.... 910.
O. xvi. r . 55 ...910.
O. xix. r. 3... 699.
O. xix. r. 4 ... 352, 618.
O. xix. r. 15 ... 55, 869, 887.
O. xxii. rr. 17, 18 ... 311.
O. xxv. r. 5 ... 352, 869.
O. xxxii. rr. 17 , 18 ... 308, 309.
O. xxxiv. r 2...352.
r. 8 ... 352.
O. xlv ... 815 .
O. xlvi . r. 1 ... 807 .
O. xlvi. rr. 2 et seq.... 712, 973, 974.
O. xlvi. rr. 12 , 13 ... 712.
O. lii. rr. 19 et seq.... 618.
O. lv. r. 1 ... 986, 987 , 1038.
1554
 INDEX.

[ The references are to the star paging.]

RULES OF COURT, 1883― continued.
O. lv. r. 2 ... 1034.
O. lv. r. 3 ... 617 , 620.
O. lv. rr. 3, 4, 5 ... 350, 352.
O. lv . r. 12 ... 620.
O. lv. r. 63 ... 526.
O. lxv. r. 1 ...994.
O. lxv. r. 2. 1027.
O. lxv. r. 26 ... 618.
O. lxv. r. 27 ( 19 ) ... 1002 .
Supreme Court Funds Rules, 1884 , 1005.
ST. LEONARDS'S ( LORD) ACT (22 & 23 Vict. c. 35) . See STATUTES.
1 advertisement for creditors under, 362.
charge of debts or legacies, effect of, 464, 467 et seq.
investment under, 307.
petition under, for advice, &c., 352, 618 et seq.
power of attorney, trustee paying under, when exempt from liability, 354.
receipts, power of trustees, &c. to give, 451 .
SALARIES .
augmentation and reduction of, by governors of charities, 538.
SALARY.
allowance of, to trustee, 631 , 632.
does not cease on institution of suit, 631 .
does not exclude allowance for expenses, 637.
bailiff of trustee, allowed to , 633.
direction to allow, trust when created by, 641.
management of business, for, not allowed to trustee, 491..
SALE.
administrator, by, 467; 468.
administrator disabled from purchasing trust property, 490 .
agent, mode of conducting sale by, 435.
trustee for sale cannot purchase by means of, or as agent for another,
486.
apportionment of purchase money, 430.
auction, by, advertisements by trustees in case of, 434 , 435.
buying in at, when trustees justified in, 437.
conditions of sale as to, 435, 436.
duty of trustee to sell by, 423.
lots, trustees may sell in, 437 .
trustees for sale cannot purchase at, 485, 489.
breach of trust by sale at inadequate value, 424.
sale of property purchased in breach of trust, 472 note (c) .
sale which is a, cannot be specifically enforced , 423.
buying in property at, duty of trustees as to , 437.
cestui que trust, by, to trustee when upheld, 487, 488 .
conditional contract by, 423 , 424.
trustee selling bound to consult interests of, 423.
charge of debts on realty, to give effect to , 461 et seq.
charges, trustee may sell subject to, 435 .
charity lands, of, 539, 540 , 930.
chattels, of, by executor, 477 et seq.
cheque, trustee justified in accepting payment of deposit by, 437.
completion of, by trustee, 440, 441 .
conditions of, on sale by trustees, what are proper, 435, 436 .
contract of -
approval of Court, must be with, after institution of suit, 422 .
cestui que trust, by, how usually entered into, 423.
conditional on approval of Court , mode of entering into, 422 et seq.
1555
 INDEX.

[The references are to the star paging.]

SALE continued.
contract of -
conversion effected by, 939 , 943.
death of purchaser without heir after payment but before convey
ance, effect of, 283.
effect of, in equity, 141, 142, 939, 943.
estate contracted to be sold, included in general devise, 233.
executor, by, as to real estate , 467.
empowered to convey estate contracted to be sold, 1011 .
implied trustee, vendor is, for purchaser, 141 , 1011 , 1012 ; but sub
modo only, 142, 233.
rescission of, powers of trustees as to, 437 .
specific performance of, against trustee, 423, 429, 441 .
conveyance by trustee for sale
covenants in, 438, 441 et seq.
"grant," use of word, in operative part, 441.
parties to, 447.
costs and expenses of trustees, to raise, 451.
co-trustee , to, improper, 503.
co-trustees, responsibility of, for sale, 424.
Court, by, conduct of, to whom given, 450.
how far conversion of property effected by, 151, 152, 951.
jurisdiction of, to order sale or mortgage, 427.
sanction of, to sale when necessary, 422, 449.
Crown debt, under extent for, 817.
decree for, equitable interests when bound by, 1010.
makes legal owner a trustee within Trustee Act, 1025, 1040.
deposit on, trustee should not leave in auctioneer's hands, 448.
trustees purchasing may pay, 501.
devise upon trust to sell passes the fee, 213.
devisee, by, of real estate charged with debts, 465, 469, 470.
different trusts, of property held on, 430.
disclaiming trustee, purchase of trust property by, 485, 490.
discretion of trustee cannot be questioned by purchaser, 426.
Drainage Acts, charge under, effect of, on exercise of power of sale, 428.
duration of trust for sale, 425.
equitable interest, of, information to be given by vendor, 707.
equity of redemption , of, by trustee subject to mortgage, 427 .
execution creditor may purchase on sale by sheriff, 490 .
executor, by, of assets, when effectual, 477 et seq. See EXECUTOR.
of real estate charged with debts , 466 , 467 , 469.
executor, disability of, to purchase trust property, 490.
extinguishment of trust for sale , 425 .
foreign property, of, jurisdiction to order, 49.
heirlooms, of, under Settled Land Act, 566, 567 , 684.
injunction to restrain improper sale by trustee, 435, 855.
judgment creditor, when entitled to enforce judgment by, 812, 814.
lands abroad, of, jurisdiction to order, 49.
lease, trustee for sale may not grant, 425.
leaseholds , of, title to be deduced on , 438 , 439 .
lots, in, right of purchaser to abstract of title, 440.
lots, trustees may sell in, 437.
lunatic's estate, of, when authorised, 964. See LUNATIC.
market overt, in, 860 , 893.
mines, sale of, apart from surface, 433.
sale of surface apart from, 432 , 433.
mortgage, trust for sale will not in general authorise , 425, 426.
trust to mortgage, does not authorise sale, 426.
mortgagee, by, by virtue of recent Act, 331 note (c) , 431 , 432.
mortgagee may purchase mortgaged property, 490.
1556
 INDEX .

[The references are to the star paging.]

SALE - continued.
option of purchase, trustee should not lease with, 425.
partition, in lieu of, effect of, 151 , 152. See PARTITION ACTS.
partition not authorised by power of sale, 427.
payment of debts , for, 450.
personal estate, trust for sale on its insufficiency for debts, 450, 451 .
portions, to raise, 413, 418 et seq.
possession to purchaser, when to be given, 441 .
postponement of, by trustees, under power to that effect, 290.
power of
consent to exercise of, 604.
control of Court over exercise of, 613.
discretionary, purchaser cannot question exercise of, 426.
Drainage Acts, charge under, effect of, on exercise of power, 428.
executory trust, whien Court will insert power of sale in settlement
under, 127 et seq ., 429.
implied, where, by charge, 213, 418 , 466 , 467 , 469.
over real estate covenanted to be settled on trusts of personalty,
434.
mortgage, in , 431 , 432. See MORTGAGE.
mortgage with powers of sale, whether authorised by power to mort
gage, 426, 427.
whether by power to raise money by sale or mortgage, 426 .
partition whether authorised by, 427.
personal representative of surviving trustee is now competent to ex
ercise, 233.
receipts, whether it implies power to give, 460 .
Settled Estates Act, general power when conferred under, 622.
settlement, in, effect of usual power, 427.
not necessary to be inserted since Settled Land Act, 1882, 429.
time within which power should be exercised, 458, 605, 606 .
trustee when bound to exercise, 613.
usual power, whether it is, under executory trust, 127.
under covenant to settle realty similarly to stock, where power
of varying securities, 130.
preliminaries to sale by trustees, 424.
propriety of, by trustees, purchaser when bound to see to, 450, 451 .
purchase of trust property by trustee for sale, 484 et seq. See PUR
CHASE.
purchase money, payment of, to person who has ceased to be owner, 705.
to trustees how to be made, 447, 448.
purchaser when bound to see to application of, 451 et seq.
unpaid, lien of vendor for, 714.
purchaser whether bound by trust, 246 , 857 et seq. See PURCHASER.
receipt of purchase money by trustees, 447 , 448, 473 .
power to give receipts, 450 et seq. See RECEIPT.
request for, how to be testified, 429.
reversion, sale of, in concurrence with owner of prior estate, 430.
Settled Land Act, 1882, under powers of, 428, 429, 555 et seq. See SET
TLED LAND ACTS .
effect of Act on powers of sale arising under charge of debts, 470.
solicitor, liability of trustees for acts of, 474, 475.
specific performance of contract for, 423. See SPECIFIC PERformance.
not enforced if involving breach of trust, 423.
not where proper request for sale not obtained, 429.
whether when involving hardship, 441.
succession duty attaching on property does not prevent trustees making
good title , 440, 441 .
survivorship of trust for sale , 430 , 431 .
surviving partner, purchase of trust property by, 490.
1557
 INDEX .

[ The references are to the star paging. ]

SALE continued.
tenant for life, by, under Settled Land Act, 1882 , 428, 429.
sale by trustees with concurrence of, 430, 470.
timber, sale of, by trustees apart from estate, 432, 433.
time for sale, reasonable time allowed , 424, 457, 458.
"after death of A. ," trust for sale, 430.
" convenient speed ," trust to sell with, 424.
limited period , trust to sell within , 424, 425.
portions, in order to raise, 412 et seq., 417, 418, 420.
trustees neglecting to sell, held liable for depreciation, 424.
title, commencement of, 438.
conditions as to, on sale by trustees, 435, 436.
investigation of, by trustees before sale, 432.
objection to, on ground of improper appointment of trustees , 663 .
production of documents of, covenants to be entered into as to, 438,
442 et seq.
purchaser, to be deduced to , 438 et seq.
trustee may do all reasonable acts for clearing title, 440.
tortious sale of land by trustee, remedy for, 902.
trust for
administration action , how affected by, 449.
assign of trustee when competent to execute , 603.
consent required to exercise of, under Settled Land Acts, 623 et seq.
debts, for payment of, effect of, 450.
extinguishment of, 425.
fee simple conferred by, 213.
heir of settlor , attaches to, where no trustee named, 834.
heir of trustee when competent to exercise, 230. See HEIR.
legal estate passing under devise upon, 213.
ministerial, whether, or arbitrary, 18.
mortgage not authorised by, 425, 426.
personal representative of trustee, exercisible by, 233.
power of sale distinguished from, 451 .
restriction on exercise of, under Settled Land Acts, 626.
special trust, is, and not use within Statute of Uses, 210.
survives, 430, 431 .
time within which trust should be executed, 424 , 457, 458, 601.
trustee, by, to co-trustee improper, 503.
trustee for -
" absolutely entitled," is, within Lands Clauses Act, 447.
action instituted, suspends exercise of powers of, 597.
advantage, duty of trustee to sell to, 423.
attested copies, when trustees must give, 443.
auction, Court will not authorise trustee to bid at, 489.
charge, may apply purchase money in paying off, 594.
concurrence by, in sale, with other vendors, 430, 435 .
advice or sanction of Court, how obtainable , 619, 620.
contract by, 423, 429, 437, 441. See supra, contract.
conveyance by, concurrence of c. q. t., when necessary, 447.
grant, effect of, 441 .
power of attorney, form of, on assignment of chose in action, 446,
447 .
costs and expenses of, 451 .
covenants on sale by, what to be entered into, 441 et seq.
indemnity, for, against breach of covenants, 444 , 445.
production of title deeds, as to, 438, 442 et seq.
statutory, implied in conveyance, 442.
title, for, 441 , 442.
delegation of trust by, 424, 471 .
discharge of mortgage on settled estate by, 594.
1558
 INDEX.

[The references are to the star paging .]

SALE - continued.
trustee for -
discretion of, sale at, purchaser cannot question its exercise, 426 .
enquiries to be answered by, 448.
lease, trustee for sale may not in general grant, 425, 595.
limited interest, of, may concur in sale of whole, 594.
married woman trustee can exercise discretion, 34.
mode of conducting sale, 423.
mortgage, trustees for sale have no power to , 425 ; but may sell to
pay off, 594.
neglecting to sell, held liable for breach of trust, 903.
one trustee , payment to, 355, 356.
partition, not authorised to make, 427.
purchase of trust property by, 484 et seq. See PURCHASE .
purchaser from, when bound to see to propriety of sale, 450 , 451 ; or
application of purchase money, 451 et seq.
quantity, whether trustee may sell larger, than trust requires, 451 .
receipt of purchase money by, 447 , 448 , 450 et seq., 473. See RE
CEIPT.
Settled Land Acts, powers of trustee how restricted by, 626 .
single trustee, payment to , justifiable, 355, 356 , 663.
solicitor receiving purchase money, liability of trustee, 474, 475.
surviving trustee can make a good title, 430 .
notwithstanding there be power to appoint new trustees, 431.
tenant for life, trustee should not sell to gratify, 428.
tenant for life, whether trustee may sell to, 317 note ( ) .
time for sale, 424, 425, 430, 457 , 458. See supra, time.
title, bound to show good, 432 .
value of property, duty of trustee to ascertain, 424.
vesting order in aid of decree for, 1041.
SALMON FISHING.
grant of, by Crown, to trustees , 190 .
SATISFACTION, 401 et seq.
ademption, distinguished from, 401 , 408.
contingent legacy is not a satisfaction of previous vested interest, 407 .
covenant to settle property, of, by subsequent advance, 401 et seq.
debt, of, by subsequent legacy, 405 note (b) , 406, 407 .
direction for payment of debts negatives presumption of, 407.
doctrine of, explained, 401 , 402 .
election arises in cases of, but not in cases of ademption , 408.
land, covenant to settle, not satisfied by settlement of money, 405.
parents and persons in loco parentis, doctrine of, applies only to, 402.
partial, by legacy of smaller amount than that agreed to be settled , 405,
407.
presumption, is matter of, only, 403.
residuary gift, may operate by way of, 405.
son, legacy to, not a satisfaction of interest of son's children, 406.
SAVINGS BANK.
trust, not affected by notice of, 32.
SCANDAL.
charge of misconduct on part of trustee is not, 847.
SCHEME, 535, 615, 929. See CHARITY.
SCHOOL.
chapel for, trust of, how to be administered , 531 .
Endowed Schools Act, 1869, provisions of, 537.
"free grammar and free school ," trust for, how to be administered, 536.
trust for poor applied to school house, 538.
trustees of, religious opinions of, 533.
1559
 INDEX.

[The references are to the star paging.]

SCHOOLMASTER.
ejectment of person ceasing to be, 537, 932 note (e).
removal of, proceedings for, under Charitable Trusts Acts, 933.
under Romilly's Act, cannot be taken, 929.
salary of, augmentation or reduction of, by governors of charity, 538.
trust for " finding a master," how carried into effect, 537, 538.
SCOTLAND.
chose in action, no survivorship of, by Scotch law, 347.
deposit of deeds in, creates no lien, 48.
equities in respect of lands in, administered here, 48.
executors here not bound to know the law of, 347.
real securities in, whether trustees may invest on, 313, 329.
Thellusson Act, formerly excepted from, 94 ; secus now, 94.
Trustee Act, excepted from, 1039.
SECRET EQUITY.
party having, standing by, may be precluded from setting up , 716 .
SECRET TRUST.
charity, for, heir at law may compel disclosure by devisee , 63.
devise of legal estate is good, but equity acts on conscience of
devisee, 66.
charity, for grantor of lands to , 96 .
discovery as to, trustee bound to give, 63, 64.
parol evidence to prove, when admissible, 62.
trust must be communicated to trustee in testator's lifetime , and he
must accept same, 62.
if not, legatee is trustee for next of kin, 62.
fraud, in cases of, 61 .
joint tenants, statements in will of one not sufficient to affect sur
vivor, 62, 63.
unlawful trust, devisee will not be allowed to take but trust results for
heir at law, 63.
SECRETARY.
company, of, cannot make a profit by his trust, 279.
SECRETARY OF STATE .
not trustee as to monies in his hands, 642.
SECURITY .
agent, from , trustee not called upon to require, 256.
cestui que trust, by, on taking possession, 686, 687.
company, issued by, transferee of, by what equities affected, 687, 688.
marshalling securities, as between purchasers, 719.
money, gift of, in will may pass mortgage in fee, 228.
negotiable, when capable of being followed, 240, 241 , 892, 893 .
personal, trust money should not be invested or continued in, 290, 291 .
power to invest in securities, will not authorise purchase of shares, 319.
promissory note is not, but merely evidence of debt, 306 .
real securities, investment in, by trustees when authorised, 308, 312. See
INVESTMENT .
tolls and road bonds are, 326.
refund, to, when required from recipient of money, 348.
safe custody of, by trustees , 295.
shares in railway are not, 319.
tenant for life of renewable leaseholds, by, where fine paid by remainder
man, 374, 377, 378.
terminable securities, what are, 320.
trustee required to give, for due execution of trust, 854.
vary securities, power to, 318, 323, 460 ; a " usual power," 127.
SEISIN.
curtesy, what, required to give, 723, 733 et seq.
1560
 INDEX.

[The references are to the star paging.]

SEISIN - continued.
equitable, 723.
revocation of will by disturbance of, 722 .
ex parte maternâ, 823.
infants of, ex parte materná of leaseholds for lives may be changed to
seisin ex parte paternâ, 968.
possessio fratris of a trust, 723.
SELECTION.
power of, not interfered with by Court, 615.
SEPARATE USE, 753 et seq. See MARRIED WOMAN.
SEQUESTRATION .
corporation, against, 937.
equitable execution by, 813.
rents, of, ordered, where tenant for life of leaseholds refuses to renew, 379.
SERVICE.
investment, under general orders of Court as to, 309.
jurisdiction, on person out of, 49, 1034.
motion for payment into Court, of notice of, 977.
petition for advice of Court, of, 618, 619.
Trustee Act, under, 1033.
SET OFF, 698 et seq.
agreement for, when presumed in equity, 699.
army agent, by, against proceeds of officer's commission in his hands, 708.
assignee of debt bound by set off against assignor, 687.
assignor, between, and trustee, does not affect assignee, 695 note (b) .
banker and customer, between , 698 et seq., 895.
trust account and private account, 895.
bankrupt co-trustee, against, to prejudice of solvent co-trustee, 913.
bankrupt trustee entitled to beneficial interest, against , 912 .
costs, for, how affected by solicitor's lien, 696.
costs, solicitor may set off, in accounting for receipts to trustees. 641.
damages, mere right to, cannot be set off against debt, 701 .
debt of trustee, for, against his costs , 635.
defaulting trustee cannot set off a gain against a loss , 907 , 908.
equity, in, may be though not at law, 699.
cross demands must one or both be equitable, 699.
must not be in autre droit, 699 et seq.
legatee and executor, between, 696, 699.
SETTING ASIDE.
deed, costs of action for, 989, 990.
deed, creditors', 77 et seq.
purchase of trust property by trustee, 484 et seq. See PURCHASE .
SETTLED ACCOUNT.
opening, against solicitor trustee , 630.
SETTLED ESTATES ACT.
general powers of sale or leasing when granted under, 621.
improvements, application of purchase-money in, 504.
investment of purchase-money under powers of Settled Land Acts, 562.
leaseholds which tenant for life entitled to enjoy in specie, purchase-money
of, how to be dealt with, 299.
powers of, how affected by Settled Land Acts , 621 , 622.
trustees when proper persons to apply to Court under, 590 , 677 note (a ) .
SETTLED LAND ACTS, 1882, 1884, Chap. xx11., 550-579 ; Chap. XXIII .,
sect. 2, 621-626.
action for execution of trusts, decree in, does not prevent exercise of
powers, semble, 557.
1561
 INDEX.

[ The references are to the star paging.]

SETTLED LAND ACTS - continued.
Agricultural Holdings Act, 1883, application of money in improvements
under, 563, 564.
assignee not affected by exercise of powers, 555, 556.
assignment, powers under Act incapable of, 555.
base fee, owner of, may exercise powers of Acts, 553.
capital money arising under the Acts, definition of, 561, 562.
devolution of, as land or personalty, 564, 566, 567, 571.
investment of, 562 et seq.
application for, how to be made, 564.
payment of, to trustees, 552, 564, 565 ; or into Court, 564.
purchase of land, when to be applied in, 565, 571 .
charge of debts, powers of sale or mortgage by virtue of, how affected
by Acts, 470, 471 .
chattels , sale of, 566, 567. See infra , heirlooms.
conveyance by beneficial owner, parties to, 685, 686.
conveyance of land purchased under provisions of, 568, 571 .
costs payable by trustees out of purchase-money, 571 .
Court, powers of, under Acts, 560, 566, 568 et seq., 620.
direction of, how obtainable, 620, 621.
Crown entitled in reversion bound by exercise of powers, 553.
curtesy, tenant by, exercise of powers of Acts by, 553 note (c) , 554.
enfranchisement, power of, conferred by Acts, 555.
exchange, power of, conferred by Acts, 555, 557.
expenses incurred under, trustee may reimburse himself for, 636.
fines on granting of leases are capital monies, 561 note (b) .
heirlooms, 566, 567, 684.
directions for disposal of, where mansion house sold, 560 note (a) .
proceeds of sale of, are capital money under Acts, 566 , 684.
but, semble, do not devolve as land but as personalty, 566, 567.
sanction of Court required to sale of, 566, 684.
improvements, application of trust money in, 505 , 560 , 561 , 563 , 575.
definition and enumeration of, 560 note (b) .
infant, exercise of powers of Acts on behalf of, 554, 569, 575.
investment under, of monies liable to be laid out in land, 311 , 312 , 562 .
of monies paid into Court under Acts of Parliament, 562.
leasehold, proceeds of sale of, how to be dealt with, 565, 566.
leases, powers as to granting, conferred by Acts, 555, 557.
lunatic, exercise of powers on behalf of, 552, 558.
mansion house, lease or sale of, consents, &c., necessary to, 560.
married woman, exercise of powers by, 569.
where married woman an infant, 569.
not prevented by restraint on anticipation, 788.
mines, power of tenant for life to work, 190, 432 ; to sell, 433 ; to lease,
555, 682, 683.
purchase of, out of capital monies arising under Acts, 563.
mortgage, power of tenant for life to make, 557, 558.
notice to trustees of intention to exercise powers, when to be given,
557.
general notice is now sufficient, 558 ; except as respects mortgage or
charge, ib.
mode of giving, 557.
number of trustees to receive, 557 , 558 .
period of, 557 et seq.
purchaser not bound to enquire as to giving of, 558, 559.
waiver of, by trustees, 558 , 559.
partition, power to concur in, conferred by Acts, 555, 557.
powers conferred by Acts generally, 555. See infra, tenant for life.
restriction imposed by Acts on powers of trustees, 621.
purchaser under, enquiries to be made by, 559.
1562
 INDEX.

[The references are to the star paging.]

SETTLED LAND ACTS - continued.
remainderman, provisions for protection of, 556, 557, 565, 566.
protection afforded to , is unsubstantial, 559.
reversionary interest, application of purchase money of, 299 note (b) , 565,
566.
sale, powers of, conferred by Acts, 428, 429, 555 et seq.
Settled Estates Act, powers of, how affected , 621 , 622.
"settled land," within meaning of Acts, what is, 552.
settlement, definition of, 550 note (a ) .
powers of, may be exercised in addition to powers of Acts, 556, 569,
621.
consents required to exercise of, 622 et seq.
shares, where settled property divided into, powers how exercisible, 622,
623.
solicitor for trustees, notice to be given to, 557.
surrenders, power to accept, conferred by Acts, 555.
tenant for life
bankruptcy of, effect of, on exercise of powers, 622.
consent of, to exercise of powers by trustees when necessary, 470,
471 , 622.
contract by, not to exercise powers, is void, 555.
definition of, under act, 553, 622 ; what persons are within, 554, 555,
622, 623.
forfeiture, exercise of powers by, does not occasion , 556.
infant, exercise of powers on behalf of, 554, 569, 575.
lunatic, exercise of powers on behalf of, 552, 558.
married woman, exercise of powers by, 569.
powers of, under Acts, generally, 129, 428, 429, 436, 553, 555.
cannot be assigned, 555 ; are cumulative, 556.
several persons together may constitute, 622 .
but consent of one is sufficient, 623.
trustee, is, in relation to exercise of his powers, 436, 437 , 556, 557 .
will not be appointed for purposes of Acts , 41 , 552, 666.
tenant in fee with executory limitation over may exercise powers of, 553,
554.
tenant in tail may exercise powers of, 553, 554.
secus of estates given for public services, 553.
tenant pur autre vie may exercise powers of, 553, 554.
timber, power of tenant for life to cut, 109, 502 note (e) , 574 note (ƒ),
578.
trust for sale, exercise of powers where settlement contains, 570, 623, 624
et seq .
trustees for purposes of
appointment of, 551 , 552.
by Court, 551 , 552.
discretion of Court, how to be exercised , 551 .
to receive money under Lands Clauses Acts , 565.
settlement should contain express appointment, 551 .
consent of, when required to exercise of powers , 560.
conveyance, how far bound to see to sufficiency of, 567 , 568.
definition of, 550, 551 ; who are within, 552.
discretion, exercise of, by trustees when required, 565.
executors having power to sell settled lands are , 551 .
indemnity to, giving consent, &c ., to exercise of powers , 559, 567,
568.
independent persons , must be, 666.
notice to, of intention to exercise powers, 557 et seq. See supra,
notice.
number of, to whom capital monies to be paid, 552 , 553 , 567.
to whom notice to be given, 557, 558.
1563
 INDEX.

[The references are to the star paging.]

SETTLED LAND ACTS — continued.
trustees for purposes of -
propriety of sale, not bound to enquire as to, unless on suspicion of
fraud, 559.
receipt of, 567.
tenant for life will not be appointed , 41 , 552, 666 ; nor his solicitor,
666.
title, when not liable to see to, 567, 568.
SETTLEMENT.
bankruptcy, settlor cannot settle own property with trust to go over on,
except on marriage, 98.
conversion of land or money under trusts of, 939 et seq. See CONVERSION.
conveyance upon trusts of, how to be framed , 506.
covenant or agreement to settle property, effect of, 140, 141 .
avoidance of, as against trustee in bankruptcy, 80.
execution creditor of settlor, rights of, as against c. q. t. , 224.
satisfaction of, by subsequent advance by parent, 401 et seq. See
SATISFACTION.
trustee under settlement entitled to assume due performance of, 207.
definition of, under Settled Land Acts, 550 note (a) .
equity of married woman to, 740 et seq. See MARRIED WOMAN.
executory trust for, how carried into effect, 507 , 508. See EXECUTORY
TRUST.
failure of c. q. t., whether settlor can claim benefit of, 284.
impeachable, trustee should assume validity of, until actually impeached,
286.
infant married woman, by, confirmation of, by her while covert, 766.
inoperative, trustees of, ordered to reconvey, 360.
judgment debt, onus of, thrown on unsettled estates, 718.
leaseholds, of, does not per se imply a direction to renew, 363.
limitations in, to trustees to preserve, &c. , object of, 380 et seq.
marriage articles, construction of executory trusts in, 112 et seq. See
EXECUTORY TRUST.
married woman, by, of own property, restraint on anticipation in, ineffec
tual as against creditors, 769, 787.
new property, of, on old trusts, 54.
personalty, of, cannot be made so as to correspond entirely with limita
tions of real estate, 116.
post nuptial, executory trust in , construed as in will, 126.
power of sale in, effect of, 427 et seq. See SALE.
precatory trust may arise by words of recommendation, &c . , in, 132 .
protector of, 381, 382. See PROTECTOR OF SETTLEMENT.
purchaser under, who is, as against judgment creditor, 811.
realty, of, usual frame of, 380 .
rectification of, in conformity with marriage articles, 113.
distinction where settlement was after the marriage and where before
it, 113.
semble, not directed as against a purchaser, 114 note (a) .
referential, form of, 506, 507.
separate use of married woman, for, 753 et seq. See MARRIED WOMAN.
settlor, who may be, Chap. 1., sect. 1, 21-29.
" strict," meaning of term, 507 , 508.
voluntary, of lands or chattels real (but not of personalty) defeated by
subsequent sale by settlor, 75, 76.
settlor retaining possession of, is bound , 74, 75.
void as against creditors, when, 77 et seq. See VOLUNTARY SETTLE
MENT.
ward of Court, by, does not operate as confirmation of past breach of
trust, 923.
1564
 INDEX.

[The references are to the star paging.]

SETTLOR. See SETTLEMENT.
who may be, Chap. III., sect . 1, 21-29.
SEVERANCE .
estate from powers, of, 610.
trustees, by, in legal proceedings, not permitted , 260.
trusteeship, of, 666 , 667 .
SHALL AMD MAY.
in Acts of Parliament, force of, 262 note (h) .
SHARE.
aliquot, payment of, into Court sometimes ordered , 977.
mortgage of undivided, loan on, whether authorised, 328.
sale of undivided, 594.
SHARES . See STOCK.
breach of trust by neglecting to get in, 908.
calls on, trustee may obtain advice of Court as to, 620.
certificates for, deposit of, by trustee, for own debt, 715.
charging order on, under 1 & 2 Vict. c. 110 , effect of, 806 et seq. See
CHARGING Order.
choses in action, not comprised under, 243.
constructive trustee of, vendor after contract for sale is, 1011.
conversion of, in canal insurance or railway companies, when trustees
should make, 300.
distringas, writ of, notice in lieu of, extended to, 973. See DISTRINGAS.
dividends on, how received , 225, 260, 684. See DIVIDENDS.
married woman, of, provisions of Married Women's Property Acts as to,
789, 791 , 792.
new, are an accretion to trust estates, 908.
but trustees cannot accept, unless expressly authorised , 596.
new trustee, how vested in, 650, 652 , 654.
purchase by trustee of shares belonging to trust, 494.
restraining order, under 5 Vict. c. 5, sect. 4 , effect of, 971 et seq.
retention of, belonging to testator by executor, whether justifiable, 289.
security, shares in railway are not, 319.
standing in one name only, trustees should not invest in, 320.
stock, are, within Trustee Acts, 1010.
things in action, are not, within Bankruptcy Act, 243.
transferee of, bonâ fide, not subject to equities affecting transferor, 697 ,
859.
trustee of, liable as if beneficial owner, 239.
trusts of, company not bound to take notice of, 970.
SHELLEY'S CASE.
rule in, application of, to trusts, 109 , 110.
separate use of married woman, where life estate is for, 119.
where estates of ancestor and heir of different qualities, rule does not
apply , 110.
SHIP.
purchase of, in name of stranger, 166, 167.
formerly did not give rise to resulting trust, 166.
but secus now under recent Registration Acts, 166.
shares in, are within Trustee Acts, 1010 note (b) .
SIGNATURE.
declaration of trust, required for, 56, 57 ; by whom, 57.
SIMONY .
advowson, purchase of, when simoniacal, 104.
presentation, direction to purchase, for a particular person, 104.
SIMPLE CONTRACT DEBT. See DEBT.
breach of trust per se creates simple contract debt only, 204, 906.
1565
 INDEX .

[The references are to the star paging.]

SIMPLE CONTRACT DEBT — continued.
interest on, when allowed, 525, 526.
lands of trustee trading are liable for, under Sir S. Romilly's Act, 238
money to be converted into land formerly not liable for, 941 .
real assets, are now payable out of, 827 , 829.
under devise for payment of debts, 825.
retainer of, by executor, 831 .
none by heir or devisee, 830.
specialty and simple contract debts now rank in equal degrees, 206, 238,
524, 831.
trust for payment of debts, under, how paid, 524 et seq.
SIMPLE INTEREST . See INTEREST .
usually charged for improper retainer of trust money, 338 et seq.
SIMPLE TRUST.
assets, is, within Statute of Frauds, sect. 10, 827.
cestui que trust, estate of, in what it consists, Chap. xxv., sect. 1 , 674–
688.
judgment against c. q. t. under Statute of Frauds, sect. 10 , 802 .
under recent Acts, 811.
nature of, explained, 2, 18 , 572.
powers of trustee holding upon, 572, 595.
special trust, when converted into, 689.
Uses, Statute of, applicable to, 6.
SINGLE TRUSTEE . See SOLE TRUSTEE .
SOLE TRUSTEE.
appointment or continuance of, improper, 42, 659, 662, 663.
composition of debts, &c ., by, 591, 592.
conveyance by, 431.
Court will not appoint, except under special circumstances, 1029.
jurisdiction, where resident out of, receiver appointed , 983.
vesting order as to interest of, 1016, 1017 , 1021 .
payment of money to, when justifiable, 355, 356, 567.
power when exercisible by, 600, 604, 606, 607.
retirement of, 659.
Settled Land Acts, powers of, whether exercisible by, 552, 553, 567.
solicitor, who is , should have other professional advice, 635 note (ƒ).
trust when exercisible by, 606.
SOLICITOR.
borrower, of, trustee lending money should not employ, 337.
breach of trust, wilfully advising, may be struck off roll, 899.
when liable for, as express trustee , 901 .
cestui que trust, of, cannot bind him by contract with trustee , 488.
constructive trustee, solicitor violating his duty held to be, 191 .
costs, may set off, against receipts, 641.
co-trustees , should act by same, 260, 261.
should not rely on solicitor co-trustee, 207 , 635.
deposit of money with, for investment does not create trust, 82, 83.
direction to employ testator's, trustees whether bound by, 641 .
employment of, by trustees, when justifiable, 252 note (ƒ) , 255, 256,
634.
to receive monies, 256, 447 , 448, 474, 475.
semble, is not justifiable, 256.
father and son being client and solicitor, fiduciary relation rebuts pre
sumption of advancement, 179.
ignorance or negligence of, trustees when liable for, 325.
incumbrances created by client, solicitor buying up, is accountable, 276.
investment, trustee should not entrust money for, to his solicitor, 353
note (b).
1566
 INDEX.

[The references are to the star paging.]

SOLICITOR - continued.
lien of, for costs, 641.
notice of, on documents , he is not bound to give, 703, 704.
right to set off costs is in general subject to, 696 , note (e ) .
Limitations, Statutes of, when entitled to plead, 901 note (b).
loan of trust money, solicitor negotiating, when liable for breach of trust,
337 .
married woman, retainer of solicitor by, 762 , 785.
lien of solicitor of, for costs notwithstanding restraint against antici
pation, 785.
money scrivener, business of, now obsolete, and transacted by solicitor,
82.
mortgages on client's property, buying up, 856.
notice to solicitor of trustee is not notice to trustee, 709.
partner, when liable for breach of trust by, 902.
purchase by, from client not set aside after lapse of time, 872.
purchase in name of son, a solicitor, held not an advancement, 179.
purchase-money, misapplication of, by solicitor, trustees liable for, 474,
475.
payment of, to solicitor of trustees, 448.
receipt, cannot give, virtute officii for money recovered in action, 256.
security to, for professional charges, when set aside, 630.
surveyor, trustees should not leave appointment of, to their solicitor, 324,
499.
tenant for life, of, will not be appointed trustee under Settled Land Act,
666.
testator, to, whether trustees should employ, 641 .
trustee should not delegate his duty to, 252, 353 note (b) .
when liable for acts of, 252, 325.
trustee, of, has no lien on trust fund, 641 .
notice to be given to , under Settled Land Acts, 557.
taxation against, at instance of c. q. t., 642 note (b) .
when liable for breach of trust, 899, 900.
trustee who is, cannot charge for time and trouble, but only for costs
out of pocket, unless where special contract, 281 , 630, 631 , 987 .
costs of, form of order as to , 987.
co-trustees, liability of, for acts of, 635.
co-trustees, several, made defendants to suit allowed to employ one,
sed quære, 282.
country solicitor defending suit by agent, proportion of costs allowed
to, 281 , 282.
non-professional charges, not allowed unless expressly authorised,
281.
partner, trustee employing his , not allowed to charge, 281 , 282.
unless by the articles the trustee is not to have any profit, 282.
valuer, trustees should not leave appointment of, to their solicitor, 324,
499.
vendor refusing to convey, of, directed to convey, 1012.
SOLICITORS ' ACT, 642 .
SOUTH SEA.
stock and annuities, trustees may not invest in, 306, 307.
SOVEREIGN. See CROWN.
declaration of trust by, 21, 22.
prizes taken in war vest in, 22.
commonly granted to trustees for captors, 22.
effect of such a grant, 22.
will of, as to private property, 22 .
SPECIAL CASE , 352.
1567
 INDEX.

[The references are to the star paging.]

SPECIAL OCCUPANT.
heir taking as, may disclaim, 197.
SPECIAL POWER. See POWER.
distinguished from general power, 572.
SPECIAL TRUST.
assets, is not, within Statute of Frauds, sect. 10, 827.
cestui que trust, estate of, in what it consists, Chap. xxv., sect. 2, 689-691.
continues until countermanded by c. q. t., 690.
nature of, explained, 3 , 4, 18 , 210, 572.
powers of trustee under, 572.
simple trust, how converted into, 689.
Statute of 1 Ric. 3, c . 1 , not applicable to , 5 .
Uses, Statute of, not applicable to , 6, 210.
SPECIALTY DEBT.
breach of trust, when created by, 205, 206, 906 , 909.
devise avoided as against specialty creditor, 206.
heirs where bound by, 205 , 206.
innocent trustee, claim of, to indemnity, is, 909.
interest on, when allowed, under creditor's deed , 526 , 527.
priority of, formerly, in administration of assets, 825, 829 et seq.
retainer of, by executor, 831 .
by heir or devisee, 830 note (f).
simple contract and specialty debts now rank in equal degree, 206, 238,
524, 831.
trust for payment of debts, rights of specialty creditor under, 524.
SPECIE.
enjoyment in, a question of intention, 299, 300.
SPECIFIC APPROPRIATION.
letter of advice that special credit has been opened to be paid ratably on
receipt of goods does not constitute, 83.
loan for specific purpose, effect of, 894.
trustee in bankruptcy, when money, &c. may be followed into hands of,
240, 912.
SPECIFIC BEQUEST.
direction to enjoy in specie distinguished from , 299.
residuary, distinguished from, as regards duty of trustee to convert, 298, 299.
SPECIFIC PERFORMANCE.
costs of trustee in action for, when chargeable on trust estate, 432.
where trustee cannot make a title, 985.
decree for, makes legal owner a trustee within Trustee Acts, 1026.
laches in bringing action for, effect of, 872.
lands abroad, contracts as to, when enforced, 48 , 49.
married woman, at instance of, 762.
mortgage, of agreement to give, 515 note (b).
trustee, against, when granted, 423.
breach of trust, not when it causes, 423 .
hardship, whether in case of, 441 .
heir of trustee for sale , who has bought by agent, in favour of, 487.
improper sale by trustees, not enforceable, 423, 424.
request of party, where trustee has not obtained proper, 429.
trust for sale for payment of debts, under, where sale has been long
postponed, 451 .
trustee, at instance of, not granted where sale impeachable by c. q. t., 436.
voluntary contract not enforced in equity, 80, 81.
but carries consideration at law, if under seal, 80 note (ƒ) .
voluntary settlement by vendor, a bar to action by him, 75.
but secus action by purchaser, 75, 76.
1568
 INDEX.

[The references are to the star paging.]

SPIRITUAL COURTS .
have no jurisdiction of trusts , 17.
SPORTING.
qualification of c. q. t. for, under old law, 681 .
trustee not entitled to, where it can be let, 275.
STAKEHOLDER.
payment into Court by, 977, 997.
STAMP DUTY.
appointment of new trustees, on, 653.
semble, double duty payable on appointment with transfer of estate, ib.
orders under Trustee Acts , on, 1045.
settlement of land to be converted into money , on, 949 note (a) .
STATUTES. See FRAUDS , STAT. OF ; LIMITATION , STAT. OF ; USES, STAT. OF ;
WILLS, STAT. OF ; TRUSTEE ACTS ; TRUSTEE RELIEF ACTS .
Edward I. 11 ( Statute Merchant) , 245 .
13, st. 1 , c. 1 (De Donis ) , 693.
st. 1, c. 18 (Elegit) , 245, 795.
st. 1, c. 39 ( Levari Facias) , 794.
st. 3 ( Statute Merchant) , 245.
Edward II. 9, st. 2 ( Sheriffs ) , 234.
Edward III. 27, st. 2 , c. 9 (Statute Staple) , 245.
Richard III. 1 , c. (Cestui que Use empowered to pass Legal Estate) , 4,
5, 611.
Henry VII. 19, c. 15 (Execution against Uses) , 7.
Henry VIII. 14, cc. 4, 7, 8, (Uses and Trusts) , 3.
26, c. 13 (Forfeiture) , 7 , 27 , 818 et seq.
27, c. 10 ( Statute of Uses ) , 6 , 209, 611 , 818 et seq.
32, c . 15 (Statute of Wills ) , 720, 825.
33, c. 20 (Forfeiture ) , 818 et seq.
Elizabeth. 13, c. 4 (Extents ) , 817.
c. 5 (Creditors ) , 77 , 80, 510, 518.
27, c. 4 (Purchasers ) , 75, 77, 803.
29, c. 5 (Creditors ) , 510 .
43, c. 2 (Poor) , s. 6, 586.
43, c. 4 (Charitable Uses) , 927.
James I. 1 , c. 16, s. 13 (Bankruptcy) , 703.
21 , c. 16 (Limitations ) , 890 ; and see LIMITATION, STAT. OF.
Charles II. 12, c. 24 (Guardian ) , 355.
14 & 15, c. 19 (Ireland) , 355.
22 & 23, c. 25 (Game Act ) , 681 .
29, c. 3 (Statute of Frauds ) , 57, 167, 193, 720, 802.
s. 2 (Administration to Wife) , 752.
8. 5 (Devises of Land) , 53.
s. 7 (Creation of Trusts of Land) , 53, 896.
s. 8 (Exception of Implied Trusts ) , 193 et seq.
s. 9 ( Assignment of Trusts) , 693.
s. 10 (Judgments against c. q. t.) , 802, 827.
s. 12 (Estates pur autre vie) , 165.
William and Mary. 3 & 4, c. 14 (Action against Devisee) , 206, 829.
Anne. 4, c. 16, s. 22 (Subpoena ) , 971.
6, c. 35 (Yorkshire Registry) , 687.
7, c. 19 ( Infant Trustees) , 1037.
George II. 2, c. 22 (Set-off) , 699.
8, c. 6 (Yorkshire Registry) , 687.
c. 24, s. 5 (Set-off) , 699.
9, c. 36 (Mortmain ) , 46, 66 , 96, 541 .
14, c. 20, s. 9 (Estates pur autre vie) , 165.
1569
 INDEX .

[The references are to the star paging.]

STATUTES - continued.
George III. 25, c. 35 (Extents ) , 692.
36, c. 52 (Legacies ) , 355, 360 .
38, c. 87 , s. 6 (Executors ) , 37 .
39 & 40, c. 36 ( Bank of England) , 971 .
c. 56 ( Disentailing money-land ) , 959.
c. 88, s. 10 ( Will of the Sovereign ) , 22 .
c. 98 ( Thellusson Act) , 90 et seq.; and see LIMITA
TION, STATUTES OF,
45, c. 28, s . 7 (Legacies) , 360.
47, c. 74 (Traders' Lands, Assets) , 238 , 828 , 829.
52, c. 101 (Romilly's Act) , 851 , 927 et seq.
54, c. 145 (Corruption of Blood) , 27.
55, c. 192 (Surrender to use of Will) , 721 .
58, c. 91 (Charity Commissioners ) , 931 .
c. 95, s. 2 (Right of Voting for Coroners) , 234, 681 .
59, c. 12 ( Relief of Poor) , 532.
c. 81 (Charity Commissioners ) , 931.
c. 91 (Charity Commissioners ) , 931.
George IV. 6, c. 16 ( Bankruptcy Act) , 513 , 634.
c. 50 (Jurors), 681.
7, c. 45 (Entailed Money) , 959.
c. 57 ( Sales under Insolvent Debtors' Act) , 434.
9, c. 85 (Charities) , 96, 541 .
William IV. 11 G. 4 & 1 W. 4, c. 40 (Executor Trustee for next of kin) ,
285.
c. 47 (Action against Devisee , Assets ) , 206,
238, 509, 829.
c. 60 (Lord St. Leonards's Trustee Act),
1011 , 1012 , 1020 , 1023, 1026 , 1033.
11 G. 4 & 1 W. 4, c. 65, s. 32 (Infant) , 1042.
1 & 2, c. 32 (Game Act) , 681 .
2, c. 57 (Charities) , 850.
3 & 4, c. 27 (Limitations of Actions and Suits) , 250, 520 , 871 ,
874 et seq., 890 ; and see LIMITATION, STATUTES OF.
c. 74 (Fines and Recoveries ) , 14, 22 , 33 , 34, 114 , 200,
381 , 382 , 497 , 694, 761 , 780, 934.
ss. 16, 17 ... 114.
s. 32 ... 121 , 200.
s. 40 ... 955.
s. 70 ... 959.
s. 71 ... 955, 959, 960.
s. 77 ... 200, 955.
c. 104 (Assets ) , 206, 238 , 240, 509, 827 , 829.
c. 105 ( Dower) , 733, 737, 738 , 939.
c. 106 (Inheritance ) , 14, 723, 824.
4 & 5, c. 23 (Escheat) , 221 , 1036 .
c. 29 (Lynch's Act) , 328 .
c. 76 (Poor Law Amendment Act) , ss . 56 , 57, 586, 587.
c. 92 (Fines and Recoveries, Irish) , 200, 784.
5 & 6, c. 76 ( Municipal Corporation Act) , 22 , 31 , 851 .
s. 94 ...22.
Victoria. 7 W. 4 & 1 Vict. c . 26 (Wills Act) , 26, 66 , 722, 940, 962, 969.
s. 6 ... 165.
s. 11 ... 803, 804.
s. 12 . 796.
s. 13 . 800 , 803, 804, 806.
s. 14 ...773, 806, 808.
s. 18 ... 804, 830.
s. 19 ... 804.
1570
 INDEX.

[The references are to the star paging.]

STATUTES - continued.
Victoria.
7 W. 4 & 1 Vict. c. 26 s. 23 (Will's Act ) , 712
ss. 30, 31 ... 213.
s. 36 ... 103.
s. 47 ...434.
1 & 2, c. 110 (Insolvency, Judgments) , 327, 434, 803 et seq.
2 & 3, c. 11 (Judgments ) , 809 et seq., 810.
3 & 4, c. 77 (Grammar School Act) , 536.
c. 82 (Judgments) , 806, 810.
c. 105 (Arrest on Mesne Process, Irish) , 327.
5, c. 5 (Abolition of Equity Exchequer Jurisdiction) ,
30, 971, 972, 974.
5 & 6, c. 35 (Income Tax) , s. 73, 105.
6 & 7, c. 18, s . 74 (Right of Voting) , 235, 681.
c. 73 (Solicitors' Act) , 642.
7 & 8, c 45, s. 2 (Dissenters' Religious Property Limitation
Act) , 533.
c. 66 (Aliens) , 26.
c. 76 (Transfer of Property , now repealed) , 383.
c. 92 (Right of voting for Coroners) , 235, 681 .
8 & 9, c. 16 (Companies' Clauses Act) , 970 .
c. 18 ( Lands Clauses Act) , s. 69 ... 447.
s. 74 ... 565.
s. 132 ... 687.
c. 97 (Public Funds) , 32.
c. 106 (Real Property Amendment Act) , 25, 121 , 200,
380 , 383, 441 , 497 , 687 , 693, 749, 821 , 955.
10 & 11 , c. 96 (Trustee Relief Act) , in extenso, 996 et seq.; and
see title TRUSTEE RELIEF ACTS .
11 & 12, c. 36, s. 41 (Scotland) , 94.
c. 68 (Irish Trustees Relief Acts) , 1001 .
12 & 13, c. 74 (Further Trustee Relief Act ) , 360, 361 , in ex
tenso, 1007 , 1008 ; and see title, TRUSTEE RELIEF
ACTS.
c. 106 ( Bankrupt Law Consolidation Act) , 510, 513,
514, 703, 850, 1027.
13 & 14, c. 28 ( Peto's Act) , 534, 852 , 853.
c. 35 ( Sir G. Turner's Act) , 362 .
c. 60 (Trustee Act, 1850) , in extenso, 865 ; and see
title TRUSTEE ACTS .
15 & 16, c. 51 , s . 32 ( Enfranchisement) , 596.
c. 55 (Trustee Extension Act) , in extenso, 893 ; and
see title TRUSTEE ACTS .
c. 86 (Chancery Amendment Act) , 352, 972 , 978.
c. 87 (Relief of Suitors ) , 1013, 1044.
16 & 17, c. 51 (Succession Duty) , 441 , 685.
c. 70 ( Idiots and Lunatics) , 1013, 1026.
c. 137 (Charitable Trusts Act, 1853 ) , 535 , 540, 547,
549, 851 , 852, 931 , 932 , 933, 997, 1035.
17 & 18, c. 82 (Chancery Amendment Act, Lancaster) , 1021 .
c. 104 (Merchant Shipping) , 166.
18 & 19, c. 15 (Judgments ) , 805, 809, 810.
c. 91 (Mercantile Shipping) , 878.
c. 124 (Charitable Trusts Amendment Act, 1855) ,
361 , 540, 541 , 547 , 549, 933.
c. 134, s . 16 (Chancery Officers ) , 1034.
19 & 20, c. 50 ( Sale of Parish Advowsons ) , 78.
c. 76 (Roman Catholic Charities ) , 549.
c. 94 (Uniform Administration of Estates) , 941 .
1571
 INDEX.

[The references are to the star paging. ]

STATUTES continued.
Victoria.
19 & 20, c. 97 ( Mercantile Law) , 909.
20 & 21, c. 54 ( Fraud ) , 898.
c. 57 (Feme Covert) , 23, 35, 637, 741.
c. 76 ( Roman Catholic Charities ) , 549.
c. 77 (As to the Court of Probate ) , 223, 224.
ss. 91 , 77 ... 35 note (m).
c. 85 (Protection Order) , 346, 752, 757.
21 & 22, c. 51 ( Roman Catholic Charities ) , 549.
c. 94, ss. 2, 21 ( Copyholds ) , 596.
c. 95, s. 16 ( Probate) , 202.
s. 22 ... 223.
c. 108 (Protection Order) , 346 , 757.
22 & 23, c. 35 ( Lord St. Leonards's Act) , 420 et seq.
s. 13 ... 432.
s. 14 ... 463, 469.
s. 15 ...464.
s. 16 ... 467 et seq.
s. 17 . . 464.
s. 18 ... 464, 469 .
s. 21 ...651 .
s. 22 ... 811.
s. 23 ...293, 451 , 464 , 467, 468, 475.
s. 26 ... 354.
s. 27 ...446.
s. 29 362, 906.
s. 30 ....352, 618.
s. 31 .274.
8. 32 .307, 308, 329.
s . 33 ... 329.
c. 39 ( Indian Loan Act) , 307.
c. 50 ( Roman Catholic Charities ) , 549.
c. 61, s. 5 ( Divorce ) , 670, 785.
23 & 24, c. 34 ( Petitions of Right) , 30.
c. 38 (Law of Property Amendment Act) , 362, 811.
s. 1 ... 687.
s. 3 ... 831.
s. 4 ... 831 .
s. 5 ... 811.
s. 9 ...352, 618.
s. 10 ...308.
s. 11 ... 315.
s. 12 ....307 , 313, 329.
s. 13 ... 871.
s. 14 ... 362.
c. 124, s. 20 ( Renewal of Leases) , 366.
c. 134, s. 5 ( Roman Catholic Charities ) , 549.
c. 136 ( Endowed Charities ) , 537, 540, 547, 852, 932,
933.
s. 16 ... 259.
c. 145 ( Trustees and Mortgagees ) , 583.
s. 1 ...434, 437.
s. 2....ib.
s. 8 .. 366.
s. 9 ... 366, 571.
s. 11 ... 581.
ss. 11-16 ... 431 .
s. 12 ... 270.
s. 25 ...315.
1572
 INDEX.

[The references are to the star paging.]

STATUTES - continued.
Victoria.
23 & 24, c. 145 s. 26 (Trustees and Mortgagees), 586.
s. 27 ....472, 608, 647 , 657.
s. 28 ... 657.
s. 29 ...293, 452, 475.
s. 30 ... 591.
s. 34... 293, 431 , 647, 648.
24, c. 9 (Charitable Uses) , 96.
24 & 25, c. 94 (Accessories and Abettors) , 898.
c. 96 ( Fraudulent Trustees' Punishment Act), 898.
25 & 26, c. 17 ( Charitable Uses ) , 96.
c. 37, s. 10 (Crown Private Estates ) , 1013.
c. 63 (Merchant Shipping ) , 166.
c. 89, s . 30 (Trusts of Shares ) , 970.
c. 108 (Sale, Minerals ) , 432.
26 & 27, c. 106 (Charitable Uses) , 96.
27 & 28, c. 13 ( Charitable Assurances, Inrolment) , 96.
c. 112 (Judgments) , 327, 809, 811 et seq., 817 .
c. 114 ( Improvement of Land Act) , 329, 330, 577.
28, c. 43 (Ireland) , 246.
28 & 29, c. 99 ( County Courts' Equity Jurisdiction ) , 998, 1008,
1045.
c. 104, s . 48 (Crown Debts ) , 809, 812.
29 & 30, c. 57 ( Charitable Assurances, Inrolment) , 96.
30 & 31, c. 102 (Voting for Parliament), 235.
c. 132 (East India Stock) , 307, 308, 315.
c. 142, s. 8 (County Court) , 361 , 362.
s. 24 (Trust Funds) , 329, 1008.
c. 144, s. 1 (Policies ) , 453.
31 & 32, c. 44 ( Mortmain ) , 97.
c. 109 (Church Rate Abolition ) , 88 , 316, 542.
32 & 33, c. 46 (Assets ) , 206 , 238, 525, 831.
c. 56 ( Endowed Schools ) , 536.
c. 62, s. 4 (The Debtors ' Act, 1869) , 900, 916.
c. 71, s. 6 (Petition in Bankruptcy) , 513, 514, 906.
s. 15 (Trust Estates) , 243.
(Order and Disposition) , 239.
(Choses in Action) , 221 .
8. 17 . 239.
s. 49 (Discharge) , 916, 992.
8. 91 ( Bankruptcy of Settlor) , 128, 218.
c. 106, s. 16 ( East India Loan) , 308.
s. 117 (New Trustees ) , 883, 1028.
c. 110, s. 12 (Majority of Trustees ) , 259, 540.
s. 15 (Buildings for Religious Purposes) , 534.
33, c. 34 (Naturalization Act, 1870) , 45, 733, 950, 1031.
c. 23 (Forfeiture & Escheat ) , 28, 225, 283, 821, 950,
1036 .
33 & 34, c. 34 (Investment on Real Securities), 313, 542.
c. 56 ( Improvement of Land) , 577.
c. 93 (Married Women's Property Act), 24, 768, 788
et seq.
c. 97, ss. 8, 78 ( Stamp Act), 653.
34, c. 13 ( Mortmain ), 97.
c. 27 (Debenture Stock) , 320.
c. 44, ss. 4, 6 (Paymaster General ) , 360.
34 & 35, c. 47, s . 13 ( Consolidated Stock of Metropolitan Board
of Works) , 316.
c. 86 ( Regulation of Forces ) , 708.
1573
 INDEX.

[ The references are to the star paging.]

STATUTES - continued.
Victoria.
35 & 36, c. 24 (Charitable Trustees Incorporation Act) , 499, 500.
s. 13 (Inrolment ) , 96.
36, c. 17 (East India Loan) , 309.
36 & 37, c. 66 (High Court of Justice) , 17, 234, 362, 453, 530,
574, 618, 699.
s. 17 ...530.
s. 24 ... 16, 38 , 187, 678.
ss. 24, 25 ... 17 .
s. 25, pl. 6 ... 997.
s. 25, sub-sec. 2 (Express Trusts) , 885.
sub-sec. 3 (Waste ) , 190, 421 , 910.
sub-sec. 6 (Choses in Action) , 72,695, 698, 712.
sub-sec. 11 (Rules of Equity prevailing) , 257.
s. 32 ... 17.
ss. 33, 34 ... 17.
s. 34 ... 528, 530, 618.
s. 67 ... 362.
s. 76 ... 917.
37 & 38, c. 50 ( Married Women's Property Amendment Act),
790.
c. 57 (Real Property Limitation) , 874 et seq., 901.
c. 78 (Vendor and Purchaser) , 399, 400, 453.
s. 1 ... 438, 500, 902.
8. 2 .438, 500.
s. 3 ... 438.
8. 4...221.
s. 5 ... 221.
s. 6 ...34.
s. 7 ... 16, 863.
c. 83 (Judicature Act) , 17.
c. 87 (Endowed Schools Commissioners ) , 535, 537.
38 & 39, c. 77 (Judicature Act) , s. 10 ... 521 , 1013.
c. 83 (Local Loans Act) , 320.
c. 87 , s. 48 (Land Transfer Act) , 221.
s. 129 ... 16, 863.
c. 89, s. 28 (Public Works Loans Act) , 997.
40 & 41, c. 31 (Reservoirs) , 577.
c. 33 (Contingent Remainders ) , 383, 384.
c. 51 , s . 18 (East India Loans) , 308.
c. 57, s. 28, sub- sec. 6 ( Ireland) , 72.
c. 59, s. 12 (Colonial Stock ) , 322.
40 & 41 , c. 18 ( Settled Estates Act, 1887) , 677.
s. 23 ... 590.
41, c. 19 (Protection Order) , 346, 757.
41 & 42, c. 54 (Debtors' Arrest) , 917.
c. 59 ( Civil Procedure Acts Repeal) , 28, 699.
c. 60 (East India Loan) , 309.
s. 18 ... 308.
c. 78 (Supreme Court) , 1005.
c. cevi. (East Indian Railway Company Purchase Act),
316, 322.
43 Vict. c. 10, s. 14 (East India Loan) , 308.
44 & 45, c. 41 (Conveyancing and Law of Property Act, 1881),
248, 608.
s. 3 ...439, 440, 500, 663.
s. 4 ...2, 943, 1011 , 1016.
s. 7 ... 442.
8.8 ...353.
1574
 INDEX.

[The references are to the star paging.]

STATUTES― continued.
Victoria.
44 & 45, c. 41 s. 9 (Conveyancing and Law of Property Act, 1881 ) ,
443, 444.
s. 13 ...440.
s. 17 ... 330.
s. 19 ...331, 432, 581.
s. 30 ... 12, 15, 196, 204, 222 , 226, 229 , 233, 236, 237,
250, 943 , 1017, 1018, 1019, 1034 .
s. 31 ...431 , 648, 649, 657 , 659, 662, 664.
ss. 31, 32 ... 251.
s. 32 ... 653, 654.
s. 33...472, 608, 646.
s. 34 ... 652, 654.
s. 35 .434, 435, 436, 437.
s. 36 ... 294, 452, 464, 475.
s. 37 ... 591.
s. 38 ... 261 , 612.
s. 39 ... 25, 785.
s. 40 ... 39.
s. 42.... 129.
s. 43 ... 582, 584, 586.
s. 47 ... 354.
s. 49 ... 687.
s. 50. ....651 .
s. 51 ... 109 .
s. 52 ... 610.
s. 56 ... 448 .
s. 59 ... 206 .
s. 61 ... 232 .
S. 05 ... 328, 596, 784.
s. 66 ... 129, 440.
s. 71 ... 294 , 315, 452, 591 .
45 & 46, c. 38, s . 2 ( Settled Land Act) , 471 , 550, 553, 558, 621.
See title SETTLED LAND ACTS.
s. 3 ... 129.
s. 4... 129.
8.5 ...568.
s. 6 ... 129, 190, 503, 683.
s. 11 ... 190 , 503, 561 , 683.
8. 15 .560.
s. 17 ...433.
s. 20 . 685.
8. 21 290, 311 , 470 , 562, 563.
s. 22 ....564, 565.
8. 23 . 565.
s. 24 ... 565.
s. 25 ... 560, 575.
s. 26 ... 561 , 575.
s. 32 ... 311 , 562.
s. 33 ... 505, 562.
s. 34 .299, 565.
s. 35 ... 190 , 432 , 502, 560, 561, 574, 578, 683.
s. 36 ... 636 .
s. 37 566, 684.
s. 38 ... 551 , 552, 788.
s. 39 ... 552.
s. 40 ... 567.
s. 41 ... 567.
s. 42 ... 559, 567 , 568, 578 et seq. , 585.
1575
 INDEX.

[ The references are to the star paging.]

STATUTES - continued.
Victoria.
45 & 46, c. 38, s. 43 ( Settled Land Act ) , 567, 585, 636.
s. 44 ... 552, 568.
s. 45 ....428, 55 et seq
7 .
8.50 556.
8. 51 556.
s. 52 ... 556.
s. 53 ... 429, 556, 557.
s. 56 ...470, 555, 556, 620 et seq.
s. 58 ... 471, 553 et seq., 621, 622.
s. 59 ... 575.
s. 60 ...433, 569, 575.
s. 61 ... 569.
8. 62 ...471 , 552.
s. 63 ... 569, 570, 623 et seq.
s. 64... 366, 434, 436, 437.
s. 66 ... 427.
c. 39 ( Conveyancing Act, 1882 ) .
s. 2 ... 500.
s. 5 ... 667, 1030 .
s. 6 ... 607.
s. 7 22.
s. 11 328, 596.
c. 50 ( Municipal Corporations Act) , 852.
c. 51 (Government Annuities Act, 1882 ) , 32.
c. 75 ( Married Women's Property Act, 1882) , 24, 25, 39, 102,
1021. 225, 496, 497, 736, 769, 779 et seq., 787, 956,
200,
s. 1 ... 33, 69, 119, 474, 755, 759 , 760, 762, 765, 767,
772, 779, 790, 791.
s. 2 ... 23, 474, 751 , 755, 779.
s. 3 ... 791 .
s. 4 ...922.
s. 5 ...23, 474, 751, 755, 779, 1021.
s. 6 ... 791.
s. 7 ...792.
s. 8...33, 792.
s. 9 ...792.
s. 10 ...69.
s. 11 . 792.
s. 13 ... 793.
8. 14 .793.
s. 15. 793 .
s. 18 ... 983, 1021.
s. 19 ... 785.
s. 21 ... 793.
8. 24 ... 33, 474, 983.
46 & 47, c. 36 (City of London Parochial Charities) , 537.
c. 49 ( Civil Procedure Repeal) , 352, 699.
c. 52, s. 4 ( Bankruptcy Act, 1883) , 80, 513, 514.
s. 6 ... 514, 906.
s. 30 ... 916, 992.
8. 44 ... 242, 243, 702, 904.
ss. 44, 45 ...26.
ss. 44, 54 ... 239.
s. 45 ... 816.
s. 47 ... 78, 80.
s. 48 ... 515.
s. 125 ...521 , 831, 832.
1576
 INDEX.

[The references are to the star paging.]

STATUTES - continued.
Victoria.
46 & 47, c. 52, s . 145 (Bankruptcy Act, 1883) , 795.
s. 147 ... 850, 1028.
c. 57, ss. 85, 87 (Patent Designs and Trade Marks ) , 167 .
c. 61 , s. 26 ( Agricultural Holdings Act) , 793, 794.
s. 29 ... 563, 575.
s. 31 ... 596.
s. 40 ... 547.
s. 42 ...596.
s. 43 ... 595.
47 & 48, c. 18, s. 4 (Settled Land Act) , 561 .
s. 5 ...428, 561.
s. 6 ... 623, 624.
s. 7 ... 625.
s. 8 ... 553.
c. 54, ss. 20, 23 (Yorkshire Registries Act) , 500, 687.
c. 71 (Intestates Estates Act, 1884) , 822.
s. 4 ... 11 , 12, 161, 282, 283, 823.
8. 5 ...44, 1040.
STATUTE MERCHANT.
tenant by, bound by a trust, 9.
STEP-FATHER.
may place himself in loco parentis, 402.
STEWARD .
infant cannot be steward of manor, 37.
manor, trustee of, appoints, but must observe directions of c. q. t., 234.
STOCK .
Bank of England cannot be trustee of, 32.
officer of, direction to , to transfer, 1021.
charging order on, under 1 & 2 Vict. c . 110, effect of, 806 et seq. See
CHARGING ORDER.
co-executor concurring in transfer of, not liable, 272.
conversion of, persons interested in expectancy, when entitled to, 300 .
creditor, how available to , 806 et seq. See CHARGING ORDER.
distringas, writ of, applicable to, 970 et seq. See DISTRINGAS .
dividends of, may be received by one co-trustee, 225, 260. See DIVIDENDS .
cestui que trust put in possession of, by power of attorney, 684.
vesting order as to right to receive , 1014 et seq., 1041 , 1042. See
TRUSTEE ACTS.
execution, liable to be taken in, under 1 & 2 Vict. c. 110, 80, 773, 796.
executors and administrators, how transferred by, 32.
gift of, by transfer into joint names of settlor and stranger, effect of, 146.
incumbrancer, priority of, over judgment creditor, 246 note (ƒ) .
investment in, 334 et seq. See INVESTMENT.
irregularity in issue of, transferee when affected by, 687 .
legal title alone recognised, 670 .
married woman, of, settled to separate use is liable for her engagements ,
773.
married woman trustee of, may transfer as if she were feme sole, 36.
Married Women's Property Acts, provisions of, as to stock of married
woman, 789, 791.
mortgage to replace, whether trustees should lend on, 323, 324.
new trustee, how vested in, 650, 652, 654.
private company, trust money must not be invested upon stock of, 307.
public, investment upon, 307 et seq. See INVESTMENT .
purchase of, in name of child , raises presumption of advancement, 179.
purchase of, in name of stranger, gives rise to resulting trust , 163.
receipt for, power to give, does not authorise receipt for cash, 453.
1577
 INDEX.

[The references are to the star paging.]

STOCK - continued.
restraining order under 5 Vict. c. 5, sect. 4, 971 et seq. See CHARGING
ORDER.
resulting trust on transfer of, 145.
sale of, all trustees must concur in, 260.
tortious, proof for, in bankruptcy of trustee, 912.
settlement of, in fraud of creditors , defeasible under 13 Eliz. c. 5, 80.
specific legatee of, entitled to dividends , 299.
transfer of, at Bank of England, on production of probate or letters of
administration, 32.
to mortgagor, by trustees in lieu of selling and paying over proceeds,
573, 574.
whether operating as gift or resulting trust, 145, 146.
transferee of, whether affected by notice of trust, 697 , 859.
trust of, when perfectly created , 69, 73.
trustee liable for neglecting to enforce transfer of, 902 , 903.
vesting order as to, 1014 et seq., 1041 et seq. See TRUSTEE ACTS ; VEST
ING ORDER.
voluntary settlement of, when void as against creditors, 80.
STOCKBROKER.
trust money in hands of, may be followed into hands of trustee in bank
ruptcy, 241.
STOP-ORDER, 711 , 712.
charging order not a necessary preliminary, 808 note (c) .
creditor may obtain, within six months after charging order, 808.
practice as to obtaining, 712, 1000.
priority when gained by obtaining, 711 , 712.
STRANGER.
advancement for, whether presumed when purchaser has placed himself
in loco parentis, 178.
purchase in name of, resulting trust when created by, 163 et seq. See
RESULTING TRUST.
STRICT SETTLEMENT.
direction for, 507, 508.
female, upon, how to be framed, 126.
meaning of term , 507, 508.
SUBPOENA.
issue of, before bill filed under old practice, 971.
origin of, as remedy of c. q. t., 1.
formerly lay against trustee only, and not against heir or assign, 2.
secus, in modern times, 2.
remedy by, c. q. t. limited to, 16.
SUBSCRIPTIONS.
promised by testator, executor cannot pay, 590.
SUCCESSION DUTY.
accounts necessary for discharge of, expense of, payable by tenant for
life, 683.
attaching on money does not prevent trustee for sale making good title,
440, 441 .
trustee is liable for, 685.
SUIT. See ACTION.
SUMMONS .
opinion of Court, for, 618.
originating, for determining questions, 620.
Settled Land Act, 1882, for determining questions arising under, 620.
SUPERSTITIOUS PURPOSES.
trusts for, void, 105.
1578
 INDEX.

[The references are to the star paging.]

SUPERSTITIOUS USE.
whether Crown may prove, by parol, 54.
SUPPLYING WORDS .
marriage articles, in, 117 ; and see 155.
SUPREME COURT OF JUDICATURE, 17.
SURFACE .
sale of, apart from minerals under 25 & 26 Vict. c . 108 , 433.
SURRENDER .
contingent remainders not now destroyed by, 121, 383.
copyholds, of. See COPYHOLD.
to use of will, 721.
power to accept, conferred by Settled Land Acts, 555.
SURVEYOR.
Lands Clauses Act, under, trustees cannot appoint one of themselves to
be, 258.
lien of trustee for expenses of surveying estate, 638.
trustee, employed by, is not entitled to lien on trust estate , 641.
trustees should employ separate, on lending money on real security, 324.
" SURVIVING " TRUSTEE, 655, 657, 658.
SURVIVORSHIP.
bare authority, none of, secus authority coupled with interest, 261 .
committeeship of lunatic, of, 261.
executorship or administratorship, of, 261 .
guardianship, of, 261 .
married woman's right of, 744 et seq.
power of sale in mortgage, of, 603.
powers of trustees, of, 600 et seq., 604, 607, 610 et seq. See POWER.
trust, of, 261 , 262 ; even where there is power to appoint new trustees,
262, 263, 431.
trust for sale, of, 430, 431 .
uncertainty as to, power to make vesting order in case of, 1018, 1019.
TACKING, 330. See MORTGAGE.
TAXATION. See COSTS.
cestui que trust, when directed at instance of, 642.
TAXES . See RATES.
TECHNICAL TERMS .
how far necessary for creation of express trusts, 108 , 109.
their force when employed, 109.
TENANT AT WILL.
building on landlord's land with his connivance, 717.
cestui que trust is, to trustee, 677, 881 .
determination of tenancy by, 881.
Limitations, Statute of, provisions of, as to, 881 .
renewal of lease by executor of, effect of, 182 .
TENANT FOR LIFE .
advancement of, power to apply trust fund for, 589, 590.
alienation by, effect of, on exercise of power vested in him, 668.
appointing improper person trustee is personally liable for costs of re
moving him, 669.
apportionment of purchase-money as between, and remaindermen, 430,
565, 566. See APPORTIONMENT .
of value of reversion, 305.
bankruptcy of, effect of, 589 , 683.
breach of trust, instigating, liability of, 910.
participating in, his interest may be stopped for compensation , 911 .
business, of, must make good losses during previous life tenancy, 683.
1579
 INDEX.

[The references are to the star paging.]

TENANT FOR LIFE- continued.
charge, paying off, primâ facie no merger, 731. See MERGER.
chattels or heirlooms, his rights as to, 683, 684.
consent of, to investment by trustees , 311 , 318.
discretion of trustees not dispensed with, 291 , 318.
when necessary, under Settled Land Act, 470, 622 et seq.
contingent legacy, tenant for life of residue entitled to income, until con
tingency happens, 302.
contract by, to grant lease, power of trustees to effectuate, 606.
conversion, his proportion in income accruing before, 301 et seq.
rents accruing before, to be received by tenant for life, 949.
wrongly receiving whole income, he is liable to refund, 357.
copyholds , fine on admission to, how to be borne, 378, 379.
costs incurred by, in protecting estate, allowed to trustees, 636.
costs occasioned by his encumbering his estate, his liability for, 673.
covenant for title by, 442.
debts and legacies, out of what payable as between tenant for life of
residue and remainderman, 302.
dividends, apportionment of, on change of investment, 323.
possession of, how tenant for life put in , 684.
favour to, trustees should not show, 291 , 317, 318, 333, 428.
fines on copyholds, is entitled, to , 682 .
on renewal of leases, when entitled to, 682.
forfeiture by, by feoffment of fee simple, 821 .
household goods, his right to use, 683, 684.
improvements and repairs by, 574, 575 et seq.
income of, in respect of debts recovered, 300, 914.
income, tenant for life wrongly in possession of, is accountable, 334.
incumbrance, effect of tenant for life purchasing, 280, 731 .
investment with consent, application of statutory powers to, 311.
refusal of tenant for life to consent does not justify retention of
improper security by trustee, 291 , 318.
lease by, 555, 557 , 606 .
leaseholds, of, to what income entitled, 299, 304, 682.
married woman, rights of, 740 , 744.
minerals, power of tenant for life to work or sell, 190 , 433.
mines, power of tenant for life to lease, 503, 683.
right of tenant for life to rents and royalties , 682 .
partnership, share in, tenant for life to what income entitled in respect
of, 304.
personal security, trustees should not lend to him on, 316, 317.
possession, equitable tenant for life when entitled to, 675, 676.
on giving security for discharge of prior incumbrances, 675.
powers, whether exercisible by, after alienation of estate, 668.
protector of settlement, equitable tenant for life may be, 682.
purchase by, from trustees for sale, 317 note (a) , 485, 503.
purchase from, by trustees for purchase, 503.
rates and taxes, must pay, 683.
real estate, his rights in, 675 et seq.
receiver appointed by court, expense of, falls on, 984.
refund, must, where overpaid, 357 .
renewable leaseholds, of
fines on renewal, how provided for as between tenant for life, and
remainderman , 371 et seq.
underleases, on, tenant for life entitled to, 371.
neglect to renew, liability in case of, 378, 854.
refusal by, to renew, 378 , 379, 854.
renewal of lease by, in own name, effect of, 181 et seq., 363.
reversion, of, of lease annually renewable, rights of, as regards
income, 682.
1580
 INDEX .

[The references are to the star paging.]

TENANT FOR LIFE- continued.
repairs by, 574 et seq.; neglects to repair, 574. See WASTE.
request by, to exercise of power, 428, 429.
residue, of, to what income entitled, 298, 300 et seq.
reversionary interest, of, what proportion of proceeds attributable to, 305.
sale by, to trustees for purchase , 503.
sale by, under powers of Settled Land Act, 428, 429.
with concurrence of trustees, 430.
Settled Land Act, powers of tenant for life under, 129, 428, 429, 436, 470,
553 et seq., 622 et seq., 682, 683. See SETTLED LAND ACTS.
specifically bequeathed property, of, is entitled to full income, 289.
or where intention expressed that he should enjoy in specie, 299, 300.
stock, apportionment of dividends, on change of investment of, 323.
succession duty, must bear expense of accounts in respect of, 683.
timber, power of tenant for life to cut, 187 et seq., 502 note (e ) , 574, 682,
683. See WASTE .
title deeds , duty of tenants for life to produce , 192.
rights of equitable tenant for life as to custody of, 679.
trade, where trust estate employed in, to what income tenant for life
entitled, 304.
trust for sale, he may buy under, though his consent be necessary to sale,
503.
trustee, not appointed, under Settled Land Act, 41 , 666 .
trustee for sale, tenant for life who is, cannot profit by postponing sale, 304.
Trustee Act, is not person " absolutely entitled " under, 1022 .
except as regards income only, 1022.
Trustee Relief Acts, petition by tenant for life under, 999, 1000, 1004.
underwoods and thinnings of plantations, he is entitled to, 682.
waste by, 187 et seq., 574. See WASTE.
waste, when to be made dispunishable for, 507, 508.
TENANT IN COMMON.
advowson, of, must cast lots for presentation, 276.
devise to co-tenants, may be good as to one and void as to another, 63.
whether trust estates will pass under, 228.
election by, 957. See ELECTION.
equitable, injunction against co -tenant, cutting timber, 679.
implication of tenancy in common, 164, 165.
in case of joint loan, 164 .
or where two possessed of mortgage term purchase equity of redemp
tion, 164.
in joint purchase where purchasers contribute unequally, 165.
or in joint undertaking in trade, 164, 165.
mortgagee, tenant in common of equity of redemption, time does not run
against, 866.
presumption of ouster does not arise between equitable tenants in com
mon, 869.
TENANT IN TAIL.
assignment of equitable interest by, 693 et seq.
charge, paying off, when presumed to intend merger, 731 , 732.
chattels, bequest of, to tenant in tail who shall first attain twenty-one,
void, 98.
disentailing assurance by, under Fines and Recoveries Act, 381 , 382 , 694.
election by, 957 et seq. See ELECTION.
equitable, cannot require trustee to convey legal fee, 685.
equitable recovery, effect of, 14, 694.
estate pur autre vie, of, powers of alienation of, 694, 695.
executory trust, for A. for life and after his decease to the heirs of his
body, 118 .
payment out of Court to, under Lands Clauses Act, 960, 961 .
1581
 INDEX.

[The references are to the star paging. ]

TENANT IN TAIL - continued.
Settled Land Act, powers of tenant in tail under, 553, 554.
trust for management during minority of, when void for remoteness, 97.
Uses, Statute of, not applicable to seisin of, 6.
TENANT TO PRÆCIPE, 380, 382.
TENANT, YEARLY.
renewing lease, is trustee for remainderman, 182 .
TERM OF YEARS.
attendant , 95, 250 note ( 1) . See ATTENDANT TERM.
charge, to secure, when barred under Statutes of Limitation, 880, 883.
long, may be converted into fee, 328 note (a) .
TERMINABLE SECURITIES.
duty of trustees to convert, 298, 299, 300.
investment in, by trustees, 320.
TERROR.
confirmation or release must not be obtained by, 496 , 498, 926.
TESTAMENTARY DISPOSITION. See WILL.
TESTAMENTARY EXPENSES .
costs of administration action are, 644.
costs of taking opinion of Court, quære , ib.
priority of, in administration of estate in bankruptcy, 832.
THEFT.
trust property, of, trustee when liable for, 294.
THELLUSSON ACT, 90 et seq.
charge void under, sinks into land, 92, 93.
exceptions from the Act, and their construction , 93, 94.
excess, to whom it belongs, 91 , 92.
results for benefit of heir's personal representative, 92.
implied direction for accumulation, semble, Act applies to, as well as to
express direction , 91 .
Ireland, Act does not apply to, 94.
Irish property, when applicable to, 94.
periods of accumulation permitted by, 90.
accumulation can be for one only of the periods, 90, 91 .
period commencing after testator's death, must end at 21 years from
such death, 91 .
premiums on policy, direction to pay, out of income , 94.
residue, when void accumulations fall into , 92.
Scotland, the Act has been extended to, 94.
simple accumulation , Act applies to, as well as compound, 90.
subsequent limitations not in general accelerated, 92.
suspension of actual enjoyment of income, Act applies although right to
enjoyment is not suspended , 90.
trust exceeding limits of Act, but not of common law, is good pro tanto, 91.
void accumulations, who entitled to, 92.
residue, of, result to heir at law or next of kin, 92.
Wills Act, under, void accumulations go to residuary devisee or legatee,
92, and where residue is settled form capital, ib.
THINNINGS OF WOOD.
tenant for life when entitled to , 189 note (b ) , 682.
TIMBER. See WASTE.
account of, in equity on legal title without injunction, 886.
improperly felled , account in respect of, 188, 574.
infant's estate, on, 578. See INFANT.
proceeds of, whether realty or personalty, 967, 969.
interest when charged in respect of proceeds of, 188, 578.
larch plantations blown down, application of proceeds of, 189 note (b) .
lunatic's estate, on, proceeds of, how applicable, 964 et seq. See LUNATIC.
1582
 INDEX.

[The references are to the star paging.]

TIMBER - continued.
portions when raisable by sale of, 418, 420.
produce of, directions touching, excepted from Thellusson Act, 93.
property in, when felled, to whom it belongs , 188, 189.
purchase of timbered estate by trustees, improper, 502.
repairs, legal tenant for life may cut for, 574.
quare whether trustee may also do so, 574.
sale of, by trustees separately, from estate, 433.
sale of estate by trustees separate from timber is void, 432 .
tenant for life when trustee of proceeds of sale of, 188 , 189.
powers of, to cut and sell timber, 187 et seq., 502 note (e) , 574, 577,
682, 683.
timber estate, trustee may not buy, in favour of tenant for life sans waste,
502.
whether he may purchase generally, 502.
trustee, power of, to cut timber, 574, 577 ; during minority of beneficial
owner, 578.
where holding on implied trust, 136.
underwood treated as income, 682.
windfalls belong to owner of first estate of inheritance, 189 note (1) .
TIME .
bar by lapse of, 495 , 496 , 863. See LACHES ; LIMITATION OF ACTION.
creditor's deed, time limited in, is not of the essence, 522.
notice of equitable incumbrance, for giving, 707 .
payment of fund into Court, what, allowed for, 981.
portions, for ascertaining, parties entitled to, 386 , 390 note, 393. See
PORTION.
power of sale, within what time exercisible , 458, 605, 606.
powers of executor or trustee, how affected by lapse of, 457 , 458, 481 , 482.
priority, how it affects, 713 et seq., 862.
trust for sale, within what time it should be executed, 424, 457, 458.
trustee not entitled to allowance for, 627 et seq.
TITLE .
adverse, trustee cannot set up against c. q. t., 285.
clearing, on sales, trustees may do all acts for, 440.
commencement of, which purchaser may require, 438.
conditions as to, on sale by trustee, 435, 436.
covenants for, by trustees and mortgagees, 441 , 442.
duty of trustee to enquire into , on lending money on real security , 324 , 325.
good or marketable, what is, 500.
proof of, which purchaser may require, 438, 439, 440, 500.
receipt, power of vendor to sign, for purchase-money is question of title,
453 note (a) , 663.
secret, person designedly concealing, may be precluded from setting up,
716. 1
sole trustee, objection to title on sale by, 663.
trustee for sale bound to make good title , 432 .
trustee setting up his own, ordered to pay costs, 994.
trustees for purchasing must see to sufficiency of, 500 , 501 .
Trustee Act, Court cannot decide question of title under, 1009 .
TITLE DEEDS .
copies of, c. q. t. entitled to, at own expense, 680.
covenant to produce, effect of, 192.
trustees when bound to enter into, 333, 442 et seq.
custody of, who entitled to, when legal estate in trustee, 679.
cestui que trust entitled absolutely in possession, 680.
one of several trustees, may be committed to, 680, 681 .
tenant for life, when entitled to, 679.
tenant in tail, when entitled to, 680 note (c) .
1583
 INDEX.

[ The references are to the star paging.]

TITLE DEEDS- continued.
custody of, trustee in bankruptcy of husband of legal tenant for life not
entitled to, 680.
trustees of term for raising portions not entitled to, 421 .
trustees should not part with, to settlor, 679.
deposit of, 48, 715, 862. See MORTGAGE, EQUITABLE.
holder of, how far a constructive trustee for remainderman or part
owner, 192.
may gain priority over earlier incumbrancer, 714 et seq.
but not if deeds obtained wrongfully or by accident, 714.
inspection of, right of c . 9. t. to, 680.
leaseholds, of, executor may hold , till debts paid, 680.
mortgagee improperly dealing with, may be postponed, 715.
production of, when purchaser entitled to require, 439 et seq.
TOLLS .
investment on mortgage of, by trustees, 326.
TOMBS .
trust for keeping up, effect of, 106 ; and see 107 note (a) .
void unless charitable, ex. gr. for monument in church, ib.
for erection of monument to deceased person, valid, 106 .
TORT.
husband and wife cannot sue each other in, 761.
married woman may be sued for, as if feme sole, 769.
TORTIOUS.
coversion of trust property, 241, 892, 963 et seq. See CONVERSION.
right to follow property, 892 et seq.
sale of land by trustees, 902 .
of stock by trustees, proof in respect of, 912.
timber, felling of, on estate of lunatic, 966.
TRADE.
allowance for management given to constructive trustee , 629 ; secus,
express trustee, 630.
bank, money lodged in, to executor's account, considered to be traded
with, 340.
buildings used in, trustees should not lend half actual value on mortgage
of, 325.
direction to employ assets in, effect of, 581 , 639, 916.
executor might formerly have used assets in, 339, 340 ; secus, 340 et seq., 479.
following trust property employed in, 894, 916.
investment in, when authorised, 319.
loss, tenant for life when bound to pay, out of income, 683.
married woman may carry on , separately from her husband, 788 , 791 .
profits of, trustee when accountable to c. q. t. for, 276 , 277 , 894.
tenancy in common implied on joint advance for, 164, 165.
tenant for life of residue, right of, to income of trust estate employed in
trade, 304.
trustee carrying on, is amenable to bankruptcy law, 238.
pursuant to direction of testator, 581, 639, 916.
rights of creditors as against trust estate, 639, 916 .
trustee must not employ trust money in, 276, 277, 479.
so employing trust money, charged at option of c. q. t. with profits,
340.
or interest at £5 per cent., 340, 342.
whether with compound interest, 342, 343.
TRADE MARK.
equities in respect of, enforceable, 167.
registration of, 167 .
no notice of trust allowed on register, ib.
1584
 INDEX .

[The references are to the star paging. ]

TRADER, 510 et seg. See BANKRUPTCY ; DEBT.
TRAITOR. See CONVICT ; FORFEITURE.
TRANSFER.
action for administration , of, to Court of Bankruptcy, 832.
mortgage, of, by trustees, 332 , 333. See MORTGAGE.
shares or stock, of, 32, 534, 574. See SHARES ; STOCK.
into Court, 976 et seq. See PAYMENT INTO COURT.
under Trustee Relief Acts, 998, 999, 1007.
TRANSMISSION.
trust money , of, to a distance, how to be affected, 256 , 353, 354.
TRANSMUTATION OF POSSESSION. Chap . vi., 67-83 .
where there is, the trust, though voluntary, will be enforced , 67.
and where there is not, if trust be perfectly created, 67.
TRAVELLING.
expenses, trustee when allowed, 634.
TREASON.
forfeiture in case of, 27 , 818 et seq. See FORFEITURE.
now abolished, 28, 821.
outlawry upon, effect of, 250.
TREASURY.
consent of, required to alienation by corporation , 22, 31 .
TROUBLE.
allowance for, may be made by special direction, 630, 631 .
will not cease on institution of suit, 631.
amount of, where not known, settled by reference, 631 .
annuity to trustee for, does not prevent allowance for expenses , 637.
commission whether allowed to executor in East Indies, 628.
when to trustees or mortgagees of West India Estates, 628.
committee of lunatic not allowed to charge for, 628.
contract by trustee with c. q. t. for allowance for, 631 , 632.
or with Court before acceptance of trust, 632 .
executor not allowed to charge for, 628.
management of business, trustee not allowed salary for, 491, 630.
mortgagee not allowed to charge for, 628.
whether he may contract for allowance, 632.
receiver not allowed to charge for, 628.
settlor may direct allowance for, to be made to trustee, 630, 631 .
trustee not generally allowed to charge for, 491 .
TRUE OWNER.
whether bare trustee is, within bankrupt laws, 244.
TRUST.
absolute gift or trust, words of recommendation whether giving rise to,
134, 135. See IMPLIED TRUST.
acceptance of, 200 et seq., 251 , 252. See ACCEPTANCE OF TRUST.
accumulation, for, 84 et seq. See THELLUSSON ACT.
advantage by, trustee may not make, 275 et seq.
advowson, of, for parishioners, 85 et seq.
right of presentation does not belong to trustee, 275.
alienation, restriction of, not allowed by way of trust , 98 et seq.
annexed in privity to the estate, 15 .
to the person, 16 .
assets, a trust is, 10, 872 ; whether formerly, 826. See ASSETS .
assignment of equitable interest, 692 et seq. See EQUITABLE ESTATE.
averrable at common law, 51 ; but averment must not contradict written
instrument, ib.
not where deed required to pass legal estate, 52.
Bank of England does not take notice of, 32.
1585
 INDEX.

[The references are to the star paging.]

TRUST continued.
bare trust and trust coupled with interest, 611. See BARE TRUSTEE.
cestui que trust, existence of, essential, 106 .
chapel, for, how created, 85 ; how administered , 531 , 534.
charges and expenses, allowance of, to trustee, 634 et seq. See EXPENSES.
charitable or public trust, 20. See CHARITY.
chattels , of, when perfectly created, 69.
chose in action, anciently treated as, 8.
church or chapel, for, how effected in equity, 85.
classification of, Chap . 11. , 18-20.
common, with power annexed, 19.
compulsory, is not, before acceptance, 196.
condition distinguished from , 34.
confidence, in what sense trust is , 13, 14.
consideration for, 67 et seq. See CONSIDERATION.
construction of, 108 et seq.
constructive, Chap. x., 180–195. See CONSTRUCTIVE TRUST.
contingent remainders, for preserving, Chap . XVI., 380-384. See CON
TINGENT REMAINDER .
copyholds, of, 47, 721.
creation of, Chap. 11., 21-46 . See CREATION OF TRUST.
formalities required for, Chap. iv., 51-66.
when perfect, 67.
creditors, for, Chap. XX., 509-527.
to defeat or delay, invalid, 77, 78 , 81 , 82 .
curtesy of, 11 , 221 , 733 et seq. See CURTESY.
debts, for payment of, Chap. xx., 509-527 . See DEBT.
declaration of, when sufficient, 51 , 53, 55 et seq. See DECLARATION OF
TRUST.
definition of, 13.
delegation of, not permitted , 252, 253, 254, 275. See DELEGATION.
descent of, 723, 823, 824. See DESCENT.
devise of, 226 et seq., 720 et seq.
disclaimer of, 196 et seq. See DISCLAIMER.
disclosure of, by trustees purchasing, 505 .
discretionary, 18. See DISCRETIONARY TRUST.
dower of, 8, 11 , 733 et seq. See DOWER.
duration of, 20, 89, 97 , 425.
enforced, where consideration valuable, or if perfectly created, 67.
equitable interest, of, when sufficiently created, 72, 73.
escheat of, 11 , 282, 822 , 823. See ESCHEAT.
estate, 20 et seq. See LEGAL ESTATE.
estate tail, equitable, 47. See ENTAIL.
execution of, causes and matters for, assigned to Chancery Division, 17.
executory, 111 et seq. See EXECUTORY TRUST.
express, Chap. vIII., sect. 1, 108-130 . See EXPRESS TRUST.
how affected by Statute of Limitations, 875 et seq.
extent from Crown against, 817.
extinguishment of, 425.
failure of, for want of trustee, equity will not permit, 833 et seq.
foreign property, of, 49.
forfeiture of, 221 , 247, 818 et seq. See FORFEITURE.
Frauds, Statute of, how it affects trusts , 51 et seq . See FRAUDS, STATUTE OF
immoral, is void, 105. See UNLAWFUL TRUST.
impeachable, 286, 346.
imperfect gift not carried into effect as, 74.
implied, Chap. VIII., sect. 2 , 130-142 . See IMPLIED TRUST.
instrumental , explained , 18.
intention by settlor to create , essential, 82.
irrevocable, when , 515 .
1586
 INDEX .

[The references are to the star paging.]

TRUST - continued.
judgments, how affected by, 245, 794 et seq.
land discharged from, when money raised by trustee, 449.
land, does not issue out of, 15.
land, of, when perfectly created, 69.
lands abroad, of, 49.
lawful, 19 , Chap. vII., sect. 1, 84-94.
legal estate , persons taking, when bound by, Chap . xI., sect. 3, 246
250.
limitation of, compared with legal limitations , 46 , 84 et seq., 109.
maintenance, for, how far valid as against creditors of c. q. t., 99 et seq.
See MAINTENANCE .
ministerial, explained, 18.
mixed power and trust, 19, 836.
money followed into land, 169 , 896 , 897.
mortmain, in, 96. See MORTMAIN ; CHARITY.
nature and origin of, 1, 7.
notice of, 505, 506, 858 et seq. See NOTICE .
obligatory, exercise of, is, 834.
operation of law, by, 193.
origin of modern trust, 1 , 7.
administered at first on principles of uses, 8, but afterwards treated
as estates, 11.
parishioners, for, 85 et seq.
parol, may be declared by, when, 51 , 65.
peerage, of, cannot be created , 47 note (a) .
pension, of, cannot be raised by parol, 52.
perfect, when, 67 , 68. See CONSIDERATION ; VOLUNTARY SETTLEMENT.
performance of, 67.
whether enforceable against Crown, 30.
perpetuity, rule against, application of, to trusts, 89, 97 , 98. See PER
PETUITY.
poor of parish, trust for, how carried into effect, 85, 531.
post obit , 518.
power distinguished from, 19, 135, 451 , 839 et seq. See POWER.
mixture of, and trust, 19, 600 , 610 , 611 , 613.
trust with power annexed distinguished from, 19.
precatory, 130 et seq. See IMPLIED TRUST.
principles governing, at present day, 11 .
private, 20.
privity of estate, extent of term , as applicable to , 15.
prize of war, grant by royal warrant to trustees, 22.
profit by, trustee must not make , 275 et seq.
properties of, in analogy to legal estates, Chap. XXVI ., 692-832.
property, what, may be made the subject of, Chap. iv ., 47-61 .
public, explained, 20. See PUBLIC TRUST.
information by Attorney-General when proper remedy, 31 .
purchase, for, Chap. xIx. , 499–508 . See PURCHASE.
purchaser whether bound by, 246, 857 et seq. See PURCHASER .
recommendation, whether raised by, 130 et seq. See PRECATORY TRUst.
reference , by, how to be framed , 506, 507 , how construed , 507 , 508 .
relinquishment of, Chap. xxv. , 645-673. See RELINQUISHMENT OF
TRUST.
renewable leaseholds, of, 180 et seq., 363 et seq. See RENEWABLE LEASE
HOLDS.
repair, to, a window or monument in church valid as charitable gift , 106 ,
107.
resulting, Chap. Ix., 143-179. See RESULTING TRUST.
retirement from, Chap. xxv. , 645–673. See RELINQUISHMENT OF TRUST.
revocable or irrevocable, 515, 516.
1587
 INDEX.

[The references are to the star paging.]

TRUST continued.
rise and progress of trusts, 1 et seq.
trusts at first modelled after pattern of uses, 8.
but afterwards treated as estates, 11 .
sale, for, 422 et seq. See SALE .
secret, parol evidence when admissible, 62.
seisin and disseisin of, 617.
separate use of married woman, for, 753 et seq. See MARRIED WOMAN.
settlor, who may be, 21 et seq. See SETTLEMENT .
several estates, of, 642.
shifting fee simple, 84.
simple trust, 2, 18, 572, 674 et seq., 827. See SIMPLE TRUST.
special trust, 2, 18, 210, 572. See SPECIAL TRUST.
specific appropriation , what amounts to , so as to create trust, 83, 240, 894,
912. See SPECIFIC APPROPRIATION .
stock of, when perfectly created, 69.
survivorship of, 261 , 262, 263, 430, 600. See SURVIVORSHIP.
trustee, trust does not fail for want of, 833.
uncertainty of object or subject of, effect of, 133, 134.
unlawful, 19, 64, Chap. vII., sect. 2, 94-107 . See UNLAWFUL TRUST.
use, anciently known as a, 13.
Uses, Statute of, special trusts not within, 6, 210.
validity of, trustee bound to assume, 286.
voluntary, 67 et seq. See VOLUNTARY SETTLEMENT ; VOLUNTARY TRUST.
TRUST ESTATE . See LEGAL ESTATE .
TRUSTEE .
abroad, person domiciled, should not be appointed , 30, 40, 662 , 847. See
ABROAD.
absconding, removal of, 847, 1028.
absent, where trustee is, Court may make vesting order, 1021 et seq. See
TRUSTEE ACTS .
acceptance of trust by, 200 et seq., 251. See ACCEPTANCE OF TRUST.
account against, 674, 691. See ACCOUNT.
refused on ground of delay, & c ., 871 et seq.
accountable for rents and profits, 674. See RENTS AND PROFITS.
accounts, trustee must be ready with his, 449, 691 , 975, 976.
act or neglect of, does not vary rights of c. q. t., 938, 939, 963.
"acting," meaning of term , 258, 655, 665, 709.
actions when to be brought in name of, 234. See ACTION.
advantage, trustee may not make, by trust, 275 et seq.
adverse title, trustee cannot set up, against c. q. t., 285.
advowson, of, 234, 275. See ADVOWSON.
agent, employment of, by trustee, 254. See AGENT.
alien may be, of chattels personal, 40.
formerly might not be, of freeholds or chattels real, 40.
allowances to, Chap. XXIV. , 627-644 . See CoSTS ; EXPENSES .
appointment of, 846 et seq. , 1027 et seq. See NEW TRUSTEES ; TRUSTEE
ACTS .
assign of, formerly not liable to execute use or trust, 2.
secus in later times , 246.
auctioneer, trustee who is, cannot make profit from trust, 280.
Bank of England cannot be, 32.
banker, trustee who is, cannot make profit by trust, 280.
bankrupt not absolutely disqualified from being, 40 , 847 ( e) .
bankruptcy of, 239, 242 et seq., 658, 850 , 912 et seq. See BANKRUPTCY.
bare trustee, meaning of term, 221 note (g) . See BARE TRUSTEE .
beneficially interested, assignee of, bound by equities, 696.
bond given by, for due execution of trust, effect of, 252.
breach of trust by, Chap. XXIX . , 846-856 . See BREACH OF TRUST.
1588
 INDEX.

[The references are to the star paging. ]

TRUSTEE - continued.
broker, trustee who is, cannot profit by trust, 280.
business of testator, carrying on, 581. See EXECUTOR ; TRADE.
care to be taken by, 294.
cestui que trust can compel performance of duty by, 853 et seq. See
CESTUI QUE TRUST.
cestui que trust should not be appointed, as a general rule, 40.
chapel, for, 531 , 534, 852, 853.
charge, cannot generally, for personal services , 281 .
charity, for, duties of, 530 et seq.
religious views of trustee whether to be regarded , 42, 847.
removal of, 848.
chattels personal, duties of trustees of, Chap. xiv. , 287–362.
commission , when allowed to charge, 628, 629.
concurrence by, in sale with owners of other shares, 594.
contingent remainders, to preserve, duties of, Chap. xvI. , 380–384.
" continuing," 658, 664.
exercise of power by, 606.
conversion of trust property, duties of trustee as to, 298, 334, 336, 935
et seq., 963. See CONVERSION.
conveyance by, at request of c. q. t., 508 , 684 et seq., of assignee of c. q. t.,
692.
on sale, 441 et seq. See CONVEYANCE ; SALE .
conveyance to, how to be framed, 505 et seq.
copyholds, of, 235 et seq. See СоРунold.
corporation, capacity of, to be, 31 , 32.
costs of, 985 et seq. See COSTS.
co-trustees, liability of, for each other's acts, 263 et seq. See CO-TRUSTEES.
counsel, advice of, when to be taken, 206, 346, 347. See COUNSEL.
Court, powers of trustees appointed by, 471 , 472.
covenants by, on sale, &c ., 441 et seq. See COVENANT ; SALE.
creditors, for, duties, & c. , of, 488, 509 et seq. See DEBT.
Crown may be, but quære as to remedy of c. q. t., 30.
custody of chattels by, 294 et seq.
debt of, has no priority over other debts, 524 .
when chattel may be taken in execution for, 224.
debtor to estate, assignment of beneficial interest by, 696.
debts, may not buy up, for himself, 276.
power of trustee to compound, 591 , 592 .
defaulting, when liable to attachment, 916 et seq. See DEBTORS' ACT ;
BREACH OF TRUST.
delegation of duty by, 252 et seq. See DELEGATION .
devise by, of trust estate, effect of, 226 et seq. See DEVISE.
devise to, when to be construed to pass fee simple, 220.
implied by nomination as trustee, 215.
devisee when to be deemed, 59, 60.
disability of, to purchase trust property, 484 et seq.
Trustee Acts, how remedied under, 1013 et seq. See TRUSTEE ACTS .
discharge of, how obtained, Chap. xxv., 645–673. See INDEMNITY ;
RELEASE ; RELINQUISHMENT.
disclaimer by, effect of, 196 et seq., 606, 607. See DISCLAIMER.
distribution of trust fund by, Chap. XIV., sect. 6, 344-362 .
dividends, payment of, to two or more trustees, 260. See DIVIDENDS .
domiciled, should be, within jurisdiction of Court, 30, 40 .
dower, to uses to bar, 687 , 688. See DOWER.
duties, how compelled to observe, 853 et seq. See DUTY OF TRUSTEE.
enfranchisement by, 596.
equitable interest, of, when entitled to conveyance, 688 .
estate of, Chap. xII., 209-250 . See LEGAL ESTATE .
executor when converted into, 204, 205, 481 , 673.
1589
 INDEX .

[The references are to the star paging.]

TRUSTEE - continued.
executor and trustee, duties of, 476, 525.
expenses of, allowance of, 634 et seq. See EXPENSES.
failure of, remedy of cestui que trust on, Chap. xxvIII., 833-845.
failure of c. q. t., 282 et seq.
feme covert may be, but not advisable to select her, 33.
foreign domicile, person having, should not be appointed, 40.
forfeiture by, effect of, 247. See FORFEITURE.
fraud by heir devisee or legatee, trusteeship created by, 61.
fraudulent, liability of, 898, 916. See FRAUD.
gift, cannot except, from c. q. t., 277.
heir of, formerly not bound by trust, 2. See HEIR.
secus in later times, 2,
whether he can disclaim, 196 .
whether he can execute trust, 230.
husband held to be, for wife, of her separate property, 754, 834.
husband of c. q. t., sometimes appointed, 41 .
husband should not be, of his own marriage settlement, 41 .
ignorance of, as to his true character, 244, 889, 904.
impartial, should be, as regards interest of c. q. t. , 423 , 850.
implication, by, 834.
implied trust, under, not so strictly bound as in a common trust, 136.
See IMPLIED TRUST.
improvements by, 375 et seq. See IMPROVEMENTS.
'incapable,' 658, 659.
incumbrance on trust property, trustee cannot buy up, 276.
infant ought not to be appointed, 37 et seq.
injunction against, to restrain breach of trust, 855 , 856. See BREACH OF
TRUST.
insurance against fire, duty of trustee to effect, 295.
interest, trustee when charged with , Chap . XIV ., sect. 5, 338–344. See IN
TEREST.
investment of trust money by, Chap. XIV., s . 4, 306-337 . See INVESTMENT.
judgment against, effect of, 245. See JUDGMENT.
judgment creditor of, execution by, against chattels, 224.
laches by, its effect as to right of c. q. t., 520. See LACHES.
legacy to, who is attesting witness of will, 275 note (c) .
legal estate taken by trustee, its devolution, properties and quantity, Chap.
XII., 209-250 . See LEGAL ESTATE.
legal interest, when trust invalid unless it is actually vested in trustee,
69 et seq.
legal personal representative, estate of trustee devolves on , 222, 226, 233.
legal proceedings, may be compelled by c. q. t. to take, on having indem
nity, 853. See ACTION.
liability of, for breach of trust, 846 et seq. See BREACH OF TRUST.
for acts of co-trustee, 263 et seq. See Co-TRUSTEES.
lien of, for expenses, &c., 639 , 640. See LIEN.
limitation of action against, 873 et seq. See LIMITATION OF ACTION; LIM
ITATION, STATUTES OF.
loss of trust property, when liable for, 294 et seq.
majority of trustees binds minority in public trusts , 259, 540, 547, 592, 597.
may pay money into Court under Trustee Relief Act, 361 , 997 , 1007.
married woman may be, but not advisable to select her, 33, 34.
effect of Married Women's Property Act, 1882, considered , 33, 34, 36.
bare trustee, being, may convey or surrender, 36 .
stock, may transfer, as though feme sole, 36.
merger of charge, assignment to trustee to prevent, 727, 731. See MER
GER.
misconduct by, a ground for his removal, 846 , 847 .
mortgage by, 326 et seq. See MORTGAGE ; INVESTMENT.
1590
 INDEX.

[The references are to the star paging.]

TRUSTEE - continued.
mortgagee, how far he is, 15. See MORTGAGEE.
new, appointment of, 846 et seq., 1027 et seq. See NEW TRUSTEES ; TRUS
TEE ACTS.
notice to, effect of, 345, 701 et seq. See NOTICE.
when necessary, 701 et seq.
number of trustees, 42, 43, 600, 601 , 648, 659 et seq., 846. See NEW TRUS
TEES .
safe rule is to appoint three , and keep number full, 43 .
office of, general properties of, Chap. XIII., 251-286. See OFFICE OF
TRUSTEE.
overpayment of c. q. t. by, effect of, 356, 357.
partner of, when liable for his breaches of trust, 902, 913, 916.
payment by, 344 et seq. See PAYMENT ; RECEIPT .
payment to, how to be made, 292, 447 , 448, 473, 474.
personal representative, estate of trustee devolves on, 222, 226, 233.
persons competent to sustain character of, 29 et seq. See infra, who may
be.
portions, duties of trustees for raising, Chap. xvII., 385-421 . See POR
TION.
possession of trust estate, rights and duties of trustee as to, 285 , 677 , 881 ,
882. See POSSESSION.
power, when bound to exercise, 600, 834. See POWER.
powers of, general, Chap. xxIII., 572-626 . See POWER.
special, 572.
prepayment of chose in action , may accept, 288.
privileges, &c ., annexed to legal estate in , 234.
production of documents by, 975, 976.
profit, must not make, by office, 275 et seq.
proper number of trustees, 42 , 43.
purchase, for, duties of, Chap. XIX., 499-508 . See PURCHASE .
of trust estate by trustee, 484 et seq. See PURCHASE.
qualification for office of, 29 et seq.
quasi-trustee, 344, 580, 989.
quorum, Court sometimes appoints, where trustees numerous, 260.
receipt by, 264 et seq. See RECEIPT.
receiver, cannot be, at salary, 280.
refusal by, to act, 847.
relative of c. q. t. objectionable as a rule, 41 .
relatives, near, ex. gr. two brothers objected to , 42.
release, when entitled to require, 359. See RELEASE.
religious society, of, statutory privileges of, 97 .
relinquishment of office by, Chap. XXIV., 645–673 . See RELINQUISH
MENT.
removal of, for misconduct, &c ., 846 et seq . , 1028 , 1038. See NEW TRUS
TEES.
remuneration to, 631, 632.
renewable leaseholds, of, duties of, Chap. xv. , 363-379. See RENEWABLE
LEASEHOLDS .
renewal of lease, by, in own name , 180 et seq.
renounce, cannot, having once accepted , 251 , 252.
repairs by, 504, 574, 575 et seq. See REPAIRS.
retirement of, Chap. XXIV ., 645-673 . See RELINQUISHMENT OF TRUST.
sale, duties of trustee for, Chap. xvII . , 422-498 . See SALE .
school, for, 533.
separate use of married woman, for, when a necessary party, 771 , 772.
Settled Land Acts, under, duties of, Chap. XXII., 550–571 .
several trusts, appointment of separate trustees of, 666, 667.
shares in company, of, 239.
sole, 42, 355, 356, 431 , 592. See SOLE TRUSTEE.
1591
 INDEX .

[The references are to the star paging.]

TRUSTEE- continued.
solicitor, responsibility of trustee for acts of his, 252, 325. See SOLIC
ITOR.
solicitor to trust, son of, also a solicitor, objected to, 42.
solicitor-trustee cannot charge for professional services, 281 et seq., 630.
sub modo, vendor is trustee, for purchaser, 141 , 142 , 1011 , 1012 .
suit by, 234. See ACTION.
surviving, powers of, 261 , 262, 600 et seq., 607, 657, 664. See SURVIVOR
SHIP.
tenant for life not appointed, under Settled Land Act, 41.
title deeds, right to custody of, 679, 680.
title, may require alleged c. q. t. to show, 349.
tort, trustee de son, 207.
tortious conversion by, 892 et seq., 963 et seq. See CoNVERSION.
trade, employing trust fund in, accountable, 276, 277 , 340 et seq.
" true owner," whether he is, within order and disposition clauses, 244,
245.
trust not permitted to fail for want of, 833.
" trustee," use of word, whether devise implied by, 215.
Trustee Acts, within, who is, 1011 note (c) .
Trustee Relief Acts, protection afforded by, 996 et seq. See TRUSTEE
RELIEF ACTS .
"unable" to act, 659.
undivided share, of, powers of, 421 , 594.
"unfit," 658.
validity of trust, trustee bound to assume, 286.
void deed, costs of trustee of, 640, 989.
vouchers, is entitled to custody of, 449.
want of, does not defeat trust, 833.
who may be, Chap. III., sect. 2 , 29-43.
alien may be, of chattels personal, 40.
formerly might not be, of freeholds or chattels real, 40 .
secus under the recent Act, 40.
Bank of England cannot be, 32 .
bankrupt not absolutely disqualified , 40, 658, 847 note (e) .
capable, must be, of taking and holding the trust property, 29.
cestui que trust or relative, not incapacitated but not desirable to
appoint them, 40, 41.
charity, religious views of trustees when to be regarded, 42.
corporation may be, except where in contravention of Statute of
Mortmain, 31 , 32.
Crown may be, but quære as to remedy of c. q. t., 30.
feme covert or sole may be, but undesirable , and why, 33 et seq.
foreign domicile, person having, not generally a fit trustee, 659, 662.
husband of c. q. t., 41.
husband should not be, of own marriage settlement, 41.
infant ought not to be appointed, 37 et seq.
relative ought not to be appointed, 41.
widow of, anciently entitled to dower, 8.
woman, not desirable as a trustee, 34, 37.
but Court will sometimes appoint her, 37.

TRUSTEE ACTS ( 19 & 11 Vict. c . 96 ; 15 & 16 Vict. c. 55) .

absent trustees , who are, 1016 note (d) .
absolutely entitled, meaning of, 1022 note (e) .
vesting property in person who is, 1014 note ( b) , 1018 note (a), 1021
note (a).
action, Court may direct institution of ( s . 53) , 1038 .
administration, when next of kin declines to take out, 1023 note (e ) , 1027
note (c).
1592
 INDEX .

[The references are to the star paging.]

TRUSTEE ACTS - continued.
Bank of England bound by orders under (ss. 20, 26 ; Extension Act, s .
6) , 1020, 1024, 1043 .
bankrupt trustee, removal of, 1028 note (a).
chambers, proceedings when to be taken in, 1027 note , 1030 note, 1034
note (c) , 1035 note (a) .
charities, jurisdiction of Court in respect of, under s. 45, 1035.
appointment of new trustees of, 1030.
chose in action, direction of Court as to (s . 31 ) , 1027.
vesting order respecting ( ss . 5, 6, 22, 23, 24, 35) , 1014 et seq.
colonies, extend to lands in (ss. 54 , 56) , 1039.
company bound by orders under (ss . 20, 26 ; Extension Act, s . 6 ) , 1020,
1024, 1043.
constructive trusts , extend to, 1011 .
who are constructive trustees within the Acts, 1011 note (c ), 1026
note (e).
contingent rights of trustee or mortgagee, power of Court to discharge
(ss . 4, 8, 11 , 12 , 16 , 18 , 29) , 1014 et seq.
conveyance under, appointment of person to execute ( s . 20) , 1020 .
copyholds, as to (s . 28 ) , 1025.
decree directing, makes legal owner trustee, 1026.
form of conveyance , 1020 note (b) .
lease, on refusal to execute, 1026 note (c) .
legal estate, of, gives sufficient title when all parties before the
Court, 1010 note (c) .
solicitor of vendor refusing to convey, by, 1012 note (c) .
copyholds, vesting order as to ( s . 28 ) , 1024, 1025.
costs under (s . 51 ) , 1037 .
higher scale, on, 1037 note (b) .
infant trustee, of, 1037 note (b).
lunatic mortgagee or trustee, of, 1037 note (b) .
sale for payment of, vesting order in aid of (Extension Act, s. 1 ),
1025 note (c) , 1040 et seq.
County Courts, jurisdiction of, in proceedings under, 1045.
Crown, private estates of, extended to, by 25 & 26 Vict . c. 37 , 1013
note (a).
sale of estate of, extended to , by Intestates Estates Act, 1040 note (a) .
service of proceedings on, when necessary, 1019 note ( b ) , 1031 note
(d).
decree of Court, when it makes legal owner trustee within, 1025, 1026 .
exchange, specific performance, partition , conveyance or assignment,
for, 1026.
sale, for, 1025, 1040.
disentail of infant's estate under, 1010 note (d) , 1016 note (d).
disputed question of title, Court cannot decide, 1009 note (a).
dividends accrued or to accrue subsequently to date of request for pay
ment, 1023 note (b).
apportionment of, not made, 1014 note (ƒ).
severance of, from capital, 1022 note (a) .
vesting right to receive, 1014 note (ƒ) , 1022 note (a) . See Stock,
infra.
Durham, lands in ( s. 21 ) , 1021 .
equities of parties, when bound by order of sale, 1010 note (c) .
exchange, judgment for, makes legal owner trustee within Acts, 1026 .
executor is trustee within Acts, 1012 .
mortgagee, of, when entitled to vesting order, 1019 note (b) .
where stock standing in name of deceased, and executor cannot be
found (s. 25) , 1023.
or refuses to transfer (Extension Act, s . 5 ) , 1042.
executrix, husband of, is trustee within Act, 1021 note (e) .
1593
 INDEX.

[The references are to the star paging.]

TRUSTEE ACTS - continued.
existing trustee, where none, Court may appoint new trustees (Extension
Act, sect. 9) , 1044.
foreclosure decree, vesting order to give effect to , 1016 note (e) , 1026
note (e).
infant trustee or mortgagee, power of Court to vest lands of ( ss. 7 , 8) ,
1015 , 1016.
jurisdiction, out of, 1021 note (d) .
new trustee appointed in place of, 1027 note (c) .
payment of money of, into Court (s . 48 ) , 1036.
stock of (Extension Act, s. 3) , 1041, 1042 .
unsound mind, where he is of, 1015 note (c) , 1020 note (a) .
Ireland, powers of, extended to lands in ( ss . 55, 56, 57 ) , 1039 .
judgment for conveyance, exchange, partition, sale, specific performance,
makes legal owner trustee within ( ss . 29, 30) , 1025, 1026 .
jurisdiction, trustee out of (ss . 9, 10, 11 , 12 , 22 ) , 1016 et seq.
infant or lunatic trustee out of, 1021 note (d) .
mortgagee out of (s. 19) , 1019.
person out of, will not be appointed trustee, 1030.
personal representative out of (s. 25) , 1023.
service of petition out of, 1034 note.
temporary absence out of, not within the Act, 1016 note (b) .
Lancaster, lands in county palatine of ( s . 21 ) , 1021 .
lord of manor, consent of, when necessary, 1025.
lunacy, administration of trust in, refused, 1014 note (e).
jurisdiction of Lords Justices in, 1013 note (e ) , 1039 note (b) .
proceedings, when to be in lunacy and when in chancery, 1013 note
(e) , 1015 note (c ) , 1029, 1030.
lunatic, appointment of new trustee in place of, 1028 note (c) .
committee of, when to be served with proceedings, 1033 note , (c) .
jurisdiction, out of, 1020 note (d) .
personal representative, power to make vesting order as to property
of (s. 6), 1015.
trustee or mortgagee (ss. 3, 4, 5 ) , 1013, 1014 .
vesting order of property of, jurisdiction to make , 1026, 1034 note (c) .
married woman trustee, husband of, is trustee within the Acts, 1012 note
(c) , 1015 note (b) .
mortgagee, vesting order in case of infant or lunatic (ss . 4, 5, 7, 8, 19) ,
1014 et seq.
where mortgagee refuses to concur in transfer, 1016 note (e).
motion, order under sect . 4 of Extension Act may be made upon, 1042.
new trustees, appointment of (s. 32 ; Extension Act, ss. 8, 9) , 853,
1027, 1028, 1043, 1044. See NEW TRUSTEES .
consent of, to act, 1030 note.
costs of application for, 1038 note.
creditor's deed of, 1030 note.
expedient, when deemed, by Court, 1027 note (c) .
fines on admission of, to copyholds, 1025 note (a).
fitness of, evidence of, required , 1021 note ( ƒ) , 1028 note (b) , 1030 , 1031 .
lunatic, in place of, 1013 note ( a) , 1028 note (b).
number of, to be appointed , 1029, 1030 notes.
old trustees not to be discharged from liability (s. 36) , 1032.
re-appointment of, for purpose of making vesting order, 1028 note (b).
separate shares, of, 1030 note.
vesting order, power of Court to make (ss. 34, 35) , 1031 .
where no existing trustee, 1029 note, 1044.
where no new trustee can be found, 671 .
number of trustees appointed by Court, 1029 , 1030 notes .
orders made under, by Court, allegations in , are evidence (s. 44) , 1035.
original trustee, where none, Court may appoint, 1029 , 1044.
1594
 INDEX.

[The references are to the star paging.]

TRUSTEE ACTS - continued.
partition, judgment for, makes legal owner a trustee within, 1026 .
petition under,
amendment of, 1033 note (a) .
costs of ( s. 51 ) , 1037.
evidence in support of, 1021 note (f) , 1028 note (b ) , 1030 , 1031 ,
1033 notes.
new trustees, for appointment of, 1030 note.
parties entitled to present (ss. 37 , 40 ) , 1032 , 1033 .
service of, 1033 note ( c) ; on Crown, 1019 note (b) ; on lord of manor,
1025 note (a) .
on person out of jurisdiction , 1034 note.
title of, when to be intituled both in Chancery and Lunacy, 1013
note (e ) , 1014 note ( e) , 1029 note ( c) .
refusing trustee, powers of Court to make vesting order in case of ( ss .
23, 24, 25 ; Extension Act, ss . 2, 4, 5) , 1022 et seq., 1041 et seq.
service on, 1033 note (c ) .
removal of trustee, 853, 1028 note ( a) , 1038 note (b) .
rent charges pass by term hereditaments, 1010 note (a) .
sale, order for, binds equitable interests, 1010 note (c) .
makes legal owner trustee within Acts , 1025, 1040 .
Scotland, Trustee Act does not extend to (ss . 54, 56 ) , 1039.
service of proceedings under, 1033 note (c) .
ship, shares in, are within the Acts, 1010 note ( b) .
sole trustee, meaning of, 1022 note (d) .
out of jurisdiction, power to vest property of ( ss . 9 , 11 , 22 ) , 1016,
1017, 1021 .
specific performance, decree for, makes legal owner trustee ( s . 30) , 1026 .
stamp duty, conveyances by vesting order subject to, 1045.
stock, bank officer, direction to , to transfer, 1021 note (b) .
but only in place of person incapacitated, ib.
direction of Court respecting (s . 31 ) , 1027 .
dividends, right to receive, may be vested without disturbing cap
ital , 1022 note (a) .
meaning of term, 1010.
shares included under designation of, 1010 note (b) .
vesting order as to (ss. 5, 6 , 22 , 23, 24, 25, 26, 35 ; Extension Acts,
ss. 3, 4, 5 ) , 1014 et seq., 1041 , 1042.
Court may vest right to stock or to call for transfer, 1043 note (b) .
suit, Court may direct institution of ( s . 53) , 1038 .
surviving trustee or mortgagee, uncertainty as to, powers of Court in case
of (ss. 13, 14, 19) , 1018 et seq.
title, Court cannot decide disputed question of, 1009 note (a) .
title of Act (s . 58 ) , 1039.
trustee , appointment of, 1027 , 1028. See supra, new trustees. 1
who is, within the Act, 1011 note (c).
Trustee Relief Act, payment into Court under, may be directed, 1027 .
unborn person, meaning of term , 1027 note (a) .
interested in action, may be declared trustees (s . 30) , 1027.
power of Court to discharge contingent rights of ( s. 16) , 1018.
unsound mind, Court may direct commission concerning person of (s.
52) , 1038.
power to make vesting orders as to property of person of, 1013 et seq.
where trustee out of jurisdiction , 1016 note (ƒ) .
where unsoundness of mind contested , 1013 note (b) , 1028 note
(a) , 1038 note (b) .
payment of money of person of, into Court ( s . 48 ) , 1036 .
vendor, when a constructive trustee within the Acts, 1011 , 1012 note (c ) .
vesting order
breach of trust, lending sanction to, will not be made, 1032 note (a) .
1595
 INDEX .

[The references are to the star paging.]

TRUSTEE ACTS continued.
vesting order —
chambers, when obtainable at, 1027 note , 1034 note ( c ) , 1035 note (a).
charge , subject to , 1015 note (e) .
charity, as to property of, 1030, 1035 .
chose in action, as to , effect of ( s . 27 ) , 1024.
conveyance, takes effect as, 1014 note (a) .
copyholds, as to ( s. 28 ) , 1011 note ( c ) , 1024, 1025.
dower, to uses to bar, 1015 note (e) .
equitable estate, as to , not required under order for sale, 1010 note (c) .
estate tail, barring, 1010 note (d) , 1013 note (e) , 1016 note (a).
foreclosure, in aid of judgment for, 1016 note (e ) , 1026 note (e) .
form of, description of property, 1014 note (a) .
in case of death of sole surviving trustee intestate, 222 note (b).
Ireland, as to lands in, 1039 note (a) .
joint tenants, in, 1017 note (c) , 1031 note, (e) .
judgment or decree of Court, in aid of, 1025, 1026 , 1040 .
leaseholds for years, as to, 1018 note ( a) , 1026 note ( c) , 1031 note (d) .
lunatic, of property of, 1026, 1034 note (c) . See supra, lunatic .
married woman executrix, in, 1015 (e) .
new trustees, on appointment of (s. 34) , 1031 .
power of appointment, as to, 1013 note (e) .
reconveyance, in lieu of (s . 19) , 1019.
rent charges, as to , how to be framed, 1010 .
sale, in aid of decree for, 1041 .
service of petition for, 1033 note (c) .
several orders, when Court will make, 1014 note (a) .
stamp duty, is subject to, 1045.
stock, as to (ss . 5, 6, 22, 23, 24 , 25 , 26 , 35 ; Extension Act, ss. 3, 4, 5) ,
1014 et seq., 1041 , 1042. See supra, stock.
TRUSTEE RELIEF ACTS ( 10 & 11 Vict. c. 96, 12 & 13 Vict . c. 74) .
abroad, persons resident, service, &c. on, 1001 , 1006.
time given to , 1001 .
account, heading of, to which fund to be paid in , 998 note (b) .
separate, shares should be carried over to, 1000, 1001 .
action, when Court will direct parties to bring, 1002 .
affidavit by trustees, 360.
form and contents of, 997 note (b) , 1005.
schedule to be annexed to, 1005.
applications under, how to be made, 1006. And see infra , petition.
chambers, when proceedings may be taken at, 1000.
liberty to apply at, as to shares carried over, given , 1001.
charge, owner of estate subject to, not trustee within, 996 .
charity, trustees for, entitled to pay into Court under, 997.
Charity Commissioners, consent of, whether necessary to proceedings
under, 932, 997.
chose en action, payment of, into court under 36 & 37 Vict. c . 66, 997.
costs of proceedings under, 1002 et seq.
appeal for, whether allowed , 1003.
corpus or income, whether payable out of, 1003 , 1004.
deduction by trustees of costs of payment into Court, 999, 1003.
different fund, Court cannot order payment of costs out of, 1003.
disclaiming party, of, 1004.
insurance company entitled to , as between solicitor and client, 997.
subsequent incumbrancer, of, 1004.
taxation of, costs of taking copies of affidavits not allowed in, 1003.
tender of, to party whose appearance is unnecessary, 1002, 1004.
trustee when entitled to, 1002 ; when refused or ordered to pay, 350,
1002, 1003.
1596
 INDEX .

[ The references are to the star paging.]

TRUSTEE RELIEF ACTS - continued.
County Courts, jurisdiction of, 998 note (c) , 1008 .
payment or transfer to , how to be made, 1008.
declaration of rights, Court will make, 1000 , 1001 .
deed, Court may decide as to validity of, 1001 note ( b) , 1002 .
discharge by payment into court under, 997 note (a) .
equity to settlement, whether trustee may pay fund subject to, into
Court, 1002 .
executor paying money into Court and afterwards discovering debts, 998 .
costs of, how payable, 1003 .
foreign government, bonds of, not within Act, 998 note (d) .
indemnity to trustee, when order operates as, 996.
trustee cannot require fund to be kept as, 999.
infant, appointment of guardian ad litem to, 1000 .
order for maintenance constitutes infant ward of Court, 1002 .
inquiry or issue, when Court will direct, 999, 1000, 1001, 1002.
procedure in such case, 1001 .
insurance company, payment into Court of policy monies by, 997.
investment under, in New Three per Cent. Annuities, 999 note (c) .
in Indian railway shares, 999 note (c) .
by Paymaster, without request or order, 1005.
lunatic, application of money of, 997 .
foreign, dividends only paid to curator of, 999.
maintenance, jurisdiction of Court to make order for, 997, 1002 .
majority of trustees, payment into Court by, 361 , 997, 1007 .
notice of payment in, to be given to persons mentioned in affidavit, 998,
1005.
of proceedings, to whom to be given, 1006 .
motion, application under Act cannot be by, 1000.
order made upon petition under, has same effect as if made in suit, 361.
pauperis, in formâ, claimant may proceed, 1000.
payment into Court under
costs of, 999, 1003.
how effected, 360, 998.
instalments, of money payable by, 996.
majority of trustees, by, 361 , 997, 1007.
retirement of trustee, operates as, 999 note (a) .
Trustee Act, may be directed under powers of, 1027.
trustee neglecting to make, when liable for costs, 350, 1002 .
trustee not bound to pay into Court, 997 note (a) .
when justifiable, 345 .
whole fund, trustees should pay in, 999 note (a).
payment out of Court under, 361, 1000, 1006.
income, of, to successive tenants for life, 999, 1000.
petition under, 361 , 1000 , 1006 .
amendment of, 1000 .
form of, 1000.
person not named in affidavit, by, 998.
share, aliquot, by person entitled to, 1000 .
summons, in lieu of, where fund under £ 1000, 1000.
title of, 1006.
trustees themselves may present, 1000.
procedure under, should not be adopted, where action or summons less
expensive, 350, 351 .
Public Works Loans Act, 1875, payment into Court under, 997.
purchaser whether entitled to pay money into Court under, 996.
remainderman, service on, when necessary, 1001 , 1004.
service of proceedings under, 1000, 1001 , 1004–1007 .
jurisdiction, out of, 1001 , 1006 .
place for, to be named in petition, 1006.
1597
 1

INDEX.

[The references are to the star paging. ]

TRUSTEE RELIEF ACTS― continued.
service of proceedings under, substituted service, 1001 .
settlement, impeachment of, upon petition, 1002.
stop order, petition for, when proper, 1000.
summons, application when to be made by, 1000, 1006 .
tenant for life, costs of petition by, 1004.
order for payment of income to, in succession, 999, 1000.
transfer into Court, of what securities permitted, 998 , 1007 .
surviving trustee, by, 999.
trustee at liberty to pay in, but not bound to , 997.
TURNER'S ACT ( 13 & 14 Vict. cap. 35) , 352, 356.
ULTRA VIRES.
borrowing by directors in excess of powers, effect of, 595.
UNBORN PERSON .
power of Court to deal with interest of, 1018, 1027. See TRUSTEE ACTS.
UNCERTAINTY .
implied trusts not raised where it exists , 132 .
unless the uncertainty arises from want of evidence of whole inten
tion of testator, 133.
" missionary purposes," trust for, is void, 148 note (ƒ) .
object of trust, of, 133.
resulting trust, where existence of a trust clear but objects uncertain,
133, 148.
subject matter of trust, of, 134.
UNCLAIMED DIVIDENDS , 525.
UNDERLEASE.
fines on granting, tenant for life when entitled to, 371 .
title on sale of, deduction of, 439 .
UNDERTAKING.
title deeds, for safe custody of, 444.
UNDERVALUE .
lease of charity lands set aside on ground of, 543.
compensation in such case, by whom to be paid, 544.
sale by trustee or executor at grossly inadequate value, 424, 479.
UNDERWOOD treated as income , 682.
UNDIVIDED SHARES .
mortgage of, for raising portions, 421 .
trustee of, may concur in sale of entirety , 594.
UNDUE INFLUENCE . See FRAUD.
release, &c. procured by, is invalid. 919, 926.
UNFITNESS .
of trustees, 658, 847.
foreign domicile when a ground of, 40 , 658.
UNITED STATES.
investment in securities of, whether authorised by the Court, 321.
stock of, comes within description of foreign funds, 321.
UNIVERSITIES .
exemption of, from Charitable Trust Acts, 548, 549.
UNLAWFUL TRUST. Chap. vII., sect. 2, 94-107.
accumulation, trust for, void if leading to perpetuity, 89, 97.
when void under Thellusson Act, 90 et seq. See THELLUSSON ACT.
alien, for, 95. See ALIEN.
alienation, restraint against, 98, 99.
1598
 INDEX .

[The references are to the star paging.]

UNLAWFUL TRUST - continued.
charity, for, 96. See CHARITY.
consequences of creating, 105 et seq.
property may be recovered by person claiming under settlor, 106.
unless he be party to fraud, ib.
or by settlor himself when trust fails, ib.
where trust partly lawful, partly unlawful, 106, 107, and note (a).
Court will not enforce, 105.
devisee engaging to hold upon, not permitted to profit by wrong, 63.
but his mere intention to execute the trust will not avoid the devise, 63,
where engagement is as to indefinite part of estate, 64.
where no trust actually declared, 64.
illegitimate children, trust for future, 95.
immorality, 105.
income tax , for payment of, 105.
insurances for life, 105.
joint tenants, devise to, procured by fraud of one, 63.
meaning of term explained, 19, 20.
Mortmain Act , trust unlawful under provisions of, 96 , 97. See CHARITY.
perpetuity, rule against, application of, to trusts, 89, 97 .
restraint against alienation, trust imposing, 98 , 99.
secret trust for charity, 63, or other unlawful purpose, 63, 64.
devisee must discover what the secret trust was, 64.
simony , 104 .
splitting votes, 105.
superstitious purposes , 105.
tenants in common, devise to, may be good as to one and void as to an
other, 63.
UNSOUND MIND.
person of, power of Court to deal with interest of, 1013 et seq., 1026 , 1027,
1036. See TRUSTEE ACTS.
USAGE.
how far evidence in construction of religious trust, 533.
USE.
averrable, 52 ; but not where deed is required to pass estate, 52.
cestui que use empowered to pass legal estate by Stat. 1 Ric. 3 , c. 1 , 4, 5 .
charitable, 54. See CHARITY.
copyholds in surrender of, not within Statute of Frauds, 58 note (c) .
Crown, declaration of use by, must be by letters patent , 52.
definition of, 2.
devise to uses, when legal estate passes to trustees under, 219.
disclaimer of, 199.
estate on which it might be declared , 5 ; whether on a feoffment in tail,
5, 6 note (1) .
whether upon an estate for life, 5 note ( 1 ) , 6 note (1) .
executed, is, under statute, whether designated as trust or use , 209.
foreign real estate, cannot be engrafted upon, 49 .
land, use, and trust distinguished , 7 .
origin of, 1.
parol, when it might be declared by, 52.
was devisable by, before Statute of Wills, 720.
possession distinct from, 7.
powers before Statute of Uses, 611 note (1) .
shifting of fee simple by, allowed, 84.
upon a use not executed by Statute of Uses, 7, 209.
but execution enforced under name of trust, 7, 209.
USES , STATUTE OF.
conveyance under, on appointment of new trustees , 651 .
effect of, stated, 6, 209.
1599
 INDEX.

[The references are to the star paging.]

USES, STATUTE OF continued.
powers anterior to, summary of law as to, 611 note (1 ).
special trusts and trusts of chattels not within, 6, 210. See SPECIAL
TRUST.
USUAL POWERS .
what powers authorised by these words, 127 et seq.
how qualified by context, 128, 129.
VAGUE TRUST.
charity for, 107.
younger children, for, 117.
VALUATION.
duty of trustees to make, on lending money on real security, 324, 325.
prior to sale of trust property, 424 ; or purchase under trust, 499, 500.
VALUE. See CONSIDERATION ; INVESTMENT.
VARY.
rights of c. q. t., trustee cannot, 938, 939, 963.
securities, power to vary, effect of, 318, 323.
exercise of, by trustees, how to be made, 318 , 323.
implied in power of investment, 460.
power to give receipts implied by, 460.
VENDOR. See SALE ; PURCHASE .
accountable to purchaser for rent, & c., unhusbandlike farming, wilful
waste or neglect, 141 .
incumbrances, not bound to answer enquiry of purchaser as to, 459
note (a).
judgment against, after contract to sell , 797 et seq.
lien of, 714.
personal representative of, empowered to convey, 1011 .
refusal by, to convey, 1012 .
trustee sub modo for purchaser, vendor is, 141 , 142, 233.
within Trustee Acts, when he is, 1011 , 1012 .
VENDOR AND PURCHASER ACT, 1874, 438.
contract for sale or purchase, stipulations implied in, 500.
VESTING ESTATE .
in new trustees, 650 et seq., 1014 et seq., 1032. See NEW TRUSTEES.
VESTING OF PORTIONS, 394 et seq. See PORTION.
VESTING ORDER, 1013 et seq. See TRUSTEE ACTS.
VISITOR.
Court does not interfere with jurisdiction of, 528, 851.
Crown is, in civil corporations, through Queen's Bench Division, 530
note (b).
may be, in eleemosynary corporations, by terms of foundation , or
where heir of founder unknown or lunatic, 530.
visitatorial power of, in such case is committed to Lord Chancellor, 530.
founder of charity is, by common right, 528.
gift to charity, whether subject to visitatorial power, 529.
office of, 528.
he must follow the statutes of the founder, 528.
his decision is final, 528.
VOIDABLE. See INFANT ; LUNATIC ; VOLUNTARY SETTLEMENT.
VOID DEED.
trustee of, cannot charge for expenses, but may for improvements, 640.
VOLUNTARY .
agreement, Court will not enforce specific performance of, though under
seal, 80, 81.
how far provable in equity as a debt , 81 note.
1600
 INDEX.

[The references are to the star paging.]

VOLUNTARY — continued.
bond creates a debt, 81 note.
covenant, 81 note. See COVENANT.
promissory note, original payee cannot recover upon, against the maker,
81 note.
accompanied with deposit of deeds, 81 note.
VOLUNTARY SETTLEMENT .
Bankruptcy Act, 1883, when avoided under, 80.
chattels personal, of, not within 27 Eliz. c. 4, 77.
consideration, any, however slight, prevents settlement being voluntary, 76.
and may be proved by extrinsic evidence, 78.
costs of action to set aside, 989, 990.
covenant to settle future property when void under Bankruptcy Act,
1883, 78.
covenant, voluntary, when debt is created by, 80, 81 note.
creditors, when invalid as against, under 13 Eliz . c . 5, 77 et seq., 518.
insolvency of settlor, 77.
not invalid if settlor was solvent at time of making it, 78.
unless there was fraud, 78.
subsequent creditors, how far void as against, 79.
delay, when a bar to right to set aside , 79.
donee under, incurring expense, not a volunteer but may call for convey
ance, 75.
effectual, if sealed and delivered , although retained by settlor, 74, 75.
equitable property, of, where settlor declares himself trustee , trust is per
fectly created, 67 .
where settlor appoints stranger trustee, assignment to new trustee
sufficient, 72.
and good against assignor without notice to former trustee,
701, 702.
when new trust created without new trustee, 73.
expectancy, of, 74.
fraud or mistake a ground for avoiding, 75.
gift, every person sui juris can make a, 71 .
lands or chattels real, of, defeasible by subsequent sale by settlor, 75, 76.
but not by settlor's heir or devisee, 76.
cestui que trust cannot prevent sale or obtain redress, 76.
settlor cannot enforce contract for sale against purchaser, but pur
chaser may against him , 76.
judgment against settlor not binding on, 803 note (i) .
leaseholds, assignment of, is not voluntary, 75 note (i).
legal property, where settlor declares himself trustee of, trust is perfectly
created, 67.
where settlor appoints stranger trustee, transfer necessary if possible,
ex. gr., lands, chattels, stock, 70.
where legal property incapable of legal transfer, 70, 71 .
meritorious consideration , agreement founded on, not enforced against
settlor, 81.
how far, as against parties claiming under him, 81.
semble, cannot be, even as against volunteers so claiming, 82.
mortgagee, sale by, does not defeat settlement as to surplus proceeds of
sale, 76, 77.
notice of, not necessary, 74, 702, 708.
policy of assurance, of, by letter to trustees of settlement, 71 .
revocable by settlor, is not, 75.
specific performance of, not enforced in equity, 80 ; secus where grantee
lays out money on strength of it, 75.
stock, &c., of, is within 13 Eliz. c . 5, 80.
subsequent acts and deeds, may acquire validity by, 77.
1601
 INDEX .

[The references are to the star paging.]

VOLUNTARY SETTLEMENT - continued.
trust supported if perfectly created , 67.
not perfectly created when further act intended, 67, 71.
distinction between voluntary assignment of expectancy and inter
est, 74.
no trust unless intention to create it, 69.
VOLUNTARY TRUST.
enforced by Court, when, 69.
where property is a legal interest, 69, 70.
legal interest incapable of transfer, 70 et seq.
VOLUNTEER.
assign of trust estate presumed to have notice, 16, 187 , 246, 708, 857.
equity will not constitute a trust for a, 70.
rents and profits, account of, decreed against, 888.
time no bar to express trust in favour of a, 876.
as to constructive trust, 877.
trust estate followed into hands of, 857.
VOTE .
coroner, for, right to, 234, 235, 681.
member of Parliament, trustee cannot vote for, 235, 681.
purchase for purpose of giving, 167 , 168 ; does not raise resulting trust, 167.
unqualified candidate, for, thrown away, 539.
VOUCHERS .
cestui que trust may inspect, but must pay for copies of, 449.
trustees entitled to custody of, 449.
WAIVER.
breach of trust, remedy for, not waived oy c. q. t. receiving satisfaction in
part, 923.
consideration for, 925 .
lien, of, by proof in bankruptcy, 912 .
married woman, by, of her equity to a settlement, 741 , 742.
meaning of term , 925.
trustee, by, of notice under Settled Land Acts, 558, 559.
WARD. See GUARDIAN ; INFANT.
WASTE , 187 et seq.
account in respect of, 188.
right to, barred by laches, 872.
collusion by owner of first vested estate of inheritance, 189.
contingent remainders, trustee to preserve, is bound to prevent waste, 41 ,
383.
equitable, 188 ; now made legal waste, 190 .
executory trust, tenant for life under, when to be made dispunishable for
waste, 507, 508.
infant, trustees for, must not commit, 579.
interest on proceeds of, when and from what time charged, 188 note (ƒ) ,
578.
Limitations, Statute of, begins to run from time of waste committed, 189.
period of limitation under, 189.
mines, by opening, 190, 682.
permissive, by equitable tenant for life, 574 ; by legal , ib.
Settled Land Act, 1882 , powers of tenant for life under, 190. See SET
TLED LAND ACTS.
tenant for life without impeachment of waste, trustee should not purchase
timbered estate in his favour, 502.
timber felled, who entitled to, 188 et seq. See TIMBER.
trustee for purchasing, should frame conveyance with reference to, 507.
underwoods and thinnings treated as income, 682.
1602
 INDEX.

[The references are to the star paging.]

WASTING PROPERTY.
duty of trustee to convert, when given to persons in succession, 298 et seq.
unless intention shown to give right of enjoyment in specie, 299, 300.
WEST INDIES .
equities relating to estate in, enforced here , 48.
mortgagees of estates in, compensation allowed to, 632 .
trustees of estates in, whether entitled to commission, 628.
WESTMINSTER, STATUTE OF, 795.
WIFE. See MARRIED WOMAN.
WILFUL DEFAULT.
account on footing of, when directed, 904 et seq.
not on further directions, 905.
nor on common administration order at chambers, 905.
WILL.
ademption of legacy by subsequent advance by parent, 401 .
alien, of, 27 note (b) .
ambulatory till testator's death, 58.
attesting witness, trustee of legacy may be, 275 note (c) .
Bank of England, need not now be entered or registered at, 32.
chattels personal, life estate in, cannot be conferred by will at common
law, 85 ; secus, in equity, 85.
codicil republishing will, effect of, 405.
revocation of appointment of " trustee " or " executor " by, 215.
consideration, it implies, 130 .
conversion confined to purposes of, 150 , 953.
doctrine of, 939 et seq. See CONVERSION .
copyholds, of, 53 note (c), 721 .
of equitable estate in, 721 , 722.
where no custom to devise legal estate, 722.
under late Wills Act, 722.
customary freeholds, of, 721 , 722.
declaration of trust of property comprised in, 58.
deed may operate as part of, 58 note (b).
but if of personal estate should be proved as will, ib.
devise to trustee when to be construed to pass fee simple, 220.
equitable estate, creation of, by will, 58.
devise of, by will, 720.
executory trust in, construction of, 117 et seq. See EXECUTORY TRUST.
formalities requisite to execution of, 57 , 720, 962 .
must be observed as regards equitable as well as legal interest, 58,
720.
fraud by heir, devisee, legatee, trusteeship arising by, 61 , 62, 63.
freeholds, of, under Statute of Frauds, 57.
of equitable estate in, 720, 721 .
under late Wills Act, 722.
"heir male," construction of, 118.
" heirs," fee simple passing without use of word, 109, 213. See HEIRS.
incorporation of other documents in, 59 , 60.
infant of fourteen might formerly make, of personal estate, secus now,
25.
joint tenant, devise procured by fraud of, is wholly void, 63 .
land to be converted into money, of, 949.
legal estate, rules for determining quantum of, to be taken by trustee, 213
et seq.
married woman, of, as to separate estate, 751 , 753, 774.
under power, 919 et seq., 949.
money to be laid out in land, of, 940, 941 , 962.
notice of, purchaser not affected by, 478.
1603
 INDEX .

[The references are to the star paging.]

WILL - continued.
nuncupative, of copyholds, 53 note (c) .
personal estate, general gift of, what property passes under, 159, 160.
will of, under Statute of Frauds, 57.
under late Wills Act, 57.
power to appoint by, contemplates those who answer description at death
of donee, 133, 134, 839.
residuary devise, effect of, 155, 156 , 158, 159.
resulting trust, where devise made trustee by will but no trust declared,
59, 60.
where trust declared by parol , 722.
revocation of, whether effected by dealing with equitable estate, 722.
or with legal estate, 722.
secret trust, parol evidence of, when admissible, 62.
trust must be communicated to trustee in testator's lifetime, and he
must accept that particular trust, 62.
where trust unlawful, resulting trust arises for heir at law, 63.
sovereign, of, 22.
Statutes of Wills, Chap. v. , sect. 3, 57-66.
stock, of, how formerly made, 32 note (b) .
tenants in common, devise to, may be good as to one and void as to
another, 63.
testamentary expenses, what are, 644.
transfer of stock on production of probate of, 32.
trusts cannot be created without formalities requisite to legal devises or
bequests, 58.
therefore trust cannot be declared of property comprised in, except
by testamentary instrument, 58 ; secus, in case of fraud, 61 .
testamentary disposition distinguished from declaration of trust, 58.
parol evidence, admission and rejection of, as against title of execu
tors , 60.
unlawful trust, secret engagement by legatee to execute, 63.
devise not void simply because devisee means to execute, 63.
use, devise of, 720.
uses, devise to, construction of, 219.
66 WILLING AND DESIRING.
may create a trust, 131.
WILLS, STATUTES OF, Chap . v., sect. 3, 57-61.
devise to uses, construction of, 219.
trusts cannot be created by devise or bequest without formalities required
for wills, 58, 59.
as to personal estate, 60.
except in case of fraud , 61 .
WINDFALLS .
who entitled to, 189 note (b) , 966.
"WISHING AND DESIRING."
may create a trust, 131.
" WISHING AND REQUESTING ."
may create a trust, 131.
WOMAN .
married. See MARRIED WOMAN.
WOODED ESTATE , 502. See TIMBER.
WORDS.
66 absolutely entitled ," 447, 1022.
"
66 acting " trustee, 655.
after death of A.," 430.
1604
 INDEX.

[The references are to the star paging.]

WORDS - continued.
"alienation, " 102, 103.
66' approved securities," 326.
66 assign," 231 et seq., 603.
" at home," where property is, 949, 950.
66 authorising and empowering," 131 .
"beseeching," 131 .
"chapel," 531 .
"chiefest and discreetest," 87.
"children," 843.
confidence, words of, may raise a trust, 131.
"continuance of the trust," 605.
"continuing " trustee, 658, 664.
"convenient speed," 289, 424.
" convey, conveyance ," 1010.
66 declining " to act, 656.
66'desire," trust created by, 131 , 641.
" desirous of being discharged," 999.
"executors," 603, 604, 656, 657.
"finding a master," trust for, 537, 538.
"free grammar school, free school," 536.
"funds," 322.
66 government or good securities," 334.
61 grant," 441 , 687.
" heir female," 114.
" heir male," 118.
" heirs," 109, 213, 233, 601 , 602. See HEIRS.
" heirs of the body," 114, 115, 118, 120. See HEIRS OF the Body.
"incapable," 658.
" issue," 114.
"it shall be lawful," 365.
"lands," 721 , 941 , 1010.
maintenance, what words create trust for, 137, 138.
" master," finding a, 537.
"next of kin , " 844.
"other trustees," 665.
"parishioners, " 86 et seq., 539.
" 'party by law enabled to declare trust," 57.
66 pay " or " permit to receive," 211, 212, 216.
66 poor relations, " 836,
66 poor, relief of, " 531 , 837,
538.
842, 843.
" promotion of godly learning," 533.
66 proper entail on heir male," 118.
66 proper " powers, 128, 129.
" provide suitably," 117.
"ratepayers," 88.
"real security," 327.
"recommend," 131 .
" refuse," 647, 656.
"relations," 842 et seq.
"rents and profits," 366, 367, 369, 419, 420.
"request," 948.
"require," 317, 328, 614.
"residuary executor," 159.
"residue," 155, 156, 158, 159.
"respective," 602.
"retiring " trustee, 999.
" said trustees," 665.
"securities " for money, 228.
separate use, implying, 755, 756.
1605
 INDEX.

[The references are to the star paging.]

WORDS - continued.
" shall and may," in Act of Parliament, 262 note (h).
" sole," 756.
" strict entail," 120.
66' subject thereto," 154, 155.
supplied in marriage articles, 117.
" survivor," " surviving trustee, " 604, 655 et seq., 662, 664.
66 testamentary
" expenses, 644.
" true owner," 244, 245.
" trust in Trustee Act, 1850-1011 .
" trust " or "trustee " do not necessarily exclude a beneficial gift, 148,
149.
"trustee," " trustee of inheritance," 215.
"trustees for time being," 604.
" unfit," 658.
" usual powers," 127 , 128.
" wish," 131.
"worship of God," 533.
WORSHIP OF GOD.
construction of trust for maintaining, 533.
WRIT.
distringas, of, 970 et seq. See DISTRINGAS.
execution of, at common law, 794 et seq.
under recent Act, 27 & 28 Vict. c. 112, 812, 813.
extent, of, 817.
ne exeat, of, against trustee, 900.
WRITING.
assignment of equitable interest by, 693.
chose en action, now assignable by, 72, 695 note (c) , 712, 713.
married woman can bind separate property without, 764, 765.
notice of assignment whether to be in, 709, 713.
request for sale to be testified by, 429.
trust, when necessary for creation of, 55 et seq.
trustee may sue before accepting trust by, 205.
WRONGDOER .
not to be permitted to profit by his own wrong, 188, 191 .
YEARLY TENANT.
limited owner holding under will on yearly tenancy cannot renew for own
benefit, 181.
YORKSHIRE REGISTRIES ACT, 1884.
" grant bargain and sell , " imply covenants for title, 687.
official search under, 500, 501 .
YOUNGER CHILDREN.
who regarded as, entitled to portions , 386, 388 , 392.
1606
 TABLE OF AMERICAN CASES.

[The references are to the bottom paging.]

PAGE PAGE
ABBOTT v. Bradstreet, 1318 Amory v. Meredith, 809
Abbott's Ex'rs v. Reeves, 1206 Ancaster v. Mayer, 1106
Abbott v. Packet Co., 389 Anderson v. Burwell, 251, 1158, 1159
Petr. , 312, 346, 871 , 1103, 1135 v. Earle, 270
v. Rubber Co. , 347 v. Lemon, 500
Abernathy v. Abernathy, 1133 v. Miller, 370
Ackerman v. Emott, 424 Anding v. Davis, 77
Adair v. Brimmer, 370, 426 Andover v. County, 994
Adams v. Adams, 35, 67, 1116 Andress v. Miller, 690
v. Brackett, 703, 1106 Andrews v. Bank, 177, 178
v. Guerard, 199, 289 v. Bishop, 703, 1106
v. La Rose, 656 v. Cape Ann Bank, 71
v. Perry, 289 v. Hobson, 379, 1188
re, 1101 v . Ins. Co. , 248
Adye v. Smith, 716 v. Jones, 993
Agricultural Asso. v. Brewster, 199 v. Sparhawk, 613, 690
Ahrend v. Odiorne, 68 Anstice v. Brown, 55, 129
Aldrich v. Cooper, 1106 Arms . Ashley, 73
Alexander v. Alexander, 656 Armstrong v. Morrill, 271, 345
v. Crittenden, 993 v. Walker, 425
v. Summey , 424 v. Zane, 1318
Allen v. Allen, 993 Arnold v. Robins, 72
v. Craft, 78 v. Ruggles, 994
v. Demitt, 573 Asay v. Hoover, 574, 1103
v. Gaillard, 423 Ash v. Bowen, 923
v. Gilreath, 1318 Ashcraft v. Little, 1014
v. Henderson, 149 Ashley v. Robinson , 70
v. Macy, 37 Ashton v. Thompson, 248
v. Rassell, 196 Ashton's Est., 388
re, 387 Ashuelot R. R. v. Elliott, 656
v. Rumph, 149 Ashurst v. Ashurst, 575
". Wilkins, 994 v. Given, 56
v. Withrow, 199 Ashhurst's App., 1159, 1160
Alley v. Lawrence, 808, 576 Aston v. Galloway , 1106
Allis v. Billings, 31 Astor v. L'Amoreux , 1158
Allison v. Allison, 247 Astreen v. Flanagan , 197
Alsworth v. Cordtz, 196 Atcheson v. Robertson, 363 , 1318
Alton, City of, v. Ill . Transp . Co. , 1158 Athey v. Knotts, 993
Alwood v. Mansfield , 248 Atkins v. Kron, 48, 129
Am . Academy v. Harvard Coll ., 122 v. Withers, 248
Am. Bible Soc. v. Marshall, 719 Atkinson v. Atkinson , 645
Am . Tract Soc. v. De Witt, 717 Atty.-Gen. v. Barbour, 889, 1135
Ames . Armstrong, 370 v. Butler, 122
v. Scudder, 775 v. Clergy Society, 719
Amory v. Green , 423 v. Federal St. Meeting House, 716
v. Lord, 122 v. Garrison, 719, 1134, 1243
1607
 TABLE OF AMERICAN CASES.

[The references are to the bottom paging. ]

PAGE PAGE
Atty. Gen. v. Grassett, 74 Banister v. M'Kenzie, 424
v. Greenfield Library Asso., 577 . Bank v. Adams, 60
v. Manufacturing Co., 1243 v. Baker, 196
v. Meeting House , 294, 1159, 1243 v. Balliet, 398
v. Moore, 719 v. Baxter, 247
v. Utica Ins. Co., 1298 v. Beverly, 293
v. Wallace, 718, 719 v. Cooper, 247
Aubuchon v. Lory, 359 v. Gardner, 76
Auding v. Davis, 1158 v. Hastings, 57
Aull . Aull, 69 v. Huth, 688
Austin v. Bell, 670, 1314 v. Millard, 94
v. Johnson, 689 v. Mumford, 49
v. Shaw, 355 v. Rutland, 60
v. Willson, 645 Bank of America v. Pollock, 196
Ayer v. Ayer, 718 Bank of Commerce v. Lanahan, 576
v. Emery, 718 Bank of U. S. v. Beverly, 703, 1105
Aylsworth v. Whitcomb, 96 Banks v. May, 92
r. Wilkes, 362
BABB v. Reed, 716 Banting v. Gummerson, 577
Babbitt r . Babbitt, 1116 Baptist Asso. v. Hart, 717
Babcock v. Case, 247 Baptist Church, Pet., 423, 774
v. Hubbard, 370 v. Pres. Church, 76
r. Wyman, 250 Baptist Soc . v. Hail, 719
Baby v. Miller, 179 v. Hazen, 17, 288, 293
Bacon v. Bacon, 775 Barber ".. Cary, 576
v. Ransom , 148 v. Milner, 73
v. Rives, 1158 v. Slade, 993
Bacot v. Heyward, 408, 775 v. Thompson, 73
Badger v. Badger, 75 Bardwell v. Bardwell, 1106
Badgett v. Keating, 15, 75 Barings v. Dabney, 25
Badgley v. Votrain, 75, 149 v. Willing, 347
Bailey's App., 251 Barker, Ex parte, 1134
Bailey v. Bailey 78 In re, 909
r. Hill, 775 v. Barker, 195, 345, 645, 1136, 1205
v. Inglee, 1151 v. Hall , 688
v. Robinsons, 655 v. McAuley, 424
Baird v. Hall , 424 Barkley v. Dosser, 293
Baker, re, 387 Barksdale v. Finney, 379, 1188
v. Bank, 1159 Barkworth v. Young, 71
v. Biddle, 1205 Barnard v. Duncan, 577
v. Disbrow, 425, 1136, 1205 r. Jewett, 196
v. Evans, 691 Barnes . Pearson, 994
v. Leathers, 197 v. Taylor, 67, 197, 1159
v. Red, 178 v. Trafton, 72
v. Springfield R.R. Co., 249, 775 Barnett's App., 132
v. Vining, 194, 195, 199 Barnett v . Spratt, 248
Bald v. Thompson, 390 Barney v. Douglass , 398
Baldwin . Atwood, 148 v. Saunders, 423, 425, 467
2'. Campfield, 196, 198 Barnum v. Barnum, 132
v. Crawford, 426 v. Mayor of Baltimore, 717
v. Humphrey, 91, 312 Barr v. Cubbage, 1150
v. Peet, 689 Barrell v. Hanrick, 78, 250
v. Porter, 227 v. Joy , 388
Bales v. Perry, 347, 575 Barrett v. Bamber, 576
Ballard v. Carter, 311, 312, 1103 v. Buxton, 250
Ballow, Petr., re, 1135 v. Marsh, 177, 178
Bancroft v. Consen, 195 Barron v. Barron, 992, 993, 1013
Bangor v. Masonic Lodge, 716 Barrus v . Kirkland , 271
Bangs v. Smith, 311, 1103 Barry v. Merchant's Co., 25
1608
 TABLE OF AMERICAN CASES.

[The references are to the bottom paging.]

PAGE PAGE
Bartlet v. King, 716 Bergengren v. Aldrich, 775
Bartlett v. Bartlett, 75, 198 Berger v. Duff, 347, 574
v. Gouge, 304 Berkeley's Trusts, re, 390
v. Remington , 93 Bernstein, re, 271, 345
Barton's Est. , 426 Berrien v. Thomas, 576
Bascomb v. Albertson, 132, 718 Berringer v. Hiscote, 1135
Bass v. Bass, 1160 Berry Hamilton, 1134
v. Scott, 288 v. Williamson, 1134
Bassett v. Spofford , 1277 Berryhill's App., 849
Bates . Bates, 718 Best v. Campbell, 198
v. Coe, 688 v. Stow, 247
v. Underhill, 362, 424 Bethea v. McCall, 56
Battinger v. Budenbecker, 56, 129 Bevis v. Boulton, 390
Baumgartner v. Guessfeld, 195 Bibb v. Hunter, 148
Baxter v. Costin, 379 Bickham v . Smith, 1318
". Moses, 1158 Bicknell . Field, 60
Bayer v. Cockerill, 288, 289 Bigelow v. Morong, 1318
Bayles v. Staats, 1133 Bigley v. Jones, 195
Baylies v. Baxter, 199 Billar v. Loundes, 177
r. Payson, 17, 74 Billingslea v. Moore, 271
Bazemore v . Davis, 1151 Bingham's App ., 809
Beach v. Beach, 17, 909 Binnse v. Paige, 386, 1188
v. Dyer, 247 Birdsall v . Howlett, 1318
Beaches v. Dorwin, 1136 Biscoe v . State, 386
Beadle v. Beadle, 199 Bishop v. Hart's Trustees, 688
Beal . Burchstead, 60 Bitter v. Jones, 66
Beans . Bullitt, 688 Bixler . Taylor, 277
Bear v. American Rapid Tel. Co. , 1134 Black v. Black, 69, 198
Beard v. Campbell, 248 v. Erwin , 575
Beardsley v. Selectmen, 716 Blacklow . Laws, 576
Beaton v. Boomer, 468 Blackstone Bank v. Davis , 134, 135,
Beaty . Brummett, 70 1014
c. Knowler, 37 Blake v. Dexter, 78
Beatty v. Clark, 774, 848 v. Pegram, 388, 848
Beaufort v. Collier, 1013 v. Sanderson, 574
Beaver v. Filson , 1224 Blanchard v. Moore, 250
Beck . Parker, 688 Blaney v. Blaney, 703
v. Uhrich, 196 Blasdel v. Locke, 92 , 94
Beckford v. Beckford, 197 Blauvelt v. Ackerman, 386, 389 , 654,
Beckwith v. Young, 68 1 847, 1305
Beegle v. Wentz, 247 Bleeker v. Bingham, 149
Beekman v. Bonsor, 132 , 270, 717 Blight v. Schenk, 347, 575
Beers . Beers, 69 Blin v. Hay , 355
Besson v. Besson, 656, 1188 , 1237 v. Pierce, 49, 909, 1224
Belcher v. Belcher, 250 Bliss v. American Bible Society , 1817
Belden v. Seymour, 69 Blodgett v. Hildreth, 69, 194, 198
Belknap v. Belknap, 329, 1134, 1224 Bloodgood v . Sears, 248
v. Caldwell, 148 Bloomer's App., 1134
Bell v. Webb, 252 Bloomer v. Waldron, 527
Bellamy v . Bellamy, 379 Blythe v. Easterling, 78
Bendall v. Bendall, 389, 1317 Boal v. Morgner, 1014
Benjamin v. Gill, 1189 Bodley v. Goodrich, 689
Benkendorf v. Vincenz, 575 Bodwell v . Nutter, 200
Bennett v. Brundage, 575 Boehlert v. McBride, 249, 574
v. Camp, 197 Boerum v. Shenck, 656
v. Preston, 1205 Bogle v. Bogle, 329 , 871 , 1135, 1317
v. Union, 689 Bolles v. State Trust Co., 15
Bent v. Priest, 249 Bolton v. Bolton, 716
Bentley v. Shreve, 468 Bomar v. Mullins, 1151
1609
 TABLE OF AMERICAN CASES.

[The references are to the bottom paging.]

PAGE PAGE
Bonham v. Craig, 66 Bridges v. Pleasants, 719
Booker v. Anderson, 248, 574 v. Wood, 1014
Bool v. Mix , 30 Bridgewater v. Waring, 56
Boone v. Chiles, 252, 1158 Briers v. Hackney, 1237
v. Citizens' Savings Bank, 94 Briggs v. French, 60
Booraem v. Wells, 575 v. Lightboats, 35
Booth v. Clark , 60 Bright v. Bright, 96
v. McNair, 689 Brink v. Gould, 94
Borel v. Rollins, 574 Brinton's Est., 1317
Borland v. Clark, 85 Britton v. Lewis, 574
Borum v. King, 77 Brock v. Barnes, 248
Boston v. Robbins, 355 Brooks v. Brooks, 1136, 1205
Botsford v. Burr, 195 v. Hatch, 57
Bowditch v. Andrew, 178 v. Marbury, 689
v. Banelos, 871 , 1135 Brothers v. Brothers, 249
v. Sattyk, 1317, 1318 Brown v. Baptist Soc., 1243
Bowers v. Keesecker, 985 v. Brown, 77
Bowes v. Seeger, 347, 355, 611 v. Caldwell, 718
Bowker v. Pierce, 387 , 388, 423, 425 v. Carl, 196
Bowling v. Cobb, 390 v. Clegg, 85
Bowman v. Long, 527 v. Combs, 71
Boyce v. Grundy, 247 v. Copron, 70
Boyd v. Blankman , 655 v. Cowell, 249, 655
v. Boyd, 362 v. Dwelley , 195
v. de la Montagnie, 249 v. French, 423, 424
v. England, 149, 150 v. Kelsey, 278
v. M'Lean, 199 v . Lyon, 689
Boyer v. Libey, 195 re, 448
Boynton v. Brastow, 654 v. Rickets, 380, 424, 1188
Brabrook v. Bank, 93 v. Strickland, 1133
Brackenridge v. Holland, 655 v. Wright, 424
Bradish v. Gibbs, 39 Browne v. Dewey, 250
Bradley v . Fuller, 250 Brownson v. Roberts, 386, 387
Bradshaw v. Fane, 574 Broyles v. Nowlin, 195
r. Yates, 250 Brunnenmeyer v . Buhoe, 1243
Bradstreet v. Butterfield, 871, 1135 Brunson v. Hunter, 177 , 178
v. Kinsella, 775 Brush v. Smith, 386
Bradwell v. Weeks, 55 Bryam v. Bradley, 288
Brady v. Dilley, 848 Bryan v. Duncan, 1014
v. Parker, 69 v. Howland, 177, 178
v. Walters, 289 v. Weems, 1158
Bragg v . Paulk, 73 Bryant v. Mansfield, 198
Brailsford v. Heyward, 293 v. Russell, 690,849
Braman v. Stiles, 329, 573 Buchanan v. Hart, 574
Bramhall v. Ferris, 178 v. Howard, 149
Brand v. Abbott, 468 Buck v. Pike, 196
Brannock v. Brannock, 74 v. Swazey, 195, 690
Brandon v. Hoggatt, 468, 1306 Buckles v. Carter, 1318
Brashear v. West, 399 v. Lafferty, 656
Brasswell v. Downs, 976 Buell v. Buckingham, 655
Brattle Sq. Ch. v. Grant, 133, 716 Buffalo R.R. Co. v. Lampson, 304
Brawner v. Staup, 1160 Buford v. McKee, 96
Braxton v. State, 370 v. Speed, 48
Brazer v. Clark, 362, 370 Bugbee v. Sargent, 614, 1106
Bresnihan v. Sheehan, 195 Bull v. Bull, 177, 1105
Brevard v. Neely, 691 Bundy . Bundy, 35, 1116
Brewster v. Galloway, 775 Bunn . Vaughan, 909
r. McCall, 717 v. Winthrop, 95, 149
Brickenkamp v. Rees, 575 Bunner v. Storm, 576
1610
 TABLE OF AMERICAN CASES .

[The references are to the bottom paging. ]

PAGE PAGE
Burbank v. Whitney, 37 Carpenter v. Carpenter, 408
Burckmyer v. Beach, 387 v. Davis, 67
Burd Orphan Asylum v. School v. Miller, 718
Dist. Upper Darby, 715 v. Robinson, 574
Burden v. Sheridan, 195 Carr . Carr, 66
Burdick v. Goddard , 808, 878, 1135 v. Dole, 689
Buren v. Buren, 197 v . Houser, 775, 1189
Burke v. Valentine, 178, 293 v. Nat'l Security Bank, 94
Burleigh v . Clough , 294 Carradine v. Carradine, 148, 150
Burney v. Spear, 389 Carrier's App., 388, 389
Burngarner v. Coggeshall, 355 Carroll v. Green, 1159
Burnham v. Dolling, 1317, 1318 Carson v. Carson, 56, 78, 277
Burnside v. Wayman , 91 v. Marshall, 775
Burr v. Border, 249 Carter v. Abshire, 574
v. M'Ewan, 848 v. Balfour, 718
Burrall v. Leslie, 690 v. Carter, 277
Burrill v. Boardman , 132 v. Cutting, 370, 467
v. Sheil, 356, 423, 424 v. Montgomery, 148, 199
Burritt v. Burritt, v. Neal, 691
Burroughs v. De Couts, 75 Cartledge v. Cutliff, 468
Burt v. Herron, 178 Case v. Codding, 194
v. Wilson, 198 v. Denison, 94
Bush v. Sherman, 656 v. Gerrish, 689
Butler v. Haskell, 251 Casey's Est., 1318
Butler v. Ins. Co. , 1224 Casey v. Wiggin, 994
v. M. Ins. Co., 197 Cassell v. Ross, 576
Byers v. McCartney, 718 Catlin v. Birchard, 1136, 1205
v. Lurget, 248 v. Eagle Bank, 25,688
v. Fletcher, 70
CADBURY V. Duval, 690, 1106 Catling v. King, 68
Cade v. Davis, 148 Cavender v. Cavender, 1133
Cadwalader's App ., 575, 655 Chace v. Chapin , 65, 72, 1103
Cadwell v. Brown, 576 Chadwick v. Chadwick, 72
Cage v. Cassidy, 60 Chaffees v. Risk , 13
Cain v. Cox, 148 Chalmers v. Hack, 60
Cairns v. Chaubert, 1258 Chamberlain v. Chamberlain , 719
v. Colburn, 198 v. Stearns, 716
Calhoun v. Burnett, 1136, 1205 v. Taylor, 74
v. King, 1313 v. Thompson, 71 , 293
Calkins v. Lockwood, 57 Chambers v. Baptist Ed. Soc. , 75
Calloway v. Witherspoon, 250 v. Kerns, 467
Cameron v. Bethune, 426 v. Perry, 993
Camp v. Crocker, 716 v. St. Louis, 719
Campbell v. Brown, 68 Chammess v. Crutchfield , 250
v. Campbell, 424 Champlin v. Haight, 645
v. Dearborn, 94, 250, 691 Chapin v. Billings, 74
v. Drake , 196 v. School Dist., 37, 717, 719
v. Foster, 135 Chaplin v . Givens, 271
v. Johnston, 577 Charteries v. Charteries, 74
v. Miller, 408, 424, 849 Chase v. Breed, 94
v. Prestons, 304, 909 v. Chase, 60, 135, 178
v. Tagge, 574 v. Lockerman, 703
v. Wallace, 77 v. Palmer, 992
Canfield v. Bostwick, 1106 Chastain v. Smith, 195
Canoy v. Troutman , 17 Cheatham v. Rowland, 774
Cantfield v. Bostwick, 388 Chenery v. Davis, 408
Cardigan v. Curzon-Howe, 755 v. Palmer, 85
Carmichael v. Trustees 37 Cheney v. Gleason, 248
Carnac's Will, re, 767 Cherry v. Jarratt, 389
1611
 TABLE OF AMERICAN CASES.

[The references are to the bottom paging.]

PAGR PAGE
Chesley v. Chesley, 574 Clute, re, 1134
Chesman v. Cummings, 75 Clyde v. Simpson, 614
Chicago & East Ill. R. R. Co. v. Coape v . Arnold, 148
Hay, 1158 Cobb v. Knight , 148
Child v. Brace, 654 Coburn . Anderson , 65, 177
Childs v. Jordan, 65, 312 r. Pickering, 689
Chorpening's App., 655 Cocker. Minor, 576
Christ v. Diffenbach, 250 Cockerill v. Armstrong , 78, 177
Christian . Worsham , 775 Cocks . Barlow, 56
Christy v. Flemington, 690 Cogswell v. Cogswell, 251, 425, 931
v. Sill, 251 Coit . Comstock, 717
Church v . Church, 719 Cole . Littlefield, 135, 177
v. Disbrow, 177, 178 Coleman e. M'Kinney, 577
v. Mott, 717, 976 v. Railroad Co., 54
v. Remington, 718 v . Ross, 1319
v. Ruland, 247 v. Walker, 1158
v. Smith, 717 Coles v. Allen, 195
v. Sterling, 195 College v. Willingham, 386 , 389, 848
v. Wiley, 58 Collier . Collier, 250
v. Wood, 195 Collier's Will, 809
Churchill v. Corker, 294 Collins . Carlisle, 177
Churchman . City of Indianapo v. Collins, 246
lis, 1158 v. Hoxie, 56, 129
City Bank . Mulson, 390 v. Sullivan, 248
Claflin v . Maglaughlin, 688 v . Townley, 1318
Claggett v. Hail, 363 Colonial Trust Co. v. Cameron, 390
Clapper . House, 251, 931 Colton v . Colton, 177
Clark's App ., 362 Coltrane v. Worrell, 424
Clark v. Clark, 93, 195, 362, 370 Columbus &c. R. W. Co. v. Bra
v. Crego, 312, 1103 den, 148
v. Deverans, 656 Colvin v. Menafee, 1160
v. Durand, 149 Combe v. Brazier, 1206
v. Everhart, 247 Commissioners v. Lecky, 356
v. Flint, 690 Commissioners v. Walker, 13, 24
v. Freedman's Savings Co., 574 Commonwealth v. Levy, 719
v. Garfield, 423 v. Moltz, 1158
v. Hornthal, 809 v. Shelby, 703, 1106
v. Platt, 132, 388 v. Stauffer, 329
v. Railroad Co., 426 Compo v. Jackson Iron Co., 148
v. Tennison, 976 Congregation v . Johnston, 17
Clarke v. Callow, 68 Congregational Soc. v. Waring, 716
v. Cordis, 775 Conkey . Dickinson , 278
v. Jenkins, 369 Connor . Follansbee, 199
v. Leupp, 78 Conover ".. Beckett, 85
v. Saxon, 39 v. Stothoff, 577
Clay v. Hart, 808 Constant v. Matteson, 390
Clayton v. Cagle, 1158 Contee v. Dawson, 362, 1306
Clemens v. Caldwell, 1133 Conway v. Alexander, 250
v. Clemens, 271 v. Cutting, 71, 398
Clemenston v. Williams , 1160 v. Kinsworthy, 148, 178
Clement v. Hyde , 715, 716 Cook v. Barr, 69
Clemson . Davidson, 57 v. Ellington, 177
Clerkson v. Bowyer, 15 v. Gardner, 871
Clermontel's Est., 426 v. Lowry, 386
Cleveland v. Hallett, 294 v. Redman , 78
Clifford . Farmer, 251 Cookson v. Richardson, 195
Clos v. Boppe, 196 Coombs v. Jordan, 614
Clough v. Clough, 93 Cooper v. Cockrum , 71
Clute v. Bool, 178 v. Cooper, 74 , 1134
1612
 TABLE OF AMERICAN CASES .

[The references are to the bottom paging.]

PAGE PAGE
Cooper v . Day, 76, 1133, 1134 Cummings v. Bramhall, 94
Corbit c . Smith, 69 v. Corey, 72
Corby . Corby, 177 Curling's Administrators v. Cur
Corley r. Corley, 992 ling's Heirs , 717
Cormerais v. Wesselhoeft, 197 Currant v. Jago, 197
Cornell v. Utica R. R. Co. , 69 Currey v. Allen, 1159
Cornish v. Willson, 1105 Currie . White, 71 , 178
Corse v. Leggett, 69, 148 Curry . Curry, 69
Coster v. Griswold, 60, 248 Curtis . Bank, 93
Cotton v. Wood, 197, 199 v. Smith, 60, 75, 178, 871, 1133
County v. Herrington, 251 Curtiss v. Brown, 178
County of Hennepin v. Brother Cushing v. Blake, 148, 149, 304,
hood of Gethsemane, 716 969, 985
Covenhoven v. Shuler, 1258 Cushman v. Stone, 574, 575
Coventry . Coventry, 329 Cutler v . Howard, 1134
Cowperthwaite v. Bank, 248 v. Tuttle, 195, 196, 198
r. Carbondale Bank, 251
Cox . Arnsmann, 251 DAKEN V. Demming, 388
v. McKinney, 527 Daland v. Williams, 423
v. Walker, 17, 355 Dana v. Bank, 25
Coy v. Coy, 577 v. Bank of United States, 688
Craft v. Lathrop, 60 v. Lull, 689
Craig v. Craig, 121, 329, 871 , 1135 Daniel v . Fain, 387
v. Hone, 50 Daniels v. Eldridge, 134
v. Leslie, 55, 129 Dart v . Houston , 1206
v. Radford, 48 Dartmouth College v. Woodward , 37
r. Secrist, 715 Dashiell v. Att.-Gen., 717
Cram v. Mitchell, 654 Davidson v. Little, 248
Cramston v. Crane, 575 Davis v. Charles River Br. R. R.
Crane v. Decker , 356 Co., 17
v. Hearn, 362 Davis v. Coburn , 65, 1158
v. Reeder, 304, 575, 1101 v. Cotton, 1159
Creed v. Bank, 196 v. Dean, 250
Creigh v. Henson, 1159 v. Hamlin, 249
Creighton v. Pringle, 424 v. Harman, 424
Cresson v. Ferrie, 576 v . Howcott, 576
Creswell v . Jones, 197 v. Mailey, 178
Creveling v. Fritts, 249, 656 v. Newton, 992
Crissman v. Crissman, 65 v. Ney, 94
Crocheron v. Jaques, 1116 v. Tingle, 247
Crocker . Crocker, 85, 195 Davouer. Fanning, 655, 878 , 1125
v. Lowenthall, 277 Dawkins . Penrhyn,
Cromie v. Bull, 775 Deaderick v. Cartrell, 362, 369, 426
r. Louisville Society, 718 Dean v. Dean, 63, 1160
Crook . Glenn , 1159 v. Lanford, 50
v. Turpin, 992 v. Mitchell, 304
Crosby v. Hillyer, 699 Deanes v. Scriba, 589
v. Huston, 1135 Dearin v . Fitzpatrick, 992
v. Mason, 774 De Campo . Dobbins, 716
Cross's App. , 196 De Cordova v. Smith, 179
Cross v. Petrel, 399 Deedes v. Graham, 390
Crouse . Frothingham, 148 Deen v. Cozzens, 1133
Crowninshield v . Kittridge, 85 Deering v. Adams, 277, 293
Crowler v. Hinman, 363 Dehon v. Foster, 60
Croxall v. Shererd, 13, 304 Deibert's App., 288
Cruger v. Halliday, 271, 329, 345, De Jarnette r . De Jarnette, 424
871, 1135 De Klyn r . Watkins, 58
Crutcher . Taylor, 196 De Laronde, In re, 1135
Cumberland v. Codrington , 93 , 1106 De Laurencel v . De Boom, 78
1613
 TABLE OF AMERICAN CASES .

[The references are to the bottom paging.]

PAGE PAGE
Delaware Co. Inst. v. Delaware Drane v. Gunter, 271, 345 , 871
Co., 716 Dresser v. Dresser, 177
Denmead v. Denmead, 387 Drew v. Wakefield, 716 , 1318
Dennett v. Dennett , 288 Druid Park Heights Co. v. Pettin
Dennison v. Goehring, 96, 149 ger, 808
Denny v. Lithgow, 69 Drummond v. Tracey , 42
De Peyster's Case, 388 Drury v. Natick , 718
De Peyster v. Clarkson, 425 Drusadow v. Wilde , 576
v. Clendining, 277, 871 , 1116, 1135 Dublin Case, 719, 1243
v. Ferrers, 312, 359 Dubose v. Dubose , 689
v. Gould, 199 Dubs v. Dubs , 304
Devane v. Larkins, 527 Dudley v. Bachelder, 196
Devin v. Hendershott, 304, 931 v. Bosworth , 194, 197, 199
Dewey v. Ruggles, 613 Duffy v. Calvert, 614, 690
De Wolf v. Chapin, 688 v. Duncan , 467
v. Lawson, 718 Duke v. Fuller, 716
Dexter v. Episcopal City Mission , 75 Dumond v. Magee, 992
v. Gardner, 718 Dunbar . Soule , 35
Dey v. Dey, 1206 v. Woodcock, 413, 1258
Dias ". Brunnell, 1205 Dundas's App., 656
Dibrell v. Carlisle, 774 Dundas v. Biddle, 39
Dickinson v. Durfee , 577 Dunham v. Averill, 717
Diefendorf v. Sproker, 271 , 345 Dunklin v. Wilkins, 57
Dill v. McGehee, 1136 Dunlop v. Harrison, 129
Dillayev. Greenough, 91, 198 v. Hepburn , 48
Diller v. Brubaker, 1206 Dunn v. Dunn, 426, 655
Dillon's Trusts , In re, 1135 v. Sargent, 993
Dimmock, re, 787 Dunnica v. Coy, 198
D'Ivernois v. Leavitt, 689 Dunning . Ocean Bank, 272
Dix v. Jarman, 426 Dunscomb v. Dunscomb, 1318
Dixon v. Dixon, 994 Durant . Ritchie, 26
v. Homer, 388, 1133 Durfee, In re, 1133
v. McCue, 424 Durgin v. Somers , 248
Dockey v . McDonnell, 424 Durling v. Hammar, 380, 468, 1188,
Dodd v. Wilkinson , 1206 1306
Dodge v. Cole, 195 Dustan v. Dustan, 1318
v. Essex Ins . Co., 1159 Dutch Church . Mott, 1243
v. Manning, 1106 Duval's App ., 574
v. Stevens, 655 Dwight v. Pomeroy, 250
Doe v. Ladd, 293 Dwight . Simon, 1134
v. Robinson, 347 Dyer v. Shurtleff. 654
v. Scribner, 689
Doebler's App., 148 EAGLE FIRE Co. v. Lent, 30
Doggett v. Emerson, 247 Eames v. Wheeler, 92
v. Hart , 17 Earle v. Washburn, 16
Donalds v. Plumb, 976 Earp's App., 288
Donlin v. Bradley, 66, 194 Easterbrooks v . Tillinghast, 198
Donohugh v. Library Co. , 716 Easterly v. Keney, 134
Doremus v. Lewis, 689 Eastern R. R. Co., In re, 871
Dorr v. Wainwright, 278 Eastham v. Roundtree, 197
Dorsey v. Dorsey, 389 Eaton v . Cook, 73
v. Garey, 17, 1136, 1205 v. Eaton, 149
v. Thompson, 1133 r. Green, 250
Douglass v. Brice , 197 Eckford r. De Kay, 425
Dougall v. Dougall, 74 Eddy v. Hartshorne, 78, 177
Dow . Jewell, 194, 198, 1160 Edinburgh Life Ass. Co., 1319
Dowd v . Tucker, 247 Edinburg Life Ins. Co. v. Allen, 577
Downer v. Church, 198 Edmonds v. Crenshaw, 362, 370
Downing v. Marshall, 717, 1317 Edmundson v. Dyson, 149
1614
 TABLE OF AMERICAN CASES .

[The references are to the bottom paging. ]

PAGE PAGE
Edwards v. Sheridan, 993 Fast . McPherson, 196
v. University, 1158 Fatheree v. Fletcher, 197
Eischelberger v . Barnetz, 1258 Faulkner v. Thompson, 75
Eldredge v. Heard, 809, 1116 Fay . Howe, 468
Eldridge v. Lee Yup Co., 74 v. Taft, 178
Eliott v. Sparrell, 278, 468 Fellows v. Greenleaf, 688
Ellig v. Naglee, 390 v. Heermans, 91
Elliott v. Wood, 691 v. Miner, 717, 1134
Ellis v , Baldwin, 993 v. Tann, 1013
v. Boston H. & E. R. R. , 271, 1135 Felton v. Smith , 251
v. Ellis, 177, 178, 388, 1319 Female Asso. v. Beekman, 76
v. Railroad Co., 878 Fenwick v. Chapman, 1106
v. Lecon, 95 Ferguson v. Franklins, 48
v. Woods, 1014 v. Haas, 250, 691
Elmendorf v. Lansing, 362 v. Williamson, 247
v . Taylor, 251 Ferre v. American Board, 808, 809
Elwell v. Chamberlin, 247 Ferris v. Ferris, 1134
Ely v. Hair, 689 Ferry v. Laible, 73, 574
Emerson v. Bowers, 1134 Fickett v. Durham, 195
Emery v. Batchelder, 423 Field v. Arrowsmith, 277, 691 , 871 ,
English . English, 1319 1116
v. Law, 195 v. Schielfflin , 645
v. Miller, 60 v. Wilson , 251, 1159
Ensley v. Balentine, 1277 Finch v. Ragland, 848
Erickson v. Willard, 1116 Finlay v. Fellowes, 180
Erisman v. Poor, 178 Fishbeck v. Gross, 195
Ervine's App. , 576 Fisher . Fields, 148, 293
Erwin v. Parham, 248 v. Filbert, 1014
Esham v. Lamar , 248 v. Knox , 398
Etting ". Bank of U. S., 247 v. Wilson, 1319
European R. R. Co. v. Poor, 654 Fisk v. Sarber, 500
Evans, In re, 577 v. Stubbs , 1133
v. Battle, 92 Fitch v. Ayer, 1014
r. Ellis, 248 Fitzpatrick v. Fitzgerald, 17
v. Inglehart, 1258 Fitzsimmons v. Joslyn , 247
v. Keeland, 247 Flagg v . Mann, 250, 1205
Evants v. Nason, 388 Fleming v. Duncan, 69, 70
Everett v. Carr, 715, 716 v. Gilmer, 1159
v. Mount, 527 v. McHale, 197
v. Railway, 775 Fletcher v. Derrickson, 148
Evertson v. Tappan, 379 Flint v. Clinton Co., 277, 278, 688
Ewart v. Dryden , 577 Flory v. Becker, 994
v. Gordon, 426 Floyd v. Floyd, 390
v. Snyder, 577 Fonda v. Penfield, 78, 132
Exchange Bank v. Rice, 94 Foose v. Whitmore, 71
Eyrick v. Hetrick, 270 Foote v. Bryant , 199
v. Colvin, 194
FAIRBAIRN V. Fisher, 1134 v. Foote, 247
Fairbanks v. Lamson, 719 Ford v. Ellingwood , 197
Fairfield v. Lawson, 718 Fosdick v. Fosdick, 121
Falk v. Turner, 96 Foss v. Crisp, 48
Farley v. Blood, 196 v. Savings Bank, 94
Farmer v. Farmer, 248 Fogarty v. Sawyer, 691
Farmers' Loan and Trust Co. v. Fontain v. Ravenel, 715
Hughes, 1133 Fontaine's Adm'r บ. Thomp
Farnam v. Brooks , 654, 1160 son's Adm'r, 716
Farnham v. Clements, 68 Forsyth v. Clark, 250
Farrelly v. Ladd, 93, 112, 1205 Foscue v. Lyon, 424, 573
Farrington v. Barr, 69, 198 Foster v . Goree, 1135
1615
 TABLE OF AMERICAN CASES.

[The references are to the bottom paging.]

PAGE PAGE
Foster v. Mix, 398 Gause v. Hale, 149
v. Saco Co., 689 Gay v. Edwards, 1160
Foster's Will, re, 424 Geary v. Page, 94
Fouty v. Fouty, 66 Geddes's App., 249
Fouverque v . New Orleans, 247 Gee v. Gee, 196
Fowke v. Slaughter, 196 v. Hicks, 387, 848
Fowler v. Colt, 425 Geissler v. Werner, 775
v. Stoneum, 69 Genet v. Beekman, 135
Fox v. Doherty, 196 George v. Goldsby, 993
v. Phelps, 527 Gerke v. Purcell, 716
Franciscus v. Reigart, 289 Gerrish v. Inst. for Savings, 93
Franklin v. Armfield, 719 Gerry v. Stimson, 69, 196, 198
Frederick v. Haas, 195 Gevers v. Wright, 149
Frederick's App., 74 Geyer v. Bank, 1014
Freedley's App . , 294 Gibbes v. Smith, 1133
Freeholders v. Henry, 74 Gibbons v. Hoag, 248
Freeman v. Cook, 1136, 1205 Gibbs v. Marsh, 35, 878, 1116, 1135
v. Curtis, 248 v. Cunningham, 575
v. Flood, 923 Gibson v. Annis, 1319
v. Harwood, 654 Gibson's Case, 389, 390, 1116
v. Kelly, 199 Gibson v. Foote, 69, 197
Freer v. Lake, 71 v. Jones, 575
French v. Sheplor, 195 v. Rees, 688
Frey v. Frey, 425 Giddings v. Palmer, 148
Frierson v. Branch, 656 Gilbert v. Chapin, 177, 178
Frisbie, re, 1134 v. Gilbert, 774
Frost v. Frost, 73 v. Gonard, 332
Fry v. Fry, 992 v. Sutliff, 76, 390
Fullerton v. Ins. Co., 133 v. Welsch, 423
Furguson v. Smith, 1014 Gilchrist v. Stevenson, 93, 96
Furman v. Fisher, 270 Gill v. Logan, 293
Fussell v. Hennessy, 148 Gillespie v. Burleson, 1014
Futcher v. Futcher, 68 v. Smith, 575
Gilman v. Kelly, 249
GABOURY V. McGovern, 78 v. McArdle , 148
Gaines v. Hennen, 247 Gilmore v. Johnson, 247
Galbraith v. Elder, 500 Girard Ins. Co. v. Chambers, 329
Gale v. Gale, 246 Glass v. Gilbert, 1160
Galpin v. Wilson, 250 Glen v. Fisher , 992
Gamble v. Lee, 69 Glenn v. McKim, 362, 363
Gardner v. Adams, 57 Gochenaur's Est. , 992, 993
v. Astor, 975, 976 Goddard v. Brown, 576
v. Brown, 277 Goehring's App ., 574
v. Butler, 655 Gogherty v. Bennett, 196
v. Gardner, 614, 690, 703, 1106 Going v. Emery, 573, 716
v. Heyer, 56, 129 Golder v. Bresler, 359
v. Hooper, 985 Goldsberry v. Gentry, 195
Garland v. Harrington, 399 Gomez v. Bank, 304
Garner v. Dowling, 270 Gooch v. Association for Relief of
v. Garner, 91, 1116 Aged Females, 716
Garrett v. Garrett, 1151 Good v. Harris , 1014
Garrow v. Davis , 57 Goodale v. Mooney, 717
Garwood . Eldridge, 250 Goode v. Comfort, 574
Gaskill v. Gaskill, 277 Goodfellow v. Robertson, 426
Gasque v. Small, 248 Goodrich v. Proctor, 613, 690
Gass v. Mason, 654 v. Walker, 94
v. Wilhite, 132 Goodrum v. Goodrum, 1014
Gassett v. Grout, 993 Goodson v. Ellison, 271
Gaston v. Dashiell, 249 Goodspeed v. Fuller, 69
1616
 TABLE OF AMERICAN CASES .

[The references are to the bottom paging.]

PAGE 1 PAGE
Goodwin v. Howe, 426 Greenwood v. Coleman 294
r. Moore, 993 Greer v. Greer, 388
Gordon . Green, 688 v. McBeth, 576
v. Matthews, 386, 847 Gregg e. Currier, 359
v. Small, 1158 v. Wilson, 134
Gould v. Chappell, 408, 574 Gridley v. Andrews, 1106
v. Hays, 389 Griffin v. Barney , 388
v. Hill, 1014 v. Graham, 132
v. Lamb, 293, 690 v. Macauley, 362, 363
r. Mather, 808 v. Marine Co., 575
Gouverneur v. Elmendorf, 250 Griffith v. Godey, 246
Gove v. Learoyd, 199 2. Griffith, 42
Gower v. Andrew , 249 Grimes v. Harmon, 719
v. Sterner, 250 Grimes's Ex'r's v. Harmon, 717, 718
Grace v. Hanks , 148 Grimsley v. Hooker, 689
r. MacDermott, 200 Grissons v. Hill, 718
Graff v. Bonnett, 329 Groff v. Rohrer, 198
Graham v. Anderson, 74, 688 Grout v. Van Schoonhoven , 149
v. Austin, 362 Grover v. Wakeman, 689
v. Davidson, 362 Groves's Heirs v. Fulsome, 39, 69
v. Fitts, 577 Guest v. Farley, 289
v. King, 575 Guild v. Guild, 58, 992, 993
v. Lambert, 92 Guion v. Melvin, 871, 1135
v. Long, 39 v. Pickett, 774
v. Little, 576 Gully v. Ray, 985
v. Yeomans , 577 Gunnell v. Cockerill, 1150
Grangiac v. Arden, 94 Guphill v. Isbell, 196
Grant . Hook, 613 Guyton v. Shane, 355, 1318
v. Van Schoonhoven, 1014 Gyhon, re, 485
Graver's App., 425, 468, 1317
Graves v. Allen, 129 HACKNEY V. Vrooman, 65
v. Waterman, 655 Hadley v. Hopkins Acad. , 1243
Gray v. Barton , 94 Haglar v. McCombs, 387, 389, 848
v. Dougherty, 1319 Hahn Pindell , 575
v. Hatch, 1136 Haines v. Allen , 716
v. Henderson, 808 Hake v . Fink, 993
v . Lynch, 312, 425 Hale v. Horne, 198
v. Reamer, 362 v. Stone, 1014
v . Turley, 85 Hall v. Bumstead , 1105
v. Ulrich, 1150 v. Campbell, 386
v. Veirs, 575 v. Cushing, 271, 278
Gray's Est., 993 v. Denison, 691
Greason v. Keteltas, 327 v. Harris , 1136, 1205
Great Falls Mf'g Co. v. Worster, 60 v. McLain, 993
Green v. Allen, 718 v. Sevill, 69
v. Cates, 148 v. Sprigg, 195
v. Dietrich, 199 v. Timmons, 247
v. Drummond, 195 v. Williams, 135
v. Kornegay, 75, 691 v. Young, 195, 993
v. Miller, 355 Hallett v. Collins, 1158
v. Winter , 379, 655, 848, 1188 v. Hallett, 1106
Greene . Borland , 889, 1133, 1135 v. Thompson, 1014
Greenfield's Est., 248 Halliwell's Trusts, In re, 1135
Greenfield , School District of, v. Hallman's Est., 656
First National Bank, 408 Halmon's App ., 1318
Greening v. Fox, 390 Halsey v. Tate, 1160
Greenleaf v. Queen, 575, 576 v. Whitney, 689
Greenough v . Welles, 1116 Ham v. Ham, 355
Greenville Academies, Ex parte, 1298 Hamersley v. Lambert, 55, 128
1617
 TABLE OF AMERICAN CASES.

[The references are to the bottom paging. ]

PAGE PAGE
Hamersley v. Smith, 1014 Hauser v. Shore, 613, 614, 690
Hamilton v. Bishop, 1013, 1014 Haviland v. Myers , 993
v. Crosby, 577, 809 Hawkins v . Chapman, 294, 1160
v. Ins. Co., 775 v . Skeggs, 809
v. Love, 270 Hawley v. James, 60, 121 , 122, 198,
Hamlin v. Hamlin, 304, 985 304, 347, 527, 575 , 848 , 1116
Hammatt v. Emerson, 247 v. Ross, 312, 1135
Hammersley v . Smith, 289 Hawthorne v. Brown, 196
Hammond v. Granger, 889, 1135 Hayden v. Bucklin, 1159
Hamnett's App., 195 Haydock v. Haydock, 249
Hampson v. Fall, 194 Hayes v. Goode, 251, 1159
Hance v. Frome, 72 Haynie v. Hall's Ex'r, 1158
Hancock v. Minot, 703, 1106 Hays v. Jackson , 78
Hancox v. Meeker, 386 Hayward v. Hayward, 993, 994
Handcock v. Titus, 195 Hazard v. Irwin, 247
Handly v. Snodgrass, 425 Hazleton v. Valentine, 408
Hannah v. Carrington, 575, 655 Healey v. Allston, 975
Hanson v. Church, 199 Healy v. Rowan, 30
v. Edgerly, 247 Heard v. Eldridge, 388
v. Jacks, 1318 v. Sill, 775
v. Worthington, 277 Hearne v. Hearne, 1136, 1205
Hardcastle v. Fisher, 689 Hearrir v. Savage, 389
Harden v. Darwin , 196, 197 Heath v. Heath, 993
Hardenburgh v . Blair, 132 Heck, v. Clippenger, 1014
Harder v. Harder, 199 Hedges v. Riker, 574
Harding v. Wheating, 66 Heermars v. Schmaltz, 148
Hardley v. Wrightson 177 Heiss v. Murphy, 718
Hardy v. Call, 1318 Hellman v. McWilliams, 148
Harlan v. Brown, 576 Hemmer v . Cooper, 247
Harley v. Platts, 150 Hemmingway v . Mathews, 994
Harpending v. Dutch Church, 37 Hemphill's App ., 388, 408, 424
Harper's App., 389 Hempstead v. Hempstead, 37
Harper v. Archer, 195 v. Johnston, 74
v. Hayes, 574 Hencken v. U. S. Life Ins . Co. , 72
v. Patterson, 69, 70 Henderson v. Hunter, 293, 719
v. Phelps 177 v. Sherman, 871
v. Straws, 1133 Henderson's Trusts, re, 426
Harrington v. Brown, 379, 1188 Henderson v. Vaulx, 1258
Harris v. Barnett, 63 Henderson v. Woods, 363, 577
v. Carstarphen, 249 Heneke v. Floring, 198
v. Clark, 94 Hengst's App. , 362
v. Dillard, 1134 Hennessey v. Walsh, 198
v . McIntyre, 198 Henry Co. v. Winnebago, 718, 1159
Harrison v. Foster, 413, 1258 Henshaw v. Sumner, 688
v. Harrison, 178, 426 Hepburn's App ., 1317
v. McHenry , 656 Hepburn , re, 706
v. Mock, 690 Herbert v. Hanrick, 576, 655
v . Rowan, 774 v. Herbert, 774
Harrod v . Fauntleroy, 251 Hermstead's App., 386, 388, 847
Hart v. Ten Eyck, 1205 Heron v. Moffatt, 390
Hartman's App ., 871 Hesketh v . Murphy , 715
v . Dowdel, 994 Hess v. Dean, 247
Harvard College v. Amory, 423 , 425 Hess's Est., 467
Harvey v. Varney, 85 Hess v. Singler, 95, 177
Haskell v. Freeman, 91 Hester v . Wilkinson, 399, 407
Hastings v. Baldwin, 691 Hetzel v . Barber, 809
Hatch v. Smith , 688 Heuser v. Harris, 718
Haughton v. Davis, 690 Hewes v. Dehon, 703, 1106
Hauser v. Lehman, 363, 369 Hewitt v. Phelps, 775
1618
 TABLE OF AMERICAN CASES.

[The references are to the bottom paging.]

PAGE PAGE
Heyes v. Astley, 68 Hosack v. Rogers, 388, 1306, 1317
Hickey v. Young, 199 Hosea v. Jacobs, 719
Hicks v. Bullock, 775 Hospital v. Amory, 1116
Hidden v. Hidden , 413, 1258 Hough v. Harvey, 390
Higdon v. Hidgon. 197 v. Richardson , 247
High v. Worley, 527 Houghton v. Davenport, 251
Hileman v. Bonslaugh, 148 v. Hopgood , 304
Hill v. Bailey, 1158 Houston v. Embry , 1014
v. Davis, 370 How v. Waldron, 871
v. Hill, 993 Howard v. Am . Peace Soc. , 715
v. Stevenson, 94 v. Bank, 92, 94
Hilles' Est., 362, 1134 v. Carusi, 178, 718
Hillyard v. Miller, 121 , 122 v. Gilbert, 75, 1135
Hinckley v. Thatcher, 717 v. Moffatt, 993
Hind v. Silsby , 689 v . Peace Society , 277
Hindman v. Dill, 689 v. Rhodes, 329
Hinkle v. Wanzer, 57 v. Thornton, 575
Hipkins v. Bernard, 389 v. Waters , 1133
Hitchcock v. U. S. Bank, 278 Howe v. School District, 1206
Hite v. Hite, 251 Howell v. Howell, 1159
Hobart v. Andrews, 690 v. Ransom, 248
Hobbs v. Parker, 247 Hoxie v. Carr, 199
Hobson v. Whitlow, 74 v. Hoxie, 78
Hodgdon v. Shannon, 1133 Hubbard v. Elmer, 574
Hodgkins v. Hook, 85 v. Fisher, 388
Hodgson v. Macy, 197 v. Goodwin, 55, 129, 196
Hoffman v. Carow, 1277 v. Lloyd, 278
v. Mackall, 70, 74, 689 Hubbell v . Medbury, 775, 1158
Hogan v. Jaques, 197 Huff v. Thomas, 73
v. Wyman, 49 Hughes v. Caldwell, 311 , 1103
Hoge v. Hoge, 66, 78 v. Daly, 718
Hoig v. Gordon, 200 v. Edwards, 48, 250
Hoitt v. Webb, 655 v. Smith, 468
Holbrook v. Waters, 994 Hughlett v. Hughlett, 362
Holcomb v. Coryell, 1134 Hughuenin v. Basely, 248
v. Holcomb, 355 Hukill v. Page, 1205
Holland v. Peck , 718 Hull v. Hull, 122
Hollida v. Shoop, 199 Humbert v. Trinity Church, 1159
Hollinshead's App., 148 Humphreys v. Burleson, 249
v. Simms, 246 Hunewell v. Lane, 94
Holman's App ., 1258 Hunt, app ., 423
Holmes v. Mead, 717 v. Bass, 575
Holridge v. Gillespie, 500 v. Hunt, 976
Holroyd v. Marshall, 57 v. Moore, 199
Homer v. Homer, 71 v. Rousmanier, 250, 808
Hooberry v. Harding, 72 Hunter v. Bibyen, 69
Hood v. Adams, 249 v. Hunter, 248
Hook v. Dyer, 312, 425, 1103 v. Lawrence, 249
Hooper v. Bradbury, 78 v. Steinbridge, 77
v. Hooper, 121 v. Yarborough, 196
Hoover v. Hoover, 614 Huntly v. Huntly, 35, 91, 1116
Hope . Beard, 1319 Huntt v . Townshend, 574
Hopkins v. Glunt, 72 Hurst v. M'Neil, 72
v. Turnpike Co., 25 Hutchins v. Heywood, 198, 288
Hopkinson v. Dumas, 304, 975 Hutchinson v. Hutchinson, 69
Hord v. Hord, 993 v. Tindall, 63
Horn v. Lockhart, 425 Hyde v. Woods, 135
Horsey v. Hough, 248, 574 Hyden v. Hyden, 199

1619
 TABLE OF AMERICAN CASES.

[The references are to the bottom paging.]

PAGE PAGE
IDDINGS v . Bruen, 379, 1238 Jenkins v. Pye, 248
Ide v. Pierce, 177 v. Whyte, 387
Ihmsen's App., 424 Jennings v. Davis, 278
Iles v. Martin , 573 v. National Bank of Athens, 75
Imlay . Huntington, 148 v. Shacklett, 198
Indianapolis v. Grand Master, 716 Jennison v. Hapgood. 655
Inglis . Beaty, 468 Jessup v . Hulse, 689
. Snug Harbour, 37, 78 Jewett . Miller, 656
Ingraham v. Baldwin, 30 v. Woodward, 388, 690
Ingram v. Kirkpatrick, 689, 1318 John v. Barnes, 577
Inloes v. American Ex. Bank, 689 Johns v . Sergeant, 576
Ins . Co. v. Deale, 194 v. Smith, 576
v. Page, 179 Johnson's App., 277, 1134
Ipswich Co. v. Story, 278, 408 v. Bennett, 655 , 656
Ireland v . Ireland, 178 v. Blackman, 654
Irvine . Dunham, 1134 v. Clarkson , 77
v. Irvine, 30 v. Deloney, 70
Irwin's App., 362 v. Dorsey, 575
Irwin v. Ivers, 199. v. Dougherty, 195
Isham v. Delaware R. R. Co. , v. Habbell, 69
96, 575 v. Holifield , 718
Ives v. Allyn, 77 บ . Johnson, 197 288, 369
v. Ashley, 249, 655 v. La Motte, 66
Ivory v. Burns , 148 v. Lewis, 1206
v. Longmire, 718
JACKSON . Bodle, 74 v. Roland, 270
v. Burr, 573 v. Sharp, 690
v. Cary, 288 v. Sherman, 69
v. Cleveland , 74 v. Whiton , 56
v. Cornell, 690 Johnston v. Eason, 575
v. Davis, MacArthur & Mack Jones 's App., 362
ey, 577 Jones's Case, 388
v. Delancy, 311 Jones , In re, 329, 1135
v. Feller, 197 v. Dawson, 848
v. Fish, 288 v. Dexter, 380
v. Given, 808 v. Dougherty, 1313
v. Jackson, 386, 848 v. Graham, 249
v. Matsdorf, 194, 197 v. Jones, 1134
v. Miller , 194 v. Lloyd, 72, 249
v. Moore, 196, 976 v. Obenchain, 93
v. Phillips, 715, 718 v. Shaddock, 1150
v. Robins , 294 v. Smith, 1188
v. Sublett, 993 v. Stockett, 271 , 329, 345, 1135
v. Van Dalbsen, 656 v. Wilson, 71
v. Williams, 575 Joyner v. Conyers, 645
Jacobus v. Munn, 387 Judd v. Mosely, 199, 250
Jacot . Emmett, 425 v. Warner, 423
James v. Cowing, 576 Judge v. Booge,
v. James, 197 Judice v. Provost, 278
v. Johnson, 976 Judson v. Corcoran, 398, 399
v. Morey, 976 v. Gibbons, 271 , 277
Jamison v. Glascock, 655 Juzan v. Toulmin, 247, 655, 1159
Jarvis v. Prentice, 1014
Jasper v. Howard, 1014 KANE v. Bloodgood , 251 , 1158
Jeffries v. Lawson, 370 v. O'Conners, 148
Jencks v. Alexander, 197 Kane Co. v. Herrington , 931
Jenkins . Eldredge, 66, 69, 247 , 250 Karr v. Karr, 468
v. Fickling, 386, 1188 Kaufman v. Crawford , 1151
v. Frink, 195 Kay v. Scates, 149, 150
1620
 TABLE OF AMERICAN CASES .

[The references are to the bottom paging.]

PAGE PAGE
Keaton v. Cobb, 1318 Kirkland v. Cox, 294
Kee v. Kee, 387, 389 r. Narramore, 177, 271
Keister v. Howe, 312 Kisling . Shaw, 248
v. Scott, 577 Kisler . Kisler, 195
Kelley v. Jenness, 179, 195, 196 Kitchen e. St. Louis R.R. Co. , 249
Kellim v . Allen, 294 Kluender . Fenske, 197
Kellogg v . Carrier, 575 Knight . Brawney, 993
Kelly . Scott, 1103 v. Loomis, 277
Kenan e . Hall, 387, 848 v. Packer, 689
Kendall . Mann, 196 Knowles . Knowles, 1318
Kennedy's Appeal, 178, 848 Knowlton v . Bradley, 467
Kennedy v. Kennedy, 198, 250 Knox v. Biglow, 1318
v. Nunam, 197 v. Jones, 132
v. Strong, 425 v. Knox, 177
Kenny v. Udall, 993 v. Picket, 1318
Kent v. Durham , 133, 716 v. Traver, 200
v. Hutchins, 1317 Koch v. Briggs, 70, 74
v. Mahaffey, 251, 931 Kraft v. Lohman, 1133
v. Plumb, 426, 923 Kreider v. Bayer, 994
Kep v. Deniston, 363 Kreitz v. Frost, 1318
Kepler v. Davis, 249 Kyle v. Barnett, 424, 425, 468
Kerlin v. Campbell, 198
Kern v. Chalfant, 656 LADD v. Ladd, 808
Kerr v. Blodgett, 690 Laidlaw v. Organ, 247
v. Day, 35 Lakin . Mining Co., 72
v. Kirkpatrick, 369 Lamar . Simpson, 53
v. Laird, 425, 467 Lamb's App., 426
v . Read, 74 L'Amoreux v. Crosby, 31
v. Verner, 774 Landis v. Saxton , 249
v. Water, 369 Lane's App ., 1306
Kerrigan v. Rautigan, 94 Lane v. Coleman, 390
Ketchum v. Railroad, 1133 v. Ewing, 72, 75, 92
Kibbe v. Insurance Co. , 247 v. Lewis, 1134
Kiddill v . Farnell, 93 Lanier v. Brunson, 387
Killam v. Allen, 121 Lansing v. Lansing, 278
Kilroy v. Wood, 178 Lanterman v. Abernathy, 92
Kimball . Ives, 1159 Lantry v. Lantry, 78
v. Leland, 94 Larco v. Casaneuava, 576, 655
r. Morton, 65, 66 Larkin v. Mann, 1106
King . Cushman, 379, 848, 1188 Lassiter v. Dawson, 992
v. Donnelly, 35, 1116 Lathrop v. Bampton, 76, 1150
v. Lawrence , 278 v. Smalley's Ex'rs, 1306
v. Mitchell, 198 v. Smalley, 386, 389, 468, 847,
v. Parker, 294, 716 1133, 1134, 1317
v. Phillips, 271 Latimer v. Hanson, 278
v. Stow, 355 Laughlin v. Mitchell, 199
v . Strong, 1318 Laurens v. Lucas, 613
v. Talbot, 408, 423, 424 Lavin v. O'Neill, 1319
v. Whitely, 149 Lawrence v. Cooke, 74
v. Whiton, 574 Lawry v. Spaulding, 194
r. Wise, 1189 Laws v. Law, 194
r. Woodhull, 271 Lawson v . Lawson, 66, 69, 72
Kingman r. Perkins, 94 v. Morton, 985
Kingsbury . Burnside, 75 Laytin v. Davidson, 386
Kingsmill . Miller, 1135 Le Prince v. Guillemot, 1314
Kinmouth . Brigham , 423 Learned v. Welton, 355
Kip . Bank, 1224 Leavitt v. Palmer, 74
r. Deniston, 362 v. Pell, 574
Kirby . Taylor, 1238 v. Wooster, 614. 703 , 1106
1621
 TABLE OF AMERICAN CASES .

[The references are to the bottom paging.]

PAGE PAGE
Lee v. Browder, 194, 199 Lockhart v. Wyatt, 689
Lee v. Fox, 195 Lockwood v. Sturtevant, 15
v. Stuart, 30 Lofthouse , re, 830
Leeds . Wakefield, 576 Logan Co. v. Lincoln, 1158
Lefevre's App., 195 Lomax v. Ripley, 78
Lefevre v. Lefevre, 717 Long v. Israel, 1318
Leggett v. Dubois, 55, 196 v. White, 1013
v. Hunter, 271, 347, 1135 Longley v. Hall, 388
v. Perkins, 289 Longstreth's Est., 1134
Lehmann v. Rothbarth, 249 Lonsdale's Est. , 93
Leiper v. Hoffman, 129 Loomis v. M'Clintock, 576
Leland v. Felton, 278 Loring v. Blake 808
Leman v. Whitley, 63, 198, 200 v. Eliot, 75, 197
Lemmond v. Peoples, 128 v. Loring, 71, 135, 177
Leonard v. Diamond, 289 v. Palmer, 72
v. Powell, 849 v. Salisbury Mills, 576, 923
Letcher v. Letcher, 199 v. Steineman, 774
Letchworth's App ., 527 v. U. S. Co., 688
Lett v. Emmett, 250 Lorings v. Marsh, 718, 808
Levering v. Levering, 30 Loss v. Obry, 248
Levy v. Brush, 66 Loundsburg v. Purdy, 49, 1224
v. Levy, 35, 122, 718, 1116 Loveless v. Clarke, 390
Lewis v. Allenby, 145 Lovell v. Briggs, 423
v . Baird, 277 v. Minot, 423
v. Cook, 1133 Lovering v. Worthington, 132
v. Darling, 1106 Lowe v. Grinnan, 573
v. Hawkins , 1158 v. Morris , 389, 848
v. James, 304, 985 Low v. Perkins, 355
v. McLemore, 247 Lowrie's App., 388
v. Nelson, 22 Lucas v. Hamilton R. E. Asso. , 1135
v. Reed, 347 v. Lockhart, 178, 251
v. Starke, 16 v. Lucas, 178
v. Thornton, 1106 Lucich v. Medin, 1134
Library Co. v. Williams 809 Ludwig v. Highley, 49, 1224
Life Ass. v. Walker, 390 Lukens's App., 425
Lill v. Mafie, 1133 Lund v. Lund, 467
Lines v. Darden, 178 Lupton v. Lupton, 614, 1106
Lingerfetter v. Richey, 250 Luscomb v. Ballard, 277, 645
Link v. Link, 148 Lusk's App. , 775
Linn v. Wright, 74 Lutheran Church v. Maschop , 56
Linton v. Michie, 577 Lyman v. Bonney, 249
Lisloff . Hart, 194 Lyman v. Parsons, 808
Litchfield v. White 689 Lynch v. Swayne, 294
Little v. Bennett, 178 Lynde v. McGregor, 85
v. Willets, 94 Lyon v. Foscue, 389
v. Willford, 718 v. Lyon, 379, 655
Littlefield v. Cole, 809 v. Redenhurst, 1135
v. Smith, 399
Livermore v. Aldrich 199 MABIE V. Bailey, 94
Livingston's Case, 388 Maccubbin v. Cromwell, 71, 363
Livingston , re, 871, 1135 Mackason's App., 689
v. Livingston, 35, 39, 91, Mackey v. Coates, 655
703, 1106 Maddox v. Maddox, 329
v. Newkirk, 703 v. Rowe, 66
v. Wells, 468 Maffit v. Rynd, 65
Lloyd v. Brooks , 71 Mageer. Cowperthwaite, 389
v. Inglis, 63 v. Osborne, 1136
v. Lynch, 71 Magniac v. Thomson, 248
Lobdell v. Hayes, 304, 985 Major v. Herndon, 78
1622
 TABLE OF AMERICAN CASES.

[The references are to the bottom paging. ]

PAGE 1 PAGE
Malin . Malin, 35, 199, 1116 Maxwell v . Maxwell, 197
Mallet v. Smith , 808 1 May v. Wannemacher, 689
Maloy v . Sloans, 200 Mayberry v. Neely, 1014
Man . Warner, 1105 Maybin v. Kirby, 399
Manahan v. Gibbons, 362 Mayer v. Foulkrod, 775
Mandel v. Peay, 1134 r. Galluchat, 386, 1188, 1317
Manderson's App., 387 Mayfield . Kilgour, 909
Manice v. Manice, 871 re, 1134
Manion . Titsworth, 994, 1160 Maynard v. Maynard , 95
Mann v. Betterly, 248 McAllister v. McAllister, 717
Manning . Albee, 247 McBride v. Smyth, 294
v. Manning, 425, 1318 McBurney v. Carson, 425
Mansel, Re, 807 M'Call v. Peachy , 389, 424
Manson v. Felton, 249 McCall v . Parker, 30
Mapes v. Tyler, 574 M'Carty v. Blevins, 57
Marcy's Acc., 387, 848 M'Caw v. Blewit, 389
Marden v. Chase, 288 McCallam v. Carswell, 1158
Markley v. Singletary, 1014 McCallie v. Walton, 688
Marr v. Peay, 271 McCandless v. Warner, 71
Marsh v . Marsh, 703, 1106 M'Cants v. Bee, 655
v. Renton, 718 McCarter v. Teller, 30
v. Wheeler, 573 v. McCarter, 363
v. Whitmore, 249 McCarthy v. McCarthy, 148
Marshall v. Stephens, 576 v. Bostwick, 17, 1116
Martin . Fry, 703, 1106 McCartney v. Calhoun, 655
v. Funk, 93 McCaskill v. Lathrop, 77
Martin v. Martin, 993 McCausland's App., 388
v. Raborn, 424, 467, 1188 McCaw v . Galbraith , 1101
v. Sherman, 983 M'Clanahan v. Henderson , 500
v. Smith, 1159 McClane v. Shepherd , 1159
v. Tennison, 74 McCleery v. Allen , 689
v. Wyncoop, 655 McClellan v. McClellan, 71, 304
Marx v. McGlynn, 78 McCollister v. Willey , 197
Maryland v . Bank, 25 McConnell v. Brayner , 69
Maryland Fire Ins. Co. v. Dal M'Cracken v. M'Cracken , 390
rymple, 656 McCrea v. Purmont, 69
Mason . Commerce Bank, 196 M'Cready v. Guardians ofthe Poor, 356
v. Martin, 249, 379, 577, 1188 McDermott v. Lorillard, 574
v. Mason, 809, 1159 M'Dermutt v. Strong, 1314
v. McNeill, 993 M'Dowell v. Caldwell, 848
re, 387 McDonald v. Davidson, 390
v. Wait, 347 McDonald v. Mass. Gen. Hospital,
v. Whitthorne, 408 715, 716
Mass. Hospital v. Amory, 889, 1135 McDonald v. McDonald, 195
Massey . Huntington, 149 McDonald v. McMillan, 200
r. Strout, 1134 McDonogh v. Murdock, 1298
Massie v. Watts, 58 McDonogh's Ex'r's r. Murdock, 35
Mastin v. Barnard , 278 McDougald v . Carey, 311, 1103
Mathews . Bliss, 247, 250 McDowell v. Goldsmith, 251
v. Heyward, 425 McElhenny's App ., 468, 1306
Matthews v. McPherson, 909 McElroy v. McElroy, 198, 294, 148 , 149
v. Murchison, 1133 McGaughey . Brown, 249
v. Ward, 288, 1101 McGinnis v. Edgell, 197
Maudlin v. Armistead, 278, 312 McGivney v. McGivney, 196
Maught v. Getzendanner, 717 McGowan v. McGowan, 195
Maul v. Rider, 1237 McGready v. Harris, 577
Maus v. Maus, 78 McIlvaine v. Smith, 134
Maxwell v . Finnie , 1134 McIntire v. Zanesville, 424
251, 1159 McKee v. Judd, 57
v . Kennedy,
1623
 TABLE OF AMERICAN CASES.

[The references are to the bottom paging. ]

PAGE PAGE
McKelvey v. Rouke, 363 Miller v. Congdon, 278, 423
McKim . Auldback, 369, 370 v. Cotten, 250
r. Handy, 878, 1135 v. Davidson, 75, 690
McKissick v. Pickle, 251, 931 v. Davis, 196
McKnight v. Walsh, 386, 468, 847 v. Evans, 575
McKnight . Wimer, 573 v. Harwell, 1106
McLain v. School Directors , 719 v. Iowa Land Co., 656
McLane v. Johnson, 246 v. M'Intire, 251
McLarren v. Brewer, 195, 1277 v. Porter, 716
McLaurie v. Partlow, 71 v. Proctor, 425
McLeod v. Bank, 1150 v. Redwine, 774
McManus v. McManus, 69, 70 v . Stump , 985
McNabb v. Nicholl, 69, 70 v. Teachout, 718
McNeil v. Gates, 249, 574 v. Thatcher, 70
McNish v. Guerard, 289 v. Weetch, 1116
McPherson v. Cox, 1134 v. Welles, 247
v. Snowdon, 148, 149 v. Whittier, 848
McRae v. Means, 177 Million v. Taylor, 250
McTighe v. Dean, 1306 Mills v. Hoffman, 426
McVey v. Boggs, 993 v. Newberry, 718
Meacham v. Steele, 289 v. Traylor, 576
v. Sternes, 388, 689 Millspaugh v. Putnam, 92, 93, 94
Mead v. Merritt, 60 Miltenberger v. Morrison, 577
Meakings v. Cromwell, 808 Minchin v. Merrill, 94
Mebane r. Mebane, 134 Miner v. Prescott, 576
Mechanics' Bank, In re, 356 Minor v. Rogers , 94
Medbury v. Watson, 247 Minot . Boston Asylum, 717
Meek v. Perry, 249 M'Intire v. Hughes, 96
Meeker v. Crawford, 386 Minturn v. Seymour, 92
Meiggs v. Meiggs, 96 Minuse v. Cox, 467, 575, 1317
Meighen v. Buell, 390, 1319 Miskey's App . , 249
Melick v. Voorhees, 1205 1136 Mitchell v. Adams, 278
Mellinger's Ad. v. Bausman, 994 v. Beal, 689
Mellish v. Robertson, 248 v. Berry, 656
Menude v. Delaire, 73 v. Bunch, 60
Mercer v. Newsome, 655 v . Kingman, 31
Meredith v. Bank, 197 v. Pitner, 871
Meriwether v. Morrison, 95 v. Rice, 277
Merriam v. Hassam, 1159, 1160 v. Richey, 1136
Merrill v. Moore, 389 v. Ritchey, 363
v. Smith, 196 v. Sevier, 992
Merrills v. Swift, 690 M'Kim . Voorhies , 60
Merriman v. Russell, 774 M'Meekin . Edmonds, 690
Mershon v. Duer, 194 M'Nair's App., 369
Meserole, re, 386 Modrell v . Riddle, 195
Methodist Church v. Clark, 718 Moffatt v. Thompson , 1136
Meux v. Maltby, 58 Moffat v. Tuttle, 75
Meyer's App., 388 Moffitt v. McDonald, 195
M'Girr v. Aaron , 718 Moire. Brown, 272
Michoud v. Girod , 252, 654 Monahan . Gibbons, 369
Mickleburgh v. Parker, 363 Monell . Monell, 362, 369
Midmer . Midmer, 198 Monks v . Monks, 1318
Miles . Argall, 690 Moody v. Gay, 60
v. Bacon , 690, 1318 Montague . Hayes, 71
v. Wheeler , 249 Montgomery's App., 388
Millard v. Hathaway , 200 Montgomery v. Dorion, 48
Miller v . Atkinson , 719 r. M'Elroy, 1106
v. Blose, 199 Moore r. Burnett, 17
v. Chittenden, 132, 719 v. Ewing, 355
1624
 TABLE OF AMERICAN CASES.

[The references are to the bottom paging.]

PAGE PAGE
Moore v. Hazleton, 94 Murray v. Murphy, 247
v. Lockett, 574 Murrill v. Neill, 690
v. Moore, 199, 250, 718 , 992 Musham v. Musham, 196
v. Pickett, 67,71 Mussey v. Noyes, 688
v. Shultz, 288 Myers's App., 387, 848
v. Stinson, 71, 196 Myers v. Fenn, 387
v. Zabriskie, 389 v. Zetelle, 424
Morgan v. Boone, 655
v. Halford, 251 NAGLE'S Est., 386
v. Hannas, 386, 388, 1188 Naglee's Est., 574, 878, 1135
v. Holland, 1319 Naltner v. Dolan, 248
v. Morgan, 387 Nance v. Nance, 424, 426
v . Otey, 424 Napier v. Howard, 993
re, 1134 Neally v. Ambrose, 689
v. Wattles, 2 49, 655 Needles v. Martin , 719
Morningstar v. Selby, 247 Neff's App., 399, 849
Morrill v. Cooper, 66 Negroes v. Plummer, 177, 178
Morris v. Budlong, 70 Neill v. Keese, 195
re, 444 Neilson . Cook, 849
v. Wallace, 424 v. Lagow, 53, 129, 293
v. Way, 37 Nelles v. Elliot, 180
v. Webb, 73 Nelson v. Bank, 467
Morrison v. Beirer, 74 v. Davis , 289
v. Caldwell, 655 Nestal v. Schmid, 195
v. Kinstra, 408, 425 Neves v. Scott, 148, 149
Morse v. Bassett, 250 Newark Church v . Clark, 132, 719
v. Hill, 574 Newcomb v. Brooks, 655
Morton v. Adams , 425 v. Williams, 271 , 370
v. Barrett, 289 , 848, 1317 New England Trust Co. v. Eaton, 423
v. Naylor, 57 Newhall v. Jones, 249
Morville v. Fowle, 716 v. Wheeler, 37, 293
Mory v. Michael, 28, 72 Newman v. Dotson , 273
Mosby v. Steele, 31 v . Early, 251
Mosely v. Marshall, 909 v. Jackson, 574
v . Mosely, 197 Newton v. Fay, 94
Moses v. Murgatroyd , 359 v . Taylor, 66
Mulford v. Minch , 655, 656 New York Ins. Co. v. Roulet, 1136
v. Mulford, 78 Nichols v. Allen , 198, 717, 718
Mullaney v. Mullaney , 148, 149 v. Campbell, 278, 312, 359
Mullen v. Old Colony R. R. Co. , 250 v. Eaton, 135
Muller v. Davis , 198 v. McEwen, 388
Mumford v. Murray, 362, 425 , 467, Nickell v. Handly, 289
992, 993, 1160 Nickels v. Philips, 1133
Munn v. Burges , 656 Nickerson v. Buck, 1318
Murchison v. White, 655 Nicoll v. Miller, 270
Murdock's Case, 655 v. Ogden, 149, 270
v. Finney, 398 v. Walworth, 17
v. Johnson, 576 Nightingale v. Burrell, 133
Murphy v. Grice , 992, 1318 v. Hidden, 288, 1014
v. Mariland, 85 Niles v. Stevens, 347
v. Moore, 909 Nimmo v. Davis , 248
v . Nathans , 197 Niver v. Crane , 196
v. Peabody, 194 Nixon's App., 196
Murray v. Beard, 248 Nixon v. Rose, 1014
v. Blatchford, 370 v. Verry, 138
v. Dehon, 808 Noble v. Andrews, 56, 148, 969, 1151
v. De Rottenham 849 v. Morris, 148
v. Feinour, 425, 426 Nolen's App ., 994
v. Lylburn, 1151 Norman v. Burnett, 71
1625
 TABLE OF AMERICAN CASES.

[The references are to the bottom paging.]

PAGE PAGE
Norman v. Cunningham , Page v. Page, 196, 199
1136, 1205, 1206 v. Summers, 74
v. Towne, 577 v. Weymouth, 688
North v. Philbrook, 294 Paine v. Barnes, 574
North C. R. R. Co. v. Wilson, 1238 Paird v. Vickery, 654, 655
North Shore Ferry Co., 909 Paisley's App ., 178
Northern C. R. Co. v. Keighler , 389 Palmer v. Williams, 576
Northrup v. Hale, 94 Pannill v. Coles, 75
Norris's App., 251 , 386, 388, 425, Paper Mill Co. v. Fisk, 177
468, 847, 1159, 1206 , 1318 Parker's Est., 387, 847
Norton v. Gillison, 389 Parker v. Ames, 386
v. Leonard, 37, 289 v. Converse, 294, 878, 923, 1014
v. Norton, 293 In re, 577
Nostrand v. Atwood, 689 v. May, 1243
Nowlan v . Logie , 577 v. Nickerson, 249
Nutt v. Morse, 94 v. Sears, 808
v . Snyder, 199
OCHILTREE v. Wright, 362 , 369 Parks v. Parks, 288
O'Day v. Vansant, 577 Parshall's App., 379, 1188
Odell v. Odell, 122, 715 Parsons v. Boyd, 359, 909
O'Donnell v. Smith, 75 v. Kendall, 69
Ogden's App ., 1014 v. Lyman, 278
Ogden v. Kip, 1314 v. Parsons, 993, 994
v. Larrabee, 71, 73 v. Whelan, 248
O'Hara v. Dudley, 717 v. Winslow, 425
Okison v. Patterson, 73 Partridge v. Messer, 689
Olcott v. Bynum , 195 Paschal v. Acklin, 719
Old South Soc. v. Crocker, 716 Paschall v. Hinderer, 251, 1159
Oliver v. Court, 574 Pascoag Bank v. Hunt, 1277
v. Piatt, 247, 1136 Patten's App., 689
Olliffe v. Wells, 715 v. Pearson, 775
O'Neil v. Vanderburg, 576 Patterson v. Lailey, 426
O'Neill v. Donnell, 389 v. Leavitt, 355
v. Henderson, 277 v. Mills, 65, 66
v. Herbert, 370 Patten v. Beecher, 85
Oriental Bank v. Haskins, 85 v. Thompson, 379
Orleans v. Chatham, 72 Paul v. Fulton, 71
Ormiston v. Olcott, 423 Paup v . Mingo, 78
Osborne v. Endicott, 199 Paxon v. Potts, 1106
Osgood v. Franklin, 248 Paxton v. Stuart, 74
Osterman v. Baldwin, 129 Peabody v. Flint, 1159
Otis v. Beckwith, 95 v. Harvard Coll., 1205
v. Coffin, 121 v. Norfolk, 248
Ould v. Washington Hospital, 715 v. Tarbell, 194
Overseers v. Bank, 196 Pearce v. Olney, 60
Overseers of Poor v. Bank, 1277 Pearl . McDowell, 31
Owen v. Kennedy, 200 Pearsall v. Post, 718
v. Peebles, 425, 467 Pearson v. East, 247 1
Owings's Case, 1106 r. Jamison , 347, 575
Ownes v. Ownes, 56, 91 , 129, 198 Peay v. Peay, 304
Oxford v. Oxford, 74 Pegley v. Atkinson, 1135
Ozley v. Ikelheimer, 1014 Pendleton v. Fay, 645
Penfield v. Skinner, 719
PACE v. Pierce, 909 Penman v. Slocum , 380
Packard v. Marshall, 293 Pennell's App., 388
Padfield v. Padfield, 92, 149 , 150 Penniman v. Sanderson, 577
Page v. Boynton, 387 Penman v. Slocum, 1188
v. Estes, 992 Pennock v. Coe, 57
v. Olcott, 689 Pennock's Est., 177
1626
 TABLE OF AMERICAN CASES.

[The references are to the bottom paging. ]

PAGE PAGE
Penobscot R. R. Co. v. Mayo, 1136 Pierce v. O'Brien, 688
Penn. Ins. Co. v. Austin, 645 v. Pierce, 195
. Penny . Cook, 575 v . Savings Bank, 93
v. Davis, 270, 277 v . Thompson, 993
People v. Ins. Co., 37 Pierson v. Drexel, 93
v. Norton, 1133 Pike v. Baldwin, 775
v. Webster, 39 v. Collins, 993, 994
Perin v. Carey, 37, 715 Pilcher v. Flinn, 1159
v. McMicken, 37 Pillow v. Brown, 246
Perkins's App ., 387, 1188 Pindall v. Trevor, 195
v. Dyer, 775 Pingree v. Coffin, 178
v. Lewis, 278 v. Comstock, 690
v. McGavock, 271 , 345 Pinney v. Fellows, 69, 72, 199
v. Moore, 278 Pinnock v. Clough, 69, 194
v. Perkins, 72 Piper's App., 1134
Perrine . Applegate, 1318 Piper v. Moulton, 37, 718
Perry v. Craig, 251 Pitney v. Everson, 386
Persch v. Quiggle, 196 Planck v. Schermerhorn, 346, 689
Peter v. Beverly, 362, 573, 808 Plim v. Downing, 362
Peterson's App., 808 Plimpton v. Fuller, 703 , 1106
v. Grover, 250 Plympton v. Plympton, 426
Petril v. Clark, 645 Poindexter v. Jeffries, 992
Petrikin v. Davis, 689 Pollard v . Merrill, 1014
Pettee v. Peppard, 408 Pomeroy v. Benton, 249
Pettibone v. Stevens, 689 v. Lewis, 278
Pettingill v. Pettingill, 277, 1106 Pond v. Hine, 277
Petty v. Boothe, 1014 Pool v. Cummings, 1116
v. Moore, 527 v. Dial, 775
Phalen v. Clark, 1159 v. Morris, 992
Pharis v. Lachman, 1151 Poole v. Munday, 347, 424 , 426, 1189
Phelps v. Harris, 574 Poor v. Hazleton, 248, 994
v. Phelps, 74 Pope v. Bank, 95
v. Pond, 121 v. Brandon, 689
v. Seely, 71 v. Elliott, 329
Philadelphia v. Girard, 121 , 133, 149, Porter ». Bank, 50, 65, 1224
715, 716, 717 v. Doby, 148
Phila. Trust and Safe Dep. Co.'s v. Raymond, 909
App ., 78 v. Woodruff, 248
Philbrook v. Delano, 63, 198 Post v. Martin, 248
Philips v. Belden, 1159 v. Mason , 248
v. Crammond, 129, 195 Potter v. Gardner, 613
Phillips v. Belden, 251 Powell v . Cobb, 654
v. Hassell , 993 v. Glen, 293
v. Medbury, 809 v. Knox, 312
v. Moore , 250 v. Murray, 251, 1158, 1159
v. Phillips, 250 Power v. Cassidy, 717
v. Rogers, 1159 Powers v . Hale, 248
v. So. Park Comm'rs, 71 v. Inst. for Savings, 94
Philpot v. Ellicot, 69 Pownal v. Taylor , 71, 178
Phoenix v. Livingston , 386 Powys v. Mansfield, 197
v. Phoenix, 387 Poythress v. Poythress, 1314
Phype v. Wardell, 500 Pracht v. Lange, 175
Piatt v. Vattier, 35 Prather v. McDowell, 573
Picard v. Central Bank, 74 Pratt v. Adams, 690
re, 211 Pratt v. Ayer, 69, 72
Pickett v . Everett , 993 Pratt v. Beaupre, 198
Picquet v. Swan, 28, 42 v. Philbrook, 247
Pierce v. Brewster, 689 v. Thornton, 148, 655, 1158
v. McKeeham , 691 Pray's App., 408, 425
1627
 TABLE OF AMERICAN CASES .

[The references are to the bottom paging. ]

PAGE PAGE
Presbyterian Cong. v. Johnston, 56 Reece . Allen , 17, 70
Prescott v. Walker, 304 Reed . Emery, 689
v. Ward, 1136, 1205 v. Lukens, 71
r. Wright, 247 v. Marble, 399
Presley v. Davis, 1158 v. Peterson, 250
Preston . Casner, 148 v. Whitney, 304, 985 I
v. Wilcox, 1134 Regan v. Campbell, 251
Prevost v. Gratz, 690, 1158, 1159, 1237 Rees v. Waters, 993
Prewett v. Coopwood, 654 Reese v. Holmes, 993
Price's App., 1159 Reeside v. Peter, 573, 574
Price v. Maxwell, 715, 718 Reeves v. Dougherty, 1159
v. Minot, 17, 71, 74 Reid v. Blackstone, 177
v. Reeves, 71 v. Fitch, 195
Prichard v. Farrar, 656 v. Gordon, 13, 573
v. Thompson , 717 v. Mullins, 576
Prince v. Prince , 250 v. Stephens, 1319
v. Lisson, 288 Reilly v. Whipple, 73
Prindle v. Holcomb, 278, 408 Relf v. Eberly , 1159
Pringle v. Dorsey, 718 Renwick v. Renwick, 993
Prior . Talbot, 278 Renew v. Butler, 655
Pritchard v. Wallace, 195 Rhea v. Tucker , 199
Probate Court . Miles, 993 Rhett v . Mason, 178
Proseus v. McIntyre , 196, 197 Rhine v. Ellen, 69
Proudfoot v. Tiffany, 1135 Rhinlander v. Barrow, 251, 1159
Pullen . Snelus, 68 Rhymer's App., 715, 718
Pulpress v. African Church, 809 Rice v. Burnett, 66,69
Putnam v. Osgood, 689 v. Cleghorn, 655
Putnam School . Fisher, 808 v. Thompson, 993
v. Wood, 248
QUACKENBOSS v. Southwick, 1134, Richards v. Holmes, 575
1135 v. Manson , 195
Quackenbush v. Leonard, 1188 Richardson v. Inglesby, 72
Quick v. Fisher, 425 v. Knight, 277
Quidneck Co. v. Chafee, 575 v. Spencer, 380, 1188
Quiner v. Marblehead Ins. Co., 92 v. Stodder, 289, 293, 1013
Quinn v. Shields, 716 v. Woodbury, 311, 312, 1103
Richeson v. Ryan, 312
R. & S. R. R. Co. v. Miller, 848 Richmond v. Hughes, 691
Rabun v. Rabun, 73 Rider v. Kelso, 248
Railroad Co. v. Durant, 1158 Ridgeley v. Johnson, 271 , 355
Rainier v. Howell, 56 Riehl v. Foundry Asso., 196
Ramsay v. Marsh, 288 Rines v. Bachelder, 200
Randall v. Howard, 68 Ringgold v . Ringgold, 363
". Phillips, 198 Ringo v. Binns, 248 .
Rankin v. Rankin, 574 Ritter's App ., 96
Rapalje v. Hall, 467 Rivers v. Thayer, 994
Rasdall v. Rasdall, 66 Rizer v. Perry, 717
Rathbun v. Rathbun, 198 Robards v. Wortham, 703
Ratz v. Tyler, 363 Robbins v. Butler, 655
Ray v . Doughty, 362 v. Robbins, 66
v. Simmons, 94 Roberts v. Barker, 250
Raynes v. Raynes, 424, 1188 v. Collett, 993
Read v. Huff, 197 v. Mansfield , 1136, 1205
v. Johnson, 690 v. Moseley, 249, 277, 289
v. Power, 294 v. Ware, 196
v. Robinson, 270 v. West, 1013, 1014
Ready v. Kearsley , 289 Robertson v. Johnston, 149
Redenour v. Wherritt, 277 v. McGeoch, 271
Redheimer v. Pryon, 614 v. Sublet, 689
1628
 TABLE OF AMERICAN CASES .

[The references are to the bottom paging.]

PAGE PAGE
Robertson v. Wendell, 1318 Sanders v. Rogers, 1206
Robins v. Hope, 250 Sanderson . McKercher, 195
Robinson v. Hook, 1158 Sanderson v. White, 716, 1243
v. King, 85 Sargent v. Bourne, 178
v. Leflore, 184 . Ins . Co., 92
v. Mauldin, 57 r. Sargent, 1317
v. Ring, 94 Sasser . Sasser, 135
v. Robinson, 196 Satterwhite . Littlefield, 389
Robles v. Clarke, 199 Saunders . Gregory, 424
Robson . Harwell, 65, 66 r. Schmallzle, 312
Roden . Jaco, 691 e. Webber, 345, 347
v. Murphy, 909 Savage . Dickson, 1318
Rogers's App., 425 v. Gould, 1134
Rogers v. Higgins, 250 r. Sherman, 386
v. Ludlow, 289 Savannah, Mayor of, v. Solo
v. Pace, 577 mon's Lodge, 716
v. Rogers , 73, 74, 199, 690 Savings Bank v. Ross, 573
v. Ross, 1314 Sawyer's App., 277
v. Saunders, 198 Sawyer . Baldwin, 1318
v. Vail, 689 v . Hovey, 248
Roosevelt, re, 387 Saylor . Bushong, 94
Roosevelt v. Ellithorpe, 1318 v. Plaine, 199
Rose v. Gibson , 199 Sayre . Townsend, 195
v. Hayden, 195 Schaffer . Lavretta , 293
v. Porter, 177 Scheerer v. Scheerer, 194
v. Rose, 1318 Schell , re, 388
Rosebroom v. Mosher, 270, 576 Schenck . Ellingwood, 578
Ross v. Fitzgerald, 1206 v. Schenck, 278, 312, 362
v. Hegeman, 199 Schermerhorn v. Barhydt, 703 , 1106
v. Ross, 69 Schermerhorne v. Schermerhorne, 527
v. Wharton, 993 Schettler v. Smith, 132
v . Scott, 70 Schieffleir . Stewart, 425
Rotch v. Emerson, 716 Schlessinger v. Mallard, 148
Rowell v. Freese, 199 Schley . Lyon, 149, 909
Royall v. McKenzie , 362 Schmidt , re, 388
Royer's App . , 425 Schnorr's App., 715
Rudisell v. Watson, 1014 Scholler. Scholle, 775
Ruffin v. Harrison, 278 School . Canal Co., 37
Rhul v. Phillips, 689 v. Dunklebergen, 17
Rupp's App ., 195 v. Kirwin, 425
Rush's App ., 423 r. McCully, 574
Rush v. Vought, 247 Schoonaker v. Van Wyck, 379, 1188
Rushton v. Rushton, 703 Schouler v. Peter, 718
Russ v. Mebine, 69, 200 Scull . Reeves, 689, 690
Russell v. Russell, 574 Schuyler v . Hoyle, 994
v. Southard, 250 Scituate v. Hanover, 73
v. Switzer, 73 Scott v . Freeland, 656
Ruston v. Ruston, 1106 v. Marion, 423
Ruth v. Oberbrunner, 718 v. Rand, 1133
Rutledge v. Smith, 614 v. Searles, 76
Ryan v. Ashton, 248 v. Sierra Lumber Co., 576
v. Bibb, 909 Scruggs . Driver, 355
v. Dox, 250 Scudder v. Crocker, 388
v. Spruill, 993 Scull . Reeves, 277, 689, 690
Ryder v. Sisson, 425, 574 Seaburn . Seaburn, 719
Seal v. Duffy, 690
SAFFORD V. Hynds, 195 Seaman r. Cook, 196
Sale . Saunders, 993 Searing r. Searing, 993, 994
Saltonstall . Sanders, 715, 716 Sears Cunningham, 178
1629
 TABLE OF AMERICAN CASES .

[The references are to the bottom paging.]

PAGE PAGE
Sears . Dillingham, 271 Simpson . Mitchell, 73
r. Livermore, 574 v. Welcome, 716, 718
v. Putnam, 132 Sims v. Lively, 613
r. Russell, 132, 293, 716 Sinclair . Jackson, 355, 575, 976
Seaver . Lewis, 703 Singleton v. Lowndes , 424, 1206
Secord v. Costello, 200 r. Scott, 347
Seibold v. Christman, 197 Siten v . M'Clanachan, 994
Selby v. Bowie, 574 Skipwith v. Cunningham, 689
Selden v. Myers, 250 Skinner v. Walker, 129
Selle's App., 573 Squire's App . 250
Sentill . Robeson, 985 r. Harden, 198, 200
Servis . Nelson, 128 Slack v. Black, 68
Sewall . Cargill, 717 Slade v. Van Vechten, 379
v. Roberts, 96 Slaymaker v. Bank, 994
Seymour v. Bull, 574 Slevin v. Brown, 293, 774
v. Freer, 71 Sloo v. Law, 356, 379, 1116, 1188
Shacklett v. Ransom, 575 Slosson v. Naylor, 386
Shafto's Trusts, re, 876 Small v. Eccles, 468
Shankland's App., 135 Smart v. Fisher, 390
Sharp v. Pratt, 808 Smethurst v. Hastings , 458
Sharpsteen v. Tillow, 576 Smiley v. Dixon, 500
Shartel's App., 1237 Smith v. Atwood, 993, 1306
Shattuck v. Hastings, 718 v. Barham, 1258
Shaw v. Hayward, 95 v. Boquet, 195
v. Huzzey, 1258 v. Burnham , 195
v. Shaw, 69, 70, 199 v . Davis, 249
r. Spencer, 198, 614, 645, v. Doe, 691
1136, 1206 v. Drake, 655, 755
Shay v. Lessaman , 994 v. Harrington, 75
Shea v. Dulin, 1135 v. Hollenback, 199
Sheedy v. Roach, 95 v. Howell, 74
Sheet's Est., 278 v. Isaac, 379, 1188
Sheldon v. Dodge, 689 v. Kennard, 468
v. Edwards, 16 v. Kinney, 575
Shelton v. Homer, 293, 654, 808 . v. Lansing, 379, 1188
Shepard v. Gassner, 78 v. Lookabill, 288
Shepherd v. M'Evens, 93, 271 , 345, 690 v. Moore, 134
v. Whit e, 197 v. Patton, 195, 199
Sherburne . Morse, 194 v. Poor, 1159
Sherman v. Bank, 94 v. Richards, 247
v. Burnham, 1014 v. Rowe, 426
r. Dodge, 288 v. Sackett, 199
v. Parish , 426 r. Smith, 178, 195, 423, 425, 426
v. Sherman , 1106 v. Townsend, 248
Sherwood v. Am. Bible Soc ., 717 v. Speer, 148
v. Andrews, 92 v. Stuart, 74
v. Sutton, 251 v. Wildman, 177, 355, 809
Shibla . Ely, 76 v. Wyckoff, 1106
Shine . Hill, 575 v. Zanes, 48
Shipman . Furniss, 248 Smitheal v. Gray, 199
Shipp v. Hettrick, 425 Smyth v. Oliver, 1133
Shirley v. Shattuck, 389 Snelling v. McCreary, 424
v. Shirley, 42, 1013, 1014 v. Utterback, 69
Shoemaker v. Commissioners, 35 Snow v. Paine, 195
v. Smith, 195 Snowden v. Dunlavey, 31
Shook v. Shook, 312 Snyder's App ., 389 923, 1014
Shryock v. Waggoner, 328, 1134, 1224 Society v. Atwater, 37
Similie v. Biffle, 355 r. Bowen, 78
Simms v. Smith, 63 Soggins v. Heard, 247
1630
 TABLE OF AMERICAN CASES .

[ The references are to the bottom paging.]

PAGE PAGE
Sohier v. Eldredge, 774 Stebbins v. Eddy, 247
v. Trinity Church, 178, 718 Steele v. Steele's Adm'r, 1105
v. Williams, 576 Steere v. Steere, 21, 63, 69, 199
Sollee v . Croft, 389 Steevens v. Earles, 691
Solliday v. Gruner, 1106 Stell's App., 369
Somers v. Craig, 1014 Stephen v. Beall, 249
v. Overhulser, 195 v. Swann, 48
v. Cryeniuse, 716 Stephenson v. January, 574
South-Side v. Rhodes, 74 Sterrett's App., 369
Sparhawk v. Buell, 362, 370 Stevens v. Eldridge, 1134
v. Cloon, 134 r. Ely, 129
1133 v. Gaylord. 278, 408
K

v. Sparhawk,
Spear v. Spear, 423 v. Gregg, 1106
v. Tinkham, 1258 v. Stevens, 197
Speidel v. Henrice, 1158 Stevenson's App., 1134
Speigle v. Meredith, 575 Stevenson v. Stevenson, 1134
Speiglemyer v. Crawford, 247 Stewart v. Duffy, 248
Spencer's App . , 249, 656 v. Fletcher, 390
Spencer v. Spencer, 363, 1318 v. Kirkland, 57, 398
Spering's App., 424 v. Mather, 248
Spindle v . Shreve, 133 v. M'Minn, 48
Spooner v. Lovejoy, 177 Still v . Ruby, 42
Sprague v. Sprague, 149 Stimson v. Fries, 688
v. Woods, 73, 198 Stine . Wilkson , 574
Sprigg v. Bank, 250 Stinson v. Stinson, 390
Spring v. Hight, 197 St. Mary's Church v. Stockton, 614
Springer v. Berry, 39 Stockbridge v. Stockbridge, 289, 573
v. Springer, 195 Stokes's App., 294
Spurr v . Scoville, 58 Stokes v. Payne , 574
Staats v. Bergen, 654 Stone v. Bishop , 95
Stackpole v. Robbins, 69 v. Denny, 247
Stagg v. Beekman, 329 v. Hackett, 92, 311, 1103
Stoll v . Cincinnati, 574, 613 v. King, 75
v. Macalester, 575 v. Wood, 249
Stanley v. Brannon, 197 Stonestreet v. Doyle, 717
v. Colt, 718 Storrs v. Barker, 248
Stanwood v. Stanwood, 994 v. Scougale, 250
Star Co. v. Palmer, 656 Stout v. Levan, 994
Starke v. Starke, 994 v. Smith, 248, 250
Starkweather v . Am. Bible Soc. , 718 Stowe v. Bowen, 362
Starr v. Ellis, 976 Stratton v. Dialogue, 195
v. Starr, 72 Street v. Hallett, 200
v. Wright, 30 Stretch v. Gowdey, 389
State v. Brown, 278 Strimpfler r. Roberts, 179, 194
v. Foy, 1206 Strong v. Carrier, 689
v. Guilford, 347, 362 r. Glasgow, 63
v. Hearst, 278 Willis, 271
v. Koch, 976 Stroud v. Barnett, 703, 1106
v. Nicols, 278 Stuart v. Kissam, 379
v. Rusk, 37 Stucky v. Stucky, 196
v. Simpson, 424 Sturgess . Knapp, 871, 1134
v. Tolan, 1318 Sturtevant . Jaques, 198
v. Warren, 718 Sudbury v. Belknap, 37
State Road in Lehigh & Buck Sugden v. Crossland, 271
Cos., 356 Summers . Rose, 74
Statesville Bark v . Simonton , 251 Sumrall v. Chaffin, 575
Stearly's App., 386, 388 Suter . Hilliard, 716
Stearns v. Brown, 467 Sutherland . Brush , 369
v. Palmer, 17 r. Meehan, 195
1631
 TABLE OF AMERICAN CASES.

[The references are to the bottom paging.]

PAGE PAGE
Sutphen v. Fowler, 58 Thorpe, In re, 424
Sutton v. Cole, 37 Thorp v. McCullum , 655
Swan v. Frick, 92 Thrasher v. Ingram , 527
Swarez v. Pumpelly, 346 Tilford v. Torrey, 195
Swasey v. Am. Bible Soc., 715, 719 Tillinghast v. Bradford, 134
v. Little, 614 v. Coggeshall, 149 , 304.
Swedesborough Church v. Shiners, 56 774, 985
Sweet v. Dutton , 74 v. Wheaton , 94
v. Morrison, 249 Tilton v. American Bible Soc., 717
Swepson v. Rouse, 691 Timmins v . Surples , 200
Switzer v. Skiles , 72 Tindall v. Harkinson , 247
Tinnin v. Womach, 78
TAINTER V. Clark, 122, 270, 573, 718 Tipton v. Powell, 76, 197
Talbot v. Calvert, 1014 Titchenell v. Jackson , 71
Tanner v. Skinner, 149 Titcomb v. Morrill , 72
Tappan . Deblois, 715, 719 Todd v. Bucknam , 691
Tarver v. Tarver, 247 Todhunter v. Des Moines & c. R. R.
Tatge v. Tatge, 71, 251 Co. , 133
Tatum v. Holliday, 575 Tompkins v. Wheeler, 688
Tavenner v. Robinson, 871 Tooke v. Newman, 577
Taylor v. Atwood, 277 Toole v. McKiernan , 775
v. Benham, 55, 196 , 311 , 362, 408 Toronto Harbor Com'rs, In re, 390
v. Brown, 249 Torrey v. Bank of Orleans, 655
v. Dickinson, 356 Towle v. Mack, 848
v. Henry, 95 r. Swasey, 1317
v. Hopkins, 346 Towles . Burton, 66,78
v. King, 17 re, 390
v. Mason, 809 Towne v. Ammidown , 278 , 362, 363,
v. Morris, 808 370
v. Root, 1319 v. Jaquith, 355
v. Sayles, 148 Townend . Townend, 425
v. Taylor, 654 Tracy v. Gravois R. R. Co. , 387
Tebbetts v. Tilton, 196 v. Tracy, 1106
Temple v. Hawley, 30, 149 Trafton v. Hawes, 69
Tennant v. Stoney, 688, 1014 Trambly v. Ricard, 250
Terry . Bale, 775 Treat v. Peck, 574
Thacher v. Churchill, 65 Treat's App., 718, 1116
Thalman v. Canon, 195 Trephagen . Burt, 195
Thatcher v. Candee, 271, 871 Trezevant . Howard, 55
v. Church, 270 Trimbles v. Harrison, 48
r. Omans, 288 Trinity Church v. Watson, 1106
Thayer v. Wellington, 77, 271 Triplett v. Jameson, 389
Thomas v. Brownville R. R. Co. , 249 Tritt v. Colwell, 994
v. Crawford, 75 v. Crotzer, 76
v. Scruggs, 347 Trotter v. Blocker, 56
v. Standiford, 199 Truebody r. Jacobson, 15
Thompson v. Branch, 71 Trulle. Eastman , 248
v. Ford, 909 Trustees v. Clay, 424
v. Heywood, 249 v. King, 37
v. Lyon, 1158 v. Northampton, 808
v. McKisick, 177 Trustees Phillips Academy v.
v. Murray, 39 King, 1298
v. Newlin, 85 Tryon v. Huntoon, 199
v. Thompson, 197 , 246, 1133 v. Sutton, 994
Thompsons v. Meek, 270 Tucker . Burrow, 197
Thompson's App ., 196, 1277 v. Moreland, 30
Thomson v. White, 78 v. Seamen's Aid, 37
Thorndike v. Loring, 121 , 716 Tunnard v. Littell, 196
Thornton v. Winston, 271 Turnage v. Greene, 389
1632
 TABLE OF AMERICAN CASES .

[The references are to the bottom paging.]

PAGE PAGE
Turnbull v. Pomeroy, 387 Waddy v. Hawkins, 389
Turner v. Petigrew, 1151 Wade v. Fisher, 1013
v. Turner, 424 v. Pope, 843
Tuttle v. Fowler, 994 Wadsworth, In re, 1133
v. Robinson, 388 v. Wendell, 91
Tweedy . Urquhart, 1135 Wagner v. Blanchet, 577
Twin Lick Co. v. Marbury, 249 Wakeman v. Dodd, 656
Twomey v. Crowley, 69 v. Grover, 690
Tyler v. Black, 247 Walden v. Karr, 73
Tyree v. Williams, 575 v. Skinner, 74
Tyrrell v. Morris, 645 Walker v. Colman, 249
Tyson's App ., 1014 v. Crews, 148
Tyson v. Blake, 1258 v. Dunlop, 247
v. Latrobe, 574 v. Locke, 68
v. Mickle, 575 v. Ogden, 60
v. Page, 424
UDALL v. Kenney, 993 v. Walker, 718
Underhill v. Morgan, 1205 v. Whiting, 178
Union Pacific R. R. Co. v. Credit Wallace v. Beredell, 75
Mobilier, 249 v. Coston, 1014
Union Slate Co. v. Tilton, 656 v. Duffield, 195, 1277
United States v. Bank of U. S., 688 v. McCallough, 1277
v. Waterborough, 196 v. Wainwright, 13, 688
United States Trust Co. v. Roche, 775 Waller v. Armistead, 1238
Universalist Soc . v. Kimball, 717 Walton v. Avery, 389
University v. Bank, 1158 Warbass v. Armstrong, 386
v . Clay, 426 Ward v. Armstrong, 198
Upham v. Varney, 288 v. Barrows, 576
Upson v. Badeau, 347 v. Dortch, 1134
Urann v. Coates, 71 , 93, 95, 148, 388 Ward's Est., re, 609
Urket . Coryell , 129 v. Hipwell, 356
v. Kitchen, 425
VAIL v. Jacobs, 74 v. Lewis, 690
v. Knapp, 60 v. Morrison, 398
Valentine v. Valentine, 388 v. Peloubet, 178
Vallette v. Bennett, 294 v. Ward, 78
Van Amee v. Jackson, 178 Warde v. Manchester, 715
Vance v. McLaughlin , 994 Wardlaw v. Gray, 993
Van Cott v. Prentice, 72 Wardwell v. McDowell, 271
Vandever's App. , 355, 362 Ware v. Richardson, 289
Van Duyne v. Van Duyne , 178 Warley v. Warley, 1106
Van Duzer v. Van Duzer, 992 Warnecke v. Lembca, 74
Van Epps v. Van Epps, 380, 655, 1188 Warner v. Bates, 95, 177
Van Horne v. Fonda, 278, 500, 1188 v. Sprigg, 293
Van Orden v. Van Orden, 423 Warren v. Copelin, 399
Varner's App., 78 v. Steer, 199
Vaughan v. Barclay, 58 Washburn v. Sewall, 717
Vaux v. Nesbit, 48 Washington v. Emery, 425
Veazie v. Forsaith, 133, 775 Waterman v. Baldwin, 775
Vernon r. Board of Police, 1151 v. Cochran, 1318
Vestry r. Barksdale, 387, 848 v. Spaulding, 574, 575, 576
Vidal . Girard, 37, 1116 Waters v. Faber, 387
v. Girard's Ex'rs, 715 v. Stickney , 247
v. Philadelphia, 715 v. Tazewell, 1014
Villines v. Norfleet, 1237 Watkins v . Holman, 58
Viney v. Abbott, 96 v. Specht, 294
Von Hurter . Spengeman , 1189 Watson v. Mayrant, 178
v. Stone , 424
WEDDINGHAM v . Loker, 72 Waugh v . Riley, 48
1633
 TABLE OF AMERICAN CASES .

[The references are to the bottom paging.]

PAGE PAGE
Wayman v. Jones, 362 Whitesides v. Miller, 74
Waynesburg Coll. App ., 94 Whiting v. Whiting, 71 , 177, 312, 1160
Weaver v. Emigrant Bank, 93 Whitman e. Lex, 718
v. Leiman, 1160 Whitmore . Learned, 199
Webb's App., 994 Whitney v. Kelley, 689
Est., 149 Whitten . Whitten , 197
Webb v. Neal, 37, 1133 Whyte v. Dimmock, 387
Weber v. Weber, 148 Wiard v. Gable, 426, 468, 1319
Webster . Cooper, 293, 294 Wickes v. Clarke, 992
Webster Bank v . Eldridge, 878, 1135 Wickham v. Berry , 909
v. Morris, 715, 716 Widener v. Fay, 386, 389
v. Vandenventer, 271 , 312, 871 Widgery v. Haskell, 688
Weeks v. Cornwall, 74 Wiggins , re, 1133
v. Weeks, 993 Wightman v. Doe, .576
Weems v. Harrold, 177 Wilcox v. Matteson, 95
Welch v. Allen, 294 v. Wheeler, 293
v. Greenalge, 576 Wilde v. Smith, 177
v. Mandeville, 909 v. Wilde, 69, 70, 200
Wellford v. Chancellor, 247 Wiles v. Wiles, 992
Wells v. Doane, 718 Wiley v. Smith, 148
v. Ely, 329 Wilhelm v. Folmer, 1224
v. McCall, 135, 178 Wilkinson v. Cheatham, 1013
Welsh v. Davis, 689 v. Dodd, 1206
Wendell v. French, 388 v. Getty, 1116
Wentworth v. Wentworth, 70 Willard's App., 178
West . Fitz, 293 Willard v. Ware, 311, 1103
Western R. R. Co. v . Nolan, 909 William v. Cushing , 270
Westcott v. Edmunds, 289 v. Jenkins, 70
Westlake v. Wheat, 74 Williams v. Brown, 688
Weston v. Baker, 73 v. Conrad, 277
Wetmore v. Truslow, 135 v. Church, 289
Whaley v. Whaley, 197 v. Fullerton, 73
Wheatley v. Badger, 277 v. Hollingsworth, 194, 199
Wheaton v. Wheaton, 250 v. King, 271
Wheeler v. Bowen, 993, 994 v. Maull, 1014
v. Kidder, 197 v. Munroe, 576
v. Perry, 277, 424 v. Otey, 690, 1158
v. Smith, 717 v. Powell, 1238
Whelan v. Reilly, 346 v. San Saba Co., 72
Whichcote v. Lyle, 30 v. Smith, 774
Whipple v. Adams, 77, 178 v. Thorn, 134
v. Barton, 248 v. Vreeland, 247
v. Fairchild, 133 v. Waters, 289
White v. Albertson, 909 v. Williams, 122, 250, 423
v. Bullock, 369, 388 v. Worthington, 177
2. Carpenter, 196, 197 Williams's App., 1014, 1134
v. Ditson, 718 Williams's Est., 133
v. Douglass, 69 Williamson v. Bank, 645
v. Drew, 304 v. Field, 574
v. Farley, 148 v. Morton, 614, 645
v. Fisk, 717 v. Suydam, 573, 871
v. Hampton, 1116 v. Williamson, 1258
v. Howard, 573 Willem an . Holmes, 293
v. Moss . 249 Willis v . Smyth, 93
v. Sheldon, 199 Wilson . Cheshire , 198
v. Smith, 250 v. Davison, 614
v. Watkins, 355 r. Doster, 645
. White, 60, 135 v. Lynt, 122
Whitesides v. Dorris, 992 v. McCullough, 30, 85
1634
 TABLE OF AMERICAN CASES.

[The references are to the bottom paging.]

PAGE PAGE
Wilson v. Owens, 200 Woolam . Hearne, 250
v. Proudfoot. 390 Wootten . Burch, 1258
v. Russell, 691 Wormley . Wormley, 424, 575, 655,
v. South Park Commissioners, 577 774
v. Towle, 346, 878, 1116, 1135 Worrall's App ., 424
v. Troup, 655, 691 , 1238 Worth v. M'Aden, 277
v. Wilson, 1014 Worthy . Johnson , 17
Wilson's App ., 848 Wright v. Arnold , 992, 993, 1306
Wilson's Est., 277 v. Bundy , 691
Winder . Diffenderffer , 1151, 1306 . Campbell, 654
Wingate v. Harrison, 249 v. Delafield , 294
Winslow v. Cummings , 37, 1116 v. Douglass , 73
Winston v. Gwathmey, 247 v. Gay, 251
r. Jones, 574 v. Miller, 24, 115, 177
Winthrop v. Att'y-Gen. , 346 v. Robertson, 1136
Wistar's App., 387, 467, 654, 848 v. Smith, 655
Wiswall . Stewart, 379, 1188 v. Vanderplank, 250
Witham v. Brooner, 288, 289 r. Wright, 467
Witmer's App., 425 Wrightman v. Helliwell, 468
Witts v. Hooney, 199 Wyman v. Hubbard, 467
Witzel v. Chapin, 93
Wolfe . Dowell, 74 YARD'S App ., 132
v. Washburn, 408 Yarnall's App ., 148, 289, 294
Wolford v. Herrington, 247 Yaryan v. Shriner, 575
Womack v. Austin, 424 Yeackell v. Litchfield , 1206
Wood's App., 388 Yeamans v. James, 248
Wood . Burnham, 148, 149, 909 Yerger v. Jones, 1151
v. Goodridge, 574 You v. Flinn, 289
v. Mather, 289 Young v. Brush, 468, 1306
v. Midgley, 68 v. Graff, 26
v. Partridge, 399 v. Miles, 909
v. Rabe, 66, 249 r. Van Benthuysen, 576
v. Seward, 71 r. Young, 94, 775, 1014
v. Wood, 355, 362, 424 Youngs, In re, 196
Woodbury v. Bruce, 1206
Woodford . Stephens , 195 ZABRISKIE v. Railroad Co., 293
Woodruff . Cook , 774 Zane v. Kennedy, 574
v. Snedecor, 389 Zeisweiss v. James, 718
Woodward v. Schatzell, 60 Zanch v. Parsons, 30
1635
 TABLE OF ENGLISH CASES.

[The references are to the star paging.]

PAGE PAGE
ABBISS v. Burney, 85 , 89 Adlington v. Cann, 51 , 52 , 54, 55 ,
Abbot v. Gibbs , 456 , 457 57, 59 , 63 , 66 , 721
v. Lee, 152, 942 , 947 Agar v . Fairfax, 890
Abel v. Heathcote , 427 Aggas v. Pickerell, 864
Aberdeen Town Council v . Aber Agra Bank, re , 698, 709
deen University, 190 Agriculturists ' Cattle Insurance
Abington's case, 820 Company, re, 868
Abney . Miller, 180 Aguilar v. Aguilar, 763, 766
Acherley v . Acherley, 53 Ahearner. Aherne, 135
v . Roe, 889 Aicken v. Macklin, 718
Acheson v. Fair, 183 Ainslie , re, 189, 382 , 682
Ackland v . Lutley, 214 , 217 v. Harcourt , 367, 369
Ackroyd v . Smithson, 148 , 150 Airey v. Hall , 67, 70, 976
Acland v. Gaisford, 141 , 142 Alchorne v. Gomme, 678
Acraman v. Corbett, 77, 78 Alcock v. Sloper, 299
Acton v. Peirce, 800 , 827 Alden v . Gregory, 868
v. White, 781 Alderman v. Neate, 532
v. Woodgate, 516 , 517, 518 Alderson v. Temple, 511 , 513
Adair v. Shaw, 858 , 907 , 986 Aldridge v. Westbrooke , 672
Adam's Policy Trusts , re, 790 Alexander , re, 591
Adames v. Hallett, 78 v. Alexander, 257, 291
Adams v. Adams , 216 , 220 , 390 , 393 v. Crosbie, 447, 799
v. Angell, 726, 729 v. Mills , 668
v. Barry , 885 v. Newman , 105
v. Beck, 389 v. Wellington (Duke of) 22
v. Broke, 429 Alge, re, 956
v. Buckland, 261 Alison, re, 880
v. Claxton , 295 Alison's case, 62
v. Clifton , 252 , 497 , 926, 989 Allan v. Backhouse , 368, 371 , 420
v. Gale, 339 v. Heber , 524
v. Gamble, 780 Allason v. Stark, 532
v. Paynter, 662, 797 Allen v. Allen , 38, 695
v. Robarts , 390 v. Bewsey, 721
v . Taunton , 200 , 471 , 607 v. Bonnett , 78
v. Waller, 590 2. Hancorn , 315
Adams' Trusts , re , 658, 752 , 847, v. Imlett, 16, 17, 234
850 , 1028 v. Jarvis , 637
Will, re, 311 v. Knight, 714
Adams and the Kensington Ves v. Norris , 351
try , re , 135 , 137 , 952 v. Papworth , 759
Adamson v. Armitage , 756 v . Sayer , 868
Addington v. Mellor, 360 v. Walker, 678 , 760 , 780
Addison v. Cox, 708 Allen's Will, re, 1002
Adey v . Arnold, 205 Alletson v. Chichester, 709
Adye v. Feuilleteau or Fennilit Alleyn v. Alleyn, 407
teau, 306 , 307 , 340 Alleyne v. Darcy, 192 , 337 , 642 , 908
xvii
 TABLE OF ENGLISH CASES .

[The references are to the star paging.]

PAGE PAGE
Allhusen . Whittell, 302, 303 Anonymous Case ( 2 Freem. 114) , 966
Allies , Settlement of, re, 329 (4 Ir. Eq . Rep. 700 ) , 847
Alloway . Braine, 872 ( 1 Jurist N. S. 974) , 998
Allwood v. Heywood, 679 (4 Leon. 207) , 199
Alsop v. Bell, 644 (Lofft, 492) , 306
Alston, ex parte, 720 (4 Mad. 273) , 691
. Trollope, 590 (6 Mad. 10 ) , 435 , 855
Altham . Anglesey, 6 ( 6 Mad. 11 ) , 423
Alton v. Harrison , 78 , 510 , 635 (12 Mod. 560) , 256 , 263
Alven . Bond, 486 (2 Moll. 483 ) , 800
Amand . Bradburne, 636 (Mos . 35 ) , 252, 264
Ambrose v. Ambrose , 55 , 163 , 167 (Mos . 36 ) , 252
Ames , re, 281 (Mos . 96) , 456 , 457
v. Parkinson, 291 , 326 , 335 (Pr. Ch . 434) , 479 , 483
Amherst's Trusts , re, 102 , 104 (1 P. W. 327) , 837
Amhurst v. Dawling , 234 (1 P. W. 445) , 10, 795
Amies' Estate, re, 756 (2 P. W. 261 ) , 721
Amler . Amler, 947 (1 Roll. Rep. 56) , 828
Amphlett v. Parke , 147 , 150 , 160 (2 Russ . 350 ) , 489
Anandale (Marquis of) v . Mar (1 Salk. 126 ) , 893
chioness of Anandale, 965, 966 (1 Salk. 153) , 449
Ancona v. Waddell, 102 (1 Salk. 154 ) , 527
Anderson, ex parte, 672 (1 Salk. 155) , 276 , 279
re, 666, 672 (Sel . Ch . Ca. 57) , 892, 896
v . Pignet, 726 (2 Sim. N. S. 71) , 28
Andrew . Trinity Hall , Camb. 197 (4 Sim. 359) . 980
v. Wrigley , 477 , 478 , 479 , 483 , (2 Sw. 300 , 302 ) , 540
860, 863 (2 Vent. 349 ) , 85,833
Andrews , ex parte, 275 , 285 , 295 , (2 Vent. 361) , 163
580, 581 (1 Vern. 104) , 420
re, 785 (1 Vern. 105) , 890
v. Bousfield, 704 (2 Vern. 133) , 524
v. Brown, 519 (1 Ves . jun. 462 , and 3 B.
v. Partington , 582 C. C. 515) ,. 966
Angell v. Dawson, 315 , 573 (2 Ves. 586) , 240
v. Draper, 796 (2 Ves . 630) , 340
Angelo, re, 1010, 1011 (3 Ves. 515) , 280
Angerstein, ex parte, 985 (6 Ves. 632) , 496, 870
v. Martin , 301 , 302 , 326 , 581 (10 Ves. 103 ) , 628
Angier v. Stannard, 347 , 350, 685, (10 Ves . 104) , 397
688 ( 12 Ves. 4) , 982, 984
Angle, ex parte, 908 ( 12 Ves. 5) , 982
Anglo-Italian Bank v. Davies , 800 , (18 Ves . 258) , 773
813, 814, 815 (7 Vin. 96 ) , 757
Angus v. Angus , 48 (8 Vin. Ab . 72) , 132
Annand v. Honeywood, 941 Anson v. Potter, 288 , 359
Annesley, ex parte, 532 Anthony v. Rees , 210 , 215
v. Ashurst, 597 Antrim ( Lord) v . Duke of Buck
v. Simeon , 678 ingham , 33
Anonymous case (2 Atk. 223 ) , 820 Antrobus v. Smith, 70, 81 , 82
(3 Atk. 129 ) , 890 Aplyn v. Brewer, 264, 268
( Carth. 15), 164 Appleton v. Rowley, 735
(2 Ch. Ca. 54) , 524 Appleyard v. Wood, 721
(2 Ch. Ca. 207) , 180 Apsey, exparte, 913
(1 Com. 345 ) , 148 , 158 Arbuckle, re, 587
(Dyer, 210 a) , 268 Archer . Lavender, 191 , 192 , 642,
(2 Equity Ca. Ab . 12 pl . 20 ) , 934 746, 775
(Freem. 115 ) , 827 v. Rooke , 754, 756 , 758
( 2 Freem. 33 ( cited ) ) , 14 5 Arden . Arden, 702 , 705, 709
xviii
 TABLE OF ENGLISH CASES .

[The references are to the star paging.]

PAGE PAGE
Ardill . Savage , 671 Attorney-General v . Aspinall, 20,
Arglasse e. Muschamp , 49 22.31
Arkwright, er parte, 702 v. Backhouse , 545, 546
Armitage v. Coates, 98,786 v. Balliol College , 547
Armston's Trusts , re , 1004 v . Bedford (Corporation
Armstrong v . Armstrong, 276, 412 of), 529
. Peirse, 677 v. Berwick - upon - Tweed
v. Timperon , 68, 75 (Corporation of) , 936
v. Walker, 800 v. Beverley, 162
Armstrong's Settlement, re, v . Black, 530
656, 1027 v. Blizard, 531 , 532
Arnold v. Blencowe, 223 v. Boucherett, 530
v . Chapman , 148 , 157 v. Bovill, 531 , 532
v. Dixon, 151 v. Brandreth, 531
v. Garner, 277, 280, 628 v. Brecon (Mayor of) , 32, 580
v. Woodhams , 787, 919 v. Brentwood School (Mas
Arnould v . Grinstead, 326 ter of) , 538
Arran v . Tyrawly, 868 v. Brettingham, 539 , 540, 935
Arrowsmith's Trusts , re, 1015 , 1020 v. Brewers' Company , 886 , 934 ,
Arthur v. Arthur, 756, 776 935 , 993
v. Clarkson , 81 v. Brickdale , 259
Ashburnham v . Thompson , 338, v. Bristol (Corporation of) , 929
339 , 989, 995 v. Bristol (Mayor of ) , 161 , 162
Ashburton v. Ashburton, 967 v. Brooke, 539, 544, 545
Ashby v. Ashby, 740 v. Browne's Hospital , 529
v. Blackwell, 353 v. Brunning , 949
v. Palmer, 949 , 954, 961 v. Buckland , 837
Ashton v. Ashton , 120 v. Buller, 227, 539
v. Jones , 670 v. Caius College , 31 , 162 , 536 ,
v. M'Dougall, 758 849 , 936 , 991
v. Wood, 232 v . Calvert, 530
Charity, re, 540, 930 v. Carlisle (Corporation of) , 935
Ashworth . Hopper, 105 v. Catherine Hall , Cam
v. Munn , 148 bridge (Master of) , 162,
v. Outram, 751 , 755 , 788 528, 543
Askew v . Rooth, 775 v. Chesterfield (Earl of) , 642
v. Thompson, 526 v . Christchurch (Dean of) ,
v. Woodhead, 299, 566 , 905 536, 538 , 936
Astbury v . Beasley , 297 v. Christ's Hospital, 162 , 863 ,
Astley v . Essex (Earl of) , 866 , 938 936, 994
v. Milles , 729, 731 v . Clack, 598 , 618 , 669
Aston, re, 671 , 1030 v. Clapham , 533
v. Aston, 776 , 777 v. Clare Hall , 529
v. Wood, 148 v. Clarendon (Earl of) , 31 ,
Atcherley v. Vernon , 213 , 756 486, 529 , 530, 542
Atcheson v. Atcheson, 741 v. Clifton , 533, 848
Atchison v . Lemann , 780 v. Coopers' Company, 161 ,
Athenæum , &c. Society v . 162, 849
Pooley, 862 v. Coventry (Mayor of) , 161
Atkins v. Rowe, 168 v . Cowper, 848
Atkinson , re, 703 v. Crook, 528, 546
Atkyns v. Wright, 134 v. Cross , 543, 544, 545
Attenborough . Thompson , 848 v. Cuming, 86, 259 , 262 , 600,
Attorney-General v. Ailesbury 848 , 923 , 927, 987
(Marquess of) , 949, 966 v. Dallgars , 916
v. Alford, 340, 341 , 999 v. Daugars , 848,990
v. Andrew, 800, 803 v . Davey, 876 884
v. Andrews , 580, 721 v. Davy, 87
v. Arnold, 161 v . Day, 541, 546
xix
 TABLE OF ENGLISH CASES .

[The references are to the star paging.]

PAGE PAGE
Attorney - General v. Dedham Attorney-General v. Holland, 274, 539
School, 84, 529 , 530 v. Hotham (Lord) , 545
v. Dillon, 62 v. Hubbuck, 949
v. Dixie , 294 , 529 , 530 , 536 , v. Hungerford, 540
542 , 543 , 544 v. Hurst, 849
v. Downing (Lady) , 833, v. Hutton , 533
834, 835 v. Jackson , 536
v. Doyley, 197 v. Jesus College , 162
v. Drapers' Company, 162 , 935, v. Johnson , 161 , 162
936 , 991 , 994 v . Johnstone, 159 , 160
v. Drummond, 991 v. Kell, 531
v. Dudley (Lord) , 484 , 485, v. Kerr, 539 , 540, 545 , 546
491 , 494 , 870 v. Köhler, 344
v. Dulwich College, 529 v. Ladyman , 536
v. Duplessis , 63 v. Landerfield , 31
v. Eastlake, 580 v. Leeds (Duke of) , 248, 249
v. East Retford (Burgesses v. Leicester (Corporation
of) , 902 , 936, 993 of) , 192 , 642 , 902
v. East Retford Grammar v. Lewin , 532
School, 929 v. Lichfield (Bishop of) , 262,
v. Exeter (Corporation 600, 667
of) , 531 , 532, 936 v. Lichfield (Corporation
v. Exeter (Mayor of) , 851 , 863, of) , 32
864, 870, 934, 935 v. Liverpool (Mayor of) , 855
v. Flint, 876 v. Lock, 262 , 528, 529
v. Floyer, 262, 600, 667 v. Lockley , 52
v. Foley, 86 v. Lomas, 151 , 949
v. Foord, 543, 546 v. London (City of) , 986
v . Forster, 20 , 86, 87 , 88 , v. London (Corporation of) , 30
234, 927 v. Magdalen College, Ox
v. Foundling Hospital ( The) , ford , 529
31 , 528, 529 , 855 v. Magdalen College , 539.
v. Foyster, 538 877.884
v. Gascoigne , 536 v. Magwood, 543
v. Gaunt, 528 v. Manchester (Dean and
v. Geary, 575 Canons of) , 932
v. Gibson, 541 v. Mansfield (Earl of) , 531,
v. Gleg , 19 , 257, 261 536, 541
v. Glegg, 262, 616 v. Marchant, 162
v. Goldsmiths ' Company, 531 v. Market Bosworth School, 535
v. Gore (Lord) , 674 v. Mercers' Company, 162 , 539
v. Gould , 530 v. Merchant Venturers' So
v. Gower (Lord) , 543 ciety , 162
v. Green , 539, 544, 546 , 930 v. Middleton , 529
v. Greenhill , 544 v. Milner, 154
v. Greenhouse , 907 v. Minshull, 161
v. Griffith , 544, 545 v. Moor, 869
v. Haberdashers ' Company, v. Morgan, 543
161 , 536 , 930 v. Munby , 96
v. Hall, 132 , 134 , 545 v. Munro, 285, 534
v. Hamilton, 427 v. Murdoch, 534
v. Harley, 950 v. Newark (Mayor of) , 540 , 937
v. Harrow School (Govern v. Newbury (Mayor of) ,
ors of) , 613, 616 935 , 936
v. Heelis , 20 v. Newbury Corporation ,
v. Herrick, 161 531 , 851
v. Hickman , 835 v. Newcombe, 20 , 86 , 234, 927
v. Higham , 290, 316 v. Norwich (Corporation
v. Hobert, 989 of) , 580
XX
 TABLE OF ENGLISH CASES .

[The references are to the star paging.]

PAGE PAGE
Attorney-General v. Norwich Attorney-General v. Wilson, 22,
(Mayor of) , 634, 638 144 , 162 , 541 , 908 , 910 , 989
v. Owen , 544, 545 , 546 , 595 v. Windsor (Dean of) , 148 , 162
v. Pargeter, 539, 545 v. Worcester ( Bishop of) , 929
v. Parker, 87, 88, 234 , 927 v. York (Archbishop of) , 528
v. Parnther, 777 Atwell v. Atwell, 948 , 951
v. Payne, 876, 884 Atwood v. Chichester, 769, 771
v. Pearson, 42 , 94, 533 , 534 , Auby v. Doyl, 140
535 , 638, 662 , 847 Austen v. Taylor, 109 , 112 , 122 , 209
v. Persse , 880 Austen's Settlement, re, 662 , 1030
v. Poole (Borough of) , 31 Austin v. Austin , 757
v. Poulden , 91 , 92 , 145 v. Martin , 468
v . Pretyman , 935 Australian , & c. Company .
v. Price, 842 , 843 Mounsey, 595
v. Randall, 265, 295 Aveline v. Melhuish, 925
v. Rigby, 936 Aveling v. Knipe, 163 , 164
v. Rochester (Corporation Averall v. Wade, 49, 718 , 719
of) , 530, 534 Avery v. Griffin , 33
v. Rochester ( Mayor of) , 546 v. Osborne , 993
v. Rutter, 87 Avison v. Holmes, 102, 805
v. St. Cross Hospital , 529 Awdley v. Awdley, 15 , 966 , 968
v. St. John's Hospital, 31 , Ayles v. Cox, 1025 , 1032 , 1038
543 , 544 Ayles' Trust, re, 95
v. St. John's Hospital , Bath, 42 Ayliffe v. Murray, 487 , 627 , 631
v. Sands , 2 , 45 , 84, 94 , 282 , Aylwin v. Bray, 924
817 , 818 , 820 , 821 , 822 , 826 Aylwin's Trusts , re, 101
v. Scott, 19, 52 , 86 , 209 , 257,
258 , 600, 733 , 736 , 923 BABER'S Trust , re , 513
v. Shearman , 259 Babington's Case, 817
v. Sherborne School, 530 Bache's Trust , re, 1030
v. Shore, 847 Back v. Andrews , 172 , 177
v. Shrewsbury (Corpora v. Gooch, 512 , 513
tion of) , 20 Backhouse v. Backhouse , 833
v. Sidney Sussex College , v. Middleton, 420, 858
162, 932 Bacon v. Bacon , 249 , 254, 255, 976
v . Smythies , 162 v. Clerk, 414
v. Solly, 342 Bacon v. Proctor, 90
v. Southampton (Guardians Badcock , ex parte, 486 , 490
of Poor of) , 580 re, 965 , 966 , 1012 , 1016
v. South Moulton (Corpo Baddeley v . Baddeley , 68
ration of) , 162 Baden v. Earl of Pembroke , 941
v. South Sea Company, 540 Bage , ex parte, 489, 490
v. Sparks , 161 Baggett v. Meux , 780, 784
v. Stafford (Mayor of) , 31 , 32 , Bagnall v. Carlton, 279, 808
935 Bagot v. Bagot, 188 , 190 , 578
v. Stamford, 536, 848, 930 Bagshaw v. Spencer, 110, 111 , 117 ,
v. Stamford ( Mayor of) , 538, 120 , 210 , 213, 217
543, 544 v. Winter , 742 , 743
v . Stephens , 833 , 835 Bagspoole v . Collins , 76
v. Trinity College, 162 Bagster e . Fackerel , 151
v. Vivian, 531 , 927 Bailey , ex parte, 511
v. Warren , 540, 545 v. Ekins , 462 , 465 , 524
v. Waterford ( Mayor of) , 32 v. Finch, 700
v. Wax Chandlers' Com v. Gould, 290 , 291 , 295 , 992
pany, 162 v. Jackson, 759, 763
v. Webster, 20, 86 v. Richardson , 727
v . Whiteley , 536 Bailey's Trust, re , 813 , 817 , 999
v. Whorwood, 9. 31 Bailey, Maria ( Goods of) , re, 774
v. Wilkinson, 531 , 532 Baillie v. McKewan, 42 , 355, 859
xxi
 TABLE OF ENGLISH CASES .

[The references are to the star paging.]

PAGE PAGE
Baily V.. Ekins, 205 Barff, ex parte, 911 , 912
Bain v . Lescher, 756 Barker, re, 151
Bainbridge v. Lord Ashburton , 228 v. Boucher, 525
Bainbrigge v. Blair, 282, 632 , 847, v. Devonshire (Duke of) , 456
983, 984 v. Greenwood, 210, 211
Baines v. Dixon, 420 v. Lea, 743
Baker, ex parte, 963 v . May , 17
re, 357, 865 , 873 v. Peile , 672
v. Bradley , 781 Barker's Estate, re, 719
v. Carter, 484 , 490 , 494 , 918, 989 Trust , re, 658, 847
v. Gray, 330 Barkley v. Reay (Lord) , 983
v. Hall, 157, 741 Barkworth v. Young, 56
v. Ker , 756 Barling v. Bishopp , 79
v. Lee, 42, 533 Barlow v. Grant, 585
v. Martin, 631 Barnard v. Bagshaw, 253
v. Peck, 495 v. Ford , 739
v. Read, 496 v. Heaton, 373
v. Sebright, 189 v. Hunter, 696, 862
v . Story, 63 v. Proby, 111
v. White, 211 , 212 , 216, 217 Barnardiston v . Soame, 17
Balchen v. Scott, 202, 253 Barnes v . Adey , 41 , 337 , 483 , 663,
Baldock, ex parte, 437 899,900
Baldwin v. Baldwin , 740 v. Crow , 678
v. Banister, 277 v. Grant , 131 , 137
Baler. Coleman, 109 , 111 , 112 , 218 v. Racster, 719
Balfour v. Cooper , 409 , 419 v. Robinson , 744, 749
v. Welland, 454, 455, 458 Barnett v. Blake, 28 , 102
Balgney v. Hamilton , 169 , 892 v. Sheffield, 696
Ball v. Harris , 425, 461 , 462, 477 Barnewall, ex parte, 913 , 918
v. Montgomery, 994 v. Barnewall , 799 , 800 , 815 ,
Ballard v. Marsden , 697 , 700 887, 888, 890
Ballet v. Sprainger , 372 Barnwell, ex parte, 482
Balls v. Strutt , 855 Barrack v. M'Culloch, 77 , 80, 774, 777
Balsh . Hyham , 594, 638 , 643 Barr's Trusts , re, 703
v. Wastall, 10 Barret v. Beckford, 404
Bamford v. Baron, 513 v. Glubb, 234
Banbury v. Briscoe, 192 Barrett v. Buck, 92, 143
Bangley's Trust, re, 1004 v. Hammond, 917
Bank of England v. Lunn, 32 v. Hartley, 628, 631
v . Parsons , 32 v. Wilkins, 215
Bank of Turkey v . Ottoman Barrington v. Hereford, 157
Company, 978 v. Liddell, 93 , 94
Bankart v. Tennant, 716 Barrington's Estate , re, 575
Bankes v. Le Despencer, 121 , 508 , Settlement , re, 618,620
613 , 737 Barrow v. Barrow, 743 , 744 , 954
Banks v. Cartwright , 691 e. Green , 62
ν . Sutton, 733 , 737 , 824 , 940 e. Manning , 920
Bankhead's Trust , re, 243 r. Wadkin , 44, 45 , 96, 282 , 823
Banner . Berridge , 878 Barrow's Case, re, 860
Bannerman , re, 105 Barrs v . Fewke , 148
Barber, ex parte, 225, 228 Barrs-Haden's Settled Estate , re,
re, 740, 1003 556, 622
v . Houston , 869 Barry, ex parte, 243
Barber's Settled Estates , re , 368 , 370 , c. Marriott. 313
420, 695 Bartholomew's Estate, re, 788
Barclay v. Raine, 192 Will, re, 1003
v. Russell, 161 Barthrop v. West, 826
Barden (Goods of) , re, 775 Bartlett v. Bartlett , 244, 702 , 711 , 976
Bardswell v . Bardswell, 131 , 134 v. Green , 115
xxii
 TABLE OF ENGLISH CASES .

[The references are to the star påging. ]

PAGE PAGE
Bartlett v. Pickersgill , 163 , Beale v . Symonds, 249, 283, 823
167, 168 Beales v . Spencer, 757
Bartley . Bartiey, 472, 608 Bean v . Sykes , 745
Barton v . Briscoe, 758 Beanland v . Halliwell , 301
v. Muir, 106 Beard v . Nutthall , 80
Barwell v. Barwell, 276, 495 Beasley v. Magrath, 585
v. Parker, 525, 526, 527 v. Wilkinson, 229
Basingstoke School, re, 1035 Beatson v. Beatson , 73
Baskerville . Baskerville , 111 , 121 Beaty v . Curson, 999, 1003
Basnett v. Moxon, 1027 Beauclerk r . Ashburnham, 328 , 614
Bassett's ( Sir W. ) Case, 150 Beaudry v. Mayor, & c . , of Mon
Bassil v. Lister, 94 treal , 873
Bastard v. Proby, 120 Beaumont v. Beaumont, 982
Batchelor, re, 23 , 701 v. Meredith, 977
Bate v. Hooper, 298 , 335 , 356 , 991 v . Salisbury (Marquis) , 217
v. Scales , 336 Beaumont's Mortgage Trusts ,
Bateman v. Davis , 318 , 918 , 929 re, 433
v . Hotchkin , 90, 93, 189 Trusts , re, 951
v. Margerison, 527 Bea van v. Beavan , 305
Bateman's Trust , re, 821 v. Lord Oxford , 247 , 803 , 808 ,
Bates v. Bates, 103 809
v. Dandy, 748 Beck, re, 571
v. Johnson , 859 Beckett v. Buckley, 813 , 815
Bath (Earl of) v . Abney, 235 v. Cordley , 39
v . Bradford ( Earl of) , 422, 525 , v. Sutton, 1040
527 , 573 , 958 Beckford v. Beckford, 176 , 177
Batson v. Lindegreen , 524 v . Tobin, 410
Batstone v . Salter, 70, 145 , 175 , 178 , v. Wade, 864
179 Beckton v. Barton , 408
Batteley v . Windle, 149 Beddoes v. Pugh, 286, 346
Batten v. Wedgwood Coal and Bedford (Duke of) v . Marquis
Iron Company, 984, 987 of Abercorn, 127
Battersby v . Farrington , 78 Charity, re, 529, 928
Battersby's Trusts , re , 1001 , 1030 v. Leigh, 800
Batteste v. Maunsell, 110 , 151 , 695, v. Woodman, 479
948 Bedson's Trusts , re, 101
Battier, ex parte, 234 Bedwell v. Froome, 170
Baud v. Fardell, 315 , 334 Beech . Keep , 67, 69
Baugh v. Price, 492, 497 v. St. Vincent, 93
v. Reed, 404 Beecher . Major, 163 , 169
Baugham, ex parte, 1001 Beeching v . Morphew, 759
Baxter v. Gray, 590 Beecroft r. Wilkin, 951
v. Pritchard , 512 Beer, re Goods of, 202
Baxter's Will, re, 1022 , 1033 Beere v . Head, 810
Baycott, re, 1029 Befford's Will, re, 1000
Bayden v . Watson, 799, 949 Begbie v . Crook, 199
Bayley, re, 109 Beilby, ex parte, 757, 913 , 915
v. Boulcott, 51 , 53, 67 Belaney v. Belaney , 729
v. Mansell, 849 Belch v. Harvey , 864
v. Powell, 150, 994 Belchier, exparte, 254 , 256 , 264 , 268 .
Bayley's Settlement, re, 387, 388 294, 295 , 435
Baylies v . Baylies , 675 Belke's Charity, re , 852
Baylis v. Dick, 252 Bell v . Bell, 700 , 857 , 858 , 863 , 866
v. Newton , 144, 175 v. Coleman, 403
Bayly . Cumming , 200 , 607 v. Hyde,
Baynard v. Woolley, 357, 910 v. London & North Western
Baynton v. Collins , 751 Railway Company, 701
Beal v. Beal, 411 v. Stocker, 791
Beale v. Beale, 388 v. Sunderland Building Soc . , 728
xxiii
 TABLE OF ENGLISH CASES .

[The references are to the star paging.]

PAGE PAGE
Bell v . Turner, 324 Bernard, ex parte, 1001
Bellamy , re, 746 v. Minshull , 130, 133
v. Burrow, 55 Berney , Davison, 512
Bellamy & Metropolitan Board Berrington v. Evans , 801
of Works , re, 448 , 473 , 474 Berry v. Berry, 211, 219
Bellasis v . Compton, 51. 53 , 54 v. Briant, 138 , 140
v. Uthwatt, 404, 407 v. Gibbons , 449 , 597
Bellis's Trusts , re, 227 v. Usher, 149 , 159
Bellot v. Littler, 503 Berwick (Mayor of) v. Murray , 342
Bellringer v. Blagrave, 425 Bessey . Windham, 512
Beloved Wilkes' Charity , re , 615 , 616 Bestall v. Bunbury, 779, 780
Benbow v. Townsend , 51 , 54, 169 Bethell v . Abraham, 316, 319 , 321 ,
Bence v. Gilpin, 204, 237 501 , 597 , 617, 618
Bendyshe, re, 1002 Betty v . Elliott, 109
Bennett v . Wyndham, 638 v. Humphreys , 695
Bengough v. Walker, 404 Bettyes v. Maynard , 431
Benham v. Keane, 809 , 816 Beulah Park Estate, re, 637
Benn v. Dixon , 298 Bevan v. Habgood, 485
Bennet , ex parte, 104 Bevan's case, 964
v. Bennet , 178 Bevant v. Pope, 221
v. Box , 823 Beynon v. Gollins , 456
v. Davis , 140 , 221 , 242 , 246 , 735 , Bibby v. Thompson , 138
754, 834 Bick v . Motley, 272 , 273, 341 , 912
v. Going, 986 Bickham v. Freeman , 525
v. Mayhew , 893 Bicknell v. Gough, 868
Bennett, ex parte, 484, 485 , 486 , 487 , Biddulph, ex parte, 913
490, 491 , 492 , 493 , 514 v. Biddulph, 941
v. Attkins , 986, 991 v. Williams , 148
v. Bennett , 215 Biel's Estate, re, 644
v. Burgis , 672 Biggleston v. Grubb, 403
v. Colley, 370 , 372 , 379 , 854, Biggs , re, 998
863 , 870, 926 v. Andrews , 949
v. Gaslight & Coke Com v. Peacock, 425
pany, 186, 275 Bignold v . Springfield, 929
v. Honywood, 615 , 843 Bignold's Settlement Trusts , re,
v. Houldsworth , 406 659 , 1028 , 1033
v . Lytton , 359 Bill v. Cureton, 77
v. Powell, 795 , 815 Billingsley v. Mathew, 262
v. Whitehead, 888 Billingsly v. Critchett, 58 6
v. Wyndham, 419 , 420 , 587 , 602 , Billson v. Crofts , 101
616 Bindley v. Mulloney, 75
Bennett's Settlement, re, 55 Binford v. Bawden , 954, 958
Trusts , re, 1000 Bingham v. Clanmorris , 199
Benson v. Benson , 205 , 758, 958, 960 Bingley School, re , 233
v. Whittam, 137 Binion v. Stone , 171
Benthall Kilmorey (Earl of) , 932 Binks v . Rokeby (Lord) , 447 , 453,
Bentham v . Haincourt, 190 456, 457
v. Wiltshire , 466 Birch, re, 357, 923
Bentley v. Craven, 187 , 275 , 277 v. Blagrave , 145 , 176
v . Mackay , 55, 68 v . Cropper, 661
v. Robinson, 911 v. Wade, 131 , 839 , 840
Benton , re, 665, 783 Birchall, re, 191 , 741
Beresford v . Beresford, 903 Birch-Wolfe v. Birch, 189
v. Chambers , 695 Bird , re, 252 , 255
Bergholt, re, 1030 v . Harris , 146
Berkhampstead Free School , v. Johnson , 98
ex parte, 529 , 616 , 929 v. Lockey , 340
Berkley, re, 37 v. Peagrum , 775
Bermingham , re, 881 , 883 v . Maybury , 138
xxiv
 TABLE OF ENGLISH CASES.

[The references are to the star paging.]

PAGE PAGE
Bird's Trusts , re, 1002 Blithman , re, 348
Birkett, re, 106 , 107 , 351 Blockley, re, 588
Birks v . Micklethwait 910 , 991 Blogg v. Johnson, 338
Birls v. Betty , 909 Blomfield v. Eyre, 886
Birmingham Bluecoat School , Bloomar , re, 1026
re, 311 Bloxam v . Favre, 27
School, re, 528 Bloye's Trust , re , 484 , 485 , 486 , 1002 ,
Biron v. Mount, 522 1003
Birt v. Burt, 894 Blue v . Marshall , 590
Biscoe v. Kennedy , 762 Blundell's Trusts , re, 105
v. Perkins , 210 Boardman v . Mosman, 273
Bishop , ex parte, 912 Boddington v. Castelli , 239, 242
v. Bishop , 309 Boddy v. Esdaile , 239 , 241
v. Church, 700 Boden's Trust , re, 1019
v. Colebrook, 745 Bodenham v. Hoskyns , 192 , 483 , 642
v . Talbot, 60, 66 Bold v. Hutchinson, 114
v. Wall, 774 Boldero v. London and West
Bittlestone v. Cooke, 512 minster Discount Company, 510
Blachford , re, 305 , 716 Bolland, ex parte, 141 , 716 , 913
Black v. Creighton , 977 Bolling v. Hobday, 880
Blackburn v. Staples , 113, 118 Bolton v. Bolton , 81 , 82
Blackburne , ex parte, 610 (Duke of) v. Deane, 887, 888
Blackford v. Davis, 634 v. Powell , 867
Blackhall v. Gibson, 695 v. Stannard, 468
Blacklow v. Laws , 430 , 757 v. Williams , 763, 766
Blackston v. Hemsworth Hos Bolton's Will, re, 1001
pital, 539 Bond v. Dickinson , 137
Blackwell v. England, 848 v. Hopkins , 865
Blackwood v. Borrowes , 274, 306, v . McWatty, 905
429 , 915 , 922 , 924 v. Nurse , 16
Blagrave v. Blagrave, 219 Bone v . Cook, 265, 274
Blair v. Bromley, 868 v. Pollard, 164, 165 , 179
v. Ormond , 872 Bonelli's Electric Telegraph
v. Nugent, 876 Company, re, 1001
Blake v. Bunbury, 675 Bonfield v. Hassell, 102
v. Done, 224 Bonham v. Newcomb, 81
v. Foster, 678, 866 Bonifant v. Greenfield, 199 , 200
v . Peters, 367 Bonithorn v. Hockmore , 627 , 628 , 633
Blakeley v. Brady, 70 Bonner v. Bonner, 743
Blakely Ordnance Company , re, 698 Bonney v . Ridgard, 477 , 478 , 480 , 483 ,
Coates's case, re, 806, 809 863 , 864
Blaksley's Trusts , re, 974 Bonser . Bradshaw, 780
Blanchard, re , 853, 1028 , 1033 r. Kinnear, 130 , 840
Blanchard's Estate, re, 1033 Booker v. Allen , 403 , 405
Bland . Bland, 132 , 134 Booth, ex parte, 252
v. Dawes , 756 v. Booth, 201 , 204 , 274 , 910 , 918
v. Wilkins , 157 v. Turle, 54
Blann v. Bell, 299, 300 v. Warrington , 868
Blatch v. Wilder, 140, 524 Bootle . Blundell, 420
Blatchford v . Wooley, 765 , 920 Boreham v. Bignall, 351
Blayney's Trust , re , 1002 Borthwick v. Ransford, 321 , 351
Bleazard v. Whalley, 576 Boschetti r. Power, 978
Blencowe , ex parte, 906 Boson v. Statham, 51 , 54, 59 , 60,
Blennerhassett v. Day, 435 , 868 64, 66
Blewett ". Millett, 183 , 185 Boss v. Goodsall, 317, 614
Bligh v . Darnley, 830 Bostock v. Blakeney, 323, 336,
Blinkhorne r. Feast, 40 504, 574
Bliss v. Bridgwater, 201 v. Floyer , 252, 295, 353
Blithe's case , 33, 599 Bosvil v . Brander, 740
XXV
 TABLE OF ENGLISH CASES .

[The references are to the star paging .]

PAGE PAGE
Boswell v. Coaks , 489 , 490, 496, 870 Bradby v. Whitchurch, 573
Bosworth, re, 446 Brader v. Kerby , 1014
v. Forard , 214 Bradford v. Belfield, 257
Boteler . Allington, 15, 217 v. Brownjohn, 373, 374
Bothomly v. Lord Fairfax , 525 Bradford Banking Company v.
Bott v. Smith, 78 Briggs , 715
Bottle v. Knocker, 74 Bradgate r. Ridlington , 524
Bottomley v. Fairfax (Lord) , 733 Bradish v. Gee, 961 , 962
Boughton v. James , 89, 770 Bradley v. Peixoto , 98
v . Langley, 210 v. Powell, 397
Boulton, ex parte, 709 v. Riches , 714, 715
v. Beard, 347 Bradshaw, ex parte, 1015 , 1021 , 1022
Boulton's Trusts , re, 352, 618 v. Bradshaw, 262
Bourke , re, 1033 v. Fane, 427
Bourne v. Bourne, 951 , 952 Bradwell v. Catchpole, 264, 859
v. Buckton, 92 , 93 Braithwaite, re, 981
v. Mole, 979 Brandlyn v. Ord, 860
Boursot v . Savage , 225, 858 Brandon v . Aston, 103, 589
Bovey v. Smith, 858, 860 r. Robinson, 98,693
Bowden v. Bowden, 299 Brasier v. Hudson , 453
v. Henderson , 348 Brass's Trusts , re, 1022
v. Laing, 139 Brassey v. Chalmers , 427 , 604, 608
Bowes, ex parte, 226, 228 Brathwaite v. Brathwaite, 279
v. East London Water Braund v. Devon ( Earl of) , 932
works' Company , 595, 889, Bray, ex parte, 634
926 v . Laycock, 743
v. Shaftesbury (Earl of) , 946 v. West, 198
v. Strathmore (Earl of) , 576 Braybrook (Lord) v . Inskip , 226,
v . Toronto (City of) , 279 227, 228 , 471
Bowker . Burdekin , 511, 512 Brearcliff Dorrington, 711
Bowles v. Bowles , 390 Breary , re, 648, 659 , 661
v . Rogers , 242 Breedon v. Breedon, 455
v. Stewart, 185 , 186 , 926 Breeds' Will, re, 589, 620
v. Weeks , 850 Brenan v . Boyne, 109
Bown, re, 783 , 784 v. Brenan , 117
Bowra v. Wright, 1026 Brenchley v . Lynn , 774
Bowyer . Griffin , 992 Brent's Trusts , re, 1000
v. Woodman , 743, 955 Brentnall's Trusts , re, 1030
Box, re, 620 Brereton . Hutchinson , 900, 901
v. Box , 745 Brest v. Offley, 130
v. Jackson , 745, 746 Breton's Estate , re, 69
Boxall v. Boxall, 743, 744 Brett v. Greenwell, 743
Boyce, re, 1030 Brettell, ex parte, 227, 228
v. Corbally, 607 Brettle , re, 787
Boyces Minors , re, 310 Brewer v. Pocock, 445
Boycot v. Cotton , 399 . Swirles , 920
Boycott, re, 661 Brewster . Angell, 126, 127, 128
Boyd v. Boyd, 130, 588 Brice . Stokes , 264, 265 , 269 , 270,
Boyd's Settled Estates , re , 311 , 327 273 , 274 , 918 , 922
Trusts, re, 1002 Brickenden v . Williams , 153
Boyes, re, 58, 60 , 62 , 64 Bridge v. Beadon , 709
Boylan . Fay, 581 , 639 v. Bridge, 57, 67, 68 , 69, 72,
Boynton v . Richardson , 993 74, 81
Boys v. Boys , 299 v. Brown, 575 , 585, 634
Brace v. Marlborough (Duch Bridgenorth (Corporation of) v.
ess of) , 246 Collins, 91
Brackenbury v . Brackenbury , 106 Bridger v. Rice , 423
Brackenbury's Trusts , re , 322 , 1029 Bridges v. Longman , 426
Bradburne , re, 1033 Bridgman, re, 658 , 847
xxvi
 TABLE OF ENGLISH CASES .

[The references are to the star paging. ]

PAGE PAGE
Bridgman . Gill, 192 , 333 , 867 Brown v. Adams , 895
Brier , re, 256 , 295, 632 , 634 v. Bamford, 782 , 783
Briggs v . Chamberlain , 955 v. Bigg, 159
v. Jones , 714 r. Brown, 322, 849 , 961
v. Massey , 697,908 v. Collins , 1002
v. Oxford (Earl of) , 90 v . Dawson, 534
v. Penny , 59, 131 , 132 , 133 v. De Tastet, 277, 278 , 630
v. Sharp , 140, 276 v. Gellatly, 303, 304
v. Wilson, 590 v. Groombridge, 643
Bright v. Legerton , 900, 922 v. Higgs , 131 , 160 , 600 , 834 ,
v. North, 580, 638 836, 839 , 840 ,
v. Rowe, 397 842 , 844, 845
Bright's Settlement , re , 703 v. How. 674, 989
Trust, re, 710 v. Jones, 148, 155
Brigstocke v. Brigstocke , 371 , 682 v . Like, 781
Bristed v. Wilkins , 808 v. Litton, 312 , 339 , 340 , 630
Bristol (Countess of) v. Hunger v. Maunsell , 911
ford, 150 v. Morgan , 772
(Mayor, &c . , of) v. Cox, 976 v. Oakshott, 976
Bristow v. Booth, 235 , 1025 v. Pocock, 782 , 839 , 840
v. Pegge, 677 v . Raindle , 221
Brittain v. Overton, 932 v . Sansome, 340, 343
Britten v. Cole, 795 v. Smith, 261, 573
Brittlebank , re, 590, 616 v. Stead, 726
v. Goodwin, 900, 901 v. Whiteway, 216
Britton v. Twining, 110 Brown's Trust, re, 95, 710
Broadhurst v. Balguy, 331 , 922 , 926 Trust Estate , re , 433
Broadmead v . Wood, 387, 388 Will, re, 560, 684
Broadwater Estate, re, 563 Brown & Sibly's Contract, re,
Broadwood's Settled Estates , 227, 229
re , 961 Browne, re, 811
Trust, re, 1007 v. Browne , 370
Brocklesby , re, 1002 v. Cavendish, 516 , 517 , 518 , 797
Brocksopp v. Barnes , 627, 630 , 632 v. Cross , 873, 922
Brodie v. Barry, 776, 982 v. De Laet , 152
v. St. Paul , 985 v. Elton , 740
Bromfield , ex parte, 963 , 964, 965 v . Paull . 138
966, 967, 968 v. Radford , 876, 900
v. Wytherley, 339 v. Savage, 704, 707 , 709
Brome v. Berkley, 414 , 416 v. Southouse, 339 , 340
Brook v. Badley, 951 v. Stoughton, 89.97
v. Brook, 37, 135 Browne's Will, re, 690
(Earl) v . Bulkeley, 858 Brownrigg v. Pike, 775
Brooke v. Brooke, 774 Bruce , re, 588
v . Haynes , 201 , 202 Bruen v. Bruen, 399 , 401
v. Pearson , 104 Bruere . Pemberton, 339
Brooker v. Brooker, 905 Brummell v. Macpherson, 44
Brookman v. Hales , 148 , 181 Brumridge v. Brumridge, 274
v. Rothschild , 187 Brunsden v. Woolredge, 615 , 837,
Brooksbank . Smith , 866 842
Broom v . Summers , 534 Brunskill . Caird, 504
Brophy v. Bellamy, 613, 614 Brunt , re, 1027
Brougham (Lord) v. Poulett Bryan , re, 741
(Lord) , 644 v. Colli ,ns 91
Broughton v. Broughton , 281 , 282 Bryant's Settlement, re , 1000
v. Langley, 209 Brydges v. Brydges , 109, 110
Browell v . Reed , 200 , 441 , 982 , 984 Buchanan v . Hamilton, 846
Brown, ex parte, 929 v. Harrison , 15 , 151 , 824
re, 322 , 637, 1013 Buck v. Shippam , 521 , 522
xxvii
 TABLE OF ENGLISH CASES .

[The references are to the star paging. ]

PAGE PAGE
Buckeridge v. Glasse , 200 , 847, Burn v. Carvalho , 74, 701
892 , 918 , 926 Burnaby v. Equitable Rever
v. Ingram, 371, 372 sionary Interest Society, 39, 117
Buckhurst Peerage , 47 Burnell , ex parte, 486
Buckingham (Earl of) v. Drury, Burney v. Macdonald , 44 , 45 , 63,
39, 938 96, 497
(Earl of) v . Hobart, 731 , 732 Burnham National Schools , re,
Buckle . Mitchell, 76 852, 934
Buckley v. Howell , 432 Burnie v. Getting, 322
v. Lanauze , 181 Burns v. Irving, 807
v. Nesbitt, 446 Burr v. Miller, 63
Buckley's Trust , re , 997 Burrell , re, 830
Trusts , re , 583, 996 v. Egremont (Lord) , 731 , 866
Budge v . Gummow , 294, 324, 325 Burridge v. Row, 911
Bugden v. Bignold , 705 , 719 Burrough v. Moss , 695
v. Tylee , 975 v. Philcox , 839 , 840
Buggins v. Yates , 132 , 134, 147, Burroughs . Elton , 800
149 Burroughs v. M'Creight, 875,880,
Bulbeck v. Silvester, 70 882
Bulkeley v . Eglinton (Earl) , 198 , Burrowes v. Gore, 879,900
1029 v. Lock, 704
Bulkley v. Wilford, 191 v. O'Brien, 900
Bull v. Birkbeck, 379 Burrows v. Greenwood, 989
v. Vardy, 135 v. Walls , 691 , 926
Buller v. Plunkett, 708 Bursill v. Tanner, 772, 788
Bullock v. Knight, 746 Burt, re, 1011 , 1038
v. Menzies , 744 v. Sturt, 93, 94
v. Wheatley, 290 v. Trueman, 457
Bullpin v. Clarke, 761 , 770 Burting v. Stonard , 483
Bulmer v. Hunter, 78 Burton, ex parte, 191 , 910 , 913 , 914
Bunbury v. Bunbury, 49 v. Hastings , 113 , 115
Bund v. Green, 848 v. Hodsoll, 949
Bunnett , re, 620 v. Mount, 299
v. Foster , 149 v . Pierpoint, 754, 834
Bunting, re, 191 v . Wookey, 187, 627
Burbridge, ex parte, 245 Burton's Trust, re, 1029
Burchett v. Durdant, 210 Burtt's Estate , re, 231 , 258 , 608, 609
Burden v. Burden, 628, 630 Bush v . Allen , 213, 215
Burdett v. Willett , 892 Bushnell v. Parsons , 139
Burdick v. Garrick, 342 , 343 , 900, Busk v . Aldam , 688
901 Butcher v. Easto, 511
Burdon v. Burdon , 776 Bute (Marquis of) , re , 367 , 369, 577
v. Kennedy , 796, 802 Bute's Will (Marquis of) , re, 1017
Burge v. Burton , 282 Butler, ex parte, 239
Burges v . Lamb , 502, 949 v . Bray, 261, 611
Burgess v. Wheate , 9, 11 , 12 , 13 , v. Butler, 793 , 908 , 910 , 911
16 , 30 , 44 , 45 , 52 , 84 , 96 , 161 , 234, v. Carter, 877, 900, 901 , 918
235 , 247 , 248 , 249 , 275 , 282 , 283 , v. Cumpston, 643 , 760, 767, 774
284, 692 , 721 , 733 , 736 , 737 , 746 , v. Duncomb, 388 , 415
819 , 822 , 823 , 857 , 858 , 938 , 985 v . Kynnersley, 188
Burgess's Trust, re, 41 , 1030 v. Portarlington , 56
Burgh v. Burgh, 246 Butler's Trust, re , 23 , 745 , 746 , 1004
v . Francis , 245 Will , re, 961
Burke, re, 997 Butler and Baker's Case, 199
v. Gore , 551 , 562 Buttanshaw v. Martin, 383, 686
v. Jones, 519, 520 Buxton , ex parte, 437
v. Tuite , 765 v . Buxton , 288 , 289 , 424
Burlinson v . Hall, 72 , 713 Byam v. Byam, 472 , 608 , 611 , 616
Burmester v . Norris , 595 Byde v. Byde , 401 , 408
xxviii
 TABLE OF ENGLISH CASES .

[ The references are to the star paging.]

PAGE PAGE
Byne v. Blackburn, 138 Carberry v. M'Carthy, 838
Byrchall v . Bradford , 204 , 335 , 902, Carberry & Daly v . Cody, 203
918 Carbis , ex parte , 709 , 710
Byrne . Frere, 866, 869 , 870 Cardigan . Curzon-Howe , 33
v. Norcott, 989 W. R. 836 ; 30 Ch . D. 531 ,
Byron's Charity, r , 312 Cardross's Settlement, re, 37, 38
Bythesea v. Bythesea, 396 Carew v. Johnston , 628
Carey v. Cuthbert, 873, 876 , 884
CABEL, re, 354 Carleton v. Earl of Dorset, 758
Cadburn , re, 990 Carlisle (Corporation of) v . Wil
Cadett v . Earle, 321 son, 886
Cadogan v. Earl of Essex , 328 , 614 Carlon v. Farlar, 806
v. Kennet , 684 Carlyon v. Truscott, 450
Cadwallader, ex parte , 234 Carmichael v . Wilson , 340 , 582, 585
Cafe v. Bent , 300 , 597 , 598 , 618 , 669 Carnac's ( Sir J. R.) Will , re, 566
Caffrey v. Darby, 287 , 634 , 637 , 907 , Carpenter, re, 1011
998 v. Heriot, 497
Cahill v. Cahill, 739 , 785, 786 , 919 v. Marnell, 239, 241 , 242
v. Martin, 739 , 785 , 786 , 919 Carr v. Bedford , 613, 842
Caillaud v . Estwick, 796 v. Ellison , 940, 954
Caine , re, 35 v. Living , 138, 139
Caldecott v. Brown, 574, 575 Carr's Trusts , re, 746, 747
v. Caldecott, 302 , 304, 314 Carrick v . Errington , 148
Caldwell, ex parte, 245 Carroll v . Hargrave , 880, 884, 901
Calisher . Forbes , 708, 709 Carsey v. Barsham , 264
Callan's Estate, re, 104 Carson v . Sloane , 897
Callendar v. Teasdale , 354 Carson's Settlement Trusts , re , 1028
Callow v. Howle, 759, 762 Carter v. Barnardiston, 214, 449
Calmady v. Calmady, 755 v. Carter, 859
Calvin's Case, re, 45 v. Cropley, 87
Cambridge v. Rous , 159, 160 v. Green, 63
Camden v. Anderson, 166 v. Horne, 187, 276 , 280
(Marquis) v . Murray, 613 v. Sebright, 379, 669
Cameron , re, 215 , 581 , 1004 v. Taggart , 743
Camoys (Lord) v . Best , 646, 665 v. Warne, 510
Campbell, re, 1013 Carteret (Lord) v . Paschal, 747
v. Campbell , 402 , 406 , 629 v. Petty, 49
v. Ferrall , 814 Cartwright v. Shepheard, 215
v. Graham , 871 Cartwright's Trust, re, 1033
v. Home , 350, 685, 686 Carver v. Richards , 472
v. Hooper, 26 Carvill . Carvill, 140
v. Walker, 424, 484, 485 , 486 , Carwardine v . Carwardine , 209
488 , 490 , 491 , 492 , Cary v. Askew, 410
493, 495 , 496 , 497 , v. Cary, 130 , 131 , 132
498 Casamajor v. Strode, 949
Campbell's Trust, re, 37 Casborne v. Scarfe, 226 , 228 , 723 ,
Candler v. Tillett , 268 , 271 , 272 , 273 , 733 , 735 , 824
291 Casburne v. Casburne, 10, 737
Candy v. Candy 148 Casey's Trust, re, 104
Caney v. Bond, 290 Castle v. Castle , 139
Cann . Cann , 296, 497 v. Dod, 165
Canning . Hicks , 15 Cater's Trust, re, 358, 359 , 1003
Cant, re, 1037 Cathorpe, ex parte, 312
Cantley, re, 228, 229 Catling . King, 55
Cape v. Cape , 139, 756 Caton v . Rideout, 777
Capel v. Wood , 363 Cator v. Croyden Railway Com
Caplin, re, 839 , 840 pany, 900
Car v. Burlington , 525, 526 v . Earl of Pembroke, 858 , 893
v. Ellison, 235 Cave v. Cave, 862
xxix
 TABLE OF ENGLISH CASES.

[The references are to the star paging.]

PAGE PAGE
Cave v. Roberts , 285 Charlton v. Rendall, 127
Cavendish v. Cavendish, 326, 430 Chase v. Goble, 511
v. Geaves, 698 Chasteauneuf v. Capeyron , 166
v. Mercer, 589 Chawner's Will, re, 426
v. Mundy, 187 Chaytor's Settled Estate Act, re,
Cawkwell, ex parte, 513 556, 557, 563
Cawthorne, re, 1003 Chedworth v. Edwards , 298.
Cazneau's Legacy , re, 1000 892 , 893
Cecil v. Langdon, 617 , 646 , 649 Chell , re, 1013 , 1028 , 1029
Chadwick v. Doleman , 387, 389, 390 Chelmsford ( Poor of) v . Mild
v. Heatley, 358 may, 529
v. Holt, 804 Chennell , re, 327, 328
Chaigneau v. Bryan, 201 Cherry v. Boultbee, 700
Challen v. Shippam , 337 Chertsey Market, re, 274 , 424, 529 ,
Challenger v. Sheppard, 109 855 , 908 , 918 , 923 , 929 , 930
Challis, ex parte, 643 Chester v. Platt, 762 , 763
Chalmer v. Bradley , 251 , 195 , 496 , v. Rolfe, 581
497 , 863 , 870, 957 v. Willes , 730
Chalon v. Webster, 223 Chesterfield ( Earl of) v . Janssen ,
Chaloner v. Butcher, 962 497, 926
Chamberlain v. Agar, 62 Chesterfield's (Earl of) Trusts,
v. Hutchinson , 153 re, 305
.Chamberlaine v. Chamberlaine , 62 Chetham v. Lord Audley , 629
Chambers , ex parte, 585 Chichester v. Bickerstaff, 944 , 945
v. Chambers , 114, 300 v. Coventry, 402, 404 , 407 , 408
v. Crabbe, 925 Child v. Gibson, 340
v. Davidson, 628 r. Stephens , 524
v. Goldwin , 410 , 628, 632 , 633 Childers v. Childers , 51 , 54 , 55 ,
v. Howell , 278, 490 105 , 106, 145
v. Minchin , 252 , 253 , 255, 264, Chion, ex parte, 239 , 892
269, 270, 272 Chippendale, ex parte, 595 , 639 , 643
v. Smith, 100 , 616 Chipping-Sodbury School , re, 931
v. Waters , 485 Chirton's Case, 817
Champion, ex parte, 314 Chitty v. Parker, 149 , 151
v. Rigby , 495 Cholmeley v. Paxton, 432
Champney v. Davy, 107 Cholmondeley v . Cholmondeley , 131
Chancellor, re, 304 (The Marquis of) v. Lord
Chandler, re, 899 Clinton, 723, 724, 725, 865,
v. Pocock, 941 866, 870 , 882
Chandos (Duke of) v . Talbot, 730 Chowne v . Baylis , 28
Chaplin , ex parte, 321 Chrichton's Trusts , re, 348
v. Chaplin , 52 , 106 , 145 , Christian v. Devereux, 884
733 , 736 Christ's Hospital, Governors
v. Horner, 942 , 946 , 958 , 960 of, ex parte, 501
v. Young, 279 re, 541
Chapman v. Biggs , 771 v. Budgin , 144, 177
v. Blissett, 85 , 209 , 210 v. Grainger, 20,851
v . Brown , 106 Christie v. Gosling , 122, 123
v. Derby, 700 v. Ovington, 221
v. Salt , 403 Christophers v . White, 281
Chapman & Barker's Case, 239 Christy v. Courtenay, 79, 170, 171 ,
Chapple, re, 281 174, 175, 176 , 828
Charitable Donations 2'.. Wy Chubb v. Stretch , 768
brants , see Commissioners Chugg v . Chugg, 338, 992
of, & c . Chumley, ex parte, 963
Charity Corporation v. Sutton , Churchill v. Bank of England , 808
252, 627 v. Dibben, 779
Charlemont v. Spencer, 774 v. Lady Hobson, 202, 253, 268, 270
Charlton v . Durham (Earl of) , 481 v. Marks , 101 , 103
XXX
 TABLE OF ENGLISH CASES .

[The references are to the star paging. ]

PAGE PAGE
Churchill v. Small , 421 Clifton v. Lombe, 131
Churchman v. Harvey, 415 Clinton . Willes , 764
Clack v . Carlon , 282 Clissold, re, 41, 1030
v. Holland, 291 , 641 , 696 , 862 , v . Cook, 947
903 Clitheroe Estate, re, 555
Clanricarde (Marquis of) v . Clitheroe's Trust, re, 504
Henning , 864, 922 Clive . Carew, 759 , 768 , 787 , 919 ,
Clapham (Inhabitants of) v . 926
Hewer , 927 v. Clive, 120
Clare v. Clare, 992 Cloud , re, 35
v . Earl of Bedford, 39 Clough v. Bond, 252 , 254 , 290 , 306 ,
v. Wood, 805 314, 907
Clarendon (Earl of) v . Bar v. Clough, 722
ham, 727, 730 v. Dixon, 271 , 297 , 337
Clark , re, 106 Clowdsley v. Pelham , 130
v. Burgh, 746 Clowes , ex parte, 913
v. Clark, 485 , 490 v. Waters , 526, 527
v. Cook, 747 Clulow's Trust . re, 92,93
v. Danver , s 163 , 165 , 177 Clutton , ex parte, 41 , 666 , 1030
v. Fenwick, 355 Coape v. Arnold, 110 , 112 , 119 , 120
v. Hoskins , 668, 900 Cobbe, re, 997
v. Sewell, 406 Cobham v. Dalton , 916
v. Seymour, 430, 594 Cochrane v . Chambers , 80 .
Clarke, re, 323 v. Cochrane, 89,97
v . Callow, 55 v. Robinson, 445
v. Chamberlin, 382 Cock v. Goodfellow, 319 , 513
v. Chambers , 104 Cockburn v. Peel, 309 , 310
v. Franklin, 151 , 738 , 799, 949,952 Cockcroft , re, 943
v. Green, 23 Cockell v. Pugh, 1023
v. Hart, 873 v. Taylor, 696 , 862
v. Ormonde (Earl of) , 448 , 691 Cocker v . Quayle, 688, 907 , 918 , 919
v. Palmer, 714 Cockerell , Alice , ex parte, 35
v . Parker, 607, 646 v. Cholmeley , 432 , 497 , 498 , 926
v . Pistor, 781 Codrington v. Foley, 413, 414
v. Reilly, 678 Coe's Trust, re, 613 , 999
v. Royal Panopticon , 19, 426 Cogan v. Duffield , 743
v. Swaile, 488 , 497 v. Stephens , 152
v. Turner, 844 Cohen v. Waley, 309
Clarke's Charity , re , 929 Coke's case (Sir E. ) , 794, 817
Estate, re, 354 Colchester v. Lowton, 22
Trusts , re, 783, 784 Cole v. Gibson , 497
Clay, ex parte, 1037 v. Hawes, 134
v. Rufford, 425 v. Moore, 857, 858
v. Sharpe, 447 v. Muddle , 696 , 911
v. Willis , 827 v. Wade , 19 , 257 , 600 , 601 , 603 ,
Clay's Settlement, re, 1028 608 , 609 , 666
Clay and Tetley, re. 467, 468 Colebrooke's ( Sir George) case , 488 ,
Claypole (Rector of) , ex parte, 504 498
Clayton v. Glengall (Earl of) , 409 Colegrave v. Manby, 370
Cleary v. Fitzgerald , 141 , 903 Coleman . Overseers of Bir
Clegg v. Edmondson , 170 , 181 , 186 , mingham, 793
872 Coleman's Trust, re, 997
v. Fishwick, 181 Colemere , re, 512
v. Rowland , 368 Coles v. Trecothick, 484, 486 , 487 , 488
Cleland, ex parte, 696 Colgan , re, 587
Clennell v. Lewthwaite , 60 Collard v. Hare, 863
Clerk v. Miller, 759 v. Roe, 687, 1034
Clerkson v. Bowyer, 15 Collett . Dickenson, 772
Clifton v. Goodbun, 95 v. Morrison , 105
xxxi
 TABLE OF ENGLISH CASES .

[The references are to the star paging.]

PAGE PAGE
Collier v. McBean , 110 , 211 , 859 Conybeare's Settlement, ex parte, 41
v. Walters , 110, 214 666 , 1030
Collingwood's Trusts , re , 1011 Conyngham v. Conyngham , 203
v. Row, 952 Cood v. Cood, 48
r. Stanhope , 387 , 388 , 389 , 392 Cook v . Addison , 298
Collins . Carey, 281 v. Arnham , 889
v. Collins , 300 v. Dawson, 426 , 463 , 466 , 467
v. Reece , 522 v. Duckenfield , 146
v. Stimson, 893 v. Fountain , 140
v. Vining, 613, 614 v. Fryer, 205
v. Wakeman, 148 , 149 , 150 , 158 , v. Gregson , 827, 828
159 v. Gwavas, 146
Collinson v. Collinson , 171 , 175 , 1038 v. Harvey , 350
v. Lister, 479, 643 v. Hutchinson , 144 , 147 , 149
v. Patrick, 67, 73 v. Parsons , 573
Collis v. Collis , 306, 979 Cook's Settled Estates , re, 311
Colman v. Sarell , 988 Trusts , re, 619
r. Sarrel, 70, 80, 81 Cooke, ex parte, 104, 240 , 241
Colmore . Tyndall , 217 v. Blake . 216
Colne Valley, Railway, re, 307 v. Cholmondeley, 276
and Halstead Railway v . Crawford, 200 , 229 , 230 , 231 ,
Company, 309 602 , 607
Colombine v . Penhall, 78 v. Dealy, 151
Colonial Bank v. Whinney, 243 v. Stationers' Company , 148,
Colson's Trust , re, 998 154, 157 , 158 , 160
Colston v. Lilley, 447 Cooke's Contract, re, 612
Colt v. Colt, 11 , 733 Cookney v. Anderson , 49
Coltman, re, 333 Cookson v. Cookson, 961
Colwal v. Shadwell, 958 v. Reay, 948, 953
Colyer , re, 671 , 1030 Coombe's Will , re , Mary , 703
Colyer v. Finch, 457, 461 , 462 , Coombes , re, 784
465 , 467 Coombes v. Brookes , 850, 1028
Combe v. Hughes , 93 Coope v. Carter, 905
Combs , re, 853 , 1028 , 1038 Cooper, ex parte, 170 , 176 , 709
Commissioners of Charitable re, 589, 668
Donations v. Archbold , 847 v. Cartwright , 727
v. Wybrants , 462 , 465 , 859 , 877, v. Cooper, 391 , 401 , 403 , 404, 954
879 , 881 , 884 v. Douglas , 581
Compton v. Bedford, 511 , 513 v. Fynmore, 702
v. Collinson , 33, 37 v. Gordon , 535
v. Compton , 800 v. Jarman , 590
(Lord) v. Oxenden, 726, 730 , 943 v. Jones , 1025
Congregational Church, Smeth v. Kynock, 110, 217
wick, re, 258,259 v. Laroche, 98, 786
Coningham v. Mellish, 147, 148 v. Macdonald , 23 , 608 , 735 , 780,
v. Plunkett, 69 784
Conlon v. Moore, 790 v. Prichard , 916
Conolly v. Conolly, 14 v. Thornton , 138 , 688
v. Parsons , 424, 437 v. Wells , 756
Conolon . Leyland, 767 v. Wyatt , 101 , 102
Conry v. Caulfield , 285 Cooper's Legacy, re, 996
Consett v. Bell , 189 , 641 Trust, re, 155 , 157 , 460 , 952
Consolidated Investment Com Cooper and Allen's Contract,
pany (The) v. Riley, 705 re, 430
Constantinople and Alexandria Cooth v. Jackson , 168
Hotel Co. re , Ebbett's case, 39 Copeman v. Gallant, 239 , 241 , 243 .
Consterdine v . Consterdine , 295 , 320 , 244
337, 617 Copinger v. Crehane , 148, 616
Conway v. Conway, 414 Copley v. Copley, 401 , 408
xxxii
 TABLE OF ENGLISH CASES .

[The references are to the star paging.]

PAGE PAGE
Coppard . Allen , 187 , 910 Courtney v. Rumley, 636 , 637
Copper Mining Company . v. Taylor, 205
Beach, 442 Courts of Justice Concentra
Copperthwaite v. Tuite , 759 tion Act , re, 355
Coppin v. Fernyhough, 181 , 184 , Coventry e. Chichester, 407
185 , 186 , 364 , 373 , 374 , 861 v. Coventry , 644, 673
v. Gray, 761 v . Hall , 889
Coppring v . Cooke, 190 (Mayor of) v . Attorney
Corbally v . Grainger, 776, 777 General, 847
Corbet v. Corbet, 131 , 137 Covington's Trust, re , 1003
Corbett v. Barker, 866 Cowan's Estate , re, 815
r. Maidwell , 415 Coward and Adam's Purchase,
Corbishley's Trusts , re, 348 re. 346, 740
Cordal's case , 214 Cowbridge Railway Company,
Corder . Morgan , 447 re, 812 , 814
Cordwell . Mackrill , 860, 861 Cowderey v . Way, 759
Cordwell's Estate, re , 742 , 743 Cowel v. Gatcombe, 252
Cornbury (Lord) v . Middleton, 10 , Cowgill v. Oxmanton (Lord) , 428
692, 720 Cowley v. Hartstonge, 613 , 848 ,
Cornforth v. Pointon, 716 951
Cornish 2'.. Clark, 77 (Earl) v . Wellesley , 371 , 578 ,
r. Mew, 372 682, 683
Cornthwaite v. Frith, 516 (Lord) v . Wellesley, 575
Corre. Corr, 104, 696 , 911 Cowman . Harrison , 134
Corrie v. Byrom 661 Cowper v . Earl Cowper, 824
Corser v. Cartwright, 456 , 461 , r. Mantell, 104, 600
465, 477 v. Scott, 399
Cory v . Eyre, 714 Cowper's (Lady) Case, 755
v. Gerteken, 39 Cox, ex parte, 243
Coryton . Helyar, 7 v. Barnard , 81
Cosser v . Radford, 517, 523 v. Bateman , 167 , 205 , 892
Costabadie v. Costabadie , 614 v . Bockett, 103
Costeker . Horrox, 979 v. Cox . 455 , 460 , 914 , 996
Costello v. O'Rorke , 317 , 318 , 614 , v . Dolman, 880, 882 , 883
616, 948 v. Parker, 12 , 161 , 282 , 823
Cotham v. West, 582 v. Paxton , 898
Cothay v. Sydenham, 345 , 702 Cox's Case (Sir Charles) , 827
Cottam v. Eastern Counti es Coysegame, ex parte, 242
Railway Company, 681 Crabb v. Crabb, 51 , 54
Cotteen v. Missing, 67 , 73 Crabtree, re, 1038
Cotterell . Purchase, 868 v. Bramble, 938, 940, 947,
v. Stratton, 990 961 , 962
Cotterill's Trusts , re, 667 , 1030 Crackelt v. Bethune, 336 , 338 , 341 ,
Cottington v. Fletcher, 56, 105, 989
145 , 146 Craddock v. Piper, 799
Cotton, re, 583 Craddock's Trust, re , 744
v. Clark, 992 Cradock v . Owen, 161 , 285
v. Cotton, 414, 416 . Piper, 282
Cotton's Trustees and School Cragg v. Taylor, 807
Board for London, re, 605 Craig . Wheeler, 299, 300
Cottrell . Cottrell, 447, 566 Craigdallie v . Aikman , 534
Cottrell's Estate , re, 586 Crallan v. Oulton . 520, 521
Couch v. Stratton, 402 Cramer v. Cramer, 1021 , 1042
Coulson's Settlement, re, 260 Cramp v. Playfoot, 106
Trusts , re, 998 Crampton v. Varna Railway
Court . Buckland , 159 Company, 716
v . Jeffery, 481 Cranch v. Cranch, 298
Courtenay . Courtenay, 671 , 672 Crane e. Drake , 478 , 479 , 483
Courthorpe v. Heyman, 10, 692 Cranley v. Dixon, 302
xxxiii
 TABLE OF ENGLISH CASES.

[The references are to the star paging.]

PAGE PAGE
Cranstown v . Johnston , 49 Cruwys v. Colman , 130 , 133 , 840, 842
Craven, ex parte, 504 Cuff v . Hall, 425, 601
v. Brady, 102 Culbertson v. Wood, 586
v. Craddock, 298 , 499 Cull's Trusts , re, 345
Crawford, ex parte, 513 , 1001 Cullen v. Attorney-General , 62
v. Crawford, 863 Culley, ex parte, 234, 245
Crawley v. Crawley, 91 , 92, 298 , 302 Cullingworth v. Loyd, 521
Crawshay v. Collins , 277, 630 Culpepper v. Aston, 146 , 422 , 449 ,
Creagh v. Blood, 14 , 197 450, 451 , 456, 457
r. Murphy, 62 Cuming , re, 1011
Creaton v. Creaton, 211 , 218 Cummins v. Cummins , 203 , 205 , 206 ,
Creed v. Colvile, 10, 826 277
v. Perry, 745 Cunard's Trusts , re, 662 , 667 , 1030
Cresswell , re, 355 Cunliffe v. Brancker, 384
v. Cresswell , 275 v. Cunliffe, 131
v. Dewell, 345 , 900, 918 , 924 Cunningham v. Foot, 140, 879
Creuze v. Hunter, 525 v. Moody, 733 , 824, 939 , 940,
Crewe v. Dicken, 197 , 200 , 257 , 471 , 957, 958
604 , 606 , 608 Cunningham and Bradley's Con
Crickett v. Dolby, 410 tract for Sale to Wilson, 661
Cripps v. Jee, 145 Cunynghame's Settlement, re, 98,
Crisp v. Heath, 797 786
v. Spranger, 191 , 254 , 482 Curling v. May, 947
Crockett v. Crockett, 138 , 139 Curnick v. Tucker, 131 , 192
Croft v. Adam , 835 Currant v. Jago , 177, 178
v. Slee, 149 , 154 Curre v. Bowyer, 799
Crofton v. Ormsby, 858 Currer v. Walkley, 456
Crofts v. Feuge, 515 Currie, re, 1014, 1021
v. Middleton , 761 v. Goold, 349
Croker v. Brady, 166 Currin v. Doyle, 109
Crook v. Hill , 95 Curteis v . Adams , 81
v. Ingoldsby , 656 v. Candler, 350
Crooke v. Brooking, 55, 65 v. Wormald , 152
Crop v. Norton, 55 , 163 , 164 , 181 Curteis's Trust, re, 54, 145
Crosby v. Church, 763 , 768 , 779 Curtin v. Evans , 402 , 403
Crosley v. Sudbury (Archdeacon Curtis, re, 778
of) , 224 v. Curtis , 733, 886, 890
Cross , re, 922 , 923 v. Lukin, 89, 689
v. Cross , 74 v. Price, 217
Cross's Estate , re, 151 v. Rippon, 132, 134
Crosse v. Smith, 257 Curtis's Trust, re, 40 , 1030
Crosskill v. Bower, 281 , 325 Curtois , re, 1000
Crossley ". Crowther, 853 Curton v. Jellicoe, 453
v . Elworthy, 77 , 989 Curzon's Trust, re, 504
Crouch v. Citizens of Worcester, Cusack v. Cusack, 113
543, 545 Cust v. Middleton , 1011
Croughton's Trusts , re , 784 Custance v. Bradshaw, 949
Crowder v. Stewart, 831 , 906 v. Cunningham, 145
Crowe v. Ballard , 484, 495 , 498 Cuthbert v. Baker, 455
v. Crisford , 299 v. Purrier, 348
Crowe's Mortgage , re, 1041 Cutler , re, 742
Trusts , re, 1023 , 1032 Cutterback v . Smith, 525
Crowther v. Bradney, 151 , 152
v . Crowther, 868 , 886 DACK'S Case ( Sir John) , 45 , 820 , 821
Croxton v . May, 743 D'Adhemar (Viscountess) r
Croyden's Trust, 1002, 1003 Bertrand , 647, 656
Crozier v. Crozier, 120 Daking v. Whimper, 76,989
Cruikshank v . Duffin , 427 Dakins v. Berisford , 757
Cruse v. Barley , 148 , 149 , 154 , 158 Dalbiac v. Dalbiac, 776
xxxiv
 TABLE OF ENGLISH CASES .

[The references are to the star paging. ]

PAGE PAGE
Dale, ex parte, 245 Davis v . Chanter, 1027 , 1044
Dale & Co. , ex parte, 242, 895 v. Combermere , 505
Dalgleish's Settlement , re . 1018 , v. Dendy, 632
1028 , 1031 v. Dysart, 192 , 680
D'Almaine r. Anderson, 659 , 660 v. Harford , 606
Dance v. Goldingham, 435, 855 v. Jenkins , 534, 926
Dane, in the matter of, 181 , 878 v. Kirk, 824
D'Angibau , re, 37, 38, 600 v. Prout, 756
Daniel v. Freeman , 702 , 705 v. Spurling, 191 , 252 , 254 , 255 ,
v. Ubley , 34 482
r. Warren , 299, 352 r. Strathmore (Earl of) , 816
Daniels v . Davison , 858 Davis's Trusts, re , 41 , 1012 , 1027, 1044
Darby v. Smith, 245 Davison , re, 909
D'Arcy v. Blake, 733, 737, 890 Davy v . Hooper, 838
Darcy v. Croft, 580, 757 v. Pepys , 794
v. Hall, 276 , 279 v. Seys , 986
Darker . Martyn , 297 , 306 Dawkins v . Penrhyn, 55
v. Williamson, 573 , 640 Dawson , ex parte, 80
Darley v. Darley, 81 , 755 , 756 , 757 re, 637, 642
Darlington , ex parte, 582 v. Clarke , 146 , 148 , 160 , 274, 634
D'Arnay v. Chesneau, 242 v. Dawson, 401 , 403 , 405 , 407
Darwell . Darwell, 268 v. Hearn , 690
Daubeny v. Cockburn, 696 v. Kearton , 81
Daugars v. Rivaz , 529 v. Massey, 339
Davall . New River Company, v. Small, 106 , 107 , 157
163, 282, 823 Day v. Croft, 633, 983
Davenport v. Coltman, 148 , 149 , 151 v. Day, 245
v. Davenport, 120, 507, 508 Day's Trusts , re, 1000
r. Stafford, 336 Dean v. Allen , 445
Davenport's Charity , re, 852 , 1035 v. Bennett, 535
Davers v. Dewes , 159 , 160 Dearle , ex parte, 234, 245
Davey v. Durrant, 431 , 434 , 491 v. Hall, 702
v. Miller, 1015 De Burgh . M'Clintock, 345
r. Ward, 586 , 614 De Bussche v. Alt, 874
David v. Frowd , 359 De Cordova v. De Cordova, 341
Davidson , re, 956 , 961 , 1013 , 1029 Deeth . Hale, 689, 957
v. Chalmers , 244 Deg . Deg, 56 , 167 , 169 , 205, 892
r. Foley, 146 , 155 , 797 De Geer v. Stone, 45
v. Gardner, 760 Degg's Case, 965
Davies, ex parte, 1038 De Hoghton v. Money, 76
re. 1039 Delacour, in goods of, 202 , 223
to Jones , 213, 215 De la Garde v. Lempriere , 741
v. Ashford, 961 De Lancey , re, 941
v. Austen , 585 Delane v. Delane, 170
v. Davies , 113 , 219 , 861 , 1000 Delany v . Delany, 520, 525
v. Goodhew, 947, 948 Delapole v. Delapole, 189
v. Hodgson , 39 , 357 , 787, De la Salle v. Moorat, 425
919, 925 , 926 Delauney v. Barker, 239, 241
v. Huguenin, 386, 387 , 388 , 399 De la Warr's Estates (Earl ) , re , 636
v. Jenkins , 761 , 770, 771 Delevante , re, 905
v . Otty , 54, 82 , 106 , 144, Deloraine (Lord) v . Browne , 865
145 , 348 De Lusi's Trusts , re, 153
v. Thornycroft, 782 De Manneville v . Crompton , 616
r. Wescombe, 433 Dening v. Ware, 70, 81
Davies' Trusts , re , 153 Dennis , re, 618, 1030
Davis, ex parte, 659 v. Badd, 968
r. Angel, 854 Dennis's Trusts , re , 666
r. Ballenden, 769 Denny v. Denny , 409
r. Barrett, 279 , 280, 727 , 730 Dent v. Dent , 574, 575
XXXV
 TABLE OF ENGLISH CASES .

[ The references are to the star paging.]

PAGE PAGE
Denton v. Davis , 56, 896, 902 Dixon v. Morley, 1000
v. Denton , 675, 679 v. Muckleston, 714
v. Donner, 485 , 487 v. Olmius , 62, 756
Denvar . Brooke, 252 v. Saville, 733, 736
De Pereda . De Mancha , 1002 v. Wrench, 807
Deptford (Churchwardens of) Dobson v. Carpenter, 445
v. Sketchley, 532 v. Land, 277, 295, 581
Derbishire . Home , 787,904,919,926 Dobson's Case, 239
Desborough v. Harris , 453 Docker v . Somes, 275 , 276 , 277,
Devaynes v. Robinson , 425 , 457 , 903 , 278 , 279 , 340 , 341
975, 976 Docksey v. Docksey, 147
Devenish v. Baines , 53, 62 Docwra , re, 36, 221
Devey v. Peace, 661 Dod v. Dod , 113
v. Thornton , 347 , 685 , 991 Dodds v. Hills , 859
De Visme , re, 178 2'. Tuke, 987
Devitt v. Faussett , 761 Dodkin v . Brunt, 846 , 1044
v. Kearney. 479 Dodson v. Hay, 118 , 120 , 733 , 734,
Devon v. Watts, 511 , 513 939
Devoy v. Devoy, 176, 179 v. Sammell , 307
Dewar v. Brooke, 252 Doe v. Amey , 804
v. Maitland , 1012 v. Ball, 512
Dewdney, ex parte, 590, 864 v. Barrell, 804
De Witte v. Palin , 585 v . Barthrop , 216
Dibbs v. Goren, 356 v. Bennett, 228
Dicconson v . Talbot, 485 v. Biggs , 212
Dicken, ex parte, 912 v. Bolton, 216
Dickinson, re, 351 , 584 , 1011 v. Cadogan, 219
v. Dickinson , 417 v. Cafe, 109 , 216 , 220
v. Shaw, 172 v. Claridge, 210
v. Teasdale , 879 v. Cockell, 532
Dickinson's Trusts , re, 355, 1029 v. Danvers , 53, 721
Dickonson v . Player, 319 v. Edlin , 210
Dickson , re, 205 , 637, 642 v. Ewart, 214
v. Swansea Vale Railway v. Eyre, 101
Company, 698 v. Field, 210
Dickson's Estate, re, 42 , 355 v. Godwin, 262, 263
Settlement, re, 1021 v. Greenhill, 802
Digby v. Howard, 776 v. Harris, 148 , 197 , 199 , 200 , 203
v. Irvine , 763, 803 , 811 v. Hawkins , 541
v. Legard, 148 , 149 v. Hawthorn , 96
Diker. Ricks , 451 v. Hicks , 217
Dilkes v. Broadmead , 249, 356 v. Hiley , 532
Dillon v. Bone, 69 v. Homfray , 210, 213
v. Coppin, 67, 69 , 81 v. Hughes , 461 , 462 , 465 , 466 ,
v. Plasket, 814 467, 469
v . Reilly, 61, 285 v . Ironmonger, 216
Dillwyn v. Llewelyn, 75 v. Jones , 534, 677
Dimes . Scott, 303 , 334, 908 v. Keen , 886
Dimmock, re, 581 v. Lea, 214
Dimsdale v. Dimsdale , 491 v. Lightfoot , 229
Dines . Scott, 252 , 271 v. M'Kaeg, 534, 677
Dingwell . Askew, 722 v. Munro, 96
Dinwiddie . Bailey , 886 v. Nicholls , 211 , 212 , 216
Dipple v. Corles , 67 v. Norton , 851
Disher . Disher, 942 v . Passingham, 209
Dix v. Burford, 205, 274 v . Phillips , 677
Dixon . Dawson, 151 v. Pott, 677, 722
v. Dixon , 138 777, 902 v. Pratt, 215
v. Gayfere, 876, 955, 961 | v. Price , 250
xxxvi
 TABLE OF ENGLISH CASES .

[ The references are to the star paging.]

PAGE PAGE
Doe v . Rock, 881 Dowling v. Hudson, 456
v. Roe, 601 , 667 v. Maguire, 759 , 762 , 763
v. Rusham , 76 Down v. Worrall, 837
v. Scott, 210 Downe (Viscount) v. Morris , 248 ,
e. Shotter, 215 249, 283
v. Simpson, 213 , 214 , 216 , 220 Downes v. Bullock, 356 , 900 , 926
v . Smyth , 199 v. Grazebrook, 423 , 484, 487 , 488
r. Sotheron, 214 Downham v. Matthews , 699
v. Spencer, 427 Downing v. Townsend, 81
v. Stace, 477 Dowse, re, 406
v. Staple, 677, 678 Dowtie's Case, 819
v. Sybourn , 678 Doyle v. Blake, 196 , 203 , 251 , 254,
v. Terry, 532 268 , 269 , 270 , 271 , 272 , 348
v. Thompson, 721 Doyley v. Attorney-General , 257,608 ,
v. Underdown, 159 835, 837, 840
v. Willan, 217 Doyly v. Sherratt, 258
v. Woodhouse, 213 Drak e, re, 637, 642
v . Wroot, 678 v. Pywall , 16
D'Oechsner v . Scott, 781 v. Trefusis , 504
Dolan v. Macdermot , 20 ". Whitmore , 426
Dolder v. Bank of England , 977 Drakeford r . Wilks , 62
Dollond v . Johnson , 829, 831 Drakeley's Trust, re , 92
Dolman v. Pritman , 525 Drant v. Vause, 952
Dolten v. Hewen, 456 Draper's Settlement, re, 1009 , 1031
v. Young, 465 Drayson v. Pocock, 422, 472
Dommett v. Bedford, 102 Drever v. Mawdesley, 523
Domvile v. Winnington, 389, 393 Drew v. Martin , 177
Donaldson v. Donaldson , 67 , 73 , 74 , v. Maslen , 110
504, 701 Drewe's Settlement Trusts , re , 662
Doncaster v. Doncaster, 122 Drewery's Trust , re , 997
Donisthorpe , re, 1030 Dring v. Greetham, 590
v. Porter, 730 Drinkwater r. Combe, 731
Donne v. Hart , 24, 746 Driver's Settlement, re, 1018 , 1028 ,
Donnelly v. Foss , 739 1031
Donohoe v . Conrahy, 57 Drohan v. Drohan , 479, 595
Doodson v. Turner, 917 , 918 Drosier v . Brereton , 68 , 274 , 325 , 330
Doolan v. Blake , 781 Druce's Trusts , re, 1029
Doran e . Wiltshire, 455 , 457 Drummond v . Drummond, 48
Dorchester (Lord) v . Earl of v . St. Albans (Duke of) , 889
Effingham, 295 v. Tracy, 33 , 34, 799 , 805
Dorin v. Dorin, 95 Drury . Scott, 775
Dormer v. Fortescue , 886 , 888 , 889 , Duberly v . Day, 24, 746
890, 891 Dubless v . Flint, 976, 977 , 978
Dormer's Case, 963, 965 Dublin and Rathcoole Railway
Dornford v . Dornford , 338 , 343 , 907 , Company, re, 695, 698
912 Dubois , ex parte, 234
Dorrian v. Gilmore, 105 Dubost, ex parte , 68
Doughty v. Bull , 947 Duce's Trusts , re , 1029
Douglas , re, 14 , 824 Duckett v. Thompson, 126
v. Allen , 519 Dudley (Lord) v. Lady Dudley, 940
v. Andrews, 586 v. Tanner, 745 , 779
v. Archbutt, 280, 281 , 631 Dudson's Contract, re, 382 , 682
v. Browne , 252 Dues v. Smith, 348
v. Congreve , 303 Dufaur v . Professional Life As
Dove . Everard, 198 , 203 surance Company, 701
Dovenby Hospital, re, 930 Duffy's Trust, re, 743
Dover, ex parte, 204 Dugale v. Lovering, 669
Dowley v . Winfield, 1 348 Dugdale v. Meadows , 441
Dowling v. Belton, 968 Du Hourmelin v. Sheldon, 45, 950
Xxxvii
 TABLE OF ENGLISH CASES.

[The references are to the star paging. ]

PAGE PAGE
Duke v . Doidge, 386, 387 , 392 Earlom v. Saunders , 938 , 940 , 947,
Dumas, ex parte, 239 , 240 , 241 , 242 , 948 , 954
895 East , re, 658, 659 , 1033
Dummer 27. Corporation of v. Ryal, 543 , 991
Chippenham , 31 East Greenstead's Case , 859
. Pitcher, 174 , 177, 179 East India Company v. Hench
Dummer's Will, re, 504 man, 187
Dumoncel v. Dumoncel , 44, 45, 96 , Eastern Counties Railway Com
733 pany . Hawkes , 500
Dunbar v. Tredennick , 491 , 494 , 497 , Eaton . Smith , 604
498 , 858 v. Watts , 134, 135
Duncan v. Bluett, 119 Eaves v . Hickson , 252 , 353 , 357,
v. Cashin , 224 358, 926
v. Chamberlayne, 709 Ebrand v . Dancer, 163, 177
Dunch v . Kent, 276 , 449 , 456 , 457, Ecclesall, re Overseers of, 930
522 Eckhardt v. Wilson, 511 , 513
Duncombe r. Greenacre , 741 , 743 , Eddleston v . Collins , 37
748 Eddowes , re, 600, 613 , 839
(No. 2) , 743 v. Eddowes , 994
v. Mayer , 679 Ede v. Knowles, 79
v. Nelson , 581 Eden . Foster , 528, 529, 535
Dundas v. Blake, 879 Edenborough v. Archbishop of
r. Dutens , 80, 796 Canterbury , 86, 87 , 88, 923 , 987
Dundee (The Magistrates of) v. Edgeworth v. Edgeworth , 399
Morris , 107 v. Johnson , 406
Dunkley v. Dunkley, 743 Edinburgh (Lord Provost , &c . ,
Dunlop , re, 720 of) v. Lord Advocate, 277,
Dunman, ex parte, 434 849, 896
Dunn v. Flood, 423 , 435 , 436 Edmonds v. Dennington, 758
v. Snowden , 348 v. Peake , 448
Dunn's Settled Estate , re, 577 Edmunds v. Low, 407
Dunnage v. White, 148 Edwards r. Champion , 695
Dunne (Assignees of) v . Hiber v. Edmunds , 290, 425
nian Joint Stock Company , 710 v. Fashion, 164
Dunne v. Doran, 900 , 901 v. Freeman , 17
v. Dunne, 504, 575 v. Graves, 16
Dunne's Trusts , re , 1001 v. Grove, 582, 835
Dunnell's Trusts , re, 782 v. Harvey, 432,985
Dunnill's Trusts , re, 126 v. Jones, 60, 70, 74
Dunster v. Glengall, 705 v. Lewis , 182 , 183
Dunster's Trusts , re, 999 v. Lowndes , 16
Durand's Trusts , re , 707, 709 v. Morgan, 889, 891
Durham v. Crackles , 749 , 750 v. Pike, 66
(Earl of) v . Wharton, 406 r. Tuck, 92 , 93 , 951
Durour v . Motteux , 159, 160 v. Warden , 49
Durrant v. Ricketts , 771 e . Warwick (Countess of) ,
and Stoner, re, 748 942, 947, 960 , 962
Dutton v. Morrison , 510, 511 , 512 v. West, 952
v. Thompson, 989,990 Edwards's Estate , re, 998
Dye v. Dye , 57, 780 Egbert v. Butter, 273 , 291 , 911
Dyer v. Dyer, 163 , 170 , 173 , 174 , Egerton v. Brownlow (Lord) , 111
175 , 177 , 968 , 969 Eglin v. Sanderson , 993
Eidsforthe . Armstead , 461 , 467 , 468
EADE v. Eade, 130 , 132 , 134 Eisdell v . Hammersley , 668
Eager v . Barnes , 902 Eland v. Eland , 456, 457, 458 , 465,
v. Furnivall , 734 479, 481
Eales v . England, 130, 132 Elborne . Goode, 91.92
Earle and Webster's Contract , Elder v. Maclean, 710 , 711
re, 626 Eldridge v. Knott, 869, 870
Xxxviii
 TABLE OF ENGLISH CASES.

[The references are to the star paging.]

PAGE PAGE
Elgar, re, 1002 Erskine's Trust, re, 1002
Elibank (Lady) v . Montolieu , 741 Essery v . Cowlard, 360
Ellerthorpe , re, 1015 Estwick v. Caillaud , 510, 511. 513 ,
Ellice, ex parte, 312 518 , 795
Elliot . Brown, 165 Etchells v . Williamson , 675, 685
v. Edwards , 858 Etherington v . Wilson , 87.539
v. Elliot, 144 , 170 , 173 , Etty v. Bridges . 706 , 707 , 712. 974
175 , 176 Evan v. Corporation of Avon, 22. 31
r. Merriman, 870 Evans, ex parte, 813 , 815
v . Merryman, 455 , 457, 462 , re, 615 , 620 , 990
465, 478 v. Bagwell, 516 , 518
Elliott v. Ince, 26 v. Ball, 947, 948
Elliott's Trusts , re, 1003 v: Bear, 296 , 917
Ellis , ex parte, 239 v. Bicknell, 679 , 919
v. Atkinson , 781 v. Brown, 248. 249
v. Barker, 606 v . Coventry, 982
r. Eden, 321 v. Evans , 339
r. Ellis , 134 v. Hellier, 90, 92, 93
v. Maxwell , 94 v. Jackson , 425 , 595
v. Nimmo, 81 , 82 v. John , 204
v. Selby , 148 v . Tweedy, 521
Ellis's Settlement, re, 1022 , 1023 r. Williams , 831
Trust , re, 783 Evans's Trusts , re , 1004
Ellison v. Airey, 631 Evelyn v . Evelyn, 399, 409 , 410 ,
v. Cookson, 403 , 404 420
v. Ellison , 67, 70 , 72 , 75 v . Templar, 76, 80, 81 , 82
v. Elwin, 740 Everett, re, 998
v. Thomas , 388 v. Prythergch, 856 , 983
Ellison's Trust , re, 198 , 199 , Everingham r . Ivatt, 236, 248
662, 1029 Evroy v. Nicholas , 39
Elliston , ex parte, 243 Ewer v . Corbet, 477, 478 , 479, 481
Elmore's Trusts , re, 299 Exel . Wallace, 111
Elmsley . Young, 844 Exhall Coal Company, re, 639 , 640 ,
Elsee, ex parte, 634 643
Elsey v. Cox, 989 Exmouth (Viscount) , re , 124
v . Lutyens , 985 Eykyn's Trusts , re , 172. 178
Eltham (Inhabitants of) v. Eyre, re. 607, 610
Warreyn , 161 , 543 v. Dolphin, 181 , 183 , 185
Elton v. Elton (No. 2) , 130 v. Marsden, 92 , 93 , 149
v. Harrison, 465 v. Shaftesbury (Countess
Emblyn v . Freeman, 148 of) , 261 , 262 , 611
Emelie r. Emelie, 307 Eyre's Case, 958
Emery v. England, 388 Eyston, ex parte, 102
Emery's Trusts, re, 346 , 740 , 757
Emma Silver Mining Company FAGG'S Trust , re, 663, 1003
v. Grant, 279 , 916 Fain . Ayers , 192
v. Lewis , 279 Fairer v. Park, 407
Emmet . Clarke, 660, 1029 Falkland ( Lord) v . Bertie, 886
Emmet's Estate , re , 340, 343 Falkner . Equitable Rever
Emperor v . Rolfe , 396 sionary Society, 436
Emuss . Smith, 952 . Lord Wynford, 838
England (Mary) , re, 585 Fane . Fane , 54
v. Downs , 207, 758 Farhall . Farhall, 238
v. Tredegar (Lord) , 359, 999 Farington . Parker, 760
Entwistle . Markland, 301 Farley v. Bonham , 738
Equitable Reversionary Inter Farmer . Dean, 490
est Society v . Fuller, 307 , 309 Farr v . Hennis , 137
Ernest v . Croysdill , 862 , 867, 894 . r. Newman, 224, 225 , 239 , 244
897, 900 Farrant v. Blanchford, 922 , 925 , 926
xxxix
 TABLE OF ENGLISH CASES.

[The references are to the star paging.]

PAGE PAGE
Farrant's Trust, re, 1031 Field's Mortgage, 229
Farrar v. Barraclough , 331 Trusts , re, 1004
v. Winterton , 799 Fielden v . Ashworth, 844
Farrell v . Smith, 359 Finch v. Finch, 163 , 170 , 171 , 176 ,
Farrer v. Barker , 391 , 397 177, 402
v . Lacy Hartland & Com v. Hollingsworth , 839, 840
pany, 437 v. Pescott, 637
Farrington v. Knightly, 16 v. Winchelsea ( Earl of) , 81 , 140 ,
Farrow v. Austin , 990 245 , 246
v. Smith, 756 Finch's Case ( Sir Moyle) , 8, 14, 15 ,
Faulder, re, 1011 51, 250
Faulkner v . Daniel, 731 Finden v. Stephens , 641
v. Elger, 88 Finlay v. Howard, 846
Fausset v. Carpenter, 103 , 226 , 242 Finney's Estate , re, 228, 229
Fawcet v. Lowther, 824 Firmin v. Pulham, 685, 686
Fawcett v. Whitehouse , 187 Fish v. Klein , 40
Fazakerley v . Culshaw, 577 Fishbourne , re, 474
Fearns . Young, 298, 636 Fisher and Haslett, re , 215 , 467 , 607
Fearnside . Flint, 885 Fisher . Brierley, 96
Fearnside's Case, 239 Fisher's Will, re, 1031
Fearon v . Webb , 20, 86, 87 Fisk v. Attorney-General, 106 , 107 ,
Featherstonhaugh v. Fenwick, 181 , 157, 161
183 Fitch v. Weber, 148, 150
Fell v. Lutwidge, 989 Fitzgerald , re, 672
Fells, re, 225 v. Chapman, 346, 740
Fellows v. Mitchell , 264 , 265, v. Field , 397
298, 477 , 918 v . Fitzgerald, 318 , 327 , 748 , 991
Fellows's Settlement, re, 1033 , v. Jervoise, 424, 938,949
1037 , 1038 v. Lonergan, 446
Feltham's Trusts , re, 1003 v . O'Flaherty, 991
Fenwick v. Greenwell, 201 , 274, v. Pringle, 319 , 992
838 , 903 Fitzgibbon v. Blake, 761 , 787
v. Laycock, 225 v. Pike, 755, 774
Feoffees of Heriot's Hospital Fitzpatrick v. Waring, 595
v. Ross , 634, 641 Fitzroy v. Howard, 364
Fergus (Executors of) v. Gore 520 Flack's Will, re, 1000
Ferguson v. Ferguson , 917 Flanagan v. Flanagan, 151
v. Gibson, 830 v. Nolan, 344, 991 , 993
v. Tadman, 141 Flanders v. Clark, 611 , 835
Fernie v. Maguire , 293, 294 Fleeming v. Howden, 242
Ferraby v. Hobson , 542 , 543 , 595 Fleetwood, re , 58 , 59 , 60 , 66 , 105 ,
Ferrars v. Cherry, 858, 859 131
Ferrier v. Ferrier, 448 , 473 , 483 Fleming v. Armstrong, 785
Festing v . Allen, 384 Flemming v. Page, 858
v. Taylor, 105 Fletcher, ex parte, 1004
Fetherstone v . West, 910 v. Ashburner, 150, 151 , 939, 957
Fettiplace v. Gorges , 774 v. Chapman , 152
Fidgeon v. Sharp , 513 v. Fletcher , 67, 75 , 80 , 81 , 853
Field, ex parte, 972 v. Green, 325 , 340, 908 , 910 , 919
v. Brown, 969 v. Robinson, 940
v. Donoughmore , 347 , 522 , 523 , v. Stevenson, 302 , 359, 445
685 v. Walker, 296
v. Evans, 781 Flint v . Warren, 151
v. Lonsdale , 82 Flitcroft , re, 237, 1025
v. Moore , 780 Flitcroft's Case, re, 901
v . Peckett (No. 1 ) , 150, 159 Flockton v. Bunning , 277, 278
(No. 2 ) , 288 Flood's Trusts , re, 785
(No. 3) , 581 Flower . Buller, 771
v. Sowle, 761 , 763 , 770 ! v. Sadler, 898
xl
 TABLE OF ENGLISH CASES.

[The references are to the star paging . ]

PAGE
Flower and Metropolitan Board Foster . Deacon, PAGE
of Works , re, 264 , 292 , 448 , 141
v. Elsley, 641
473 , 474 v . Foster ,
Floyer v. Bankes , 151 , 339
Fluid v . Fluid , 97, 574 v. Handley, 830
311 v. Park er, 1026
Foden v. Finney , 742 Fothergill v. Fothergill , 81
Foley , ex parte, 1020
v. Burnell, v. Kendrick , 797
116, 123 , 224, 247 , Fountaine v. Carmarthen Rail
853 way Company, 698
v. Hill, 864, 865 v . Pellet ,
v. Parry , 131 Fourdin v. Gowdey , 638, 683
v. Wontner, 262 , 431 , 534, 600, 45
Fowke v. Draycott , 35
667 Fowkes v. Pascoe , 145 , 146, 147,
Foligno's Mortgage, re, 346, 358, 1003
Follett v . Tyrer , Fowler, re , 177, 402
735 238
Foly's Case , 524, 525 , 830 v. Churchill,
Foone v. Blount, 807
938, 941 v . Fowler, 106 , 776 , 777
Foord , ex parte , 511
Foot v. Cunningham , v. Garlike , 148
140 v. Reynal , 326
Footner v . Sturgis , 806
Forbes v. Adams , v. Wyatt , 358
955 Fowsler , ex parte , 936
v. Ball , 131 , 842 Fox v. Buckle y,
v. Moffatt , 911
726, 727, 730 v. Chester ( Bishop of) ,
v. Peacock, 453 , 456, 457, 458, 104
459, 460 , 461 , 462 , 466 , 476 , 481 v. Dolby, 290
v. Ross , v. Fisher , 244
316 , 338 , 340 , 344 v. Fox, 134, 137, 174, 179
v. Stevens , 949
Ford, ex parte, v. Hawks , 69
244 v. Mackreth , 484, 494, 498
v. Hopkins , 893 Foxley, ex parte,
v. Ryan, 511
293, 455 , 476 Foxton v . Manchester, & c .
v. White, 696 Bank ing Company,
& Hill , re, 483 , 863
459 Foy's Trusts, re, 260, 311
Ford's Charity , re, 933 Fozard's Trust, re,
Forder v. Wade , Andrews , 1002
Fordham v. Speight , 733 Fozie r v. 993
131 France v . Clark , 859
v. Wallis, 356 v. Woods,
Fordyce v. Bridges, 295
608, 837 Francis v. Francis , 325 , 651
v. Willis , 22, 51 , 52 , 54 v. Grover,
Forrest v. Elwes , 879
628 v . Wigzell ,
Forshaw v. Higginson , 440 , 573 , 591 , Franco v. Franco , 763 , 770
594, 671 , 672 274, 746
Franklin v. Frith, 314, 338 , 339, 989,
Forshaw v . Welsby, 75
Forster v. Abraham , 41 , 663 , 665, 666 994
v. Davies , v. Green, 589
849 Franklyn , ex parte ,
v. Hale, 53, 55, 56 , 57 312 , 313
Franks v. Bollans ,
v . Ridley, 630 750, 955
Forster's Estate , re, v. Price , 122
Fortescue v . Barnett, 421 Fraser M. (goods of) , re, 774
70, 71 Fraser v. Murdoch , 257, 326, 642.
Forth v. Norfolk ( Duke of) 797 ,
, 643
Fortune's Trusts , re , 358, 996 798, 802 v. Palmer, 281
, 999 , Freake v. Cranefeldt , 521
1003 Frederick . Aynscombe , 941
Fosbrooke v. Balguy, 180 , 186 , 276 Freeland v. Pearson ,
Foss . Foss , 447, 840
777 Freeman v. Cox, 978.979
Foster v. Blackstone , 702 , 705 , 706 ,
v. Fairlie , 629, 691 , 976, 980
709, 797 v. Lomas , 700, 701
v. Cockerell , 706
v. Crabb, v. Pope, 79
679 v . Tatham , 56
v. Dawber, 198, 199 v . Taylor, 797
xli
 TABLE OF ENGLISH CASES .

[The references are to the star paging. ]

PAGE PAGE
Freeman v. Whitbread, 323 Gardiner's Trusts , re, 956
Freemantle v. Bankes , 405 Gardner , re, 450
Freke . Lord Carbery, 94 v. Barber , 139
Fremington School , re, 929 y. Cowles , 1012, 1042
Fremoult v . Dedire , 140, 524 v. Gardner, 778
French, ex parte, 328, 329 v. London, Chatham and
v. Baron , 628 Dover Railway Com
v . Davidson, 613 , 616 pany, 812
v. French, 77, 78 v. Marshall , 743
v. Hobson , 924 v. Rowe, 55.56
French's Trusts , re, 618 , 619 Gardner's Trusts , re , 1016, 1029
Freshfield's Trusts , re, 703 Garfoot v. Garfoot, 140
Friendly Society, ex parte, 931 Garland , ex parte, 238, 639
Frith v. Cartland , 242 , 285 , 892 , 893 , v . Beverley , 824
894, 895 v. Mead, 238
v. Lewis , 354 Garmstone v. Gaunt, 420
Frith & Osborne, re , 427 Garner . Hannyngton , 679
Frodsham v. Frodsham , 1034 r. Moore, 598
Fromow's Estate, re, 309 Garnett , re, 350
Frost's Settlement, re, 1029 r. Armstrong, 727
Fry v . Fry, 295 , 424, 580 Orme's Contract , re , 130 , 355 ,
v. Noble, 738 434, 552, 553, 558
r. Tapson , 324, 325 , 435 , 499 Garnier , re, 999
Fryer, re, 256 , 264 , 265 , 269, 448, 905 Garrard v . Dinorben , 81
Fryer's Settlement, re, 311 v. Lauderdale , 67, 69, 81 , 516,
Fuggle . Bland, 813 517, 518
Fulham, re, 1038 v . Tuck, 677, 881
r. Jones , 941 Garratt v. Cullum , 241
Fuller . Knight, 328 , 423 , 911 v. Lancefield , 445
v . Lance, 514 Garrett . Noble, 424
v. Redman , 590, 831 v. Wilkinson , 179
Fulton v . Gilmour, 358 Garrick v . Taylor , 163, 169
Fursaker . Robinson, 80 Garth v. Baldwin, 109 , 110, 210
Fussell v. Dowding, 740 v. Cotton , 121 , 188 , 189 ,
Fust, ex parte, 312 383, 886
Futcher . Futcher, 55 Garthshore v. Chalie, 581
Futter v. Jackson, 979 Gartside's Estate, re, 1027
Futvoye . Kennard , 1033 Garty's Settlement , re, 853. 1028
Fyler v. Fyler, 191 , 192 , 337 , 642 , Gascoigne v. Thwing, 167, 168
907, 918 Gaskell r. Gaskell, 82
v. Harman , 938
GABB . Prendergast, 95 v. Holmes , 352
Gabbett v. Lawder, 186 Gass, ex parte, 511 , 513
Gadd, re, 617, 669 Gaston v. Frankum, 760
Gaffee, re, 758 Gaunt . Taylor, 831
Galavan v. Dunne , 151 Gayner's Case, 511
Galbraith , re, 504 Geary v. Bearcroft, 52 , 221 , 677
Gale, re, 357 Geaves, ex parte, 207, 243, 245 ,
". Pitt, 336 306, 913
v. Williamson, 78 v. Strahan , 207
Gallagher v . Ferris , 581, 639 Gee v. Liddell, 68
v. Nugent, 771 Gennys , ex parte, 239, 242
Gallard v. Hawkins , 248, 285 Gent v. Harris , 743
Galliers v. Moss , 228 v. Harrison, 187, 188 , 189 , 578
Games, ex parte, 78 Geo. III. 52 , c. 101 , In the
Gannon . White, 72 matter of, 849
Gardiner v. Downes, 350 , 671 , 672 In the goods of his late
v. Fell, 55, 885, 887 Majesty, 22
v. Gardiner, 76 George, re, 583
xlii
 TABLE OF ENGLISH CASES.

[The references are to the star paging.]

PAGE PAGE
George v. Bank of England, 54 Glendenning , re, 1003
v. George, 574 Glengal (Earl of) v . Barnard , 405
v. Howard, 145 Glenny v. Hartley , re , 664
v. Milbanke , 77 Glenorchy (Lord) v. Bosville , 109 ,
Gethin , re, 809 , 1001 111 , 119
Ghost v. Waller, 252, 475 Gloucester (Corporation of) v.
Ghost's Trusts , re, 359 Wood, 133, 148
Giacometti v. Prodgers , 744 Gloucestershire Banking Com
Gibbins v. Taylor, 297, 907 pany . Phillipps , 759, 771
Gibbins's Trusts , re, 1029 Glover v. Barlow , 969
Gibbons v. Baddall, 858 v. Monckton, 213 , 218
Gibbs v. Glamis , 516 v. Strothoff 50
v. Guild, 865 , 868, 869 Glynn v. Locke, 292, 455
v. Herring , 270 Gobe v. The Earl of Carlisle , 15
v. Ougier, 149 Goddard v. Macaulay, 1010
v. Rumsey , 148 , 149 , 159 Goddard's Trusts , re, 396
Gibert v . Gonard , 241 , 894 Godden v. Crowhurst, 101
Gibson v. Bott, 302 , 304 Godfray v. Godfray, 50
v. Gibson, 737 Godfrey, re, 325, 500
v. Jeyes, 484, 485 , 487 , 488 v. Dixon, 96
v. Montford (Lord) , 213 v . Furzo , 239
v. Overbury, 244 v . Tucker, 814, 815
v . Rogers , 721 v. Watson, 633, 634
v. Winter, 234 Godfrey's Trust, re, 998 , 1018
Giddings v. Giddings , 181 , 183 , 184 , Godfrey and Dixon's Case, 44
185 , 186 , 374 Godolphin v. Godolphin , 33, 599 ,
Giffard v . Hort, 866 600
Gifford v. Manley, 205 Godsall v. Webb , 73
Gilbert v. Bennett , 138 Godwin v. Winsmore, 733
v. Lewis , 756 Goffe v. Whalley , 827
v. Overton, 73, 74 Gokuldoss Gopaldoss v. Ram
v. Price, 341 bux Seochand, 726, 729
Gilbertson, v . Gilbertson , 644 Golden v. Gillam, 78
Gilchrist v. Cator, 743 Golding v. Yapp, 61
Giles v. Dyson , 633 Goldney v. Bower, 681
Gill, ex parte, 35 Goldsmith v. Russell, 989
in goods of, 223 Gomley v. Wood, 630
re, 1016 Goodchild v. Dougal , 35
v. Attorney-General, 271 Goode v. West, 999
Gillespie v. Alexander 359 Goodenough v. Goodenough, 890
Gillett v. Peppercorn , 187 v. Tremamondo , 299
Gillett's Trusts , re , 1044 Goodere v. Lloyd , 148
Gillibrand v. Goold, 418 Good Intent Benefit Society, re, 1029
Gillies v . Longlands , 957 , 961 Goodrick v. Brown, 694
Gilliland . Crawford, 573, 574, 575 Goodricke v. Taylor , 515
Gillman's Trusts , re, 1000 Goodright v. Hodges , 53 , 163 , 165 ,
Gilroy . Stephens , 342 168 , 169 , 170
Giraud, re, 1030 , 1031 v. Opie, 158
Girling v . Lee, 525 v. Wells , 14, 677
Gisborne v. Gisborne, 613 Goodsman's Will, re, 1006
Gist , re, 965, 966 Goodson v. Ellison, 350, 685, 692
Gladding v. Yapp, 149 Goodtitle v . Jones , 678
Gladdon v. Stoneman , 856, 982 v. Layman, 214
Gladstone v. Hadwen , 239 v. Whitby, 214
Glaister v. Hewer, 177 Goodwin v. Gosnell , 899
Glanville's Trusts , re , 1043 Goodwin's Trusts , re, 95
Gleaves v . Paine, 749, 750 Gordon v. Gordon , 81
Gledstane's Trusts, re, 1007 v. Trail , 637
Glen v. Gregg, 932 Gordon's Trusts , re, 1004
xliii
 TABLE OF ENGLISH CASES .

[The references are to the star paging. ]

PAGE PAGE
Gore v. Bowser, 201 , 795 , 815 Graves, ex parte, 29
v . Knight, 774 v. Dolphin , 98, 99, 693
Gore's Settlement, re, 588, 589 v. Graves , 132
Gorge's (Lady) Case, 171 , 174 , 177 Gray, ex parte, 234
v. Chansey, 591 v. Gray, 62 , 68, 131 , 616 , 617,
Goring v. Bickerstaff, 10, 692 837
v. Nash, 80, 81, 82 v. Haig , 298 , 691
Gorst v. Lowndes , 91 v. Johnston , 482
Gosling v. Carter, 456 , 461 , 462 , v. Lewis , 862
463 , 466 , 468 v. Limerick (Earl of) , 388
v. Dorney, 524 v. Lucas, 167
V. Gosling, 98, 689 v . Siggers , 300
Gosman , re, 285 Grayburn . Clarkson , 289
Goss v. Neale, 510 Great Berlin Steamboat Com
Gott v. Navine, 106 pany, re, 106
Gough v. Bage, 1026 , 1033 , 1040 Great Eastern Railway v. Tur
v. Birch, 481 ner, 244
v. Bult, 863, 882 Greatley . Noble , 763, 892
v. Davies , 821 Greaves v. Mattison, 415
v. Offley , 975 v. Powell, 524
v. Smith, 260, 274 v . Simpson, 110
Gould v . Fleetwood, 627, 632 Greaves' Settlement Trusts , re, 941
Goulder v. Camm, 756 Greedy v . Lavender , 741
Gouldsworth v. Knight, 260, 532 Green, ex parte, 234, 585
Gover, ex parte, 437 re, 1033
Governesses' Institution v . v. Angell, 308
Rusbridger, 981 v. Belcher, 420
Governors for Relief of Wid v. Carlill , 778
ows &c. v. Sutton, 549 v. Ekins , 114
Gow v. Forster, 683 v. Gascoigne, 92
Gowan, re, 743 v. Green, 778
Gower v. Eyre , 574 v . Howard, 837, 844
v. Grosvenor, 111 , 115 v . Ingham, 244
v. Mainwaring , 19 , 600, 836 , 837 v. Jackson, 160
Gowland v. De Faria, 870 v . Lyon, 919
Grabowski's Settlement, re, 914 v . Marsden, 133, 134
Grace, ex parte, 181 v. Pledger , 977
v. Baynton , 1026 v. Rutherforth , 9 , 31 , 528 , 529
Grady, re, 720 v. Spicer, 98, 99 , 693
Graham v . Birkenhead Rail v. Stephens , 122 , 941
way Company, 873 Green's Trust , re, 619
v. Fitch, 760 Greene v. Greene, 132 , 135 , 137 , 138 ,
v. Graham , 215 447
v. Lee, 103 Greenham v. Gibbeson, 318 , 319
v. Lord Londonderry, 365, Greenhill v. Greenhill , 720, 721
372, 755 Greenhouse , ex parte, 521 , 848
v. O'Keefe , 78 Greening v. Beckford, 711
Grange , re, 667 Greenland's Trust, re , 1004
v. Tiving , 37, 39 Greenslade v. Dare, 26
Grant v. Ellis , 890 Greenville Estate , re, 552, 569
v . Grant , 54, 68 Greenwell v. Greenwell, 589
v . Lynam , 133 , 842 Greenwood v. Churchill, 512
v. Mills , 242, 858 v. Evans , 367, 368 , 369
Grant's Trusts , re, 1038 v . Taylor, 321
Granville (Earl) v . McNeile , 202, v. Wakeford , 672, 910
606 , 656 Greenwood's Trusts , re, 1016 , 1017
Grave v. Salisbury (Earl of) , 402 , Greetham v. Colton , 450 , 461 , 466 ,
404 467, 469 , 481
Gravenor v. Hallum, 158 Gregg v. Coates, 140, 574
xliv
 TABLE OF ENGLISH CASES.

[The references are to the star paging.]

PAGE PAGE
Gregory v. Gregory, 264 , 265 , 268 , Gwyther v. Allen, 505
486, 494, 496 Gyhon, re, 351
v. Henderson, 209, 210 Gyles . Gyles , 882
v . Lockyer, 773
Greisley v. Chesterfield ( Earl of) , 301 HABERDASHERS' COMPANY v. At
Grenfell v. Girdleston , 870 torney-General, 989
Grenville (Lord) v. Blyth, 246 Habergham v . Vincent , 15 , 58 , 147
Grenville-Murray v. Clarendon Hackett v . M'Namara, 425
(Earl of) , 642 Hackney Charities , re , 934
Gresham v. Price, 993 Haddelsey v . Adam, 120, 217
Gresley v. Mousley, 872, 873 Hadgett v. Commissioners of
Greswold v. Marsham, 726, 728 , 797 Inland Revenue, 653
Grey v. Colvile, 10, 826 , 828 , 829 Hadlands's Settlement, re, 1004
v. Grey, 144, 163 , 170 , 172 , 173 , Hadley, re, 657 , 665, 853, 1028
174, 175 Hadow v. Hadow, 139
Grice v. Shaw , 730 Hagell v. Currie, 977, 978
Grier v. Grier, 113 Haigh, re, 35
Grier's Estate, re, 127 v. Kaye, 54, 106
Grierson v. Eyre , 886 Halcott v. Markant, 167, 168 , 169
Griesbach v. Fremantle , 961 , 962 Haldenby v. Spofforth, 425
Grieveson v. Kirsopp , 835 , 839 , 841 , Hale v. Acton, 403
949, 951 v. Allnutt, 513
Griffin, ex parte, 255 , 257, 294, 337 v. Lamb, 80, 81
in goods of, 202 Hales . Cox, 81
v. Griffin , 180 , 182 , 183 Haley v . Bannister, 91 , 92
Griffith v. Buckle , 113 Halford v. Stains , 92 , 94, 143
v. Morrison , 301 Hall, re , 617, 620 , 706 , 712 , 899, 997
v. Ricketts , 949 v. Carter, 409 , 419 , 420
Griffith's Will , re, 566 v . Coventry, 890
Griffiths , re, 992 v. Dewes , 262, 602
v. Evan, 131 , 133 v. Fennell, 238
v. Porter, 252 , 357 , 918 , 922 v. Franck, 259
v. Vere, 91 , 92 v. Hale , 1026
Grigby v. Cox, 759 v. Hallet , 338 , 340, 484, 490 ,
Griggs v. Gibson , 954 491 , 494, 986
Grimstone, ex parte, 963 , 965, 966 , v. Hewer, 389 , 391 , 415
968 v. Hill, 403
Grimwood v. Bartels , 151 v. Hugonin , 745
Grogan v. Cooke, 80, 796 v. Jones , 262
Groom , re, 1012 , 1039 v. Laver, 641
Grosvenor v. Cartwright, 339 v. Luckup , 388
Grove v. Price , 288 v. May, 232, 612
Grove's Trusts , re , 742, 743 v. Noyes, 485 , 496
Groves v. Groves , 106, 163 , 167 , 168 , v. Waterhouse, 146 , 780
170 Hall's Charity , re, 929
Grundy v. Buckeridge , 1031 Hallett v . Hallett , 701
Gubbins v. Creed , 275, 276 Hallett's Estate, re, 242 , 894, 895
Gude v. Worthington , 616, 835 Halliburton r. Leslie, 37
Guibert's Trust , re, 40 , 662 , 1030 Halliday v. Hudson , 146 , 147
Guidot v. Guidot, 938, 941, 947 Haly . Barry, 807
Gunn, in goods of, 949 Ham's Trust, re , 1003
Gunnell v. Whitear , 1002 , 1003 Hamer . Tilsley, 574
Gunson v. Simpson , 1040 Hamer's Devisees , 249
Gunter v. Gunter, 731 Hamersley's Settlement , re, 1004
Gurner, ex parte, 337 , 912 Hamilton . Ball, 106
Gurney v. Gurney, 993 v . Buckmaster, 466
v. Oranmore, 517 v. Foot, 151
Guthrie v. Crossley, 513 v . Fry, 670, 672
Gwilliams v. Rowel, 140, 262 v. Grant , 864
xlv
 TABLE OF ENGLISH CASES .

[The references are to the star paging.]

PAGE PAGE
Hamilton v. Houghton , 524, 525 Harford v. Lloyd, 892
v. Mills , 740 v. Purrier, 141 , 142
v. Molloy, 76 Harford's Trusts , re , 671 , 1029 , 1030
v . Royse, 718 Hargrave v. Tindal , 524
v. Waring , 94 Hargreaves v. Mitchell, 519 , 520 , 863
v. Wright, 275 v. Wright, 1034
Hammond v . Messenger, 867 Hargrove's Trusts , re, 835
e. Neame, 139 Hargthorpe v. Milforth, 268
Hammonds v . Barrett, 101 Harland v. Binks , 517, 518
Hamond v. Hicks , 863 v. Trigg , 131 , 132 , 133
v. Walker, 977 Harley v. Harley, 740
Hampden v. Wallis , 978 Harloe v. Harloe, 644
Hampshire v. Bradley, 989 Harman v. Fisher , 513
Hampton v. Spencer, 56 v. Richards , 78
Hanbury v . Hanbury, 407 Harman and Uxbridge , & c . Com
v. Kirkland, 265 , 274 , 331 pany , re, 332 , 333
v. Spooner, 631 Harmood v. Oglander, 14 , 869 , 889
Hanchett v. Briscoe, 768 , 779 , 922 Harnard v. Webster, 908
Hancom v. Allen , 307 , 314, 315 Harnett v. Macdougall , 783
Hancox v. Spittle, 1040 v. Maitland , 514
Handcock v. Handcock, 718 Harper v . Faulder, 421
Handick v. Wilkes , 113 v. Hayes , 423, 434
Handley v. Davies , 997, 1002 Harpham v. Shacklock, 714
Hands v. Hands , 838 , 841 Harrald , re, 696
Haney's Trusts , re , 1001 Harrington v. Harrington , 122 , 124
Hankey v. Garret, 338, 340 Harris v . Booker, 802
v. Hammond, 238 v. Davison, 805, 806
v. Morley , 1002 v. Harris (No. 1 ) 319 , 326 , 847
Hanman v. Riley, 521 v. Harris (No. 2) 357, 900
Hannah v . Hodgson, 686 v. Harris (No. 3) 378, 379
Hannay v. Basham, 991 , 992 v. Horwell, 61
Hansford , re, 898, 1006 v . Mott, 760, 780
Hansom, ex parte, 242 v . Poyner, 299 , 300
Hanson v. Beverly, 460, 472 v. Pugh , 210, 802
v. Keating , 24, 746 v . Rickett, 512
Harbert's Case, 794 v. Truman , 240 , 241 , 242 , 894
Harbin v. Darby, 281 Harris's Settled Estate , re, 753
Harcourt v. Seymour, 953 , 956 , 961 , Trust, re, 1002
962 Harrison, re, 189 , 214 , 1010, 1032
v. White , 520, 872 v. Andrews , 739
Hardaker v . Moorhouse, 668 v. Asher, 354
Hardcastle , ex parte, 894 v. Borwell, 869
Harden v. Parsons , 264 , 265 , 268 , 271 , v. Cage, 449
294 , 306, 922 v. Coppard , 192
Hardey v. Hawkshaw, 949 v. Duignan , 879
Harding v. Glyn, 130 , 835 , 839, v. Forth, 859
840, 842 v. Graham , 198 , 202 , 252 , 253,
v. Harding , 441 264, 268
v. Hardrett, 249 , 858 v. Harrison , 61 , 336
Hardley's Trusts , re, 1005 v. Hollins, 866
Hardman v . Johnson , 186 v. Naylor, 117, 121
Hardwick v . Mynd, 252 , 434, 456, v. Pryse, 353
468 , 471 , 496 , 603 , 608 , 870 v. Randall, 573
Hardwicke (Lord) v . Vernon , 491 , v. Thexton, 291, 318
494, 691 Harrison's Trust, re, 40, 659 , 1028
Hardy v. Caley, 192, 642 Harrop v . Howard, 783
v. Metropolitan Land and Harrop's Estate, re, 821 , 950 , 954
Finance Company , 296 Trusts , re, 41 , 552 , 565 , 666
v. Reeves, 861 Hart v. Denham, 983
xlvi
 TABLE OF ENGLISH CASES .

[The references are to the star paging.]

PAGE PAGE
Hart v. Middlehurst, 115 Hayford v . Benlows , 152
v. Tribe, 131 Hayhow v. George, 989
Harter v . Colman, 330 Hayle's Estate, 87
Hartford v. Power, 756 , 767 , 858, Haymes v. Cooper, 780
884, 900 Haynes v. Forshaw, 480
Hartga v. Bank of England, 32 v. Mico , 402
Hartley v. Burton , 685 Hays , ex parte, 585
v. Hurle, 757 Hayter, re, 990
v. O'Flaherty, 718 Hayton v. Wolfe, 202
Hartley's Will , re , 1031 Haytor v. Rod, 947
Hartnall , re, 1022 , 1023 Haytor Granite Company, 445
Harton v. Harton , 210, 216 Hayward v. Pile , 366
Hartop v. Hoare, 241 Hazeldine , re, 1029
v. Whitmore, 405 Hazle's Settled Estates , re, 555
Hartopp . Hartopp , 403 , 406 Head v . Lord Teynham, 688
Hartshorn v. Slodden, 513 Headington's Trust, re, 1002
Hartwell v. Chitters , 827 Heardson v. Williamson , 217
Harvey , re, 1018 Hearle v. Greenbank, 33 , 37, 599 ,
v. Bradley , 906 735 , 736
v . Harvey , 300 , 365 , 411 , 585 , Heartley v. Nicholson, 67, 70, 74
754, 834 Heath v. Chapman , 105
v. Wrayman, 828 v. Crealock, 858, 859
Harvey's Estate, re, 921 v. Henly, 863
Harwood, re, 1042 v. Lewis , 740
Hasell, ex parte, 863 v. Pugh, 228
Hassell v. Simpson, 511 v. Wickham , 783, 784 ,
Hastie v. Hastie , 49, 782 919 , 926
Hatfield v. Pryme , 151 Heathcote v. Hulme, 338 , 340, 342
Hathornthwaite v. Russel, 856 , 984 Heatley v . Thomas , 761 , 770 , 920
Hattatt's Trust , re, 41 , 1030 Heaton , ex parte, 913
Hatton v. Haywood, 797 , 812 , 813 , v. Marriot, 264
814 Hebblethwaite v. Cartwright , 415
v. May, 101 Hedges , Harriet , re, 35
Havelock v. Havelock, 587 Heenan v . Berry, 876
Havelock's Trusts , re, 1031 Heighington v. Grant, 342 , 991
Havers v. Havers , 982 , 984 Hellier v. Jones , 414
Hawke's Trust , re, 1001 Hellman's Will, re, 348
Hawken v. Bourne, 595 Heming's Trust, re, 1003
Hawker, ex parte, 511 Hemming v. Griffith , 409
v. Hawker, 213 , 218 v. Maddox, 643
Hawkes v . Hubback, 758 Henchman v. Attorney-General, 157,
Hawkins v. Chappell , 276, 424 161 , 940
v . Gardner, 54 Henderson v. Dodds , 988
v. Hawkins , 900 v. M'Iver, 633
v. Kemp , 200, 471 , 606 Henley . Philips , 993
v. Lawse, 828 v. Webb, 954, 959 , 960
v. Luscombe, 210, 216 Hennessey , ex parte, 706 , 907
v. Williams , 481 v. Bray, 208 , 904
Hawkin's Trusts , re , 631 Henriques v. Bensusan , 516
Hawksbee v. Hawksbee , 882 Hensley v. Wills , 244, 245
Hawtayne v. Bourne , 595 Henty v. Wrey, 399, 400
Hawthorne , re, 49 Hepburn , re, 520, 521
Hay v. Bowen , 351 Hepworth v. Hepworth , 179
Haycock's Policy , re, 997 v. Hill , 449
Hayden v. Kirkpatrick, 729 Herbert , ex parte, 242
Hayes v . Alliance Assurance v. Webster , 98, 786
Company, 69, 74 Herbert's Will, re, 1032
v. Kingdome, 144, 164, 172 Hercy . Dinwoody , 496 , 870 , 871
v . Oatley, 688 Hereford v. Ravenhill, 152, 947
xlvii
 TABLE OF ENGLISH CASES .

[The references are to the star paging. ]

PAGE PAGE
Heron v. Heron , 167, 169 Hill's Trusts , re, 951 , 1030 , 1031
Herring v. Clark, 1013 , 1041 Hillary . Walle r , 870
Hertford (Borough of) v . Poor Hilliard, re, 338 , 339 , 340
of same Borough, 994 Hilliard's Settlement Trusts , re,
(Marquis of) , re , 972 , 974, 975 1023
Hervey v. Audland, 80 Hillman, ex parte, 76
v. Hervey, 110 r. Westwood, 660
Hethersell . Hales , 638 Hinchcliffe v. Hinchcliffe , 401
Heugh . Scard, 691 , 989 Hinchinbroke v. Seymour , 399 , 400
Hewett . Foster , 272 , 273 , 991 Hinckley . Maclarens , 844
v . Hewett, 602 , 835 , 836 Hind v. Poole, 262 , 431 , 603
v. Murray , 814 r. Selby, 300
Hewitt , re, 1019 Hinde . Blake, 979, 982
v . Morris , 301 , 302 Hindle v. Taylor, 130
r. Wright, 151 Hindmarsh , re, 901
Hewitt's Estate , re, 1039 ". Southgate, 39
Hey's Will, re, 1025 Hinings v . Hinings , 354
Heywood . Heywood , 94 Hinton , ex parte , 101
Hibbard v . Lamb , 19 , 604 , 608 , v. Hinton, 221 , 242 , 246
610, 846 Hinves . Hinves , 300
Hibbert v. Cooke, 574 Hitch . Leworthy , 257
v. Hibbert, 641 Hitchens v . Hitchens , 214
Hichens v. Congreve, 187 Hixon . Wytham, 524
Hickey , re, 244 Hoarer. Osborne, 106
r. Hayter, 831 v. Parker, 684
Hickley v. Hickley, 485 Hoare's Case , 596
Hickling . Boyer, 445 Hobart v . Suffolk (Countess of) , 146
Hickman . Upsall, 349 , 889 Hobby v . Collins , 955
Hicks r . Hicks , 339 , 340 , 925 Hobday . Peters ( No. 2 ) , 910 , 920
v. Sallitt, 886, 888 , 889 , 890, v. Peters (No. 3) , 291 , 803
934 Hobson v. Bell, 435, 707
Hickson v. Fitzgerald , 198 , 988 v. Neale, 441
Hide v. Haywood , 634, 989 2'. Trevor , 889
Higginbotham v . Hawkins , 187 , Hobson's Trusts , re, 447
188 , 886 Hockley . Bantock, 335
Higginson v. Barneby , 127 v. Mawbey,
r. Kelly, 104 Hodge . Attorney-General, 30
Higgs v. Northern Assam Tea r. Churchward, 879
Company, 698 Hodges, re, 1000 , 1001
Highway . Banner, 114, 694 v. Blagrave, 442
Higinbotham v. Holme, 104 r. Hodges , 785, 786 , 921
Hill, ex parte, 104 v. Wheeler, 1014
re , 303, 304 Hodges' Settlement, re, 1002
v. Boyle, 692 , 900 Hodgeson v. Bussey, 115
v. Browne, 280 Hodgkinson v. Cooper, 185
v . Buckley , 423 Hodgson, ex parte, 104
v. Challinor, 644 re, 700 , 987 , 1003 , 1039
v. Cock, 149 v. Bibby, 922
v. Crook, 95 e. Bower, 1026
v. Edmonds , 747 v. Hodgson , 704 , 1021
v. Gomme, 906 r. Williamson, 768 , 772 , 921
v. Hill, 127 , 128 , 165 , 181 , 410 Hodkinson v. Quinn , 461 , 463, 466
v. London (Bishop of) , 135, Hodsden v. Lloyd , 225
146 , 148 , 234 Hodson v. Ball, 109
v. Magan, 639, 985 Hodson's Settlement , re, 853 , 1028
v. Simpson, 478 , 479 , 480 , 483 Will , re, 1001
v . Trenery, 903 Hoey v. Green , 325
v. Walker, 590 Hogarth v. Phillips , 76
v. Wilson, 81 Hogg v. Jones, 687
xlviii
 TABLE OF ENGLISH CASES .

[The references are to the star paging.]

PAGE PAGE
Holbrook's Will , re , 1042 Hopkins , re, 658 , 847, 982
Holden , re, 961 v. Gowan , 697
Holder . Durbin , 850 v. Hopkins , 7 , 85 , 111 , 121 , 147 ,
Holderness v. Lamport, 166 209, 724
Holdernesse v. Carmarthen , 958 , 959 v. Myall , 688
Holdsworth v. Goose, 668 Hopkinson v. Roe, 633
Holford v . Phipps , 685 Hopper . Conyers , 894, 896 , 897
Holgate v. Haworth, 338, 995 Hora v. Hora, 138
v. Jennings , 300 , 302 , 303 Horde v . Suffolk (Earl of) , 615
Hollamby v . Oldrieve , 78 Hore v. Becher, 748
Holland , ex parte, 790 Horn v. Horn, 457, 796
re, 1014 Horne v. Barton , 120 , 128 ,
v. Holland , 205 129 , 130
v. Hughes , 314, 334 , 335 , 938 Horner v. Wheelwright, 676
Holland's Case , 16 , 17 , 746 , 820 , 821 Horrocks v. Ledsam, 985
Holliday v . Overton, 109 Horsfall , re, 228
Hollier . Burne, 366, 370 Horsley v. Chaloner, 295
Hollingsworth v. Shakeshaft, 338 v. Cox, 795
Hollis's Case (Lord) , 863 Horton , re, 153
Holloway v. Headington , 81 , 82 v . Brocklehurst, 290, 691
v . Millard , 78 v. Smith, 726, 732
v. Radcliffe , 956, 957 Horwood , ex parte, 243, 245
Holloway's Case, 28 , 250 v. West, 131 , 135
Holme . Guy, 932 Hoskin's Trusts , re, 688 , 990 , 1003
Holmes , re, 711 , 712 Hoskins , re, 1033
v. Coghill, 921 v. Campbell, 675, 676
v. Dring, 306 v. Hoskins , 403
v. Holmes , 404 Hospital for Incurables , re, 929
v. Moore , 317 Hotchkin v. Humfrey, 397
v . Penney , 77 , 78, 100 , 615 Hotham v. Somerville, 421
Holroyd v . Marshall, 224 Hotham's (Lord) Trust , re, 504
Holroyde v. Garnett , 918 Houell . Barnes , 604
Holt, ex parte, 915 Hough's Will, re, 215
v. Holt, 180 , 184 , 727 Hougham . Sandys , 824
v. Sindrey , 95 Houghton, ex parte, 163 , 166
Home . Patrick ( No. 1 ) , 760 v. Koenig , 239
Honner v. Morton, 740 Houghton's Chapel, re, 853
Honnor's Trust, 541 House v. House , 130, 135
Honor v. Honor, 114 v. Way, 298
Honywood v . Foster, 694 Household , re, 577, 620
r. Honywood, 188 , 189 Hovenden v. Annesley (Lord) , 30 ,
Hood v. Clapham , 299, 335 , 357 864 , 865 , 866 , 867 , 868 , 869
v. Oglander, 98, 132 Hovey v. Blakeman , 269, 271 , 272 ,
v. Phillips , 731 781
Hooper v. Eyles , 167 How v. Godfrey, 627, 628 , 634
r. Goodwin, 149 v. Kennett , 510
r . Hooper, 341 v. Whitfield , 603
r. Smith, 511, 513 Howard , re, 1025
v. Strutton , 469 v. Bank of England, 788
Hooper's Will , re, 620 v. Chaffers , 449, 470
Hope 7 .. Carnegie , 49 v. Digby, 776 , 777
v. Clifden (Lord) , 396 v. Ducane , 485 , 503
v. Gloucester (Corporation v. Hooker, 758
of) , 544, 872 v . Jemmett, 239 , 833
v. Harman , 75 v. Papera, 856, 982, 984
v. Liddell, 227, 448 , 473 , 904, v. Rhodes , 672
922 Howard's Estate , re, 1015
Hopewell v. Barnes, 808 Howarth , re, 585
Hopgood v. Parkin , 324, 325, 353 v. Mills , 95
xlix
 TABLE OF ENGLISH CASES .

[ The references are to the star paging.]

PAGE PAGE
Howev. Dartmouth (Earl of) , 291 , Hunt v. Bateman , 879
298 , 300, 305 , 307 , v . Coles , 802
314, 334, 910 r. Hunt, 648 , 761
v. Howe, 163, 165 v . Scott, 299
v. Litchfield ( Earl of) , 441 Hunter v. Baxter, 590
Howel v . Howel, 114 v. Bullock , 106 , 107
Howell . Howell, 890 v. Young, 356
v. Palmer, 1026 Hunt-Foulston v. Furber, 98
Howgrave v . Cartier, 394 Huntingdon (Earl of) v . The
Howorth v. Dewell, 135 Countess , 868
Howse v. Chapman, 149 Huntley v. Griffith, 740
Hoy v. Master, 134, 135 Hunton v. Davies , 871
Hubbard v. Young, 299 Hurd v. Hurd, 311
Hubert v. Parsons , 399 Hurle's Settled Estates , re, 504
Hudleston v. Whelpdale , 378 Hurley, ex parte, 434
Hudson v . Hudson , 261 , 262 , 273 Hurst, re, 1025
v. Temple, 75 v. Hurst, 101 , 102 , 103 , 344
Hudson's (Mary) Trusts , re, 61 , 285 , Husband v . Pollard, 80
823 Huskisson v. Bridge , 134, 135
Hue's Trusts , re, 1003 Hussey v. Grills , 721 , 722
Huet v. Fletcher, 871 v. Markham, 197
Hughes , ex parte, 484 , 486 , 488 , 490 , Hutcheson v. Hammond, 148 , 150 ,
491 , 493, 498 158 , 159 , 573 , 581
re, 222, 236 Hutchin v . Mannington , 949
v. Coles , 883, 885 Hutchins v. Lee, 53, 144, 145
v. Empson, 288 , 344 Hutchinson and Tenant, re , 133 , 136
v. Evans , 149 v. Hutchinson , 600, 840
v. Kelly , 879 v. Massareene , 449
v . Lumley, 816 v. Morritt, 275
v. Stubbs , 82 v . Stephens , 1016
v. Wells , 919, 920 , 1034 Hutchinson's Trusts , re, 1000
v. Williams , 190, 718 Hutton v. Cruttwell, 512
v. Wynne, 520, 527 v. Sandys , 702
Hughes's Settlement, re, 1017 , 1031 v. Simpson, 887
Trust , re, 705, 752 Hyatt's Trusts , re, 1022
Hughes -Hallett . Indian Mam Hyde v. Benbow, 1033
moth Gold Mines Company , 643 Hyett v. Mekin , 152 , 951 , 952
Huguenin v . Baseley, 75 Hylton v. Hylton , 925
Hulkes v. Barrow, 364 Hynes . Reddington , 249, 307
v. Day, 807 Hynshaw v. Morpeth Corpora
Hull v . Christian, 631 tion , 161
Hull and Hornsea Railway Com
pany, 812 IBBETSON, ex parte, 243
Hulme v . Hulme, 659 Ibbitson's Estate , re, 951
v. Tenant, 759 , 761 , 762 , 764, Ickeringill's Estate, re, 153
770, 781 Ievers (Goods of) , re, 775
Humberstone v . Chase , 32 Illidge, re, 830
Humble v. Bill , 457 , 477 , 478 , 483 Ilminster School, re, 42 , 533
v . Humble, 449 Imperial Land Company of
Hume . Edwards , 941 Marseilles , re, ex parte Lark
v. Richardson, 303, 310 ing, 279
Humphrey v. Richards , 774 Imperial Mercantile Credit As
Humphreston's Case, 38, 39 sociation v. Coleman, 279
Humphrey v. Morse , 196, 986 v. Newry and Armagh
Humphries , re, 95 Railway Company, 814
Humphry's Estate, re, 1028 Inchiquin v. French, 59, 65
Hungate v. Hungate , 163 Incledon v. Northcote , 746, 748
Hungerford v . Earle , 79, 509 Incorporated Society v. Rich
Hunt . Baker, 94, 95 ards , 884, 934
1
 TABLE OF ENGLISH CASES .

[The references are to the star paging. ]

PAGE PAGE
Inge, ex parte, 529, 530 Jarman v. Woolloton, 243
Ingle v. Partridge, 252, 296, 297, Jarman's Estate , re, 148
324, 325 , 500 , 979 Jarvis's Charity , re , 933
v. Richards (No. 1 ) 487 Jeacock v. Falkener, 402
Ingleby and Boak, &c . , Insur Jeans v . Cooke , 172 , 175 , 176
ance Company, 230, 231 Jebb v. Abbott, 456
Inglefild » . Coghlan , 756 Jeffcock's Trusts , re, 595
Inglisse . Grant, 510, 513 Jeffereys v. Small, 165
Ingram , re, 1004 Jefferies v. Harrison, 986
Ingram's Trusts , re, 310, 323 Jeffery v. Jeffery, 397
Inman v. Inman, 38 Jefferys v. Jefferys , 80, 82
Innes v. Mitchell, 914 v. Marshall, 691
Insole, re, 740 Jeffryes v. Drysdale, 1013 , 1028. 1034
Interpleader Summons , 224 v. Reynolds, 806, 809
Inwood v. Twyne, 573, 961 , 967 Jeff's v. Wood , 699
Irby, re, 1013 Jenkins, ex parte, 17
v. Irby, 597, 697 v. Hiles , 462
Irvine v. Sullivan , 62 , 131 , 137 , 149 v. Jenkins , 213
Irving, re, 702 v. Jones , 435, 855
Irwin v . Rogers , 994 v. Milford, 675, 678
Isaac v. Defriez , 842, 843 v. Perry, 525 , 526
v. Wall, 367 v. Robertson, 205, 206, 908
Isaacs v. Weatherstone, 981 Jenkyn . Vaughan, 79
Isaacson v. Harwood, 205 , 206 Jenner v. Morris , 679
Isald v. Fitzgerald , 186 , 872 Jennings r. Jordan , 330
Ithell v. Beane , 456, 457 v . Looks , 399
Ivy v. Gilbert, 410, 420 v. Rigby, 831
Izod v. Izod , 835, 837 v. Selleck, 144 , 177
Jephson, re, 998 , 999 , 1002
JACKSON, re, 243 , 347 , 657 , 922 , 969 Jepson , re, 1004
v. Dover, 396 Jerdein v. Bright, 853
v. Hobhouse, 781 Jermy v. Preston , 151
v. Hurlock, 154, 157 Jermyn v. Fellows, 387
v. Jackson , 165 , 314 Jervis v. White, 977
v. Kelly, 160 Jervis v. Wolferstan , 356, 643
v. Milfield, 1011 , 1026 Jervoise , re, 998
v . Tyas , 311 v . Northumberland (The
v. Welsh, 181 , 186 , 872 Duke of) , 109 , 112 , 118 , 122
v. Woolley, 597 v. Silk, 586
Jackson's Case, 858 Jesse v. Bennett, 910
Trusts, re, 648 v. Lloyd, 577
Will , re, 842 Jesson , re, 41 , 1030
Jacob v. Isaac, 759 , 761 v. Jesson, 401
v. Lucas , 262 , 287 , 910 Jessop v. Blake, 740
r. Shepperd , 513 Jessopp v . Watson , 150, 151
Jacobs v. Amyatt, 757 Jesus College v. Bloome, 886
Jacomb v. Harwood , 273 Jevon . Bush, 17, 591
Jacquet r. Jacquet , 878 Jewson . Moulson, 746
Jacubs v. Rylance , 911 Job v. Job, 257, 905
Jagger v. Jagger, 90 Jodrell v. Jodrell, 138
Jakeman's Trust, re , 23 , 35 , 703, 955 Joel v. Mills , 101
James, ex parte, 484, 485 , 486 , 488 , Johnes v. Lockhart, 757
489 , 490 , 491 , 492 , Johns v. James, 516, 517
493 , 495 , 498 , 639 Johnson , ex parte, 313
v. Dean , 181 , 182 , 183 , 184 , 185 re, 78 , 580 , 639 , 642
v. Frearson, 197, 203, 205 , 207 v. Arnold, 948
v . Holmes , 163 v. Ball, 60
v. May, 638, 643 v. Fesenmeyer, 511 , 513
Jaques v. Wilson, 428 v. Freeth, 782
li
 TABLE OF ENGLISH CASES .

[The references are to the star paging.]

PAGE PAGE
Johnson v. Gallagher, 765 , 766 , 767, Jones v. Price , 456 , 602 , 611
773, 920, 921 v. Reasbie, 824
v. Holdsworth , 49 v. Salter, 782
v. Johnson , 150, 298 v. Say and Seal (Lord) , 210 , 211 ,
v . Kennett, 456 , 457 , 458, 465 216
v. Kershaw, 522 v. Scott, 519 , 521
v. Lander, 346, 740 v. Smith, 333
v. Legard, 76 v. Stöhwasser, 479
v. Newton , 295, 297, 344 v. Torin , 838
v. Prendergast , 340, 344 v. Turberville , 871
v. Smith, 864 v. Williams , 333 , 804
v. Swire, 903 Jones, John, re , 995
v. Telford, 635, 637 Jones's Trust, re, 354
v. Webster, 732 Will, re, 98
& Tustin, re, 440 Jorden v . Money, 873
Johnson's Case, 8 Joseph's Will, re, 998
Trust, re, 504 Josselyn v. Josselyn , 689
Johnston , re, 124, 125 Joy v. Campbell, 106 , 244, 255 , 256.
v. Lloyd, 327 264, 269 , 270, 858 , 893 , 916
v. Rowlands , 136 Joyce v. De Moleyns , 862
Johnstone v. Baber, 276 , 430 v. Hutton , 82
v. Cox , 708, 709 v. Joyce , 849
v. Lumb, 775 v. Rawlins , 859
v. Moore , 304 Joyce's Estate, re, 1012 , 1028
Joliffe, ex parte, 353 Judkin's Trusts , re , 583, 584
Jolland ( v.), 280 Juler . Juler, 61
Jollands v. Burdett , 787 Juniper v. Batchelor ,
Jolly v. Wallis , 522 Justice v. Wynne , 702, 708, 859
Jones , ex parte, 791 Juxon v. Bryan, 449
re, 342 , 354, 554, 1003 , 1012 .
1037 KAY v. Smith, 925
v. Ashurst , 28 Kaye , re, 33
v. Badley, 63 v. Powell, 674
2'. Bailey, 806 Keane, re, 785
v. Croucher, 77 r. Robarts , 191 , 254, 450 , 477,
v. Davies , 749 478 , 479 , 480 , 482 , 642
v. Farrell, 692 Kearnan v. Fitzsimon , 205
v . Foxall , 277 , 336, 341 , 342 Kearsley v. Woodcock, 101
v. Gibbons, 748 Keating v. Keating , 425
v. Goodchild, 165 , 283 Keays . Gilmore, 401
v. Harris , 766 , 770 . Lane, 317, 779, 919
v. Higgins , 287, 925 Keble v. Thompson , 306 , 912 , 915
v. Jones , 70 , 75 , 367 , 368 , 376 , Keech v. Sanford , 183, 185
377 , 378 , 379 Keeler , re, 1019
v. Kearney , 181 , 184, 919 Keeling v. Child, 854
v. Langton , 113 Keer . Brown, 781
v. Lewis , 257 , 294 , 295 , 325 , Keir . Leeman , 898
685,989 Kekewich r. Manning , 70, 73 , 81
v. Lock, 54, 67 r. Marker, 613
v. Maggs , 92, 93 Kelland v. Fulford, 152
v. Matthie , 435 Kellaway . Johnson, 334, 907, 919
v. Mitchell, 148 , 149 , 158 , 159 , Kellett r. Kellett, 146, 147
160 Kellock's Case, 521
v. Morgan, 110 , 218 , 731 Kelly . Kelly, 180, 182
v . Mossop. 242, 701 r. Walsh, 68
v. Nabbe, 65 Kelsey, re, 35
v. Phipps , 679 Kemmis . Kemmis, 587
v. Powell, 597 Kemp v. Burn, 691 , 993
v. Powles, 858 v. Kemp , 8
lii
 TABLE OF ENGLISH CASES .

[The references are to the star paging. ]

PAGE PAGE
Kemp v. Waddingham , 831 King v. Denison , 40 , 146 , 147
Kemp's Settled Estates , re, 552, 666 v . Isaacson, 354
Kempson v. Ashbee, 925, 926 v. King. 686 , 993
Kempton r . Packman , 181 , 184 r . Lucas , 759, 762
Kendal v . Mickfield, 15 v. Malcott, 445
Kendall v . Granger, 148 v. Marissal, 796
Kenger. Delavall, 770 r. Mildmay , 221
Kennard v. Kennard, 82 v. Mullins , 358
Kennedy v. Daly , 140 , 246 , 285 , 858, v. Roe, 597
860 King (The) v. Daccombe , 819 , 820
r. Turnley , 617, 669 v. De la Motte, 796 , 797, 818
Kennell v. Abbott, 157, 160 v. Egginton, 893
Kenney v. Browne, 492 v. Holland, 10 , 44 , 45 , 96
Kennington Hastings' Case, 161 v. Jenkins , 16
Kenrick v . Beauclerk ( Lord) , 210 , v. Lambe, 817
211 v. Portington, 54, 63
Kensey v. Langham , 234 v. Smith, 817
Kensington v. Dollond, 755 , 756 v. St. Catherine's Hall, 530
Kensington (Lord) , re, 809 v . Trussel, 104
Kent v. Jackson , 873 King's Mortgage, re, 228
r. Riley , 78 Kingdome v. Bridges , 172, 177
Kentish v. Newman, 117 Kingdon v. Castleman , 903
Kenyon v. Lee, 1040 Kingham v. Lee, 33, 140 , 191 , 257
Keogh . Cathcart , 760 Kingsman v. Kingsman , 36, 62, 64, 474
v . Keogh, 727 , 730 , 731 , 910 Kingston, ex parte, 296, 895
v . McGrath , 191 , 823 v. Lorton, 131 , 864
Ker v. Ker, 718 (Earl of) v . Lady Pierepoint, 86
Kernaghan v. McNally, 882 Kinloch . Secretary of State
Kerrison's Trusts , re, 586 for India in Council, 22
Kershaw's Trust, re, 620 Kinnersley v. Williamson , 140
Kettle v. Hammond, 511 Kirby v. Mash, 853, 989
Kettleby v. Atwood, 942 Kiricke v. Bransbey, 146
Kidd v . Tallentire , 813 Kirk, re, 140
Kiddill v . Farnell, 70 , 354 v. Eddowes , 403 , 405 , 406
Kidney v. Coussmaker , 79 , 159 , 496 , v. Paulin , 756
524, 870 , 888.889 v. Webb , 167, 169
Kilbee v . Sneyd, 252 , 254 , 255 , 272, Kirkby v. Dillon , 795 , 797
273 , 297 , 485 , 487, Kirkham v. Smith, 732
490, 925 Kirkman v . Booth, 280
Kildare (Earl of) v. Eustace, 9 , 30 , v. Miles , 944 , 961
821 Kirkpatrick's Trust, 329
Killick, ex parte, 756 Kirksmeaton ( Rector of) , ex
v . Flexney , 180 , 183 , 484, 490 parte, 311
Kilpin v. Kilpin , 51 , 54, 177 Kirwan , re, 776
Kilvington v. Gray, 301 v. Daniel, 516 , 517 , 518
Kilworth v. Mountcashell , 911 n
Kitche v. Calvert , 104
Kincaid's Trusts, re, 742, 743 v . Ibbetson, 225
Kinder で。. Miller, 167, 169 Kitto v . Luke, 992
Kinderley v. Jervis , 247, 249 , 808 , Knapman, re, 696
830 Knapping v. Tomlinson , 354
King , ex parte , 911 , 916 Knatchbull v. Fearnhead, 359 , 906 ,
re, 71 , 991 , 993 910
v. Anderson, 486 , 490 , 491 , 496 Knatchbull's Settied Estate , re,
v. Ayloff, 28, 250 561, 562
v. Ballett, 828 Knight v. Boughton , 132
v . Bellord , 19 , 37, 38 v . Bowyer , 47, 881 , 922 , 923
v. Boston , 168 v. Browne , 104
v. Canterbury (Archbishop v. Knight, 25 , 132 , 134 , 135 ,
of) , 615 137, 742 , 758 , 759 , 1041
liii
 TABLE OF ENGLISH CASES .

[The references are to the star paging.]

PAGE PAGE
Knight v. Majoribanks , 484, 490 Landon's Trusts , re, 101 , 519
v. Martin , 350 Lane v. Debenham, 262 , 431 , 604,
v. Pechey , 167 611 , 612
v. Plymouth (Earl of) , 256 , 312 , v. Dighton, 167 , 168 , 169 , 892,
314 894, 896 , 897
v. Robinson , 228 v. Wroth, 252
v . Selby, 109 Lane's Trust , re, 1002
Knight's Trusts, re, 347, 350, 990, 1003 Langdale v. Briggs , 680
Knight's ( Sarah) Will , re , 41 , 649 , Langdale's Settlement Trust, re ,
990, 1038 321 , 322
Knights v. Atkins , 942 Langford v. Auger, 227
Knott v. Cottee, 135 , 136 , 342 , 641 , v. Gascoyne , 252 , 255 , 269 , 918
992 v . Mahony, 635, 642
Knowles , re, 61, 285 , 396 , 917 , 918 Langham v. Sanford, 60, 61 , 149
e. Spence, 864 Langhorn v. Langhorn , 1031
Knowles's Settled Estate , re , 42 , 550 , Langley v. Fisher, 285
666 v. Hawk, 982
Settlement Trust , re, 619 v . Sneyd , 823
Knox v. Gye , 277, 865, 886 , 891 Langstaffe v . Fenwick, 628
v. Kelly, 879 Langston v. Ollivant, 317
Koeber v. Sturgis , 743 Langton v. Astrey, 857 , 859
Kronheim v. Johnson, 57 v. Horton, 245
v. Tracy, 517
LACEY, ex parte, 276 , 484 , 485 , 486 , Lansdowne v. Lansdowne , 886 , 887
487 , 488 , 490 , 491 , 493 , 498 Lantsbery v. Collier, 605
• v. Hill , 737 L'Apostre v. Le Plaistrier , 239 , 241 ,
Lachton v. Adam , 745 244
Lacon v. Liffen, 511 Large's Case, 101
Lad . London City, 162 Larivière v. Morgan, 83
Ladbroke, ex parte, 434 Larken's Trust, re, 619
Ladbrook v. Bleaden , 198 La Terriere v. Bulmer, 302
Lade v. Holford, 677 Lavender v. Stanton , 455
v. Lade, 163 Law, re, 997
Lake v . Craddock, 165 v. Skinner, 509 , 511
v. De Lambert , 33 Lawder's Estate, re , 719
v. Gibson, 164, 165 Lawes , re, 404
Lamas v . Bayly, 168 v. Bennett, 495 , 952
Lamb v . Orton , 348 Lawless v. Shaw, 136, 137
Lamb's Trusts , re, 671 , 1030 Lawlor v. Henderson, 842
Lambe v . Eames, 133 , 135 , 137 Lawrence v. Beverley, 941
v. Orton, 73 v. Bowle, 909
Lambert v. Browne, 220 v. Maggs , 184 , 364, 365, 372
v. Lambert, 302 Lawton v. Ford, 883
. Thwaites, 838, 840 Layard v . Maud , 714
Lambert's Estate, re, 714 Layton's Policy, re, 639 , 641 , 903
Laming v. Gee, 905 Lazarus, re, 1003
Lamotte, re, 1039 Lea . Grundy, 776
Lamplugh v. Lamplugh, 40 , 170 , 171 , Lea's Trust, re, 1019
172 , 173, 174 , 176 Leach v. Dean, 76
Lanauze v. Malone , 373 v. Leach, 137, 138
Lancashire v. Lancashire , 604 , 669 Leahy v. Dancer, 801
Lancashire Bank v. Tee, 761 Leake v. Leake , 387
Lancaster v. Elce , 522 v. Young, 511
v . Evors , 279 Leake's Trusts , re, 1003 , 1004
Lancaster Charities , re, 41 , 848 Lear . Leggett, 102
Lancy v. Fairechild, 942 Leathes v. Leathes, 679, 680
Landen v . Green , 986 Lechmere . Brotheridge, 779
Lander v. Weston , 327, 336 , 472 v . Carlisle (Earl of) , 866,938 ,
Landon v. Ferguson , 831 939 , 942, 945 , 948 , 962
liv
 TABLE OF ENGLISH CASES .

[The references are to the star paging.]

PAGE PAGE
Lechmere v. Clamp, 1016 , 026, Leslie v. Devonshire ( Duke of) ,
1034 148, 152
v. Lavie, 131 , 132 , 134 v. Guthrie, 242
v. Lechmere , 942 , 943 , 945, 947 Leslie's Settlement Trust, re, 504
Ledwich , re, 847 Lethbridge v. Thurlow, 407
Lee, re, 1040 Lethieullier v. Tracy, 214, 821
v . Alston , 187 , 886 Lett's Trusts , re, 348
v. Brown , 573, 582 , 588 Letterstedt v . Broers , 848
v. Delane , 351 Lever v . Andrews , 163
v. Hart, 512 Levet v. Needham, 143, 146
v. Howlett, 705 Levett's Trusts , re, 1000
v. Lee, 340 Lewellin v. Cobbold , 977
v. Magrath, 71, 72 , 74 v. Mackworth, 867
v. Mathews , 76 Lewer, re, 707
v. Prieaux , 756, 757 Lewes, re, 1037
v. Sankey, 258 , 259 , 642 v. Lewes, 101
v. Young, 614, 616 , 849 Lewes's Trusts , re, 348
Leech v. Leech, 81 Lewin v. Okeley, 525
Leedham v. Chawner, 636 , 640 , 643 , Lewis, ex parte, 437
919 v. Allenby, 106
Leeds Banking Company , re, 760, v. Duncombe (No. 2) , 883
767 v. Hillman , 1002
Leeds (Duke of) v . Amherst, v. Lane, 721
188 , 298 , 873 v. Lewis , 51 , 404, 951
v. Munday , 226, 227 v. Madocks , 141 , 894, 896 , 897
Leeming , re, 964, 966 v. Mathews , 197 , 228 , 756 , 757
Lees v. Lees , 644 v. Nobbs , 271 , 295 , 320 , 322 , 337
v. Sanderson, 272 v. Rees , 76 , 217
Lees' Trusts , re , 619 v . Trask, 991 , 992
Lefroy v. Flood, 131 , 135 , 137 v. Wallis , 225
Legard v . Hodges , 140 v . Zouche (Lord) , 797
Legatt v . Sewell, 118 Lichfield v. Baker, 298 , 300
Legg v . Goldwire, 113 Liddard v. Liddard , 131 , 132
v. Mackrell , 198 , 673 , 1030 Liddiard , re, 662
Leggott v. Western, 809 Life Association of Scotland » .
Le Hunt . Webster, 668 Siddal, 208 , 227 , 573 , 873 , 877 , 878 ,
Leigh (Lord) v. Ashburton, 668 904 , 918 , 923 , 924, 926
v . Barry, 263 , 264, 268, 514 Lightbody's Trusts , re , 41 , 1030 , 1033
v. Burnett, 186 Liley v . Hey , 133, 836
v . Lloyd, 426 Lillia . Airey, 701
Leigh's Estate , re, 504, 574 Lillwall's Settlement Trusts , re , 785
Leighton . Leighton, 404 Limbrey v. Gurr, 96, 106
Leister v . Foxcroft, 62 Limbroso v. Francia, 372
Leith v . Irvine, 628 , 632 Limerick and Ennis Railway
Lemaitre v. Bannister, 132, 134 Company, re, 961
Leman v . Whitley , 145 Linch v. Cappy , 339
Lemann's Trusts , re, 1027 Lincoln Primitive Methodist
Le Marchant v . Le Marchant, 131 Chapel , re, 852, 1028
Lemprière v. Lange , 39 Lincoln (Countess of) v . Duke
Lench v. Lench, 167 , 168 , 169 , 892 , of Newcastle, 112 , 116 , 117
896 , 918 Lincoln v. Allen, 338
Leonard , re, 300 v. Pelham , 390
v. Baker, .510 v. Windsor, 281
v. Sussex (Lord) , 119 , 508 v. Wright , 54 , 265 , 273 , 910, 911 ,
Lepine v. Bean, 95 912 , 922
Lesley's Case, 186 Lincoln's (Earl of) Case, 722
Leslie, re, 903 Lindon v. Sharp , 511
v. Baillie, 345 , 348 , 702 Lindow v. Fleetwood, 127 , 128
v. Birnie, 534 Lindsay, re, 362
lv
 TABLE OF ENGLISH CASES .

[The references are to the star paging.]

PAGE PAGE
Lindsay v. Earl Wicklow, 731 London, Brighton , & c. Railway
Lindsell v. Thacker, 228 , 756 Company, re, 852, 932
Lingard v . Bromley, 909 , 910 , 916 London Chartered Bank of Aus
Lingen v. Sowray, 941 , 956, 961 tralia v. Lemprière , 482 , 704 , 767,
Lingon v. Foley, 420 768, 773, 920 , 921
Linley v . Taylor, 644 London (City of) v . Garway, 148 , 149
Linton v. Bartlet , 513 London Syndicate v . Lord, 978 , 979
Lismore (Lord) , re, 940 London and Provincial Bank v.
Lister v. Hodgson, 67 Bogle, 768 , 785, 790
v. Lister, 484, 485 , 486 , 493 , Lonergan v. Stourton , 349
496, 870 Long v. Clopton, 279
v. Pickford, 882 v . Hay, 902
v. Tidd , 711 v. Long, 410
Lister's Hospital, re, 932 Long's Settlement , re, 662
Little , ex parte, 447, 678 Longdendale Cotton Spinning
re, 1033 Company, re, 49
Littlehales v. Gascoyne, 338, 989 Longdon v. Simpson, 91
Livesay v. O'Hara , 346 Longfield v. Bantry, 97, 393
Livesey v. Harding, 613, 614, 711 Longford's Trust, re, 311
v. Livesey, 356, 393 Longmore v. Broom, 338 , 837 , 840
Llevellyn v. Mackworth , 863 v. Elcum, 138 , 139
Llewellyn, re, 351 Longuet v. Hockley, 238
Llewellyn's Trust, 299, 303, 304 Lonsdale (Earl of) v. Beckett , 663
Lloyd (Goods of) , re, 940 Lonsdale's Trust, re , 1033
v. Attwood,. 925, 926 Lord v. Bunn, 100 , 472
v. Baldwin , 456, 457 v. Godfrey, 299
v. Banks , 710 Lorenz's Settlement , re, 619, 620
v. Gregory, 38 , 39 Lorimer, goods of, re, 223
v. Harvey, 403 , 405 , 506 re, 1003 , 1004
v. Lloyd, 102 , 106 Louch , ex parte, 512 , 513
v. Pughe, 33, 177 Louis v. Rumney, 590
v. Read, 173, 174 , 175 Lovat v . Fraser, 636
v. Spillet, 13 , 52 , 144 , 145 , 146 , (Lord) v. Leeds (Duchess
147 , 193 , 194 of) , 105
v. Wentworth, 146 Love , re, 986, 990
v. Williams , 524, 525 , 741 , 743 v . Eade , 934
Lloyd's Banking Company v. v. Gaze, 61
Jones, 714, 715 Lovegrove , ex parte, 634
Lloyd's Trusts , re, 996, 998 v. Cooper, 828
Loch v. Bagley, 126, 508 Lovell v. Newton, 788
Lock v . Foote, 722 Loveridge v. Cooper, 345 , 702
v. Lock, 364, 372 , 378 Lovett's Exhibition , re, 849
Locke v. Lomas , 455 , 460 , 473 Low, ex parte , * 513
Locke and others , re, 972 v. Carter, 906
Lockey v. Lockey, 886, 891 Lowdell's Trust , re, 41
Lockhart v . Reilly, 205, 330, 909 Lowe's Settlement , re, 701
Locking v. Parker, 880 Lowes v. Hackward, 159
Lockwood v. Abdy, 191 , 642 Lowndes v. Lowndes, 410
v. Sikes , 103 v. Norton , 189
Lockyer v. Savage , 101 v. Williams , 359
Locton v. Locton, 140 Lowry v. Fulton, 196 , 198, 203 , 251
Loddington v. Kime , 519 in the Goods of, 215
Lodge . Lyseley , 797, 799 Lowry's Will, re , 1011
Lofthouse , re, 614 Lowson v. Copeland , 290, 344 , 350,
Lomax v. Ripley, 63 994
Londesborough (Lord) v . Fos Lowthe r v. Bentinck, 589
ter. 235 v. Carlton , 860
r. Somerville, 323 Loy v. Duckett, 482
London Bridge Acts , re, 447 Loyd v. Griffith, 447
lvi
 TABLE OF ENGLISH CASES .

[The references are to the star paging. ]

PAGE PAGE
Loyd v. Read, 163 , 177 Mackenzie v. Mackenzie , 514, 1022 ,
v. Spillet, 54, 994 1042
Lucas, ex parte, 1003 Mackenzie's Trusts , re, 312
v. Brandreth , 109 , 951 Mackett r. Mackett, 138
v. Jones, 951 Mackey v . Maturin , 776
v. Lucas , 755 Mackie , re, 101
v. Williams, 238 v. Mackie , 304
Luckin v . Rushworth, 180 , 185 Mackinnon v . Stewart, 515 , 518 , 806
Ludlow, ex parte, 965 Mackreth v. Symmons , 714, 858
(Corporation of) v . Green Maclaren v. Stainton , 302, 310 , 576
house, 855 , 923 , 927 , 928 , Macleay , re, 102
929, 930, 931 Macleod v. Annesley, 325, 327
Luff v. Lord, 487 v. Jones , 276, 856
Luke v. South Kensington Ho Macnab v. Whitbread, 131 , 134
tel Company, 258 Macnamara v . Carey, 902 , 904
Lulham , re, 76 , 181 , 777 v. Jones , 633 , 634
Lumb v. Milnes, 757 Macoubrey v. Jones , 389, 399
Lumsden v. Buchanan , 239 Macpherson v. Macpherson, 301
Lunham r. Blundell , 297 Maddever , re, 873
Lunn's Charity , re, 1023 Maddison v. Andrew , 616
Lupton v. White , 298 Maddocks r. Wren, 190
Lush v . Wilkinson , 77, 78, 79 Maddy v. Hale, 366, 370
Lush's Estate , re, 1015 Madoc r. Jackson, 838
Trust, re, 739, 919 Magdalen College v. Attorney
Lushington, ex parte, 541 General, 870
v. Boldero , 188 Maggeridge v. Grey, 847
Luther v. Bianconi, 291 , 317 , 365, Magrath v. Morehead, 689
779, 904 Maguire . Scully, 113 , 115
Luxembourg Railway Company Mahon v. Savage, 615 , 837 , 842, 843
(Great) v . Magnay, 279 (Lord) v . Stanhope (Earl) , 428
Lyddon . Ellison, 393 Main's Settlement , re, 139
v. Moss , 872 Mainwaring , re, 1021
Lydiatt v. Foach, 539, 543 Mais , re, 853 , 1028
Lyford's Charity , re , 930 Maitland v. Bateman, 291
Lynch's Estate , re, 719 Major v. Lansley, 780 , 834
Lyne , ex parte, 261 Malcolm v . O'Callaghan, 634
(Lyne v .) , 756 Malim v. Barker, 131
Lynn v. Beaver, 60 v. Keighley, 131 , 132 , 134
Lyon v. Baker, 282 Mallabar v. Mallabar, 147 , 159 , 160
Lysaght " . Edwards , 233 Mallins , re, 432
v. M'Grath, 109 Malone . Geraghty, 853
Lyse v. Kingdon , 312 , 908, 989 v. O'Connor, 131, 133
Lyster v. Burroughs , 141 Malzy v. Edge, 203 , 207
v. Dolland, 165 , 802 Manby v. Bewicke , 875
Lytton's Settled Estates , re , 504 Manchester (Mayor of) v . Man
chester (Overseers of) , 235
MABERLY v. Turton, 582, 835, New College, re, 929, 930
836 Mangles v. Dixon, 716, 862
Macartney v. Blackwood, 491 , 890 Manners v. Mew, 715
Macaulay . Philips , 746 v. Furze , 982
Macbryde v. Eykyn, 858 Manning v . Gill , 106, 145
Macdonald v. Irvine , 300 Manning's Trusts , re , 1031
v. Richardson , 278 Mansel, re, 316 , 322 , 597
r. Walker. 229 Mansel's Settled Estates , re, 557, 622
Macdonnell . Harding, 296, 922 Mansell . Mansell , 857, 858, 902
Mace v. Caddell, 244 v . Price, 153
Macey v . Shurmer, 131 v. Vaughan, 261 , 600 , 611
Mackay v. Douglas, 79 Manser . Dix, 427
Macken v. Hogan , 288 Mansfield (Earl of) v. Ogle, 883
lvii
 TABLE OF ENGLISH CASES.

[The references are to the star paging.]

PAGE PAGE
Mansfield v. Shaw, 855, 982 Martinson v. Clowes, 486
Manson v. Baillie, 251 , 282 Martyn , re, 671 , 1030
Mant . Leith, 326 v . Macnamara, 77, 78
Maplett v. Pocock, 986 Marwood v. Turner, 694
Mapp v. Elcock, 146 Mary England , re, 585
Mara v. Manning , 779 Masham v. Harding, 525
March , re, 69, 741 , 753 , 767 Maskelyne v. Russell, 288
v . Russell, 906, 925 Mason, re, 975 , 976 , 1013 , 1029 ,
Marcon's Estate, re, 296 2044
Mare v. Lewis , 83 v. Bogg, 521
v. Sandford, 523 v. Day , 968
Margetts v . Barringer, 756 v. Limbury , 130
Marker v. Marker, 926 v. Mason, 125 , 967 , 968 , 1013
Markwell v . Markwell, 75 v. Morley , 298
Markwell's Legacy , re, 932 Mason's Trusts , re , 1004
Marlborough (Duke of) v . Masselin's Will, re, 1000
Lord Godolphin , 839 Massey , ex parte, 243
v. St. John , 574 re, 449
Marlborough's (Duke of) Set v . Banner, 256, 294, 295 , 296
tlement, re , 567 v. Massey, 139
Marlow v. Pitfield, 38 , 521 v. Parker, 755 , 756 , 782
v. Smith, 226, 246 Massy v. O'Dell, 98,863, 876
Marner's Trusts , re, 1004 v. Hayes , 756
Marriot v. Marriot, 62 v. Lloyd, 417
Marriott v. Kinnersley, 252, 903 v. Rowen , 756
v. Turner, 149 Master v. De Croismar, 45 , 117, 434
Marriott's Settlement, re, 1029 v. Fuller, 763
Marris v. Ingram, 916 , 917 Masters v. Masters , 404
Marryat v. Marryat, 205, 977 Mather v. Norton, 459
v. Townley, 111 , 115, 117 , 118 , v. Priestman, 434
120, 126 v. Thomas , 228
Marsden, re, 357 Mathew v. Brise, 886
v. Kent, 289 Mathews . Keble , 92
Marsh ( Marsh v. ) , 960 Mathias v. Mathias , 506 , 896
ex parte, 244 Matson v . Swift, 949
v. Attorney-General, 950 Matthew v. Hanbury, 106
v. Hunter, 336 V. Northern Assurance
and Earl Granville , re, 76 Company, 997
Marshal v. Crutwell, 177 Matthews , re, 1027, 1029
Marshall, ex parte, 227, 780 v. Bagshaw, 629
v. Blew, 684 v. Brise, 295 , 296 , 315 , 321
v. Bousfield , 117 , 118 v. Gabb, 711 , 712
v. Bremner, 299 v. Paul, 390, 393
v. Crowther, 302 v. Whittle , 791 , 793
v. Gibbings , 742 Matthews's Settlement, re, • 1018 ,
v. Gingell, 218 , 384 1031
v. Holloway, 89, 155 , 630 , 632 Matthie v. Edwards , 423, 435
v. Sledden , 428 Matthison v. Clarke, 277, 280 , 628
Martin, ex parte, 243 Maudsley v. Maudsley, 670
v . Fitzgibbon, 766, 771 Maugham v. Mason, 149 , 159
v . Hooper, 524 Maunder v. Lloyd, 49
v. Laverton, 228, 229 Maundrell v. Maundrell, 155
v. Margham , 103 Maunsell , ex parte, 961
v. Martin, 48 , 50, 117 , 275 Mavor v. Davenport, 205
v. Persse, 198 , 989 Maw v. Pearson, 191 , 642
v . Sedgwick, 709 Maxwell v. Ashe , 184
Martinez's Trust, re , 197 , 248 , 249 , r. Wettenhall, 525, 526
1031 May v. Armstrong, 989
Martin Pye's Trusts , re, 1033 v. Hook, 117
lviii
 TABLE OF ENGLISH CASES .

[The references are to the star paging. ]

PAGE PAGE
May . May , 105 Meek v . Kettlewell, 67, 69 , 70, 74,
v. Roper, 955 77,80
v. Taylor, 212 , 234 Meggison v. Moore, 131 , 135 , 136
Mayd . Field , 406 , 776 , 921 Meggot v . Meggot, 890
Mayer . Murray, 905 Megod's Case , 7, 17
Mayhew . Middleditch , 399 Mehrtens v. Andrews , 334, 873
Mayn . Mayn , 117 , 127 Meinertzhagen v. Davis , 40 , 660 ,
Maynard's Settlement, re , 1021 , 662 , 663
1028 , 1033 2. Walters , 408
Maynwaring . Maynwaring, 960 Melland v. Gray , 342
M'Alinden v. M'Alinden , 135 Melling v. Leak, 677, 881
M'Carogherr.Whieldon , 406, 430, 473 Mellor . Porter, 1026
M'Carthy v. Daunt, 880 Mellor's Policy Trusts, re, 789
v. Decaix , 926 Melly, re, 966
M'Carthy's Trusts , re , 1028 Mendes v. Guedalla, 265, 295,
M'Cleland v . Shaw, 149 , 160 320, 337
McClellan , re, 987 Mennard v . Welford, 658
McClintock v . Irvine, 109 Merchant Taylors' Company v.
McCormick v. Grogan , 61, 62, 135 Attorney-General, 162
v. Patten, 644 Meredith , re, 523
M'Cracken v. M'Clelland , 182 v. Heneage, 131 , 132, 133,
M'Creery . Searight, 739 134, 135, 137
M'Creight . Foster, 142 Merest . James , 15
v. M'Creight, 355 Merlin v. Blagrave , 350, 351
M'Cullogh v. Littledale , 746 Merriman's Trust, re, 742
M'Donald v. Bryce , 91 , 92 Mertins . Jolliffe, 859
v. Hanson, 432 Messeena v . Carr, 258, 574, 606
M'Donnell v. Hesilrige , 77 Messenger v. Clarke, 774
McDonogh v . Nolan, 964 Mestaer v. Gillespie, 242
McEwan v. Crombie, 635 , 913, Metcalf r. Scholey, 802
991, 992 Metcalfe . Hutchinson, 368
M'Fadden v. Jenkyns , 53, 68, 73 Metham . Devon, 58, 65
M'Gachen v. Dew, 287, 911 Metropolitan Bank v . Heiron, 869 ,
M Hardy v. Hitchcock, 976 , 900, 901
977, 978 Metropolitan Railway Company,
McHenry v. Davies , 761 ex parte, 986
M'Kay's Case, re, 279 Mette's Estate, re, 566
M Key, ex parte, 588 Meure v. Meure, 118, 120
M'Kenna , re, 141 , 922 Meux . Bell, 706, 707
v. Eager, 202 v. Howell, 510
M'Leod v. Drummond, 477, 478 , 479, Mewburn's Settled Estates, re, 1001
480, 483 Mews v. Mews, 774
M Mullen v. O'Reilly, 479 , 481 Meyer . Simonsen, 304
McMurray . Spicer , 1016 , 1017 v. Montriou, 979
McNeillie v. Acton , 34, 467, Meyler v . Meyler, 109
479 , 916 Meynell v . Massey, 418
M'Queen v. Farquhar, 427, 860 Meyrick's Estate, re, 1019
Meacher . Young, 586 Michael's Trusts, re, 786
Mead v . Orrery (Lord) , 477, 478 , Michel's Trusts, re, 105
479 , 483 , 858 Michell . Michell, 412
Meader v. M'Cready, 341 Micholls . Corbett, 595
Meaghan, re, 104 Middlecome v . Marlow, 78
Medley v . Horton, 726, 783 Middleton , ex parte, 521
v. Martin , 245 v. Barker, 109
Medlicott r. Bower, 700 v . Chichester, 900, 917
v. O'Donel 865, 868 v. Dodswell, 595, 982, 983
Medow's Trusts , re , 1000 v . Losh, 94
Medworth v . Pope, 95 v. Pollock, 700
Meek v. Devenish , 956 , 957 v. Pryor, 502
lix
 TABLE OF ENGLISH CASES .

[The references are to the star paging.]

PAGE PAGE
Middleton v. Reay, 617, 669 Mockett's Will, re, 618, 619
v. Spicer, 44, 161, 275 , 285 Mogg v. Hodges , 149, 152
Midland Great Western Rail Moggridge . Thackwell , 833
way of Ireland Company v. Mohash Lal v. Mohunt Bawan
Johnson, 498 Das, 731
Midland Insurance Company v . Mohun v. Mohun, 985, 987, 989
Smith, 898 Mole v. Mole, 410
Mildmay v . Mildmay, 189 Molony v. Kennedy, 774, 775
v . Quicke, 152 v. L'Estrange , 498
Mildred . Robinson, 830 Molton v . Camroux , 26
Miles v. Durnford, 106, 477, Molyneux , re, 1026
479, 480 and White, re, 458 , 481
v. Harford, 112, 125 Molyneux's Estate, re, 756 , 758 , 781
v. Harrison, 644 Monahan, re, 998
Miles v. New, 715 Monck v. Monck, 402 , 403 , 404,
v. New Zealand Alford 405 , 406
Estate Company, 715 Monckton v. Braddell, 348
Miles's Will, re, 307, 313, 329 Money, re, 1000
Milfield , re, 1011 Money's Trust, re, 370
Millard v. Eyre , 847 Montagu v. Inchiquin (Lord) , 125
Millard's Case, 858 Montague v. Sandwich, 79
Miller v. Campbell, 739 Montefiore , re, 913
Miller v. Gulson, 117 v. Behrens , 101 , 102 , 739
v. Miller, 951 v. Browne, 515, 517
v. Priddon, 663, 669 v. Enthoven, 102
v . Race, 240, 241 , 893 v. Guedalla, 310, 403 , 405
Miller's Case, 16 Montford (Lord) v . Cadogan
Milles v .Milles , 367, 371 , 682 (Lord) , 203 , 205 , 364, 367 , 370 ,
Millichamp , re, 683 371 , 379 , 907 , 910 , 918 , 919
Milligan . Mitchell, 534, 855 Montgomery v. Johnson , 198, 203
Mills v. Banks , 420 Montmorency v . Devereux, 497
v. Dugmore, 430 Monypenny . Bristow, 886 , 887
v. Mills , 299 , 307 , 334 Moody, ex parte, 912
v. Osborne , 288, 316 v. Matthews, 184
Milne v. Gilbart, 260 Mooney v. Summerlin, 847
v. Wood, 95 Moons v. De Bernales, 340 , 907 , 912
Milnes v. Busk, 760 Moor v. Black, 890
v. Cowley, 900 Moorcroft v. Dowding, 56, 252
Milroy v. Lord, 69, 74 Moore, ex parte, 244, 486
Milsington v. Mulgrave , 365 re, 696 , 915 , 1012 , 1044
Milsingtown v. Earl of Port v. Cleghorn, 109
more, 367 v. Clench , 615
Miltown v. Trimbleston, 1037 v. Frowd, 281 , 631, 987
Milward's Estate , re, 432 v. Harris , 758
Minchin v . Nance , 141 v. Hussey, 33
Minchin's Estate, re, 1019 v. Moore, 357, 777 , 783, 787
Minors v . Battison , 597, 617 v. Morris, 755, 774, 780
Minton v. Kirwood, 596 v. Mulligan , 772
Mirfin , re, 35 v. Petchell, 521
Mitchell v. Bower, 410 v. Scarborough (Earl of) , 777
v. Cobb, 999 v. Walter , 502
v. Nixon , 656 v. Webster, 735
Mitchelson v . Piper, 597 Morant, Goods of, re, 223
Mitford, ex parte, 911 Morant's Trusts , re, 1001
v. Mitford , 242 , 746, 748 Moravian Society, re, 659
v. Reynolds , 107 Mordaunt v. Benwell, 152
Moate's Trusts , re, 1000 , 1034 Morden College Case, 539
Mocatta v. Murgatroyd , 726 , 728 Morgan, ex parte, 227, 490, 873
Mockerjee v. Mockerjee, 486 , 487 re, 183 , 225 , 238 , 554, 862, 1042
lx
 TABLE OF ENGLISH CASES .

[ The references are to the star paging. ]

Morgan . Horseman, PAGE
513 Muckleston v. Brown , 59, 60, 63,PAGE 64,
v. Larivière , 83
v. Malleson , 68 Muc 66, 106 , 145, 148 , 916
v. Morgan, 91 , 93, 299 , 300 , 303 , klow . Ful ler ,
Muggeridge's Trust , re, 101 204. 274
735, 736, 886, 889 , 618 ,
v. Sherrard, 828 619
v. Stephens, Mulcahy v . Kennedy,
642 Mulqueen's Trusts , re , 869
v. Swansea Urban Sanitary 999
Authority , Mulvany v. Dillon , 180 , 182 , 183 , 185 .
Moriarty v. Martin , 221 , 1011
130 Mu mf or d r. Sto hwa sse r, 485 , 490
Morice v. Durham ( Bishop of) , 132 , 859
Mumma v. Mumma,
Morier, ex parte, 148 Munch v . Cockerell , 40, 171 , 174
Morison v. Morison , 280 , 632 , 634 700, 255 , 341 , 907 ,
Mundel's Trust , re , 926
640 Mundy v. Howe ( Lord) , 101 8, 102 8
Morley v. Bird, 586
164 v. Mundy,
v. Hawke (Lord) , 918 890
v. Morley , Murless v. Franklin,
294 163 , 170 , 171 ,
Morley's Trust, re,
Mornington , ex parte , 227, 228 Murphy, re, 175, 176
1026 v. Abraham , 104, 883
(Countess of) v. Keane , 141 104
Morony . Vincent, v. Donnelly , 213
Morrell v. Cowan , 986 v. O'Shea,
761, 762 Murray r. Barlee , 762, 763, 770 , 771 490, 496
r. Fisher, 644
Morres v. Hodges , v. Glasse,
Morret . Paske, 370 303
v. Palmer , 497, 498
Morrice v. Bank of England,276, 279 v . Pinkett ,
Morris , re, 829 892
v. Stair, 75
r. Debenham, 320, 596 Murray's Trust , re ,
430 Mur rel l v. Cox , 619
v. Livie,
v. Owen ,
697, 911 Musgrave v. Sandeman ,268 , 272, 277
148 Mussett v . Bingle , 786
v. Preston ,
v. Venables ,
657 Mussoorie Bank v . Raynor , 135 , 106 137
Morse v. Faulkner , 515 Mutlow v. Bigg, 876 , 877 , 900 , 956 ,
v. Langham. 49
520 962
v. Royal, 485 , 487 , 488 , 495 , v. Mutlow,
Mutual Life Assurance Society 828
Mortimer v. Davies , 497 , 498 , 868 v. Langley ,
163 Myler v . Fitzpatrick , 191 641 642 711
v. Ireland, 230 232 , ,
v. Picton, , Myles . Burton,
311 771 , 787
r. Watts ,
Mortimore v. Mortimore , 365 , 616 NAB v . Nab ,
Mortlock e. Buller , 326 Nagle's Trusts , re, 54, 56, 62
Morton and Hallett , re, 423, 428 , 605 Nail v. Punter , 433
230, 233 Nairn . Majoribanks , 918
v. Tewart, 575
Moseley v . Moseley , 55, 56 Nanney . Williams ,
Moses . Levi , 835, 844 Nanson v . Barnes , 75, 191
271,272 Nantes . Corrock, 823
Mosley v. Hide,
430 Nant-y-Glo & Blaine Ironwork 770,s 773
v. Ward, 336 , 340 , 989 , 994 ,
Company v. Grave , 279, 904
Moss v. Cooper , 995 Napier . Napier,
Mott . Buxton, 63 Nash , re, 742, 743
Mountain . Young, 210, 234 1015
997 v. Allen, 210
Mousley v. Carr, v. Coates , 216 , 217
Mower's Trust , re, 341 , 342 , 991
v. Dillon, 986
719 v. Flyn ,
Moyle v. Moyle, 196 , 274 , 297 , 314, 75
v . Preston, 8. 221
Moyser . Gyles , 344 r. Smith.
Mucholland v. Belfast , 164 Nash's Settlement, re, 146
423 Natal Investment Company, re, 697 145
lxi
 TABLE OF ENGLISH CASES .

[The references are to the star paging. ]

PAGE PAGE
National Provincial Bank v. Newsome . Flowers, 285
Harle, 72 , 713 Newton . Askew, 75 , 81, 691
Nayler v. Wetherall , 141 v. Bennet, 338 , 340 , 524, 525 ,
Naylor v. Arnitt, 595 991 , 992
v. Winch, 485 , 490 v. Chantler, 511 , 513
Neale v. Davies , 285 v. Curzon, 586
v. Day , 78 v. Metropolitan Railway, 483
Neate . Marlborough (Duke v. Newton , 862
of) , 797 , 800 , 814, 815 v. Pelham , 64
Neave v. Avery, 678 v. Preston , 167
Neave ( Sir T. ) and Chapman v. Sherry, 362
and Wren, re, 429 Newton's Charity, re, 930
Needham, re, 201 Nicholls v. Crisp , 149
Needler v. Winchester (Bishop Nicholson v. Carline, 743
of) , 33 v. Drury Buildings' Estate
Needler's Case, 918 Company, 346, 740
Neeves v . Burrage, 597 v. Mulligan , 147 , 169 , 178
Neligan v. Roche, 285 v . Smith, 259, 657, 664
Nelson . Bridport, 50 v. Tutin , 517, 632
v. Seaman, 668 v. Wright, 657, 664
v. Stocker, 355 Nicholson's Trusts , re, 1033
Nepean v. Doe, 348 Nickisson v. Cockill, 613
Nesbitt . Baldwin , 978, 979 Nickolson v . Knowles , 191
v. Tredennick, 180 , 181 , 183 Nicloson v. Wordsworth, 197 , 199,
Nether Stowey Vicarage , re, 504 200
Nettleton v. Stephenson, 92 Nicoll's Estates , re , 636
Nevarre r. Rutton, 863 Niel . Morley , 26
Neve v. Flood, 816 Nightingale v . Ferrers (Earl) . 38
Nevil v. Saunders , 210 v. Lawson, 363, 364, 372
Neville . Fortescue, 299 Nightingale's Charity , re, 852
New . Bonaker, 161 Nixon v. Verry, 101
v. Jones , 281 , 627 , 630 , 633 Noad v . Backhouse , 983
New London and Brazilian Bank Noble . Brett, 356
v. Brocklehurst, 322 , 327, 715 v . Meymott, 197 , 650 , 657
New Sombrero Phosphate Com v. Willock, 774
pany . Erlanger, 279 Noel v. Henley (Lord) , 154, 301
New Zealand and Australian v. Jevon , 9, 221 , 246
Land Company . Watson, 482 Noke . Awder, 678
Newberry's Trusts, re , 155 Nokes v. Seppings , 979
Newborough v . Schröder, 669 Norbury v . Calbeck, 993
Newburgh 2'.. Bickerstaffe, 886 , 890 v. Norbury , 312
v. Newburgh , 62, 65 Norcutt v. Dodd, 80
Newcastle (Duke of) , re, 814 Norden v. James , 513
r. Lincoln (Countess of) , 115 Norfolk (Duke of) v . Browne , 144
Newcastle's (Duke of) Estates , Norfolk's Case (Duke of) , 84.85.
re. 433 , 556 , 621 , 622 94, 95, 97. 826
Newcomen . Hassard, 765, 780 Norrington, re , 290, 491
Newell v. National Provincial Norris , ex parte , 347 , 904 , 908 , 912
Bank of England, 701 re, 42 , 617. 664
Newlands v . Paynter, 754, 758 v. Chambres , 48.49
Newman v. Hatch, 988 v. Frazer, 62
v. Jones , 918 v. Le Neve, 186 , 872
v. Newman , 707 , 713 , 859 v. Norris , 986, 988
v. Warner , 608 v. Sadleir, 203
v. Wilson , 743 v. Wright, 318 , 325 , 329 , 330,
Newman's Settled Estates , re, 504 331, 336
Newport v . Bryan , 205 Norrish v. Marshall, 697
v. Bury, 632 North v. Crompton , 147
Newport's Case, 965 v. Williams , 694
Ixii
 TABLE OF ENGLISH CASES .

[The references are to the star paging.]

PAGE PAGE
Northen v. Carnegie , 146 Ommaney , ex parte, 1037
Northern Counties , &c . , Insur O'Neill v . Lucas , 92
ance Company . Whipp , 715 , 897 Onslow . Londesborough (Lord) ,
Northrop , re, 671 , 1029 441 , 443
Norton v. Frecker, 887 v. Wallis , 283, 284, 688
v. Molloy , 346 Onslow's (Speaker) Case , 958
v. Pritchard , 668 Trusts , re, 808
v. Turvill , 38 , 761 , 772 , 774 , 863 , Oppenheim v. Oppenheim, 670
920 O'Reilly . Alderson , 659 , 847
Norton Folgate , re, 1035 v. Walsh, 876, 884
Norway v. Norway, 198, 989 Ord v . Noel, 423 , 435 , 437
Norwich Yarn Company, 639 v. White , 697, 862
Nottley v. Palmer , 960 Ord's Trust , re, 1014
Nowell . Nowell, 916 Orde, re, 1044
Nowlan . Nelligan, 131 Orme, re, 178
Nugent v. Gifford, 477 , 478 , 479 , 480 , Ormerod, re, 1013 , 1021 , 1029
483 Ormonde (Marquis of) v . Ky
Nunn v. Wilsmore, 510, 511 , 523 nersley , • 188
Nurton . Nurton, 477, 478 Ormsby, re, 627 , 628 , 644
Orr v. Newton , 203 , 291
OAKES . Strachey , 298 Orrett v. Corser , 915
Oakley v. Young, 214 Orrok v. Binney , 481
Oates v. Cooke , 213, 215 Ortner v. Fitzgibbon, 772
Obee v. Bishop , 901 Osborn . Morgan, 740, 745
O'Brien v. O'Brien, 336, 337 Osborn's Mortgage, re, 1017
v. Sheil, 176 , 179 Osborne (Osborne v . ) , 358, 672
O'Callagan v. Cooper, 991 v. Rowlett , 230, 258
Occleston . Fullalove 85 Osmond v. Fitzroy, 925
Oceanic Steam Navigation Com Oswald v . Thompson, 512
pany . Sutherberry , 423 , 425 , 616 Otte v. Castle , 1000
Ockleston v. Heap, 232 Otter v. Vaux (Lord) , 728
O'Connell v. O'Callaghan , 905 Ottley v. Browne, 106, 916
O'Connor v . Haslam , 519, 520 v. Gilby, 691, 986
v. Spaight, 886 v. Gray, 453
Oddie v. Brown, 90 Otway v. Hudson , 940
O'Dowda v. O'Dowda, 800 Ottway v . Wing, 760
O'Dwyer v . Geare, 775 Ouseley v. Anstruther, 335
O'Fallon v . Dillon , 799, 800 Outwin's Trusts , re, 759
O'Ferralle . O'Ferrall , 364 Overton v. Banister, 39, 355
Offen v . Harman, 318 Owen, re, 1030, 1044
Offley v. Offley, 420 v. Aprice, 890
Oglander v . Oglander, 850 v. Body, 518
Ogle, ex parte , 287 , 341 , 342 , 349 , 591 v. Delamere, 238
v. Cook, 150 v. Foulkes, 485
O'Gorman v. Comyn, 799 , 800 r. Williams , 180 , 181 , 182 , 186
O'Hare v. O'Neil, 55 Owens , re, 592, 900
O'Herlihy v. Hedges , 275 v. Dickenson, 763 , 764, 773
Oke v. Heath, 159 , 160 Oxenden v . Compton (Lord) , 943 ,
Okeden v. Okeden , 419, 420 963 , 964, 965 , 966 , 967 , 968
O'Keefe v. Calthorpe, 849 Oxenham's Trusts , re, 1034
Oldham v. Hughes , 942, 954 Oxford (University of) v . Rich
v. Litchford, 62 ardson, 886
v. Oldham, 101 Oxley, ex parte, 101
Oliver v. Court, 274, 424 , 441 , 492 ,
496 PACKER . Wyndham, 746, 748
v. Lowther, 813 Packman and Moss , re, 229
v. Oliver, 743 Padbury v . Clark, 961
v. Osborn, 639 Paddington Charities , re, 532
Omerod v . Hardman , 449 Paddon v. Richardson , 197 , 290 , 316
lxiii
 TABLE OF ENGLISH CASES .

[The references are to the star paging.]

PAGE PAGE
Page v. Adam, 456 , 458 , 461 , 465 Parsons . Potter, 198
v. Bennett , 307 Partington e. Reynolds , 905
v . Broom , 442 Partridge v. Foster, 795, 796 , 806,
v. Cooper, 425, 426 815
v. Leapingwell, 148 , 149 , 158, ". Pawlet, 164
159 Pascoe v. Swan , 886,888
r. Way, 100 Pass v. Dundas , 275
Paget . Ede, 46 Passingham . Selby, 525
v. Grenfell, 407 v. Sherborn, 41 , 542 , 665
v . Paget, 76 Patch v. Shore, 81
Paine r. Jones , 882 Paterson r. Murphy, 68.75
v. Meller, 141 , 142 v . Paterson, 237, 1025
Paine's Trusts , re, 667 Patten and Guardians of the Ed
Palairet v. Carew, 424 , 668 , 685, 686 monton Union, re , 473
Palmer v. Jones , 908, 992 Pattenden r. Hobson, 424, 905
v. Locke, 703 Patterson's Estate , re, 82
v. Newell, 616 Pattinson, re, 1013 , 1044
v. Simmonds , 131 , 134 Pattison . Hawkesworth, 869
v. Young, 181 Paul v. Birch, 239
Palmer's Settlement, re, 669 r. Children , 95
Will , re, 433 r. Compton, 130 , 131 , 134
Palmes v. Danby, 968 Paull r. Mortimer, 910
Pannell v . Hurley, 192 , 483 , 642 Pawlett, ex parte, 329
Panton v. Panton , 298 v. Attorney-General , 9 , 10.30 , 84,
Papillon v. Papillon, 401 221 , 223 , 246 , 247 , 249 , 820, 858
". Voice, 111 , 119 Payne, ex parte, 131 , 132
Paramore v. Greenslade , 142 v . Barker, 684
Parby, re, 1027 v. Compton, 858
Parke's Charity , re, 540, 929, 930 v. Evens, 691 , 873 , 884 , 922
Trust, re, 1031 v. Little, 776, 987
Parker, re, 997 v. Mortimer, 81
v. Bloxam , 277 Peace and Waller, re, 771 , 772
v. Brooke , 754, 756 , 777, 834, Peacham r. Daw, 980
860 , 861 Peachy v . Duke of Somerset, 248
v. Calcroft, 190 Peacock , re, 1024 , 1032
v. Carter, 677 , 723 , 734 , 735 , 882 v. Colling, 847,900
v. Clarke, 696 v . Monk, 760, 761 , 776 , 779
v . Manning , 678, 679 Peacock's Trusts , re, 755
v. McKenna , 279 Peacocke v. Pares , 389
v. Williams , 961 Peake . Penlington , 127
Parker's Trusts , re , 1029 Pearce . Gardner, 425 , 601
Parkes v. White, 485 , 486 , 495 , 754, 2. Newlyn , 858
776 , 781 , 918 v. Pearce , 208 , 654, 904
Parkinson's Trust, re, 133 r. Slocombe, 525, 526, 527
Parnell v. Hingston, 70 Pearse . Baron, 128
v. Parnell, 134 v. Green, 691
Parnham v . Hurst, 242 Pearson , re, 325 , 500 , 1013 , 1028
Parnham's Trust, re, 102 1029
Parr . Attorney-General, 32 v. Amicable Assurance
Parrot v. Treby, 993 Office, 70, 71
Parrott, re, 41 v. Belchier, 871
". Palmer, 886 v . Lane , 690, 958
Parry, re, 999 v. Pearson, 581
. Warrington , 301 v . Pulley , 864
r. Wright, 726, 727 Peart, ex parte, 1001, 1004
Parry's Trust, re , 1004 Pease, ex parte, 244
Parsons v. Baker, 131 v . Jackson , 705, 714
v. Freeman, 722 Peat v. Crane, 314
v. Hayward, 277 Peatfield v. Been, 669
lxiv
 TABLE OF ENGLISH CASES .

[The references are to the star paging.]

PAGE PAGE
Pechel v . Fowler, 423 , 435 , 854 Philips r. Bury, 528
Peckham . Taylor, 54 r. Pennefather, 901 , 922
Pedder's Settlement, re, 957, 961 v. Philips . 355, 520
Peele, ex parte, 913 Phillipo v. Munnings , 204 , 336, 863 ,
Peers v . Ceeley, 347, 637 884, 900 , 973
Peillon . Brooking , 310 Phillipott's Charity. 929
Pell . De Winton, 324, 453, 473, Phillips , ex parte, 963 , 964 , 965 , 967
474, 574, 593 , 664 re, 1037
Pelling . Goddard, 998, 1000 v. Barlow, 189
Pelly . Maddin , 163 v. Daycock, 969
Pemberton . Marriott, 741 v. Eastwood, 581
r. McGill, 768 , 787 , 919 v . Edwards , 430
Penfold r. Bouch, 148 , 685 , 989 v. Everard, 442
r. Mould, 71 , 74, 742 v. Garth, 838.844
Penn v. Baltimore (Lord) , 9 , 30 , 31 , v. James , 113 , 115
48, 49 r . Phillips , 147 , 150, 160 , 186
Penne r. Peacock, 599 Phillips's Charity, re, 929
Pennell r. Deffell, 296, 894, 895 Phillipson . Gatty, 325 , 336 , 873
v . Dysart, 680 Phillpotts . Phillpotts , 106
v. Home, 872 Philpot, ex parte, 513
Penny . Allen, 165 , 694, 723,873,889 Phipps e . Ennismore (Lord) , 104
e. Avison , 341 v. Kelynge, 89
v. Penny, 644 r. Lovegrove , 345, 670, 704,705 ,
r. Turner, 837, 839 , 840 706. 707
Pentland . Stokes, 867 Phoenix Life Assurance Co., re, 238 ,
Peploe . Swinburn, 830 239
Pepper r. Tuckey, 849 Picard v. Hine, 760 , 767 , 770, 771
Peppercorn . Wayman, 200 Pickard , re, 152
Perens . Johnson, 490 v. Anderson , 317
Perfect . Curzon, 396 Pickering . Pickering, 299 , 334
Perkins . Baynton , 338 , 340 v. Stamford ( Lord) , 868 , 870 , 871
. Bradley, 28 v. Vowles , 180 , 181 , 184 , 226 ,
Perks . Milrea, 772 365
Perrot v . Perrot , 383 Pickett . Loggon, 889
Perry (in the Goods of) , 202 Pickstock . Lyster, 510, 518
v . Knott, 910 Pickup v. Atkinson, 299
r. Phelips , 896 Pidgeon r. Spencer, 299
v. Shipway , 259, 534, 677 Pierce v. Scott, 451 , 481
Perry-Herrick r. Attwood, 714 Piercy v . Roberts , 99
Perry's Trust, re, 997 Pierson . Garnet , 130 , 131 , 132 , 134 ,
Peter . Bruen, 524 835
r. Nicolls , 76 v . Shore , 180, 969
Peters . Lewes and East Grin Piety v. Stace , 336, 338 , 340, 989
stead Railway Company, 258 , 606 Pigg . Clarke , 133
Peterson e. Peterson, 857, 592 Pike v. Fitzgibbon , 762 , 766 , 771 , 921
Petit . Smith, 17 ". White, 720
Petre r. Petre . 875, 876, 878 Pilcher v . Rawlins , 859
Pettiward v . Prescott, 889 Pilkington . Bayley, 52
Petty . Styward, 164 v. Boughey, 131 , 148
Peyton v. Bury, 261, 611 Pilling's Trusts , re, 222
Peyton's Settlement , re , 502 , 505, Pimm . Insall, 249
1022 Pine , Goods of, re , 774
Phayre v. Peree, 858 Pinède's Settlement, re, 153
Phelps, ex parte, 847 Pink . De Thuisey, 615
Phené r . Gillan , 643 Pinnock . Bailey, 711
Phene's Trust, re, 348, 349 , 842 Pit v. Hunt, 10, 795
Philbrick's Trust, re, 688 Pitt v. Bonner, 909 , 910
Philips v. Brydges , 8, 14, 692/ 694, v. Hunt. 758
720, 938 v. Pelham , 140, 834
ixv
 TABLE OF ENGLISH CASES .

[ The references are to the star paging. ]

PAGE PAGE
Pitt . Pitt, 731 Potter . Chapman, 19 , 611 , 613 , 616
Pitts v. Edelph, 859 Potts, re, 357
v. La Fontaine, 985 . Britton, 316
Settlement , re, 582 Poulett (Earl ) v. Hood, 442, 619
Plasket v . Dillon (Lord) , 796, 797 Poulson, ex parte, 913 , 915
Platel v. Craddock, 287 Powdrell v. Jones, 738
Platt . Platt. 405 , 406 Powel . Cleaver, 401 , 402
Playfair . Cooper , 882 Powell, re, 1016
Playters v. Abbott, 368 , 373 , 379 v. Cleaver, 298, 334
Plenty . West, 661 v. Evans , 290, 314
Plimmer v. Mayor , &c . , of Wel v . Glover, 279
lington, 716 , 717 v. Hankey , 776
Plowright v . Lambert, 487 v. Matthews , 1010, 1016
Plucknet v. Kirk, 797, 827 v. Merrett, 161, 285
Plunket v . Penson , 524 , 827,828 , 829 v. Morgan , 730
Plyer's Trust, re, 1017, 1032 v. Price, 114, 858
Plymouth v. Archer, 949 Powell's Case, 524
v. Hickman, 56 Power, re, 702
Poad v. Watson, 219 v. Power, 901
Pocock v. Attorney-General, 839 Powerscourt v . Powerscourt, 615
v. Reddington , 306 , 312 , 316 , Powis . Burdett, 396
336, 990 Powles v. Page , 709
Podmore v. Gunning, 65 Powlet (Earl) v . Herbert, 274 , 989
Poland v. Glyn. 513 Powlett v. Bolton, 188
Pole v. Pole , 170 , 172 , 173 , 176 , 190 (Earl) v. Hood , 594
v. Somers . 403 Powys v. Blagrave, 594
Pollard, ex parte, 48 v. Mansfield , 178 , 402 , 403 , 406
v. Downes , 642 Poyser v. Harrison , 635
v. Doyle, 281 Prankerd v. Prankerd , 163 , 175
Pollexfen . Moore, 197 Pratt v. Colt, 10 , 797, 826
Polley v . Polley (No. 2) , 824 v. Jenner, 785
v. Seymour , 947, 951 v . Matthew, 95
Pollock , re, 402 , 403 , 405 v. Sladden, 148 , 149
Pomfret (Earl of) v. Lord Prendergast v. Prendergast, 616
Windsor, 285 , 409 , 863 , 871 Prescott's Trust, re, 1033
Ponsford v. Widnell, 989 Press , re, 637
Pool Bathurst's Estate, re, 663 Prevost v. Clarke, 131
Poole v . Franks , 984 Price , re, 569, 753 , 762
v . Pass , 636 , 685 , 688 v. Berrington, 26
Poole's Settlement, re, 622 v. Blakemore, 506 , 894, 896 , 897
Pooley v. Quilter, 276, 485 , 490 v. Byrn , 484, 495
Poor v. Mial, 157 v. Gibson, 730
Pope v. Gwyn, 524 v. Jenkins , 75,76
v. Pope , 134 v. Loaden , 642
v. Whitcombe, 839 , 841 , 842 , v. Price, 67, 69, 342, 990
843 , 844 Price's Estate , re, 308
Pope's Trust, re, 743 Settlement , re, 1023
Poplar and Blackwall Free Trust Deed , re, 1030
School, re, 997, 1000 Prichard v. Ames, 754, 756 , 834
Porey v. Juxom, 7 Priddy v . Rose, 696, 911
Porter v. Baddeley, 304 Pride v . Bubb, 760 , 761 , 774 , 780
v. Walker, 511 v. Fooks , 92 , 274 , 313 , 342 , 902 ,
v. Watts , 672 991
Porter's Trust , re, 662 , 1027 , 1029 Priestman v . Tindall , 909
Will , re, 1013 Prime v. Savell, 911
Portland (Duke of) v . Hill, 248 Primrose , re, 349, 1038
Portlock v . Gardner, 192. 642 , 863 v. Bromley, 205
Portsmouth (Earl of) v . Fel Prince v. Heylin , 869
lows , 847 v. Hine, 582, 585
lxvi
 TABLE OF ENGLISH CASES .

[ The references are to the star paging.]

PAGE PAGE
Pring , ex parte, 149 Queen . Trustees of Orton Vic
v. Pring, 64, 65 arage, 16
Prior v. Horniblow, 884 Queen's College , Cambridge , re, 530
v. Penpraze , 245 Quick v. Staines , 244
Prior's (Lady) Charity , re, 541 Quinlan's Trust, re, 1019
Pritchard e. Langher, 292 Quinton . Frith , 868,877,886
Projected Railway, ex parte, 315
Prole v. Soady, 740 RABBIDGE, ex parte, 705
Propert's purchase, re, 1011 Raby v. Ridehalgh, 313 , 318 .
Prosser v. Rice , 705, 859 333, 910
Prothero , in Goods of, 224 Rachfield v. Careless , 61, 149 , 225
Proud . Proud, 878 Rackham v. Siddall, 208 , 210 , 219 ,
Proudfoot v. Hume, 979 , 980 227, 904
Proudley v. Fielder, 775 Rackstraw's Trusts , re, 229
Prowse v. Abingdon , 525 Radcliffe , re, 191 , 257, 856, 983
v. Spurgin , 357 Radclyffe, re, 993
Pryce, re, 243 Radnor (Lady) v . Rotherham, 733
Prynne , re, 761 , 785 Raffety . King, 866
Pryse's Estate , re, 433 Raikes . Raikes, 669
Pugh , ex parte, 743 r. Ward, 138
re, 762 Rainy . Ellis , 145
r. Vaughan, 675 Ramcoonar Koondoo v . Mac
Puleston v. Puleston , 59 queen, 716
Pullen v. Middleton, 47 Ramsden . Dyson , 716
r. Snellus , 55 e. Langley, 636
Pulling . Tucker, 513 Randal v. Hearle, 131
Pulteney v. Darlington , 893 , 938, v. Randal, 80
941 , 944 , 946 , 948 , Randall . Bookey , 147, 149
959 , 961 , 962 v. Errington, 484, 485 , 487,
v. Warren , 886, 887, 888 , 889, 488 , 494, 495 , 496 , 870 , 926
890 r. Russell, 186 , 187
Pulvertoft v. Pulvertoft , 67 , 70 , 76 Randall's Will , re, 1022
Pumfrey , re, 506 , 640 Ranelagh's (Lord) Will, re, 181 .
Punchard v. Tomkins , 808 186 , 366 , 370
Purcell v. Purcell, 409 Ranelaugh (Lord) v. Hayes , 643
Purdew v. Jackson , 739 , 740 , 746 , Ransome v. Burgess , 586
747 Raphael v. Bank of England , 893
Purefoy v. Purefoy, 519 v. Boehm, 336 , 338 , 343 , 907 .
Pushman . Filliter, 130 , 131 , 132 , 134 992
Puttrell's Trust, re, 998 Raphael's Trust Estate , re, 1030
Pybus v. Smith, 781 , 908 Rashleigh . Master, 941
Pye, ex parte, 57 , 68 , 401 , 402 , 404 , Rashley . Masters , 985, 986
405 Rastel . Hutchinson , 168
v. George, 857 Ratcliff v. Graves, 339
Pym v. Lockyer, 103 , 401 , 402 , 403 , Ratcliffe v. Barnard, 714
404, 405 e. Winch, 591
Rathbone, re, 1018, 1031
QUARRELL v. Beckford, 638 Raven "'.. Waite , 410
Queade's Trusts , re , 786 Ravenhill . Dansey, 410 , 415
Queen (The) r . Abrahams , 16 Ravenscroft v. Frisby, 876
v. Carnatic Railway, 789 Ravenshaw v. Hollier, 140
v. Garland, 237 Raw, re, 947
v. Harrogate Commission Rawbone's Trust, re, 244
ers , 235 Rawe v. Chichester, 181 , 182 .
v . Norfolk Commission 184 , 185
ers of Sewers , 580 Rawleigh's Case, 175
. Shropshire Union Canal Raworth v. Parker, 522, 523
Co. 714, 715 Ray, ex parte, 754, 756, 757
v. Stapleton, 235 re, 1015
lxvii
 TABLE OF ENGLISH CASES .

[The references are to the star paging. ]

PAGE PAGE
Ray v. Adams, 131, 835 Reynault, re, 1029
v . Ray, 225 Reynolds , ex parte, 490 , 493 , 847
Ray's Settled Estate , re, 558 re , 961
Raymond . Webb, 422 v. Godlee, 152
Rayner v . Mowbray, 838, 844 v. Jones , 250, 891
Rear . Williams, 164 v . Messing , 733
Read v . Shaw, 502 r. Meyrick, 416
v. Snell , 111 , 115 , 119 v. Wright, 165 A
r. Stedman , 61 , 146, 285 Rice v. Rice , 515, 713 , 714 , 862
v. Truelove, 251 Rich v. Cockell, 774, 778 , 834
Reader . Reade , 405, 889, 891 Rich's Trusts, re , 307
v. Sparkes , 678 Richards , re, 835
Reading . Hamilton , 311 Richards . Delbridge , 70, 72, 74
Reading Dispensary , re, 929 v. Perkins , 982
Rede v . Oakes , 430 , 435 , 594 v. Richards, 730
Redington . Redington , 163, 167, Richards's Trust, re, 1033
169, 170 , 173, 175 , 176 , 178 , 731 Richardson, ex parte, 245, 709
Reece . Tyre, 235 re, 175
Reech . Kennegal , 993 v. Bank of England, 977, 980
. Kennigate, 62 v. Chapman , 132 , 616 , 844
Reed v. O'Brien, 72 v . Elphinstone , 402
Rees, ex parte, 929 v. Horton , 249
". Keith, 748 v. Hurlbert, 197
v. Watts , 701 v . Jenkins , 206 , 830 , 908
v. Williams, 336 v. Moore, 370
Reese River Company v . Atwell , 78 v. Morton, 449
Reeve v. Attorney-General, 30, r. Nixon, 151
31, 820 v. Richardson, 72
v. Parkins . 855 v. Smallwood, 77, 78, 79
Reeves v . Creswick, 367, 368 , 375 v. Younge, 259
Regina v. Day, 235 , 681 Rickard v. Robson , 106
v . Shee , 235 Rickards v . Gledstanes, 244.709
v . Sterry , 235 Ricketts v . Bennett, 395
r. Wellesley, 235 . Lewis . 478
". White, 580 Rickman v. Morgan, 405
Rehden v. Wesley 274, 297, 908 Riddle v . Emmerson , 53
Reid, ex parte, 701 Rider v. Kidder, 80 , 163 , 168, 169,
v. Atkinson, 132 177, 796
v. Hoare, 387, 388 Ridgway, ex parte, 313
v . Reid, 663 , 665, 752 v. Newstead, 356, 906
v. Thompson, 688 r. Woodhouse, 157
Reilly v . Reilly, 445, 446 Ridler, re, 76, 79
Remnant v. Hood , 349, 386, Ridley, re, 98, 786
396, 397 Ridout . Lewis , 777
Rendlesham v . Meux, 426 Rigby, ex parte, 258
Rennie . Young, 874 Rigden e. Vallier, 117 , 164 , 165
Renshaw's Trusts , re, 1028 Right . Smith, 210
Renvoizer . Cooper, 229 Rigley's Trust, re , 106, 107
Retford, West (Church lands) , Rimelle . Simpson , 360
re, 929 Riordan v. Banon, 60, 64, 66
Revell . Hussey, 142 Ripley v. Waterworth, 952
Rex . Blunt, 817 Rippen v. Priest , 228
v. Bridger, 27, 28 Rippon e . Dawding, 780
v. Bulkeley , 817 v. Norton, 101
v. Coggan, 285 Rittson v. Stordy, 44.45
v. Flockwood, 262 Rivers ( Earl of) v . Derby (Earl
r. Lexdale, 659 of). 399.420
v. Tippin, 250 (Lord) . Fox, 576
v. Williams , 144 Rivers's (Lord ) Estates , re, 636
lxviii
 TABLE OF ENGLISH CASES.

[ The references are to the star paging.]

Rivers's Settlement , re, PAGE PAGE
393 Roche, re , 656, 658, 847
Rives v. Rives , 1042
Rivet's Case, v. O'B rie n , 496 , 497, 498 , 868 .
238
Robarts ( Robarts v.) 617, 672 Rochford . Fitzmaurice , 113 870, 926
Roberdeau v. Rous , , 114,
48 , 49, 886 119 , 120, 122 , 126, 217
Roberts , re, 355, 662 v. Hackman , 101, 693
v. Ball, 1004 Rocke . Hart, 338 , 339 , 340 , 342 , 986
v. Death, 245 v. Rocke,
v . Dixwell , 110 , 111 , 119 , 122, Rodbard v . Cooke, 689
252, 483
214, 735 , 825 Roddy v . Williams , 325
v. Gordon, 202 , 961 Roddy's Estate, re,
v. Kingsley, 718
114 Rodgers v . Marshall, 81 , 82
v. Lloyd, 70, 704 Roe v. Fludd,
v. Roberts , 159
71 r. Reade , 227, 678
v . Spicer, 757, 834 Rogers , ex parte,
v. Tunstall, 496, 497 , 498 , 872 , Alice . re, 680, 706
35
873 r. Bolton, 740
v . Walker, 821
v. Watkins , r . Holloway, 807
761 v . Ingham, 357
Roberts's Trusts , re, 739 , 742 , 1002 ,
v . Rogers , 147, 150 , 977
Robertson v. Armstrong , 1003 r. Skillicorne, 456, 457
448 Rolfer . Gregory , 863, 868 , 878 ,
". Norris , 748, 868
r. Richardson, 102 Rolle's Charity , re, 897, 900
v. Scott, 852
981 Rolleston r. Morton, 814
v. Skelton, 142 Rol lfe r. Bud der,
Robertson's Trust, re, 754, 834
Robins's Estate , re, 137, 1002 Rolt v. Somerville , 188
750 r. White , 697
Robinson, ex parte, 35 Romaine v. Onslow,
re, 406
750, 759 Rome v. Young, 521
v. Comyns , or Cuming, 15 , 209, Romford Canal Company, re, 698
694 Rook v. Worth, 961 , 967
v. Grey , 209, 210, 216 Roome v . Roome,
v. Hedger, 805 Roope v. D'Avigdor, 402 , 405
v. Killey, 898
585 Rooper v . Harrison , 705
v. Knight, 953 Roper v. Holland,
v. London Hospital , 16
150 v. Radcliffe , 146
v. Lowater, 456, 461 , 466 , 467, Roper's Trusts , re, 614
468 Roper-Curzon v. Roper-Curzon, 588
v. Pett, 196 , 276 , 277, 627, 631 , Rose , ex parte, 709
632 v . Haycock, 512
v. Pickering, 772 Rosewell v. Bennet , 403
v . Preston , 164 Rosher, re, 102
v. Ridley, 491 , 493 Roskrow, ex parte , 482
v. Robinson, 303, 326, 330, 335, Ross v. Ross,
336, 340, 342 , 473 , 947 976, 981
Ross's Trust , re, 781.998 , 1003
v. Smith, 131 Rossiter v. Trafalgar Life As
v . Taylor, 146 , 147 , 149 surance Company ,
v. Tickell . 435
138 Rosslyn's Trust , Lady, re, 91
v. Wheelwright, 785, 786 Rothwell v. Rothwell ,
v . Whitley , 979, 980
403 , 404 Round v. Byde , 513
v. Wood, 101 Roupe v. Atkinson ,
Robinson's Settled Estate , re, 741 746
Trust, re, Rous v. Jackson , 153
998 Routh v. Howell ,
Will , re , 1018 256, 295
Robson v . Flight, Row, re, 961
19 , 466 Rowan . Chute , 141
Roch r. Callen, 869 Rowbotham r. Dunnett,
Rochard . Fulton, 63
705 Rowe . Almsme n of Tavisto ck, 543
Rochdale Canal Co. v . King , 873 544, 545
lxix
 TABLE OF ENGLISH CASES .

[The references are to the star paging. ]

PAGE PAGE
Rowe v. Bant, 800 Saint Giles and Saint George,
v. Rowe, 300 Bloomsbury , re, 932
Rowel . Walley, 372 Saint John Baptist College , Ox
Rowland . Morgan, 350 ford , ex parte, 309.311
r. Witherden , 331, 336 Saint John's College, Cambridge,
Rowley v. Adams, 288 , 1011 , 1019 , v. Todington, 328
1032 , 1041 Saint John (Lord) v . Boughton ,
". Unwin , 787, 926 520, 877
Rowley's Lunacy , re, 1037 v. Turner, 871
Roxburghe v. Cox, 708 Saint Mary Wigton , Vicar of, re , 311
Roy v. Gibbon, 979 , 980 , 982 Saint Paul v . Dudley , 731
Royds v. Royds , 325, 991 Saint Wenn's Charity , re, 929
Royston Free Grammar School, Sale v. Moore, 131 , 132 , 134 , 137
re , 929 Saloway v. Strawbridge , 231 , 431 ,
Rumball v. Munt, 532 603
Rumboll v. Rumboll, 165 , 171 , 172 Salsbury v. Bagott, 859, 860
Rumford Market Case, 180 Salt v. Chattaway, 150, 160
Rundle C.. Rundle , 165 , 169 v. Cooper, 813
Rushworth's Case, 181 Salter v. Cavanagh , 147 , 864 , 876 , 877
Russel v . Hammond , 78 Salting, ex parte, 720
Russel's Case, 37, 39 Saltmarsh v. Barrett (No. 2) , 149 ,
Russell, ex parte, 79, 1022 341 , 344, 349
v. Clowes, 285 Saltoun v. Houston, 206
v. Dickson , 758 Salusbury v. Denton, 837, 839,
v. Jackson , 63, 64, 132 842, 843
r. M'Culloch, 805 Salvin v. Thornton, 694
v . Plaice , 426, 477 Salway v. Salway, 296, 337
v. St. Aubyn , 406, 408 Sammes v. Rickman , 986
Russell's Estate , re, 1012 Sampayo v. Gould, 127, 314
Policy Trusts , re , 703 , 710 Samuel v. Samuel, 102, 103
Road Purchase moneys , re , 714 Sandeman v. Mackenzie, 389, 391
Rust v. Cooper, 511, 513 Sander v. Heathfield , 906
Rustomjee v. The Queen, 30 Sanders v. Homer, 1042
Rutherford v. Maziere , 922 v. Miller , 644
Rutland (Duke of) ' s Settlement, v. Page, 746, 758
re, 565 v. Richards , 477
Ryal v . Ryal , 892, 896 Sanders's Trusts , re, 516
Ryall v. Rolle , 239 , 241 , 797 , 892 , Sanderson v. Walker, 487, 493,
893, 895 494 , 991
v. Ryall, 56, 167, 168 , 169 Sanderson's Trust, re, 99 , 100 , 616
Ryan v. Keogh, 109 , 137 Sandford v. Keech, 180
v. Nesbitt, 991 Sandon v. Hooper, 638
v. Stockdale , 848 Sands v. Nugee , 607
Ryan's Settlement , re, 1022 Sands to Thompson , 880, 881
Rycroft v. Christy, 73, 75, 757 Sandys v. Sandys , 414
Ryder . Bickerton , 306, 918 v. Watson, 986, 993
Ryder, H. D. , re , 966 Sanford v. Irby, 218
Sanger v. Sanger, 768, 782
SABIN . Heape , 457 , 458 , 459 , 461 , Sarel, re, 783
466 , 468 , 481 Saumarez, re, 1033
Sackville-West v. Holmesdale Saunders v. Dehew, 77, 857, 859
(Viscount) , 113 , 114 , 116 , 119 , v. Mackeson, 423
123 , 124 , 127, 508 v . Neville, 685
Sadd , re, 641 v. Saunders , 985, 987
Sadler v. Hobbs , 264 , 269 , 271 , 274 v. Vautier, 689
v. Lee, 684 Savage v. Carroll, 387, 897
Saffron Walden 2d Benefit v. Foster, 39.919
Building Society v . Rayner, v. Robertson , 95
709, 710 v . Taylor, 547
lxx
 TABLE OF ENGLISH CASES .

[The references are to the star paging.]

PAGE PAGE
Saville v. Tancred, 191 , 482 Sedgwick v. Thomas , 785
Sawyer v. Birchmore, 359 Seeley . Jago , 953 , 954, 957
v. Goodwin , 902 Seers . Hind, 338 , 989,994
v. Sawyer, 910 , 911 Segraver. Kirwan, 62 , 191
Sawyer and Baring's Contract, Selby v. Alston, 14, 938
re, 442 v. Bowie, 423
Saxon Life Assurance Company, v. Cooling, 427
re, 498 , 926 Sellack v . Harris , 61
Say . Creed, 352 Selsey v . Lake, 727
Sayers, ex parte, 242 , 892 , 893 , 894 Senhouse v. Earle, 860, 861
Sayre v. Hughes , 178 Sercombe v . Sanders , 925
Scales . Baker, 897 Sergeson v. Sealey, 965 , 967
r. Maude, 54, 67, 70 Sergison , ex parte, 226
Scammell v . Wilkinson , 225 Sewell . Denny, 92 , 143
Scarborough . Borman , 758 v. Moxsy, 70
(Earl of) v . Parker, 989 v. Musson, 514
Scarisbrick v. Skelmersdale, 89. Sewell's Trusts , re, 298, 304
113, 391 Seys . Price , 968
Scarsdale v. Curzon, 115 , 122 , 123 Shadbolt v. Thornton , 950
Scattergood v. Harrison, 280, 628 v. Woodfall, 445
r. Sylvester, 898 Shaftesbury v . Marlborough
Scawin . Scawin, 175, 176 (Duke of) , 367 , 368 , 369 , 371 , 372 ,
Schofield , re, 1039 373, 374
Scholefield v . Redfern , 323 Shafto's Trusts , re, 649
Schroder v. Schroder, 888, 889 Shakeshaft, ex parte, 336 , 337 , 908,
Scorer. Ford, 977, 982 910 , 912 , 915 , 916
Scotney . Lomer, 688 , 910 Shakespear , re, 779
Scott , re, 878 Shales . Shales , 175
v. Becher, 855, 979 , 982 Shallcross . Wright, 150, 590
v. Brownrigg, 60, 148 Shanley v. Baker, 160
v. Davis , 497 , 498 , 781 Shannon v. Bradstreet , 677
v. Hastings , 247 , 702 , 808 Shapland v . Smith, 210
v. Izon , 916 Sharp v. Cosserat, 101
v. Key, 137 , 138 , 139 , 140 v. Lush, 644
v. Nesbitt, 48 , 496 v . Sharp, 197 , 655 , 656 , 665
v. Scholey, 795, 802 r. St. Sauveur, 27 , 45 , 950 , 962
v. Scott, 151 , 868 , 874 v. Wright, 872
v . Spashett, 741 , 743 Sharpe v . Foy, 759.919
v. Steward, 127 v. Scarborough ( Earl of) , 797,
v. Surman , 239 , 240, 241 , 895 801, 828 , 829
v . Tyler, 477 , 478 , 479 , 480 , 483 v. Sharpe , 228
Scounden v . Hawley, 31 , 223 Sharpe's Trusts , re, 999 , 1003
Scroope v. Scroope , 172 Sharples v. Adams , 859
Scudamore , ex parte, 513 Shattock v. Shattock, 765 , 766 , 773,
v. Scudamore, 939 , 942, 947 920
Scully . Delany, 202 , 273 , 291 Shaw, ex parte, 228 , 513
Sculthorp v. Burgess , 144 re, 955
Sculthorpe v. Tipper, 289, 424, v . Borrer , 450 , 461 , 462 , 573
596 , 903 v. Bran, 28
Scurfield v . Howes, 265, 269 , 272 , v. Hudson , 808
273 , 907 v. Keighron, 877
Seagram . Knight , 187 , 188 , 573 v. Lawless , 130 , 136 , 641
v. Tuck, 885 v. McMahon , 587
Seale . Seale, 118 v . Neale , 809
Sealey v. Stawell, 118 , 120 v. Rhodes , 90, 91 , 92 , 93
Sealy v . Stawell, 896 v . Thompson, 88.89
Sear v . Ashwell, 81 v. Turbett, 344, 905
Searle v. Lane, 830 v. Weigh, 213
v. Law, 68, 69 Shaw's Settled Estates , re, 311
lxxi
 TABLE OF ENGLISH CASES.

[ The references are to the star paging.]

PAGE PAGE
Shaw's Trust, re, 298, 595 Sillibourne v. Newport, 613
Shee v. French, 828 Sillick v. Booth, 348
v. Hale, 101 , 103 Silver Valley Mines , re, 991
Sheffield . Coventry, 406 Simmonds . Palles, 516 , 517, 518
Sheldon v. Dormer, 420 Simmons v. Pitt, 92
Shelley v . Shelley, 124 Simpson v. Bathurst , 975
Shelley's Case, 109 , 119 , 965 v. Blackburn, 949
Shelmerdine , re, 1027 v. Chapman, 278
Shepherd e. Mouls , 335 , 336 v. Frew, 387
v. Nottidge , 131 , 135 v. Lester, 300
v. Shepherd, 733 v . Morley , 809
Sheppard . Smith , 989, 993 v. Sikes , 511 , 512
v. Woodford, 237 v. Simpson , 187, 188, 873
Sheppard's Trusts , re, 855, 1032 v. Taylor, 795
Sheridan v . Joyce, 344, 892 Sims v. Marryatt, 212
Sherif v. Axe, 280, 628 v . Thomas , 80
v. Butler, 787 Simson's Trusts , re , 307, 326
Sherrardu. Lord Harborough, 146,275 Sing v. Leslie , 389, 730
Sherratt v. Bentley, 198, 989 Singleton v. Tomlinson, 160
Sherwin v. Kenny, 210 Sinnott v. Walsh, 133 , 840
Sherwood , re, 280, 281 , 631 Sish . Hopkins , 800
Shewell v. Dwarris , 757 Sisson v. Giles , 957
v. Shewell, 352 r. Shaw, 582
Shewen . Vanderhorst, 590, 597 Sitwell v . Bernard , 301
Shield, re, 68 Skarf v. Soulby, 77, 78, 79
Shields . Atkins , 285, 863 Skeats v. Skeats , 171 , 172 , 176
Shine . Gough, 547, 678 Skeetes , re, 932
Shipbrook (Lord) v . Lord Hin Skeggs , re, 956, 957
chinbrook, 264, 269 , 270 , 272 , 273 Skett v. Whitmore, 53, 167
Shiphard v. Lutwidge , 524 Skingley, re, 140, 574
Shipperdson v . Tower, 951 Skinner, ex parte, 542 , 544, 929 , 930
Shipperdson's Trusts , re, 671 , 1029 v. Todd, 921 , 922
Shipway v . Ball , 742 Skipper v. King, 397
Shirley v. Ferrers , 525 Skirving v. Williams , 300
v. Watts, 796 Skitter's Mortgage , re, 1016
Shore . Collett, 192 Trusts, re, 1019
v . Shore, 984 Skynner v . Pelichet , 1043
Shovelton . Shovelton, 131 Sladen . Sladen, 825
Shrewsbury (Countess of) v . Slaney v . Whitney, 197 , 631
Shrewsbury ( Earl of) , 420, 731 Slanning . Style , 755
Shrewsbury (Earl of) v. North Slater r. Wheeler, 262
Staffordshire Railway Com Slattery v. Axton , 858
pany, 190 Sleeman . Wilson, 279, 922
Shrewsbury School, re, 234 , 276 , 929 Sleight . Johnson, 905
Shropshire Union Railways and v. Lawson, 869
Canal Company v. The Queen, 715 Slewringe's Charity, re, 929, 931
Shudall v . Jekyll, 402 , 403 , 404 Slim . Croucher, 704
Shurmur v . Sedgwick, 76 Sloane v . Cadogan , 67 , 72, 73 , 74 , 77
Shuttleworth, ex parte, 35 Sloman v. Bank of England , 353
Sibeth, ex parte, 243 Sloper, re, 1033
Sidebotham v. Barrington , 434 v. Cottrell, 16, 74
Sidmouth v. Sidmouth, 163 , 170 , Small . Attwood, 918, 924
173 , 175 , 176 , 179 v. Marwood, 200
Sidney v . Miller, 155 v. Oudley, 513
v. Shelley, 148 , 155 Smallman , re, 780
Siebert v . Spooner, 51 1 r. Onions , 67 9
Siggers v. Evans , 198 , 515 , 517 Smart, ex parte, 710
Silke. Prime, 525 Smedley v. Varley, 494
Sillar, re, 999 Smethurst v. Hastings , 324, 325 , 331
lxxii
 TABLE OF ENGLISH CASES .

[The references are to the star paging.]

PAGE PAGE
Smirthwaite's Trusts , re , 1028 , 1044 Snow v. Hole , 989
Smith, ex parte, 259, 496 , 710 , 911 v. Teed, 842
re , 781 , 1004 Snowdon . Dales , 98, 99, 693
v. Acton, 863 Soady v . Turnbull , 225
v. Adams , 738 Soar . Foster, 177
v. Adkins , 532 Société Générale de Paris v.
v. Armitage, 905 Tramways Union Company, 243 ,
v. Attersoll, 65 703, 709
v . Baker, 163 Sockett . Wray, 37, 920
v . Barnes , 976 Solley r. Gower, 827
v. Bolden , 346, 989 v. Wood, 368, 420
v. Boucher, 1026 Solomon and Davey , re, 459
v. Camelford, 163 , 776 Somerset . Cox, 708
v. Cannan , 511 Somerset's (Earl of) Case , 820
v. Cherrill, 77 Sonley v. Clockmakers' Com
v. Claxton , 151 , 957 pany, 833
v. Clay, 865 Soutar's Policy Trusts , re , 790
v. Cowell, 813 South , re, 814
v. Dale, 260, 635 Southampton Imperial Hotel
v. Dresser, 640, 989 Company, re, 643
v. Evans , 415 Southampton (Lord) v. Marquis
v. Everett, 477 of Hertford, 89, 155
v. French, 918, 925 Southampton's (Lord) Estate,
v. Garland , 76 re, Banfather's claim, 702
v. Grant, 692 Roper's claim, 702
v. Guyon, 456, 457 Southcomb v. Bishop of Exeter,
v. Harding, 149, 159 872
v. Hayes , 678 South Eastern Railway Com
v. Hurst , 512 , 518 , 795, 796 , pany, ex parte, 321
806 , 815 re, 960
v. Jameson, 17 , 913 Southouse v . Bate , 148
v. Keating, 516 South Sea Company v. Wy
v. King , 40, 147 mondsell, 868 , 869
v. Lomas , 92 South Western Loan Company
v. Lucas, 39, 762 , 766 , 786 , r. Robertson , 807, 808
954 Southwell . Martin, 989
v. Lyne, 75 v. Ward, 850
v. Matthews , 55, 56, 750 Southwold Railway Company's
v. Parkes, 697 Bill , re, 311
v. Pavier, 680 Sowarsby v. Lacy, 455
v . Phillips , 726, 727 Sowerby's Charity, re, 930
v. Smith, 33 , 359 , 445 , 446 , 701 , Trust, re, 520
702 , 706 , 709 , 743 , 878 , 889 , Sowry v. Sowry , 960
904, 911 , 983 , 1017 , 1031 Spackman v. Timbrell , 249
v. Snow , 685 Spalding v . Shalmer , 264 , 451 , 457
v. Spencer , 738 Sparkes v . Cator, 401 , 406
v. Strong, 402 , 405 Sparks , re, 1038
v. Warde, 82 Sparling v. Parker , 304
v. Wheeler, 199 , 471 , 674 Sparrow , re, 1028
v. Wilkinson, 55 Spawforth's Settlement, re, 1022
(Mary, a lunatic ) , re, 964, 965 Speer's Trust, re, 504
Smith's Estate , re, 33 , 227 , 229 Speight, re, 253 , 254, 255 , 294, 325 ,
Trusts , re, 662 , 778 , 1004 , 1032 331, 353, 435
Smyth v . Foley, 414 Spence v. Spence, 110 , 218
v. Johnston, 405 Spencer, re, 191 , 642
Smyth's Settlement, re , 1032 , 1033 , v . Clarke, 714
1043 v. Harrison , 235
Sneesby . Thorne, 423, 477 v. Slater , 510
Snow . Booth , 882 v. Spencer , 389
lxxiii
 TABLE OF ENGLISH CASES.

[The references are to the star paging.]

PAGE PAGE
Spettigue's Trusts , re, 1037 Stasby v. Powell, 830
Spicer v . Spicer, 743 Stead v. Mellor, 131 , 132 , 136 , 137
Spickernell v. Hotham , 867 r. Nelson, 760 , 763 , 779 , 780
Spiller, re, 619 v. Newdigate , 938 , 948 , 949 , 957
Spink . Lewis , 148 , 149 Steed . Preece, 151
Spirette. Willows , 77 , 79 , 742 , 743 , Steele r. Philips , 797
757 v. Waller, 68 , 1011
Spottiswoode v . Stockdale , 513 , 522 Stent . Bailis , 141
Spradbery's Mortgage , re, 222 Stephens v . Hotham , 441 , 442
Spranger. Barnard , 132 , 134 v. James , 101
Sprigg v . Sprigg, 154, 158 v. Olive, 78
Spring v. Biles , 842 , 843 v. Truman. 80
v . Pride, 484, 488 , 781 v. Venables (No. 1 ) , 696 , 697
Springett v. Dashwood, 691 , 989 Stering's Trust, rẻ , 1006
v. Jenings , 63 Stevens . Austen, 230, 424
Spurgeon v. Collier, 249 , 857 v. Dethick, 416
Spurrier v. Hancock, 142 v. Mid Hants Railway Com
Squire . Dean , 776 pany, 729
r. Ford, 522 v. Robertson, 319 , 922
Squires v. Ashford, 744 v . South Devon Railway
Stacey v. Elph, 197 , 198 , 203 , 485 Company, 580
Stack v. Royse, 141 Stevens's Trusts , re, 229
Stackhouse v . Barnston , 889, 925 Stevenson . Masson, 405 , 406
Stackpoole v. Davoren, 890 v. Mayor of Liverpool, 213, 216
Stacpoole v. Stacpoole, 338, 989 Steward r. Blakeway, 775
Stafford v. Fiddon , 338 Stewart, re, 957, 1014
r. Stafford, 498 , 873 , 926 v. Green , 20
Stafford Charities , re, 530, 533 v. Hoare, 632
Stahlschmidt ?".. Lett, 590 v. Noble, 525, 527
Staines 2 . Morris , 442 v. Sanderson, 320
Stair . Macgill, 301 r. Stewart , 60, 61 , 408
Stamford (Earl of) v. Sir John Stickland v . Aldridge , 59 , 61 , 62 , 63
Hobart, 111 , 121 Stickney v. Sewell, 316, 325
Stamford, Spalding, & Boston Stiffe v. Everitt, 740
Bank . Ball, 779 Stikeman . Dawson, 39
Stammers . Elliott, 700 , 912 Stile . Tomson, 603
Stamp v. Cooke, 843 Stileman v. Ashdown, 172 , 174 , 797 ,
Stamper , re, 1013 , 1040 799, 800
v. Millar, 262 Stillwell . Ashley, 1016
Standering v . Hall, 750 , 954, 955 Stock, ex parte, 1000
Standford v . Marshall, 761 , 770 v . M'Avoy, 175, 176
Standing . Bowring, 169 Stock's Devised Estates , re, 504
Stanes . Parker, 630 Stocken . Dawson, 628, 630
Stanford v. Roberts , 679 r. Stocken, 586
Stanhope v. Collingwood, 387 , 389 , Stocks r . Dobson , 697, 707
392 Stokes . Holden , 821
Staniforth v. Staniforth, 411 , 415 Stokes's Trust, re, 671 , 1029
Staniland . Staniland, 139 Stokoe v. Cowan, 796
Stanley . Bond, 807 Stone, ex parte, 912
v. Coulthurst, 120, 507 v. Godfrey , 285, 498 , 870
v. Darington, 252 v. Grantham, 509
v. Jackman , 126 v. Stone, 288 , 867.900
v. Leigh, 115 v. Theed , 363 , 364 , 365 , 368 , 372
v. Lennard, 112, 210 v. Van Heythuysen , 516, 526
v. Stanley, 413 , 414 , 785, 919 Stone v.Wythipole, 38
Stanton . Hall, 101 , 749 , 755, 756 Stone's Settlement , re, 619
Staples's Settlement , re , 1004 Stonehewer v. Thompson, 800
Stapleton v . Stapleton , 68 Stonehouse . Evelyn, 149
Starkey v. Brooks , 146, 147 , 149 Stones v. Rowton , 664
lxxiv
 TABLE OF ENGLISH CASES .

[The references are to the star paging.]

PAGE PAGE
Stonor v. Curwen, 113 , 119 , 120 Sutcliffe v. Cole, 154
Storie's University Gift , re , 535 Sutherland v. Cooke , 298 , 299 , 304
Storry v. Walsh , 461 , 466 , 467 , 470, Sutton , re, 1002 , 1028
479 r. Jones , 280, 485
Story v . Gape, 201 , 873, 901 v. Sharp , 339, 340
v. Tonge, 745 v. Sutton, 884, 885
Stott ". Hollingworth , 301 v. Wilders , 294, 353
v. Milne, 207, 640, 685 (Parish of) to Church, 540
Stow v. Drinkwater, 225 Sutton Colefield Case, 161 , 859
Strange v. Fooks , 926 Sutton's Trusts , re, 997
Stratford v. Powell, 112, 122 Swabey v . Swabey, 729
v . Twynam , 490 Swaffield . Nelson, 331
Stratton v. Murphy , 181 , 184 , 185 , Swale . Swale, 983
492 Swallow v. Binns, 391 , 395 , 397
Streatfield v. Streatfield, 113 Swan, re, 739, 742 , 1002
Street v. Hope, 917 v. Swan , 547
Stretton v. Ashmall, 325, 327 Swayne v . Swayne, 711
Strickland v. Symons , 581 , 639 Sweet v. Southcote , 860
Stright , ex parte, 709 Sweetapple v. Bindon , 118 , 733 , 734 ,
Stringer v. Harper, 644 939
Strode v. Russel, 226 Sweeting v. Sweeting, 66
v. Winchester , 62 Swift, ex parte, 585
Strong v. Hawkes , 719 v. Davis , 172 , 175
v. Padmore, 1040 v. Gregson, 838, 842
Stroud v. Gwyer, 278 , 303 , 786 , 914 v. Wenman , 740
Stroud's Trusts , re, 1023 Swift's Trusts , re, 348
Stroughill v. Anstey, 425, 426 , 456 , Swinbanks , ex parte , 448
457, 458, 459 , 460 , 481 Swinfen v. Swinfen (No. 3) , 729 ,
Stuart, ex parte, 443 730, 731
re, 1037 v. Swinfen (No. 5) , 295 , 297
v. Bruere, 301 Swinnock v. Crisp , 588
v. Cockerell, 711 Sykes v. Hastings , 280
v. Kirkwall , 761 , 763, 770 v. Sheard , 429, 604, 948
v . Stuart , 318 , 329 v . Sykes , 97
Stubbins , ex parte, 897 Sykes's Trust , re , 54, 761 , 765
Stubbs . Roth, 181 , 184 Sylvester v. Jarman, 227
r. Sargon, 148 r. Wilson , 210
Stucley's Settlement, re, 949 Symes v . Hughes , 106
Stulz's Trusts , re, 103 Symonds . Hallet, 778
Sturge's Trusts , re, 997 v. Jenkins , 977, 979
Sturgis v. Champneys , 746 , 747 , 748 , Symons , re, 905
749 v. Rutter, 958
v. Corp , 779 , 781 Symson v. Turner, 210
v . Morse, 863 , 876 , 882 , 888 Synge v. Hales , 109 , 112 , 126
Sturt v. Mellish, 16, 17 v . Synge , 104
& Co. , ex parte , 906 Synnot v. Simpson, 516 , 517 , 518
Stutely , ex parte, 912 , 1002
Styan, re, 709 T— , re, 619
Styles v. Guy, 202 , 273, 291 , 306 , Taber, re, 784
316 , 873 Tabor 22.. Brooks , 613
Suffolk v. Lawrence, 620 v. Grover, 15
Sugden v. Crossland, 277, 668 Taddy's Settled Estates , re, 311
Suggitt's Trusts , re , 742, 743 Taggart . Taggart , 117
Suir Island Female Charity Tait v . Jenkins , 984
School , re, 540, 930 v. Lathbury , 434
Sumner , re, 639 v. Northwick, 525, 527
Supple v . Lowson , 615 , 842 Taite v. Swinstead , 605
Surrey Commercial Dock Com Taitt's Trusts , re, 1039
pany . Kerr, 227 Talbot v . Jevers, 92
lxxv
 TABLE OF ENGLISH CASES .

[The references are to the star paging.]

PAGE PAGE
Talbot v . Marshfield , 613 , 616 , 618 , Taylor v. Wheeler, 242
975 , 976 , 981, 993 Taylor's Trust , re , 948
v. O'Sullivan, 138 Tchitchagoff's Will, re, 1004
v. Radnor (Earl of) , 197, 350 Teague's Settlement, re, 98, 786
v. Scott , 982 Tebbs v. Carpenter, 288 , 290 , 338 ,
v. Whitfield, 958 340, 341 , 344 , 991 , 995
Tamplin ". Miller, 785 Tee v. Ferris , 63
Taner v. Ivie, 478 Tegg's Trust , re , 999
Tanner, re, 588 Tempest , re, 850
v. Dancey, 986 v . Camoys , 613, 617, 833
v. Elworthy, 181 Templer's Trusts , re, 1017
Tanner's Trust, re, 788 Tenant v. Brown, 140
Tappenden v. Burgess , 511 , 512 , 513 Tench v. Cheese , 91
v. Walsh, 834 Tennant v. Trenchard , 285, 489
Tanqueray-Willaume and Lan Terrell v. Matthews , 272
dau, 212 , 218 , 458 , 459 , 461 , 467 , Terry v. Terry, 306, 573
481 Teynham v. Webb, 387, 391 , 399
Tarback v. Marbury, 79, 509 Thacker . Key, 616
Tarboton, re, 35 Tharp ( In the Goods of) , 755
Tardiff v. Robinson, 370 Thatcher's Trusts , re, 583
Tardrew v. Howell, 988 Theebridge v. Kilburne, 115
Targus v. Puget, 117 Thellusson v. Woodford, 403
Tarleton v. Hornby, 910 Thetford School Case, 161 , 162
Tarragona, 22 Theys , ex parte, 701
Tarsey's Trust, re , 756 Thicknesse e. Vernon , 164
Tasker v. Small, 142 , 418 Third Burnt Tree Building So
Taster v. Marriott, 181 ciety , re, 1033
Tatam v. Williams , 872 Thirtle v. Vaughan , 229
Tate , re, 997 Thomas , ex parte, 35 , 244, 513
Tatham v. Drummond, 774 v. Bennet , 776
v. Vernon , 69, 109 , 111 v. Burne, 184
Tatham's Trust , re, 671 , 1029 v. Cross , 711 , 806, 811
Taunton v. Morris , 743, 744 v. Dering , 613
Taylar v. Millington , 207 v. Harford, 932
Tayler, re, 1032 v. Hole, 843
Taylor, ex parte, 511 , 512 v. Jones , 988
re, 552, 1012 v . Kemeys , 401 , 408, 730
v. Allen, 855 , 983 v. Oakley , 887
v. Alston , 175 , 176 v. Price, 785
v. Bowers , 106 v . Thomas , 868, 889, 891
v. Cartwright, 401 , 924, 925 v. Townsend, 451
v. Clark, 303 v. Walker, 1030
v. Coenen , 77 v. Williams , 428 , 557 , 613, 618
v. Crompton, 886 Thomas's Settlement , re, 447
v. Dowlen, 990 Trust , re, 1033
v. George , 131 Thomason v. Mackworth , 214
v. Glanville , 350, 986, 989 Thompson, ex parte, 35
v. Hawkins , 479 v. Bennett, 773
v. Haygarth, 161 , 282 , 285 , 823 v. Blackstone, 423
v. Hibbert, 301 v. Finch, 252 , 265 , 268 , 915 , 922 ,
v. Jones , 79, 796 923
v. Meads , 774 , 780 v. Fisher, 119
v. Plumer, 240 , 241 , 892 , 893 , 897 v. Grant, 228
v. Poncia, 624 v. Griffin , 586
v. Sparrow, 679 , 680 v. Harrison , 924
v. Stibbert, 858 v. Leach, 38
v. Tabrum , 437, 908 , 991 v. Shakespeare 106
v. Taylor, 40 , 150 , 169 , 174 , 176 , v. Simpson , 861 , 877
588 , 675 , 677, 700 , 760 v. Spiers , 709
lxxvi
 TABLE OF ENGLISH CASES.

[The references are to the star paging.]

PAGE PAGE
Thompson v. Tomkins , 711 Toulmin v. Steere, 726, 728
c. Webster, 78 Tournay, ex parte, 998
and Curzon, re, 752 Townend v. Toker, 76
Thompson's Trusts , re , 820, 821 v. Townend, 277 , 278 , 327 , 328 ,
Thomson v. Eastwood, 869,889, 340, 342
922, 924, 950 , 989 Townley v. Bedwell, 952
Thorby v. Yeats , 685,989 v. Bond, 207 , 368 , 371
Thorndike v. Hunt, 711, 858 v . Sherborne, 225 , 260, 263 , 264
Thorne v. Kerr, 357 Townsend , ex parte, 252, 256
Thornley . Aspland, 105 re, 1037
Thornton v. Ellis , 300 v. Ash , 891
v. Finch, 796, 805 v. Barber, 271
v . Hawley, 944, 948 , 954 v. Early, 103
v. Howe, 105 v. Westacott, 77,79
v. Ramsden, 716 v. Wilson, 262, 602
Thornton's Trust, re, 1001 , 1027 Townshend (Marquis of) v .
Thorold's Settled Estates , re, 311 Bishop of Norwich, 146
Thorp v. Owen, 137 , 139 , 825 v. Townshend, 863 , 864
v. Thorp , 999 v. Windham , 78, 776
Thorpe v. Owen, 54, 68 Townson v. Tickell, 199, 200
Three Towns Banking Company Tracey's Trusts , re, 1000 , 1001
r. Maddison, 79 Trafford . Ashton , 412 , 420
Thrupp . Harman , 776, 777 v. Boehm, 307 , 314, 910 , 938.
Thrustout v. Coppin , 225 958, 961
Thruxton . Attorney-General , 51 Trappes v. Meredith, 102
Thursby v . Thursby, 299 Trash v. Wood, 824
Thynn . Thynn, 62 Travell v. Danvers , 847
Thynne v. Glengall, 405 , 406 , 407 Travers v. Townsend, 991
Tibbits v. Tibbits , 131 , 132 , 134 v. Travers, 61
Tichener , re, 244, 709 , 710 Travis v. Illingworth, 634 , 656, 664,
Tickner v. Old, 300, 334, 910 989
r. Smith, 338 Tregonwell v. Sydenham , 147 , 148 ,
Tidd v . Lister, 675, 744, 749 , 983 152 , 154, 157
Tierney v. Wood, 57 Trench v . Harrison , 163 , 169 , 503 ,
Titlin v. Longman , 842 892, 896
Tillett v. Pearson , 806 r. St. George, 364, 365
Tillstone's Trust , re , 998 Trent . Hanning, 215
Tilly . Bridges , 890 Treves v. Townshend , 338 , 339 , 340 ,
Timson . Ramsbottom , 706, 712 342
Tinkler's Estate, re, 914 Trevor , ex parte, 515
Tipping v . Power, 986 v . Peryor, 826
Titley v. Wolstenholme, 229 , 231 , v. Trevor, 113 , 120 , 121 , 731 ,
232 732 , 858, 860
Todd v. Moorhouse, 177 , 641 , 903 Trick's Trusts , re , 1003
v. Wilson, 630 Trickey v . Trickey, 92
Toft v . Stephenson , 879 Trimmer . Bayne , 401 , 403.406
Toller v. Attwood, 216 Trinity College v . Browne , 235
v. Carteret , 49 Triquet . Thornton, 948
Tollemacher . Coventry(Earl of) , 124 Trot . Vernon, 130
Tolson v . Collins , 407 Trott . Dawson, 639
v. Sheard, 430 Troughton v. Gitley, 716
Tomkins , ex parte, 437 Troup's Case , 596
Tomlinson , ex parte, 989 Troutbeck v . Boughey, 780
(Goods of) , re, 775 Trower v . Knightley, 605, 957
Tooke v. Hollingworth , 239, 240 Trower's Trust, re, 1000
Tooker v. Annesley, 189 | Trumper » . Trumper, 186 , 187
Topham v. Morecraft, 16 Trutch . Lamprell, 252
Torres v. Franco , 396 Tryon, re, 198
Tottenham, re, 182 Tuck's Trust , re, 619
lxxvii
 TABLE OF ENGLISH CASES .

[ The references are to the star paging.]

PAGE PAGE
Tucker, re, 752 Tyrwhitt v. Tyrwhitt, 729 , 730 , 731
v. Boswell , 301 Tyson e . Jackson, 900
v . Burrow , 175 , 177 , 178
v. Horneman , 350 UNDERWOOD, re, 799, 953
v. Kayess , 93 , 154, 157 v. Hatton, 359 , 523, 906
v. Thurstan , 249 v. Stevens , 272 , 273 , 918
Tuckley v. Thompson, 806 v . Trower, 691 , 993
Tudor . Samyne, 758 Ungless r. Tuff, 310, 313
Tuer v. Turner, 955 Uniacke , re, 201
Tuffnell . Page, 721 United Kingdom Life Assurance
Tugman v. Hopkins , 775 Company, 997
Tullet v. Tullet , 967, 968 University College , Oxford, re, 530
Tullett v. Armstrong, 756, 758 , 761, of Oxford v. Richardson , 866
763, 782 Upfull's Trust, re, 997
Tulloch v. Hartley, 48 Upton v . Brown, 683
Tunstal v. Bracken, 397 , 399 Upton Warren , re, 929
Tunstall , re, 1029, 1031 Urch v. Walker, 197 , 203 , 204, 347
r. Trappes, 797 , 801 , 814, 816 Uvedale v. Ettrick , 849
Tunstall's Will, 661 , 1029 r. Uvedale, 986
Turnbull v. Forman , 767
Turner, ex parte, 456, 462 , 912 VACHELL v. Roberts , 299
re, 35, 215 Van v. Barnett, 947, 954, 961
v. Attorney-General, 63 Vance v. East Lancashire Rail
v. Buck, 250, 424 way Company , 580
v. Caulfield , 790 v. Vance , 354
v. Corney, 252, 691 Vandebende v. Levingston , 890 , 919
v. Frampton, 351 Vandenberg v. Palmer, 68
v. Hancock, 688 , 990, 1003 Vanderstegen v. Witham, 16
v. Harvey , 423 Vane . Vane, 875
v. Hill . 180 (Earl) v . Rigden, 427, 478
v. Martin , 520 Van Hagan , re, 153
v. Maule, 339, 347, 658 Vann . Barnett , 855
v. Newport, 914 Vansittart v. Vansittart, 760
v. Sargent, 112 , 126 Vardon's Trusts , re, 786, 954
v. Turner, 338, 618 Varlo v. Faden , 93
v. Wardle, 205 Vaughan , re, 94
Turner ( Sir Edward's) Case, 758 v. Buck, 300 , 742 , 743 , 744
Turnley, re, 1004 v. Burslem , 116 , 123
v. Kelly, 754 v. Farrer , 541
Turpin, ex parte, 911 v. Vanderstegen , 765 , 910 , 920
Turquand v . Knight, 989 v. Walker, 772
Turvin v. Newcombe, 89 Vaughton . Noble, 277,911
Tussaud . Tussaud, 403 , 407 Venables e. East India Company, 223
Tutin's Trust, re, 743 v. Foyle, 190, 252
Twaddle v. Murphy, 876 v. Morris , 217
Tweedie and Miles , re, 425 Venour's Settled Estate , re, 504
Tweedy, re, 1015 , 1035 Ventnor Harbour Company , re , 812
Twisden v. Twisden, 406 Verner, ex parte, 104
Twisleton v. Thelwel, 986 Verney v . Carding , 858.893
Twopeny v. Peyton , 100 v . Verney, 364, 365 , 372
Twyne's Case, 78, 509 Vernon, ex parte, 163
Tylden v . Hyde, 466 v . Vawdry, 205 , 902
Tylee . Tylee, 982 v. Vernon. 80, 130, 968
Tyler v. Lake , 732, 757 Verulam (Earl of) v. Bathurst , 119
Tyler's Estate, re, 960 Vez v. Emery, 81 , 347
v . Trust, re, 1029 Vezey v. Jamson , 148
Tyrrell v. Hope , 242, 756 Viall , re, 1037
r . Tyrrell, 410 Vick v. Edwards, 214
Tyrell's (Lady) Case, 144 Vickers v. Cowell, 164
lxxviii
 TABLE OF ENGLISH CASES .

[ The references are to the star paging. ]

PAGE PAGE
Vickers v. Scott, 301 , 424 Walker v. Meager, 524
Vickers's Trust , re, 1029 v. Preswick, 858
Vickery v. Evans , 318 , 325 , 332 v. Richardson , 20, 212
Vidler v . Parrott, 311 v . Shore, 424, 919 , 949
Vigor v. Harwood, 301 v. Smalwood, 422 , 450 , 456, 597
Vigrass v. Binfield , 306, 979, 982 v. Symonds , 252, 259, 264 ,
Villiers . Villiers , 213 266, 267 , 268 , 269 , 270 , 274 ,
Vincent v. Godson, 206 291 , 306 , 337 , 691 , 859 , 908 ,
v . Newcombe, 299 918 , 919 , 922 , 925 , 926
Vine v. Raleigh, 590, 677 v. Walker, 613
Viner v. Cadell, 239, 245 v. Wetherell, 585, 588
Viney v. Chaplin , 448 v. Woodward, 342
Von Buseck, (In the Goods of) , 27 Walker's Mortgage Trusts , re , 1016
Voss , re, 789 Trusts , re, 1000
Voyle v . Hughes , 73 Walker and Hughes's Contract,
Vyse v. Foster, 277 , 278 , 341 , 342 , re, 649
576 Wall . Bright, 142 , 227, 233
Vyvyan v. Vyvyan, 926 v. Rogers , 926
v. Tomlinson, 741
WACE v. Mallard , 136 Wallace . Anderson, 101
Wacker, re, 1015 v. Auldjo , 740, 741
Wackerbath , ex parte, 264 v. Greenwood, 152, 955
v. Powell, 255 v. Pomfret, 403
Wade v. Hopkinson, 1021 Waller v. Barrett, 359, 906
r. Paget, 14 Walley v. Walley, 180 , 184 , 185 , 858
v. Wilson , 676, 677 Wallgrave v. Tebbs , 63
Wadham v. Rigg , 898 Wallis v. Birks , 682
Wadley . Wadley, 370, 371 v. Morris , 811
Wagstaff . Smith, 210 , 756 , 781 Walmesly v. Butterworth , 668
v. Wagstaff, 721 Walrond v . Rosslyn , 942 , 957
Wain v. Egmont (Earl of) , 523 , 613 v. Walrond, 81 , 342 , 919
Wainewright v. Elwell, 14 Walsh v. Gladstone, 656, 657
Wainford v. Heyl, 33, 769 v. Wallinger, 839, 840
Wainwright . Bagshaw, 86 v . Wason, 743
v. Hardisty , 780 Walsh's Trusts , re, 299
v. Waterman, 835 Walsham v. Stainton, 911
Waite v. Littlewood, 307, 310 Walter v. Hodge, 755
v. Whorwood , 893 v. Maunde, 691 , 951
Waithman , ex parte, 709 v. Saunders , 748
Wake v. Wake, 1025 , 1040 Walters v. Woodbridge, 637
Wakefield v. Richardson, 396 Walton v. Walton, 60 , 61 , 146 , 149
Wakeford , re, 1012 Walwyn v. Coutts , 516, 518
Wakeman v. Rutland (Duchess Wandesforde v . Carrick, 389
of) , 447 Wankford v . Wankford, 202
Waldo v. Caley , 615 Want v. Stallibrass, 430
v. Waldo , 189 , 578 Warburton v. Cicognara, 996
Waldron v. Sloper, 714 v. Farn, 668
Waldy v. Gray, 858 v. Hill, 706, 711 , 712
Waley's Trust, re, 103 , 226 v. Sandys , 262 , 612 , 650, 669
Walford (Walford v. ) , 688 v. Warburton , 420
Walhampton Estate , re, 77 Ward v. Arch, 863 , 880
Walker, J.'s Trusts, re, 552 v. Audland, 70, 81
(Walker v.) , 316 , 325 v . Burbury , 216
re , 628 , 1013 v. Butler, 201 , 204
v. Bradford Old Bank , 72 v. Hipwell, 259 , 530
v. Burrows , 78 v. Lant, 144
v. Denne, 938 , 940 , 942 , 947, v. Ward, 573 , 741
953, 957 v. Yates , 743
v. Maunde, 843 Ward's Estate , re , 997
lxxix
 TABLE OF ENGLISH CASES .

[ The references are to the star paging.]

PAGE
Ward's Estates , re, 447 PAGE
Settlement , re , Watts v. Turner, 685
307 Watts's Settlement , re , 658, 659,
Will , re, 1000
Wardle . Claxton, 1017 , 1031
756 , 757 Waugh's Trust , re, 1013 , 1029,
Ware . Cann, 98
v. Gardner, 1044
79 Way v. East, 96
7'. Polhill , 967 Way's Settlem
Waring , re, ent , 1002
997, 1003 Trust , re , 73, 74, 75
v. Coventry , 242 Weale v. Ollive ,
v. Waring, 288, 313, 324 , 330, 337 69
Warman v. Seaman , Weall v . Rice , 401 , 403 , 406
144 Wearing v . Wearing, 299
Warmstrey ". Tanfield, 10, 692 Weatherall . Thornburgh,
Warner . Jacob , 92
Warr v. Warr , 190 Weathe rby v. St. Giorgio , 453
Warren , re , 399 , 410 Weaver , re , 614, 832, 967
350, 591 v. Maule , 248
v. Rudall, 197 , 680 Webb r. De Beauvoisin,
v. Warren , 401 644
Warren's Settlement, re, v. Herne Bay ( Commis
Warrender v. Foster, 786 sioners of) , 698
Warrick v . Warrick, 113, 114,1012 860
v. Ledsam. 448
Warriner v. Rogers , v. Lugar, 181
Warter v. Anderson , 68 , 69 v. Rorke , 495
358, 670 v. Shaftsbury ( Earl of) , 110, 275,
v. Hutchinson , 210 , 213 , 214, 617 , 631 , 638, 669 , 855
216 , 218 , 419 v . Stenton , 815
Warwick ( Countess of) v . Ed
wards , v. Webb, 92, 679
776 v . Wools , 131 , 135, 138
r. Richardson, 38 , 669 Webb's Policy , re,
Warwick Charities , 851 702 , 997
Waterhouse v . Stansfield , Webster . Webster , 708
49 Wedderburn v. Wedderburn , 277,
Waters v . Bailey , 181
Watkins, ex parte, 630, 863, 925 , 926
709 Wedderburn's Trust , re,
v. Cheek, 456, 457 , 478 , 479, 481 308
Wedgwood . Adams , 351 , 441
v. Frederick, 219 Weeding v. Weeding ,
v. Weston , 952
109 Weeding's Estate, re,
Watson , ex parte, 278 , 340 , 913 1011
re , Weiss v. Dill, 633
961 , 1015 Welchman, re,
v. Arundel, 150 743
Weld v. Tew, 966
v. Hayes, 149 Weldon v. De Bathe,
v. Hinsworth Hospital, 543 760, 778
v. Neal, 761
v. Lincoln ( Earl of) , 159 , 401 2. Winslow,
v. Marshall , 760
743 Welford v. Stokoe , 148
v . Parker, 81 Weller v. Fitzhugh,
v. Pearson , 1003
219, 262 v. Ker,
v . Row, 615
635, 991 v. Stone, 717
v. Saul, 877, 879 , 882 , 900 Wellesley . Mornington,
v. Toone, 484 , 490 , 491 , 496 350
v. Woodman , v. Wellesl ey, 141
901 v. Withers ,
Watt v. Wood, 93 , 94 204 , 237
Wells , re, 552
Watts , ex parte , 643
v. Ball, v . Gibbs, 807
733 , 737 v. Kilpin, 720, 813
v. Bullas , 81 , 82
v. Cresswell, v. Malbon , 346, 350, 740 , 1002
39 Welstead v. Colvile,
v. Fullarton , 722 West v. Errissey , 650
v. Girdlestone, 306 , 335 , 428 114, 860
v. Holmesdale (Viscount ) , 124
v. Hyde , 498
v . Jefferyes , v. Jones , 448 , 475 , 714
808 v. Shuttleworth , 105
v . Kancie, 477, 478 v. Steward,
v . Porter, 246, 247.808 510
v. West, 70, 74
v . Symes , 727, 729 West Ham Charities , re, 930
lxxx
 TABLE OF ENGLISH CASES .

[The references are to the star paging. ]

PAGE PAGE
West of England Bank v. Bat White, re, 1015 , 1023
chelor, 704 v. Barton , 213 981
,
West of England, &c . , District v. Baylor, 248 , 833
Bank . Murch, 476 , 661 v. Briggs, 131 , 133 , 134 , 508
West London Commercial Bank v . Carter, 119
v . Reliance Permanent Build v . Chitty , 102
ing Society , 345 v. Cuddon , 423
West Retford Church Lands, re, 929 v . Evans , 61, 149
Westbrook v. Blythe , 810 , 816 v . Ewer , 864
Westbrooke, re, 628,632 v. Foljambe, 432 , 441
Westby r . Westby, 807 v. Grane , 586
Westcott v. Culliford , 351 v. Hunt, 238
Western v. Cartwright, 868, 869 v. Lincoln, 298, 691
Westhead v. Riley, 813 v. M'Dermott, 198 , 200 , 201 ,
r. Sale, 1037 606, 607, 646
Westley v. Clarke , 264, 265 , 268 , v. Nutts , 142
269, 274 v. Parker, 210, 211
Westmoreland r. Holland , 201 , 288 v. Sanson, 79
v. Tunnicliffe , 206 v. Spettigue , 898
Westoby v. Day, 225, 239 v . Tommy , 486
Weston v. Clowes , 988 v. White , 363 , 364 , 372 , 373 , 374 ,
v. Filer, 1025 , 1026 , 1040 375, 378 , 843 , 849 , 850 , 918
Westover v. Chapman, 316, 342 v. Williams , 60
Westwood , re, 1042 White's Mortgage, re, 222
Wetenhall v. Dennis , 988 Trust , re, 839 , 841 , 842
Wetherby v. Dixon, 402 White and Hindle's Contract , re, 110
Wetherell v. Hall, 681 Whitecomb v . Jacob, 892, 895
v. Langston, 200 Whitehead, ex parte, 57, 755
v. Wilson, 688 v. Bennett, 149
Wettenhall v. Davis , 988 Whitfield (Incumbent of) , re, 504
Whale v. Booth , 244 , 478 , 479 , 480 v. Bewit , 187, 188
Whalley . Whalley, 868 r. Brand, 244
Whateley v . Kemp, 114 v. Prickett , 102
Whatford v . Moore, 397 Whitham, re, 223
Whatton v. Toone, 484, 868 Whitling's Settlement , re , 1001 , 1004
Wheate v. Hall, 126 , 127, 605 Whitmarsh e. Robertson, 976
Wheatley, ex parte, 913 Whitmore v. Douglas, 952
re, 786, 954 v . Dowling, 512
v. Purr, 67 v. Turquand, 522 , 977
Wheeler, re, 1037 ". Weld. 39
Wheelwright v. Jackson , 513 Whitney . Smith , 281 , 324 , 593 , 906
r. Walker, 429, 557, 559 Whittaker, re, 69, 755
Wheldale v. Partridge, 939 , 944, 946 , Whittem v. Sawyer, 743
947, 962 Whittingham's Case , 38, 117
Whelpdale v. Cookson , 484, 488 , 491 , Whittingstall v. King , 710
492 , 498 Whittington v . Jennings , 77,79
Whetstone (Lady) e. Bury, 821 Whittle v. Henning, 745
Whichcote v. Lawrence, 484. 485 , Whitton . Lloyd, 524
487, 494, 496 , 870 Whitton's Trusts, re, 1004
Whinchcombe v. Pulleston , 104 Whitty's Trust , re , 947 , 951
Whistler v. Newman, 763 , 919 , 989 Whitwick v . Jermin , 941
Whiston v. Dean and Chapter Whitworth v. Gaugain, 246
of Rochest er, 529 Wickham . Wickham, 189, 694
Whitacre, ex parte, 228 Widdowson r. Duck, 312 , 597
Whitaker r. Rush, 700 Widgery v. Tepper, 740, 804, 807
v. Wisbey . 28 Widmore v . Woodroffe, 837
Whitaker's Trusts , re, 998, 1006 Wigg . Wigg, 140 , 858
Whitby's Trusts , re , 997 Wightman e. Townroe, 238
Whitcomb v. Minchin , 486 Wightwick v. Lord, 300 , 304
lxxxi
 TABLE OF ENGLISH CASES .

[The references are to the star paging. ]

PAGE PAGE
Wiglesworth v. Wiglesworth , 336 , Williams v. Headland , 359
979 v. Higgins, 273
Wigsell v. Wigsell, 732 v. Kershaw , 148
Wikes's Case, 30, 223 , 247 , 746 , 820 v. Lewis , 90
Wilcocks v. Hannyngton, 68 , 71, 73 v . Lomas , 919
Wild v. Banning, 282, 525 v. Lonsdale (Lord) , 285
v. Wells , 890 v. Massy, 481
Wilday v . Sandys , 299 v. Mayne , 745
Wilder . Pigott, 954 v. Nixon, 204 , 260 , 268 , 272 ,
Wildes v. Davies , 93 273 , 274
v. Dudlow, 349 , 905 v. Powell, 342
Wilding v. Bolder , 41, 666 v. Waters , 209, 210
v. Richards , 515 , 516, 517, 518 v. Williams, 133 , 137 , 175 , 176 ,
Wiles v . Gresham, 288 , 318 , 591 , 907 191
Wilkes . Collin , 732 Williams's Estate, re , 447 , 831 , 1010
v. Steward, 306, 316 Settlement , re, 656, 999
Wilkes's Estate, re, 566 Trust , re, 1002
Wilkins . Fry, 435 , 445 Williamson v. Codrington , 76 , 80 , 81
v. Hogg, 275 v. Curtis , 456
r. Hunt, 986 v. Park, 800
v. Jodrell, 139 v . Taylor, 520
v. Sibley , 696 Willis v. Childe, 616
v. Stevens , 168 v. Hiscox , 685, 994
Wilkinson, ex parte, 204 v. Kibble, 631
v. Bewick, 297 v. Kymer, 132
v. Brayfield , 145 s
v. Willi , 163 , 167 , 168
v. Charlesworth , 743 Willmott v. Barber, 717
v. Duncan , 305 v. Jenkins , 205
v. Gibson , 346 Willock . Noble, 774
v. Malin , 259, 538 Willoughby v . Middleton , 39, 786
v. Parry , 645 , 662 , 918 , 924 v. Willoughby, 95, 858
v. Schneider, 153 Willoughby Osborne v. Holy
v. Wilkinson, 95 , 102 , 106 , 632 . oake, 153
634, 638 Wills . Sayers, 755, 757, 834
Wilkinson's Mortgaged Es Wilmot v. Pike, 705
tates , re, 433 Wilson , re, 351
Settled Estates , re, 311 v. Atkinson, 95
Trust, re, 1012 v. Beddard , 947
Wilks v. Groom, 295 , 1016 v Bell, 139
Willan, re, 1015 v. Bennett, 229, 230 , 237 , 608 ,
r. Lancaster, 722 609
Willand v. Fenn , 273 v. Bury (Lord) , 191
Willats v . Busby, 76 v. Clapham , 141
Willenhall Chapel, re, 538 v. Coles , 151
Willes v. Greenhill (No. 1) , 696 , 707 v. Coxwell, 831
(No. 2) , 706 , 709 v. Day, 509 , 511 , 513
Willett v. Blandford, 277, 278 v. Dennison, 257
v . Sanford, 7 v. Dent , 56, 721
William of Kyngeston's Char v. Duguid, 839, 841 , 842
ity, re, 932 v. Fielding , 828
Williams, ex parte, 586 v. Foreman, 892
re, 106, 107 v. Goodman, 910
v. Allen (No. 2) , 911 v. Halliley , 420
v. Arkle , 61, 146 v. Heaton, 644
v. Bayley, 898 v. Hoare , 236, 237
v. Bolton , 188 v. Keating , 265
v. Carter, 127, 130 v. Knubley, 206
v. Coade, 148, 149 v. Major , 132, 134, 149
v. Corbet, 641 v. Moore, 863, 908
lxxxii
 TABLE OF ENGLISH CASES .

[ The references are to the star paging . ]

PAGE PAGE
Wilson v. Oldham, 745 Woodburn v. Grant,
v. Peake, Woodburn's Will, re, 711
343 1003, 1038
v . Round, 780 Woodcock , re,
v. Thomson, 35
990 v. Dorset, 396
v. Turner, 586 Woodcock . Renneck ,
r. Wilson , 838 , 840
90, 786, 989 Woodfall v. Arbuthnot , 1032
Wilton . Hill , 759, 786 , 919 , 926, 977 Woodford v. Charnley,
Wiltshire v. Rabbits , 72, 73
705 Woodgate's Settlement, re, 656, 1027
Winch v. Brutton , 134 Woodhead v. Marriott , 338, 995
v . Keeley , 239, 241 Woodhouse v. Hoskins ,
Winchelsea v. Norcliffe, 111
Winchester (Bishop of) 967, 968 v. Woodhouse, 900, 901 , 915
v. Woodhouselee v. Dalrymple , 348
Knight , 886 Woodin, ex parte ,
Winged v. Lefebury , 858 192 , 642, 913
Winkworth v. Winkworth, Woodman v. Horsley , 756
1001 v . Morrel, 145 , 163 , 170 , 175,
Winn . Fenwick , 842
Winnall, ex parte, 252 Woodmeston v. Walker, 176 , 177
Winslow v. Tighe, 782
181 , 184 Woodroffe v. Johnston , 515
Winter v. Rudge , 657 Woods v . Axton ,
Winteringham's Trust, re, 1034 640
Wise , re , v. Woods , 133, 138, 688
466, 1011 Woodward v. Woodward, 760
v. Piper, 127 Woodyat v. Gresley,
v. Wise, Woollard's Trust , re, 911
Wise's Trust, re , 201 , 706 1000
Wiseman . Roper, 655, 1003 Woollett . Harris , 148
80 Woolmore v. Burrows, 118 , 121 , 127,
v. Westland , 421
Witham's case , 508
4, 8 , 10 Wootton's Estate , re, 566
Withers v. Allgood, 110 Worcester Corn Exchange Com
v. Withers , 53 , 163 , 165 pany, re,
Withington . Withington , 595
659 Worley v. Frampton, 441
Withy v. Mangles , 844 Worley
Whitter v. Whitter, v. , 215
16, 967 Worman (In the Goods of) , 752
Witts v. Dawkins , 781 Worrall v. Harford,
Wivélescom case , 274, 634, 641
Wolestoncroft v . Long , 531 Wors eley v. De Matt os, 509, 511 , 513
Wollaston's Settlement , re, 524 Worsley v. Granville, 397, 415
397 Worssam, re, 487, 488 , 491 , 496
Wolley v. Jenkins , 605 Wortham v. Pemberton , 746, 750
Wolstenholme , re,
98 Worthington v. Evans , 607, 646
Wood , re, 514 , 1012 , 1015 , 1021 , r. M'Craer, 589
1033 Wragg, re, 1032
v. Beetlestone, 1026, 1034 Wrangham, ex parte,
v. Cox , 530
131, 137 Wray v. Steele, 163 , 164
v . Dixie, 510 Wren . Kirton ,
v. Downes , 498, 980 Wrey . Smith, 256, 296
v. Hardisty, 205 Wright ?".. Atkyns, 131 , 133, 134, 304 136
v. Harman, 455 , 460 v. Chard, 765, 766, 882 , 888 , 890
v. Nosworthy, 15 v. Hall.
v . Ord, 158
663 v. Lambert, 305
v. Patterson, 595
v. Richardson, v. Maunder, 434
423 v. Newport Pond School, 543 ,
v . Skelton , 151
v. Stane , 345
847 v. Pearson , 109 , 110 , 112 , 210,
v. Weightman, 252, 362, 475
r. White, 214 , 217
462, 605 v. Rose, 799 , 952
v. Wood, 778 v . Row,
Wood's Estates , re, 157
370 v . Snowe, 39, 355
Settled Estates , re, 961
Trusts , re, v. Wilkin , 140
Woodall, re, 999, 1004 v. Wright , 149, 151 , 758
35 Wright's Settlement , re, 996
lxxxiii
 TABLE OF ENGLISH CASES .

[The references are to the star paging. ]

PAGE PAGE
Wright's Trusts , re , 358, 359, 565 , Yates v. Cox, 708
999 , 1002 v. Yates , 304, 951
Will, re, 998 Yeap Cheah Neo v . Ong Cheng
Wrigley . Sykes , 461 , 466 , 467, 468 Neo , 148
Wroe v. Seed, 691, 993 Yem . Edwards , 181
Wyatt v. Sharratt , 328 , 979, 982 Yervel (Poor of) v. Sutton, 543,
Wych v . East India Company, 867 , 544, 545
868 Yescombe v. Landor, 806
v. Packington , 143 , 146 , 147 York . Brown, 281 , 987
Wyche, re, 630 v. Eaton, 164, 165
Wycherley's Trusts , re, 1034 York Buildings Company r.
Wykham v. Wykham, 217 Mackenzie , 491 , 492 , 496
Wylly's Trusts, re, 350, 1002 Youde v. Cloud, 207, 904
Wyman v. Carter, 204, 447 Young, re, 1001 , 778
Wynch . Grant, 205 v. Dennett, 524
v. Wynch, 410 v. Grove, 148
Wyndham v. Egremont (Earl v. Martin , 135
of) , 731 v. Peachy, 144, 145
Wynne v. Hawkins , 132 , 134 v. Waterpark, 409, 863, 880
v. Humberston, 680, 975 Younge v. Combe, 338 , 339, 340
v . Styan , 866 Younger v. Welham , 259
Wynter v. Bold, 417 Younghusband v. Gisborne , 98 , 690 ,
Wyse, re, 883 805, 808
YALLOP , ex parte, 166 ZAMBACO v. Cassavetti, 327, 923
v . Holworthy, 886 Zealand Alford Estate Company, 715
Yardley v. Holland, 208, 904 Zinck v. Walker, 241
Yarnold v . Moorhouse, 101 Zoach v. Lloyd, 968
Yarrow v. Knightly, 109 Zouch v. Parsons , 38, 39
lxxxiv
+
출시
1