que trust there is no primary liability, but each trustee is responsible for the entirety of the loss incurred (x). But where a trustee had refused to accept the office unless another should be named with him, and the trust money be divided between them, so that each might be responsible for a moiety only, and this was accordingly done, but the trust deed was drawn in the usual form as if they were joint trustees of the whole sum, it was held, upon the insolvency of one of the trustees, that the co-trustee should not be answerable for more than the moiety paid to himself, the division of the trust money being, Sir J. Leach observed," a term in the creation of the trust (y).” But though, as respects the remedy of the cestui que trust, each trustee is individually responsible for the whole amount of the loss, whether he was the principal in the breach of trust, or was merely a consenting party, yet, as between the trustees (z), or as between the trustees and a third person who has reaped the benefit of the breach of trust (a), the Court will fix the onus upon the person who in reality was the contriver of, or gainer by, the fraud.

Thus, in Trafford v. Boehm (b), Henry Heathcote and Charles Boehm were the trustees of Mr. Trafford's marriage settlement, and the fortune of the lady was placed in their hands, to be laid out in a purchase of lands, as soon as one could conveniently be found. No suitable purchase offering, the money was invested by the direction of

(x) See Wilson v. Moore, 1 M. & K. 146.

(y) Birls v. Betty, 6 Mad. 90. (z) Ex parte Shakeshaft, 3 B. C. C. 198, per Lord Thurlow.

(a) Trafford v. Boehm, 3 Atk.

440; Lord Montfort v. Lord Cadogan, 17 Ves. 485; 19 Ves. 635; S. C. 2 Mer. 3; and see Howe v. Earl of Montfort, 7 Ves. 150, 151.

(b) Ubi supra.

the husband in South Sea Stock, and a loss was incurred. Lord Hardwicke said, "There is no doubt this Court will endeavour to deliver a trustee from any mischief that may happen from a misapplication of trust money, and in the present instance the loss must first come out of the estate of the husband, because done with his concurrence or subsequent assent, for he has passed the account with the trustees, and constantly received the dividends of the stock. The rule of the Court is, that if a trustee err in the management of the trust with the approbation of the cestui que trust, it must be made good first out of the estate of the person who consented to it."

And the same principle was acted upon in the case of Lord Montfort v. Lord Cadogan (c). By indenture bearing date in 1772, certain leaseholds were vested in trustees upon trust in the first place to renew the leases out of the rents and profits, and then upon trust for Lord Montfort for life, remainder to Lady Montfort for life, remainder to the issue. The first period of renewal occurred in 1786, and the second in 1800, and' Lord Montfort died in 1799. The trustees, instead of renewing, as they should have done, permitted Lord Montfort during his life, and Lady Montfort after his decease, to receive the whole rents of the estate. Lord Montfort, the son and only issue, renewed the lease at his own expense in 1808, during the lifetime of the dowager Lady Montfort, and then filed a bill against her, the executors of Lord Montfort his father, and the trustees, to be repaid the money he had advanced for the renewal.

T

Sir W. Grant said, " Though

my opinion is that these trustees are answerable, they

(c) 17 Ves. 485.

are not alone answerable. The tenants for life have acquiesced in the breach of trust, and profited by it by receiving the whole rents and profits, a part of which was applicable to the renewals. All these parties are answerable to the plaintiff; but asbetween the tenants for life and the trustees, if Lord Montfort has left assets, they will in the first place be applicable to make good so much of the fine as corresponds with the period of his enjoyment. Lady Montfort is in like manner answerable for the period of her possession, and the accruing rents during her life are liable to be impounded to make good the demand against her. Whatever can be got from these funds will go in ease of the trustees." And the decree was, that the renewal fine ought to be paid to the plaintiff by the trustees, but that the same ought to be repaid to them out of the estates of Lord Montfort deceased, and of the dowager Lady Montfort, according to the times they had respectively been in possession, From this decree some of the parties appealed (d), and Lord Eldon, before whom the case was now argued, said, "One question is, whether Lord Montfort's estate, if sufficient, and that of Lady Montfort, should have been resorted to for payment of the plaintiff's demand before the trustees were called upon, and many cases have established, that a tenant for life joining in a breach of trust shall be answerable in the first instance; but the cestui que trust is not bound to wait while inquiries as to assets, or what proportion Lady Montfort is to pay, are depending. My opinion therefore is, that the Master of the Rolls was perfectly right in charging the trustees in

(d) 19 Ves. 635; S. C. 2 Mer. 3.

the first instance, and also in deciding, that they have a remedy over against those who took the rents and profits which ought to have paid the fine." His Lordship then proceeded to consider the proportion in which the estate of Lord Montfort deceased, and the Dowager Lady Montfort, ought to contribute. "It is a little difficult," he said, "to determine the meaning of these terms in which the tenants for life are charged according to the times they have respectively been in possession. In 1799 (when Lord Montfort died), Lady Montfort was entitled by the settlement to possession of the leasehold estate, under a lease renewed in 1786, for fourteen years, with a fund accumulating for the fine, to be paid on the next renewal in 1800. If therefore the decree is to be understood, that, as Lord Montfort enjoyed from 1772 to 1799, and Lady Montfort from 1799 to 1808, when the fine in question was paid, that sum is to be reimbursed as between his and her estates in this proportion, that his estate is to be charged according to the account of the rents between 1772 and 1799, and she is to pay according to the rents from 1799 to 1808, she appears to me to be charged in a way in which she is not chargeable. My opinion is, that the estate of the late Lord Montfort is to be made answerable to the trustees after they have paid the plaintiff; and Lady Montfort is also answerable, but only for the proportion for which she ought to be called upon, with a due regard to the obligation of the trustees to put her in possession of the estate fully renewed in 1786, and with an accumulating fund to be applied to another renewal in 1800. Lord Montfort having received the rents from 1772 to 1799, and not having renewed, and a much larger fine of course being required at the end of twenty-eight years than

4

fourteen years, his estate must be answerable for the increase; but if the trustees should not find his estate sufficient to answer that, I cannot, as between them and Lady Montfort, throw any part of the increase upon her. That must therefore fall upon the trustees personally."

In assigning to the cestui que trust this remedy against the trustee, it must of course be understood that the cestui que trust has not himself concurred in the breach of duty, or subsequently acquiesced in it, and, à fortiori, has not executed a formal release.

If a cestui que trust concur in the breach of trust, he is for ever estopped from proceeding against the trustee for the consequences of the act (e). Thus, in the leading case of Brice v. Stokes (f), where the trust estate was sold with the approbation of Brice, the tenant for life, and the purchase money was improperly left in the hands of one of the trustees with the knowledge of Brice, Lord Eldon held, that the trustees were answerable to the remainder-man for the principal, but not to the tenant for life for the interest. If," said his Lordship, "there are two trustees, and a transaction takes place, in which the fund is taken out of the state in which it ought to have remained, and is not placed in a state in which it ought to be, but is kept in hands which ought not to retain it, if any particular cestui que trust has acted in authorizing that as much as the trustee who has not the money in his hands, and continues to permit it to be so treated, in a

66

(e) Walker v. Symonds, 3 Sw. 64, per Lord Eldon; Wilkinson v. Parry, 4 Russ. 272; Cocker v. Quayle, 1 R. & M. 535; Nail v. Punter, 5 Sim. 555; Newman v. Jones, Rep. t. Finch, 58; and see Fellows v. Mitchell, 1 P. W. 81;

Langford v. Gascoyne, 11 Ves. 336; White v. White, 5 Ves. 555; in re Chertsey Market, 6 Price, 280, 284, per Lord Chief Baron Richards.

(f) 11 Ves. 319.