260 CHAPTER XV. THE GENERAL PROPERTIES OF THE OFFICE OF TRUSTEE. FROM the estate of the trustee we pass to the consideration of his office, and upon this subject we may in the first place investigate the general properties annexed to the office, as, 1. That a trustee having once accepted cannot afterwards renounce it. 2. That he cannot delegate it. 3. That in the case of co-trustees the office must be exercised by all the trustees jointly. 4. That on the death of one trustee the trust will vest in the survivors. 5. That one trustee shall not be liable for the acts of his co-trustee. 6. That a trustee shall derive no advantage from the office. I. It is a rule, without any exception, that a person who has once undertaken the office, either by actual acceptance or by construction of law, cannot discharge himself from liability by a subsequent renuntiation. The only mode by which he can obtain a release is either under the sanction of a Court of Equity, or by virtue of a special power in the instrument creating the trust, or with the universal consent of the parties interested in the estate (a). (a) See Doyle v. Blake, 2 Sch. & Lef. 245; Chalmer v. Bradley, 1 J. & W. 68. Thus, where A. was named executor, and acted in behalf of some particular legatees, but disclaimed the intention of interfering generally, and then renounced, and B. obtained letters of administration cum testamento annexo, and possessed himself of assets and died insolvent, it was held that A., having acted, could not afterwards discharge himself, and was therefore responsible for the devastavit committed by B. (b). So, in another case, where A., having possessed himself of assets, renounced the administration, and the same day B. proved the will, and A. handed over part of the assets to him, and afterwards A., having received other assets by authority from B., handed them over in like manner, Sir Thomas Clarke delivered his opinion, that, as A. had administered though without having proved the will, the attempt at renuntiation was void, and he ought to be charged with all the subsequent receipts (c). Though a trustee may have given a bond for the due execution of the trust, and the cestui que trust may have recovered upon the bond, and been paid the money, yet, if the cestui que trust afterwards bring his bill to compel a conveyance, the trustee cannot divest himself of his fiduciary character by pleading that the penalty of the bond was a stated damage for the breach of trust, and on payment of the penalty the trustee was to be released. A conveyance however will not be decreed without an allowance to the trustee of the penalty recovered upon the bond, with interest at the usual rate (d). (b) Doyle v. Blake, 2 Sch. & Lef. 231. (c) Read v. Truelove, Amb. 417. (d) Moorcroft v. Dowding, 2 P. W. 314. II. The office of trustee, being one of personal confidence, cannot be delegated. If the trust be of a discretionary character, not only is the trustee answerable for all the mischievous consequences of the delegation (e), but the exercise of the discretion by the substitute will be actually void (j An advowson was vested in twenty-five of the principal inhabitants of a parish upon trust to elect and present a proper preacher, and, some of the trustees having deputed proxies to vote at the election, Lord Hardwicke said, "It is true a trustee who has a legal estate in him may make an attorney to do legal acts; but here is a personal trust, and there is no instance where a trustee is allowed to make a proxy to vote in a personal trust of this kind. The trustees were themselves to judge of the qualifications of the candidates, and could not delegate that judgment to others, but ought to exercise it themselves." And his Lordship held, that, as the election had been conducted in this manner, it could not be supported (g). And a discretion can no more be committed to a coexecutor or co-trustee than to a stranger (h). Thus, where a sum of money was given to three executors upon trust to distribute in charity at their discretion, and the executors assumed each the independent control of one-third, Lord Hardwicke said, "I am of opinion the executors could not divide the charity into three parts, and each executor nominate a third absolutely, because the deter (e) Adams v. Clifton, 1 Russ. 297; Hardwick v. Mynd, 1 Anst. 109; see case cited by Sir J. Jekyll, Walker v. Symonds, 3 Sw. 79, note (a). (f) See Alexander v. Alexander, 2 Ves. 643. (g) Attorney-General v. Scott, 1 Ves. 413; see 417. (h) Crewe v. Dicken, 4 Ves. 97. mination of the property of every object was left by the testator to the direction of all the executors (i).” Nor, if a trustee convey the estate, will the transfer of the estate have the effect of investing the grantee with the power (k). If the trust be not discretionary, and the trustee delegate the execution of it to the instrumentality of a stranger, the trustee must undoubtedly answer for the conduct of the person he has substituted; but it does not follow that an act of that person, done in pursuance of the trust, and requiring no personal exercise of judgment, may not be valid; as, if A. be a trustee for sale, and he delegates the duty to B., who sells accordingly, the cestui que trust may unquestionably hold A. accountable for the due application of the purchase-money; but can he also set aside the sale, however fair, as against the purchaser ? W. Mynd had devised certain estates to G. Mynd and Roberts in trust for the payment of debts. G. Mynd and Roberts conveyed the estates to W. Mynd, the son, subject to the trusts of the will. The son mortgaged the greater part of the trust-estates, and applied the proceeds in the payment of his own debts. One of the questions debated was, whether the mortgages by the son were to stand good as against the creditors of the testator. Lord Chief-Baron Eyre observed, "If the trustees had made the mortgages, they would not have been disturbed; in fact they were made by them, for they assigned their (i) Attorney-General v. Gleg, 1 Atk. 356. (k) Crewe v. Dicken, 4 Ves. 97, see 100; Doyley v. Attorney-Ge neral, 2 Eq. Ca. Ab. 194; Bradford v. Belfield, 2 Sim. 264; Cole v. Wade, 16 Ves. 47, per Sir W. Grant. whole interest to W. Mynd, the son, to act for them in the trust." The mortgages were therefore held to be good, but the trustees were made responsible to the parties interested for the misapplication of the proceeds (1). Bradford v. Belfield (m), before the present Vice-Chancellor, was this. One Berry had conveyed an estate by way of mortgage to Whidborne as trustee for Baker his heirs and assigns, and it was declared that the conveyance was so made to Whidborne and his heirs upon special trust and confidence in him the said Whidborne and his heirs reposed, and to the intent and purpose only that he and they should, as soon as to him and them should seem meet, upon request to him and them for that purpose made by Baker, his executors, administrators, and assigns, make absolute sale of the fee-simple and inheritance of the estate in such lots as he and they should think proper, and the receipt of Whidborne his heirs executors administrators and assigns was to be a sufficient discharge. Whidborne died intestate, and Baker died, and appointed executors. The heir of Whidborne, at the request of Baker's executors, conveyed to Bradford in fee upon trust to sell, and the Vice-Chancellor determined that Bradford, as the assign of Whidborne's heir, could not make a title. The question however in this case was taken to be, not how far a trust could be delegated, but whether a power of sale had under the circumstances arisen; and upon the authority of Townsend v. Wilson, a case exactly in point, his Honor decided in the negative. A distinction must be observed between the delegation (1) Hardwick v. Mynd, 1 Anst. 109; and see Lord Braybroke v. Inskip, 8 Ves. 432. |