of the office, and the employment of agents on proper occasions. It cannot be expected that trustees should personally execute all the details of their duty, nor would it be desirable for the interests of the cestuis que trust. The ignorance of the trustee would often be more injurious than his honour and good intention would be beneficial as a safeguard (n). It must also be noticed, that the appointment of an attorney or proxy is not in all cases a delegation of the trust. When the trustee has resolved in his own mind in what manner to exercise his discretion, he cannot be said to delegate any part of the confidence if he merely execute the deed by attorney, or signify his will by proxy. Thus, in the case before cited (o), where the trust was to elect and present a proper clerk to a benefice, Lord Hardwicke had no doubt that, so far as related to the mere act of presentation, the trustees, having themselves fixed upon the object, might have signed the presentation by proxy a trustee who had a legal estate might make an attorney to do legal acts. III. Where the administration of the trust is vested in co-trustees, they all form as it were but one collective trustee, and therefore must execute the duties of the office in their joint capacity. If any one refuse to act, it is not competent for the others to proceed without him, but the administration of the trust must in that case devolve upon the Court (p). A receipt for money (q), a cer (n) Upon this subject see infra. (o) Attorney-General v. Scott, 1 Ves. 413; and see ex parte Rigby, 19 Ves. 463. (p) Doyly v. Sherratt, 2 Eq. Ca. Ab. 742, marginal note to (D). (q) See infra. tificate to a bankrupt (r), &c., must receive the joint signature of the whole body, and not of the majority merely, or it will not be valid. IV. On the death of one trustee the joint office survives. It is a well known maxim that a bare authority committed to several persons is determined by the death of any one; but, if coupled with an interest, it passes to the survivors (s). Thus, the committees of a lunatic's estate are regarded in the light of mere bailiffs without a spark of interest, and if one of them die the office is immediately extinguished (t). An executorship or administratorship survives (u); for, " If," says Lord Talbot," a joint estate at law will survive, why shall not a joint administration, when they both have a joint estate in it?" (x) So a guardianship vests in the survivors, for, as a guardian may bring an action and avow in his own name, may grant leases during the minority of the ward, and demise copyholds even in reversion as lord pro tempore, it is evident he has an interest (y). It follows that as cotrustees have an authority coupled with an interest, their office also must be impressed with the quality of survivorship (); as, if an estate be vested in two trustees upon (r) Ex parte Rigby, 19 Ves. 463; S. C. 2 Rose, 224. (s) Co.Lit. 113. a., 181.b.; Butler v. Bray, Dyer, 189. b.; Attorney-General v. Gleg, 1 Atk. 356; S. C. Amb. 584; Goulds. 2. pl. 4; Peyton v. Bury, 2 P. W. 628; Mansell v. Vaughan, Wilm. 49; Eyre v. Countess of Shaftesbury, 2 P. W. 108, 121, 124. (t) Ex parte Lyne, Rep. t. Tab. 143. (u) Adams v. Buckland, 2 Vern. 514; Hudson v. Hudson, Rep. t. Talbot, 127. (x) Hudson v. Hudson, Rep. t. Talb. 129. (y) Eyre v. Countess of Shaftesbury, 2 P. W. 102. (z) Hudson v. Hudson, Rep. t. Talb. 129, per Lord Talbot; Co. Lit. 113. a.; Attorney-General v. trust to sell and one of them die, the other may sell (a); if an advowson be conveyed to trustees upon trust to present a proper clerk, the survivors or survivor may present (b). Otherwise, indeed, the more precaution a person took by increasing the number of the trustees, the greater would be the chance of the abrupt determination. of the trust by the death of any one. But, if a discretionary trust be framed in the words of a power, as in a gift to A. and B. upon trust to distribute as the said A. and B. shall think proper, it may be questioned whether the authority ought not to be construed as a power, and to be extinguished by the death of one (c). It seems the survivorship of the trust will not be defeated because the settlement contains a power for restoring the original number of trustees by new appointments (d); unless there be something in the instrument that specially manifests such an intention (e). Even in an Act of Parliament, which declared in very strong terms that the survivors should (f), and they were thereby required to appoint new trustees, the Court said the proviso was analogous to the common one in settlements, and expressed an opinion, (for the decision was upon another point,) that the clause was not imperative, but merely of a directory character (g). Glegg, Amb. 585, per Lord Hardwicke; Gwilliams v. Rowell, Hard. 204; Billingsley v. Mathew, Toth. 168. (a) See Co. Lit. 113. a. (b) See Attorney-General v. Bishop of Litchfield, 5 Ves. 825. (c) See infra. (d) See Doe v. Godwin, 1 D. & Attorney-General v. Floyer, 2 (e) Foley v. Wontner, 2 Jac. & Walk. 245. (f) As to the force of the words "shall and may" in an Act of Parliament, see Attorney-General v. Lock, 3 Atk. 166; Stamper v. Millar, Id. 212. (y) Doe v. Godwin, 1 D. & R. 259. 66 The case of Attorney-General v. the Bishop of Litchfield (h), though not immediately in point, may be cited as touching upon the subject: A testator had devised to eight persons and their heirs the donation and parsonage of a rectory, and "desired their care to present from time to time a learned, painful preacher, honest in life and conversation, whereby souls might be gained to Christ;" and directed that "the three last survivors should make choice of new trustees to be added to them successively to present." The representative of the last surviving trustee conveyed to one Hodgets and his heirs; Eliza, the wife of Foley, was the heiressat-law of Hodgets, and, the advowson having descended upon her, Foley presented a clerk. An injunction was applied for to stay the institution, and Lord Eldon said, Upon what ground am I to interfere to prevent the Bishop from instituting upon a presentation under the legal title? It is said with great foundation this trust ought to be filled up; but, if an avoidance happens before the trust is filled up, the trustee executes the duty by presenting a proper person. If there is any objection to the clerk presented by him, as, if he presented for emolument to himself, the Court should interfere; but it would be very inconvenient if I were to hold that there can be no presentation till the number is filled up, when by negligence it has happened that the number is not filled up. If three trustees remained, I could not prevent their choice of new trustees to be added to them to present. The filling up the trustees might take a considerable time, and a lapse might incur; but I agree this is not a proper act of Mr. Foley, when the trust is reduced to his wife." V. One trustee shall not be liable for the acts or de(h) 5 Ves. 825. faults of his co-trustee, whether a proviso to that effect be inserted in the original settlement or not (i). This point appears to have been first clearly established by the decision of Townley v. Sherborne (k) in the reign of Charles the First: a case that, from the curious air of importance with which it is ushered in by the reporter, and the sound and practical reasoning that pervades the argument from the bench, will be found, it is conceived, at the same time interesting and instructive. A., B., C., and D. were trustees of some leasehold premises. A. and B. collected the rents during the first year and a half, and signed acquittances; but from that period the rents were uniformly received by an assign of C. The liability of A. and B. during the first year and a half was undisputed, but the question was raised whether they were not also chargeable with the rents which had accrued subsequently, but had never come to their hands? "The Lord Keeper Coventry (says the reporter) considered the case to be of great consequence, and thought not to determine the same suddenly, but to advise thereof, and desired the Lords the Judges Assistant to take the same into their serious consideration, whereby some course might be settled that parties trustees might not be too much punished, lest it should dishearten men to take any trust, which would be inconvenient on the one side, nor that too much liberty should be given to parties trustees, lest they should be emboldened to break the trust imposed on them, and so be as much prejudicial on the other side. And the Lord Keeper and the Lords the Judges Assistant afterwards conferring together, and upon mature deliberation conceiving the case to be of great (i) Leigh v Barry, 3 Atk. 584, per Lord Hardwicke; Anon. case, 12 Mod. 560. |