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CHAPTER XII.

OF DISCLAIMER AND ACCEPTANCE OF THE TRUST.

HAVING treated of the creation of trusts, whether by the act of a party or by operation of law, we shall next direct our attention to the estate and office of the trustee, and, as a preliminary question, we propose in the present chapter to offer a few remarks upon the subject of the trustee's disclaimer or acceptance of the trust.

I. Of disclaimer.

It may be laid down as a clear and undisputed rule, that no one is compellable to undertake a trust (a). Though a person," said Lord Redesdale,

66

may have agreed in the lifetime of a testator to accept the executorship, he is still at liberty to recede except so far as his feelings may forbid it, and it will be proper for him to do so, if he finds that his charge as executor is different from what he conceived it to be when he entered into the engagement (b)."

If the party named as trustee intend to decline the administration of the trust, he ought without delay to execute a disclaimer; and that by deed, for a deed is

(a) Robinson v. Pett, 3 P. W.

251, per Lord Talbot.

(b) Doyle v. Blake, 2 Sch. & Lef.

239.

Q

clear evidence and admits of no ambiguity (c); and the instrument should be a disclaimer and not a conveyance, for, the latter, as it transmits the estate, has been held to imply a previous acceptance of the office (d); but Lord Eldon expressed his opinion, that, where the intention was disclaimer, the instrument ought to receive that construction, though it was a conveyance in form (e).

A trust may also be repudiated on the evidence of conduct without any express declaration of disclaimer (ƒ); but a person would act very imprudently, who allowed so important a question as whether he is a trustee or not to remain matter of construction.

After renunciation of the trust, whether by express disclaimer, or by conduct which is tantamount to it (g), a trustee may assist as agent, or act under a letter of attorney in the management of the estate, without incurring responsibility (h); but the caution need scarcely be suggested, that all such interference cannot be too scrupulously avoided before the fact of the renunciation of the trust has been most unquestionably established.

What will amount to a disclaimer at law, so as to devest the estate, is a very distinct question from the disclaimer of the office in equity.

(c) Stacey v. Elph, 1 M. & K. 199, per Sir J. Leach.

(d) Crewe v. Dicken, 4 Ves. 97. (e) Nicloson v. Wordsworth, 2 Sw. 372. In Attorney-General v. Doyley, 2 Eq. Ca. Ab. 194, the trustee who declined to act was directed to convey, and the same decree was made in Hussey v. Markham, Rep. t. Finch, 258. In Sharp v. Sharp, 2 B. & A. 405, it was

held the trustees had not acted, though they had conveyed the estate instead of disclaiming.

(f) Stacey v. Elph, 1 M. & K.

195.

(g) Stacey v. Elph, 1 M. & K.

195.

(h) Dove v. Everard, 1 R. & M. 231; Harrison v. Graham, 3 Hill's MSS. 239, cited 1 P. W. 241, 6th ed., note (y).

It was formerly held, (at least such was the clear opinion of Lord Coke,) that a freehold, whether vested in a person by feoffment, grant (i), or devise (k), could not be disclaimed but by matter of record; and the reason, upon which this maxim was founded, was, that the suitor might be more certainly apprised who was the tenant to the præcipe (1). But the doctrine of modern times is, that disclaimer by deed is sufficient (m); for, as Lord Tenterden observed, there can be no disclaimer by a person in a court of record, unless some other person think fit to cite him there to receive his disclaimer, and if the estate be damnosa hæreditas, that is not very likely to happen (n). Mr. Justice Holroyd went so far as to say, that even a deed might be dispensed with, and a party might disclaim a freehold by parol (o); and Sir A. Hart, whose authority however must not be too implicitly followed, has since sanctioned the doctrine by an actual decision (p).

It was laid down in Butler and Baker's case, that estates limited under the statute of uses were to be disclaimed with the same formalities as estates at common law (q); but Lord Eldon doubted whether a party could disclaim in the case of a conveyance to uses, except by

(i) Butler & Baker's case, 3 Re. 26, a, 27, a; Anon. case, 4 Leon. 207; Shepp. Touch. 285.

(k) Bonifant v. Greenfield, Godb. 79, per Lord Coke; but at the rehearing (Cr. El. 80) it was adjudged that three could pass the whole estate, the fourth having disclaimed by act in pais; and see Shepp. Touch. 452.

(1) Butler & Baker's case, 3 Re. 26, b.

(m) Townson v. Tickell, 3 B. & A. 31; Begbie v. Crook, 2 Scott, 128; and see the authorities cited in the note to the last-mentioned case. (n) Townson v. Tickell, 3 B. &

A. 36.

(0) Id. 38, citing Bonifant v. Greenfield, Cr. El. 80: and see Doe v. Smyth, 9 D. & R. 136.

(p) Bingham v. Clanmorris, 2 Moll. 253.

(q) 3 Re. 27, a.

release with intent of disclaimer; but his Lordship added, he was aware that such a doctrine would shake titles innumerable (r).

It seems to be clearly established, that a disclaimer, even by parol declaration, will suffice to devest the legal estate, when the trust property is a mere chattel interest (s).

The effect of disclaimer by a trustee is to vest the whole legal estate in the co-trustees (t); and, as regards the exercise of the office, it is held, that, even if the trust be accompanied with a power, as, of signing receipts, the continuing trustees may fully administer the trust without the concurrence of the trustee who has chosen to renounce (u).

II. Of Acceptance of the Trust.

A trustee may accept the office either by an express declaration to that effect, or by proceeding to act in the execution of the duties of it.

With respect to the liabilities of the trustee, it is perfectly immaterial to him whether he declare his acceptance of the office or his consent be implied, for in each case the obligations imposed upon him are precisely the same (x). In the event of a breach of trust the consequences to the parties beneficially interested may admit of a slight variation. A breach of trust creates per se a

(r) Nicloson v. Wordsworth, 2 Sw. 372.

(s) Shep. Touch. 285; Butler & Baker's case, 3 Re. 26, b, 27, a; Smith v. Wheeler, 1 Vent. 130; S. C. 2 Keb. 774.

(t) Bonifant v. Greenfield, Cr. El. 80; Crewe v. Dicken, 4 Ves. 100, per Lord Loughborough ;

Freem. 13, Case 111; Hawkins v. Kemp, 3 East, 410; Townson v. Tickell, 3 B. & A. 31; and see Nicloson v. Wordsworth, 2 Sw. 369.

(u) Adams v. Taunton, 5 Mad. 435; and see infra.

(x) See Lord Montfort v. Lord Cadogan, 19 Ves. 638.

simple contract debt only (y); but, if the trustee has bound himself to the performance of the trust under his hand and seal, this amounts to a covenant even though the heirs be not named, and the breach of trust, thus becoming a specialty debt, will, in legal assets, take precedence of simple contract debts (≈). If the trustee has covenanted for himself and his heirs, a remedy then lies at common law against the heir in respect of estates descended; and by 3 W. & M. c. 14, the like remedy was enacted against the devisees of the debtor; but this was only where the specialty would have supported an action of debt, and did not apply to a covenant which lay only in damages; but the 11 G. 4 & 1 Gul. 4, c. 47, has now perfected the remedy by extending it to the case of a covenant. A still more recent statute (a) has declared that the lands. of a debtor shall be liable to all his debts, whether on simple contract or on specialty; but specialties, where the heir is bound, are still made to take precedence of simple contract debts, and specialties where the heir is not bound.

What acts of a person nominated as trustee will amount to a constructive acceptance of the office, is a question constantly occurring in practice, and generally to be determined by the circumstances of the particular case; however, the authorities upon the subject may furnish us with a few general principles.

It is held that merely proving the will, without more, is not sufficient to constitute a person acting executor (b);

(y) Vernon v. Vawdry, 2 Atk. 119; S. C. Barn. 280; Cox v. Bateman, 2 Ves. 19; Kearnan v. Fitzsimon, 3 Ridg. P. C. 18.

(z) Gifford v. Manley, For. 109; Mavor v. Davenport, 2 Sim. 227; and see Benson v. Benson, 1 P. W.

131; Deg v. Deg, 2 P. W. 414. (a) 3 & 4 W. 4, c. 104.

(b) Balchen v. Scott, 2 Ves. jun. 678; Hovey v. Blakeman, 4 Ves. 607, per Lord Alvanley; but see Ward v. Butler, 2 Moll. 533.