for her life, remainder to B. in fee, where the trustee has died or gone abroad, and no question can arise: but as to applying the act to all cases where there has been a want of providence in the parties, I will not do so; I have no such power under the act (u).”

Where personal estate was vested in two trustees upon trust to lay it out in a purchase of lands to be held by them upon certain trusts, and part of the money was laid out, and then the surviving trustee died intestate, and there was no administrator, and the heir was out of the jurisdiction, it was held, on the presentation of a petition for the appointment of new trustees, that quatenus the real estate the heir was within the act, and new trustees might have been appointed; but quatenus the personalty the parties were at liberty to take out administration to the surviving trustee, and in this respect, there being no necessity for the interference of the Court, the appointment of new trustees could only be obtained by suit. That as a bill was therefore necessary for the appointment of new trustees of the personal estate, and the same persons ought of course to be trustees of both the properties, the Court would not make an order for the appointment of trustees of the realty the Court would not appoint a trustee in an irregular manner, when there must be trustees appointed in a regular way (x).

(u) In re Nicholls, Id. 18, 19.

(x) In re Anderson, Id. 23.

476

CHAPTER XXIV.

IN WHAT THE ESTATE OF THE CESTUI QUE TRUST CONSISTS.

DISMISSING the subject of the estate and office of the trustee, we turn our attention to the estate of the cestui que trust; and in the present chapter we shall inquire in what the estate of the cestui que trust essentially consists, 1. In the simple trust; and, 2. In the special trust.

I. In the simple trust the equitable ownership is compounded of the pernancy of the profits and the disposition of the estate-the jus habendi and jus disponendi (a).

1. The equitable owner is entitled to the pernancy of the profits. Thus in a trust of lands the cestui que trust may compel the trustee to put him in possession of the estate (b).

But of course the rule is general, and can only be applied where the cestui que trust is exclusively interested; for where 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

(a) Smith v. Wheeler, 1 Mod. 17, per Pemberton, J.

(b) Brown v. How, Barn. 354;

Attorney-General v. Lord Gore,

Id. 150, per Lord Hardwicke.

he shall not hold it under certain conditions and restrictions.

Thus, in Blake v. Bunbury (c) 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 in gross,) and subject thereto to the use of A. for life with remainders over. A. filed a bill, praying to be let into possession. 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 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 100l. 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." 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 (d).

In the case of Tidd v. Lister (e) a testator devised

(c) 1 Ves. jun. 194. See the case more fully stated, Ib. 514, 4 B. C. C. 21.

(d) S. C. 4 B. C. C. 28.
(e) 5 Mad. 429.

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 60 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 let into possession upon securing the amount of the premiums of the policies: but Sir J. Leach said, "It is perfectly plain from the continuing nature of this trust, that the testator intended the actual possession of the trust property should remain with the trustees; and it did appear to me a singular proposition, that if a testator, who gives in the first instance a beneficial interest for life only, thinks fit to place the direction of the property in other hands, which is an obvious means of securing the provident management of that property for the advantage of those who are to take in succession, it should be a principle in a Court of Equity to disappoint that intention, and to deliver 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 are to take in remainder. Independently of the purpose of management of the property, a testator may be considered in the case of a female cestui que trust for life as having a further view to her personal protection in the case of her marriage. There may be cases in which it may be 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 may be cases in which it may be 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 residence. There may be very special cases in which this 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, there 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 according to the intention of the testator." And his Honour refused the application.

In another case A. granted an annuity to B. with powers of distress and entry, and demised an estate for 200 years to C. upon trust, to permit A. to receive the rents until the annuity should be in arrear forty days, and, when in arrear for that period, out of the rents, issues, and profits, or by demising, assigning, or otherwise disposing of the term, or by bringing actions against the tenants, or by such other means as should seem meet, to raise the arrears of the annuity, and to pay the surplus, if any, to the grantor. The annuities fell in arrear, and the trustee gave notice to the tenants to pay the rents to himself, and appointed a receiver, to whom the rents were afterwards paid. A. discharged the arrears of the annuities, and then applied to the trustee to deliver up the possession, which was refused. The point was submitted to the judgment of the Court, and Lord Eldon said, "If you look to the powers of distress and entry, you will not find in either of them that any thing