By the 23d section, where all the trustees of any charitable or public trust are dead, and the representative of the last surviving trustee shall not appear or give notice of his title within twenty-eight days after advertisement, or not prove his title within thirty-one days after such appearance or notice, the Court may appoint new trustees under the provisions of the act. The 26th, 29th, and 30th sections extend the powers of the Lord Chancellor over all the king's dominions except Scotland and Ireland, and the powers of the Courts of Chancery and Exchequer over all the king's dominions except Scotland. The 32d section declares who shall be appointed by the Court to make transfers of stock, viz., the committee of the estate of the lunatic, or a co-trustee or co-executor of any trustee or executor against whom the relief is sought, or some officer of the company in whose books the transfer is to be made; and, in respect of transfers in the books of the Bank of England, the secretary, or deputy secretary, or accountant-general of the Bank. II. Having treated of the jus habendi and jus disponendi, which constitute the simple trust, we come now to speak of the cestui que trust's estate in the case of the special trust; and this may be said to be, The right to enforce in equity the specific execution of the settlor's intention to the extent of that cestui que trust's particular interest. The other parties entitled may express a desire that the trust should be differently administered; but if such a divergence from the donor's will would prejudice or injuriously affect the rights of any one cestui que trust, that cestui que trust may compel the trustees to adhere strictly and literally to the line of duty prescribed to them (9). If there be only one cestui que trust, or there be several cestuis que trust, and all of one mind, the specific execution may be stayed, and the special trust will then acquire the character of a simple trust; for whatever modifications of the estate the settlor may have contemplated, through whatever channel he may have originally intended his bounty should flow, the persons to be eventually benefitted are the cestuis que trust, and are in equity, from the creation of the trust, and before the trustees have acted in the execution of it, the absolute beneficial proprietors. The case of Pearson v. Lane (r), before Sir W. Grant, will put the subject in a clear light. A conveyance had been made to trustees upon trust to sell, and with the proceeds to purchase other lands to be settled on the daughters of W. J. as tenants in common in tail, with remainder to them in fee. The daughters levied a fine of the lands to be sold to the uses and upon the trusts of their respective marriage settlements. It was doubted whether the entail had been effectually barred; but Sir W. Grant said, " It is clear, if the estate had been sold, and another estate purchased, the daughters would have been tenants in tail, with immediate remainders to themselves in fee. It is true in the lands to be sold they had no interest, legal or equitable, expressly limited to them; but the equitable interest in those lands must have resided somewhere: the trustees themselves could not be the beneficial owners; and if they were mere trustees, there must have been some cestuis que trust. In order to (r) 17 Ves. 101. (q) See Deeth v. Hale, 2 Moll. ascertain who they are, a court of equity inquires for whose benefit the trust was created, and determines that those who are the objects of the trust have the interest in the thing which is the subject of it. Where money is given to be laid out in land which is to be conveyed to A., though there is no gift of the money to him, yet in equity it is his, and he may elect not to have it laid out : so, on the other hand, where land is given upon trust to sell, and pay the produce to A., though no interest in the land is expressly given to him, in equity he is the owner, and the trustee must convey as he shall direct: if there are also other purposes for which it is to be sold, still he is entitled to the surplus of the price, as the equitable owner subject to those purposes; and if he provides for them, he may keep the estate unsold. The daughters electing to keep this estate, they acquired the fee, and it was discharged of every trust to which it had been subject." But until the cestui que trust, or the joint cestuis que trust, countermand the specific execution, the special trust will proceed; as if lands be devised to trustees upon trust to sell, and pay the proceeds to A., the property will remain personal estate in A. until he discharge the character impressed upon it by electing to take it as land (s). When it is said that each cestui que trust may compel the specific performance of the trust to the extent of his own benefit, it is of course understood that the trust is of such a lawful description, that the Court will not, on grounds of public policy, refuse to recognize its existence (t). (s) See infra. (t) See supra, p. 165. K K 498 CHAPTER XXV. PROPERTIES OF THE CESTUI QUE TRUST'S ESTATE. WE shall next enter upon the properties of the cestui que trust's estate as affected by the acts of the cestui que trust, or by operation of law. I. A trust is assignable. An equitable interest may be assigned, though it be a mere possibility (a), and either with or without the intervention of the trustees (b); and the assignee of the cestui que trust may call upon the trustee to convey to him, and on his refusal may file a bill to compel a conveyance without making the assignor a party (c). Before the Statute of Frauds (d), the transfer might have been made by parole; but now, by the ninth section of that Act, all grants and assignments of any trust or confidence are required to be in writing, signed by the party granting or assigning the same, or else are declared utterly void. But though a deed be not absolutely necessary, it is the practice, ex majori cautelá, to employ the (a) Courthope v. Heyman, Cart. 25; Warmstrey v. Tanfield, 1 Ch. Re. 29; Goring v. Bickerstaff, 1 Ch. Ca. 8; Cornbury v. Middleton, Ib. 211, per Judges Wyld and Rainsford; Burgess v. Wheate, 1 Ed. 195, per Sir T. Clarke; 21 Vin. Ab. 516, pl. 1. (b) Philips v. Brydges, 3 Ves. 127, per Lord Alvanley. (c) Goodson v. Ellisson, 3 Russ. 583. (d) 29 Car. 2, c. 3. same species of instrument, and adopt the same form of words, in the transfer of an equitable, as in the conveyance of a legal estate. An equitable interest in lands could not, before the abolition of fines and recoveries, have been passed by a feme covert but by fine or recovery (e); and now that by the Fines and Recoveries Act (f) those assurances have been abolished, the deed of the feme covert, which has been substituted in their place, must be executed with the same formalities in passing equitable as in dealing with legal estates. The power of the equitable tenant in tail to dispose of the equitable fee has been differently modified at different periods, and some account of the fluctuation of the law in this respect may serve to illustrate the general principles upon which trusts have been administered. At common law all inheritable estates were in feesimple, and it was the statute de donis (g) that first gave rise to entails and expectant remainders. As the Statute of Westminster the Second was long prior to the introduction of uses, had equity followed the analogy of the common law only, a trust limited to A. and the heirs of his body, with remainder over, had been construed a fee simple conditional, and the remainder had been void; but the known legal estates of the day, whether parcel of the common law or ingrafted by statute, were copied without distinction into the system of trusts, and, equitable entails indisputably existing, the question in constant dispute was, by what process they should be barred. In legal entails the only modes of unfettering the (e) Penne v. Peacock, Rep. 1. Talb. 41; Price v. Copner, 1 Sim. & Stu. 347. (f) 3 & 4 G. 4, c. 74. |