July, whereas, if the money were laid out in the Three per cent. Reduced Annuities, the dividends would be payable at the time directed by the testator; and Sir John Leach made the order accordingly (m).

A mortgage may produce a higher rate of interest than an investment in the Three per cent. Consols; but in this case the' advantage does not arise from the inferior nature of the security as in the instance of Bank Stock, nor from any perishable or redeemable quality as in the instance of the Long Annuities or the Four per Cents.; the Court, therefore, will not permit the mortgage to be called in without a previous inquiry by the Master whether it will be for the benefit of all the parties interested (n).

And where a testator dies in India, and neither the fund nor the parties entitled to it are under the jurisdiction of the Court of Chancery, it is not the duty of the executor to transmit the assets to England to be invested in the Three per cent. Consols, but he may invest the property in the securities of the East India Company, and the tenant for life will be entitled to the dividends or interest, though to the amount of 10 or 12 per cent. If the parties return to England, and so come under the jurisdiction of the Court, the fund may then be brought over at the instance of the remainderman, and the tenant for life must submit to the consequential reduction of his income (o).

If trustees or executors be directed by the will to convert the testator's property and invest it in government or real securities, they will be answerable for the

(m) Caldecott v. Caldecott, 4 Mad. 189.

(n) See Howe v. Earl of Dart

mouth, 7 Ves. 150.

(0) Holland v. Hughes, 16 Ves. 111; S. C. 3 Mcr. 685.

amount of stock which might have been purchased at the period the conversion should have been made (p).

If the trust-fund be standing out on a proper security, and the trustee call it in for no purpose connected with the trust, and therefore in dereliction of his duty, he will be compellable, at the option of the cestuis que trust, either to replace the specific stock, or to account for the proceeds of the sale (q) with interest at 5 per cent. (r). But in a case where the trustee did not seek to make any thing himself, but was honourably unfortunate in yielding to the importunity of one of the cestuis que trust, it was held by Sir A. Hart, that, although the trustee was bound to replace the specific stock, the cestuis que trust should not have the option of taking the proceeds with interest (s). If the trustee become bankrupt, the cestuis que trust may at their option prove for the proceeds with interest, or for the price of the specific stock at the date of the commission (t).

We may conclude this section with the general remark, that trustees would not be justified in making any investment that would subject the trust-money to the power or control of any one of the trustees singly; they could not, for instance, lay out the fund upon India bills, (supposing such a security were warranted by the settlement,) if made payable, not to all the trustees

(p) Hockley v. Banstock, 1 Russ. 141; Dimes v. Scott, 4 Russ. 195.

(g) Bostock v. Blakeney, 2 B. C. C. 653; Ex parte Shakeshaft, 3 B. C. C. 197; O'Brien v. O'Brien, 1 Moll. 533, per Sir A. Hart; Raphael v. Boehm, 11 Ves. 108, per Lord Eldon.

(r) Crackelt v. Bethune, 1 J. & W. 586; Mosley v. Ward, 11 Ves. 581; Pocock v. Reddington, 5 Ves. 794; Piety v. Stace, 4 Ves. 620.

(s) O'Brien v. O'Brien, 1 Moll. 533.

(t) Ex parte Shakeshaft, 3 B. C. C. 197.

in their joint capacity, but to one of the trustees individually (u).

IV. Of the due application of the trust-fund to the purposes of the trust.

1. It is incumbent upon the trustee to ascertain, before he parts with the possession of the property, who are the parties legally entitled to it. If through any misapprehension on the part of the trustee the trust-money find its way into a channel not authorized by the terms of the trust, he will be held personally responsible for the misapplication to the parties who can establish a better claim. "I have no doubt," said Lord Redesdale upon one occasion, "the executors meant to act fairly and honestly, but they were misadvised; and the Court must proceed, not upon the improper advice under which an executor may have acted, but upon the acts he has done. If under the best advice he could procure he acts wrong, it is his misfortune; but public policy requires that he should be the person to suffer (x)."

This must be considered as the general rule; but under particular circumstances the Court may hold an executor justified by having acted upon the advice of counsel. Thus, a testator had executed a promissory note in Switzerland for 600l., but by a counter-note executed shortly after it was declared that 4007. only was due valuable consideration. A Swiss Court, upon proupon ceedings taken there, had awarded the payment of the whole 6001. The executor in England, though by our

(u) Walker v. Symonds, 3 Sw. 1, see 66; and see Salway v. Salway, 2 R. & M. 218.

(x) Doyle v. Blake, 2 Sch. & Lef. 243.

law under the circumstances of the case but 400l. was demandable, had discharged the whole amount. Lord Alvanley said, "I very much wish, upon the rules of the Court, I could hold the executor fully justified; but when I consider his neglect in making this payment of his own conjecture and to the wrong of the cestuis que trust, I must hold that the Master was right in charging him. He certainly acted with a good intention, and imagined himself justified; but he thought fit to depend upon that which a prudent executor would not have relied on--this strange transaction in Switzerland. If he had taken advice, and been advised by any gentleman of the law in this country that he was bound to make this payment, I would not have held him liable, for I will not permit a testator to lay a trap for his executor, by doing a foolish act which may mislead him (y)."

Where there exists any reasonable doubt as to the relative rights of the parties interested, the trustee may always protect himself by submitting the question to the judgment of the Court, and of course he will be allowed the costs and expenses incurred in making the application (≈).

Where A., possessed of 1,000l. Million Bank Stock, employed B., a broker, to receive the dividends for her, and B. forged a letter of attorney authorizing him to sell the stock, and a sale was effected accordingly, it was decreed by Lord Northington, that the company was bound to make good the loss; for "A trustee," he said, "whether a private person or body corporate, must see to

(y) Vez v. Emery, 5 Ves. 141. (z) See infra; and see Talbot v. Earl of Radnor, 3 M. & K. 252; Goodson v. Ellisson, 3 Russ.

583; Curteis v. Candler, 6 Mad. 123; Knight v. Martin, 1 R. & M. 70; S. C. Taml. 237.

the reality of the authority empowering them to dispose of the trust-money; and if the transfer be made without the authority of the owner, the act is a nullity, and in consideration of law and equity the rights remain as before (a)."

If the trustee, by mistake, make an overpayment to the cestui que trust, he may reimburse himself by deducting the amount from the next payment that accrues due (b).

2. It has already been observed, that a trust, being a matter of personal confidence, cannot be delegated (c). It follows, that if a trustee confide the application of the trust-fund to the care of his attorney (d), co-trustee, or coexecutor (e), and, a fortiori, if to a stranger (ƒ), he will be personally responsible for any loss that may result.

The case of Balchen v. Scott (g) is no exception to this rule. An executor had received a bill of exchange by the post from a debtor to the estate, and transmitted it to his co-executor. It was held, that by this proceeding the executor had not acted in the trust (h), and therefore was no more answerable for the application of the money by the co-executor, than any stranger would have been under similar circumstances.