Hardwicke once observed in Chancery, "I will not decree a trust against the Crown in this court, but it is a notion established in courts of revenue by modern decisions, that the King may be a royal trustee (k).” The doctrine was still unsettled in the time of Lord Northington (1), and has not been set at rest by any subsequent decision. The subject may undoubtedly sue the Crown by preferring a petition of right (m).

It has been said that a wife cannot be a trustee for her husband (n); but the observation must be construed to mean, not that, if a legal estate be vested in a wife upon trust for her husband, the Court would not execute the intention, but that, if a husband take a purchase in the name of his wife, (the case which elicited the remark,) the Court will consider the purchase, not as a trust for the husband, but as an advancement for the wife.

It has also been said, that a person cannot be a trustee, unless there be vested in him an actual interest (0); but, in consideration of equity, a person may be trustee of a mere power; for if A. be directed to sell an estate, and apply the proceeds in payment of debts, and the authority be imperative, the Court, though nothing passed by way of interest, will look upon A. as a trustee, and if he decline the office, or neglect the execution of

(k) Penn v. Lord Baltimore, 1 Ves. 453; and see Reeve v. Attorney-General, 2 Atk. 224; Hovenden v. Lord Annesley, 2 Sch. & Lef. 617.

(1) See Burgess v. Wheate, 1 Ed. 255.

(m) Scounden v. Hawley, Comb.

172, per Dolben, J.; Reeve v. Attorney-General, cited Penn v. Lord Baltimore, 1 Ves. 446.

(n) Kingdome v. Bridges, 2 Vern. 68, per Lord Jeffries.

(0) Owen v. Owen, 1 Atk. 496, per Lord Hardwicke.

it, will itself order the sale and the proper application of the proceeds (p).

The Bank of England cannot be made a trustee, for the Company will not enter notice of instruments inter vivos upon their books; and though they are obliged by certain acts of parliament to enter the wills, or at least extracts from the wills of deceased proprietors of stock, the object of the legislature, as the Court has now clearly determined, was not to make the Company responsible for the due administration of the fund according to the equitable right, but to enable them to ascertain who under the will were the persons legally entitled (g) (8).

(p) See infra.

(q) Hartga v. Bank of England, 3 Ves. 55; Bank of England v.

Parsons, 5 Ves. 665; Bank of
England v. Lunn, 15 Ves. 583, per

Lord Eldon.

(8) By an act of William & Mary (4 W. & M. c. 3, s. 10) the will was directed to be entered in the Receipt Office of the Exchequer, where the annuities were then payable; but, by a subsequent act in the same reign (5 W. & M. c. 20, s. 20) the Bank was incorporated, and by statutes of George the First, and George the Second (1 Geo. 1, st. 2, c. 19, s. 12; 30 Geo. 2, c. 19, s. 49) it was enacted, that “ a person possessed of stock might devise the same by will in writing, attested by two credible witnesses; but that such devisee should receive no payment thereon, till so much of the will as related to the said stock should be entered in the office of the Bank; and in default of such devise, the stock should go to the executors or administrators."

Upon the effect of these provisions it has been held, 1st. That although stock be specifically devised, and the will be duly attested by two witnesses, yet, until the executors assent to the specific bequest, the legal property of the stock remains vested in the executor, and, if it be necessary to make use of it as assets, he may bring an action at law against the Bank for refusing a transfer in obedience to his directions. Franklin v. The Bank of England, 9 B. & C. 156. And of course the Bank cannot obtain an injunction in equity against the legal proceedings; Bank of England v. Moffat, 3 B. C. C. 260; Bank of England v. Lunn, 15 Ves.

Were the construction to be otherwise, the Bank of England would be trustee for half the families in the kingdom.

569; Bank of England v. Parsons, 5 Ves. 665; for, as Lord Eldon observed, if the executor cannot maintain an action at law, the Bank has no need of assistance from a court of equity, and if he can maintain his action, then he must be authorized to do so by the statute, and equity cannot interfere. Bank of England v. Lunn, 15 Ves. 583. Lord Thurlow once expressed an opinion that the devise of stock was in the nature of a parliamentary appointment, and did not require the executor's assent; Pearson v. Bank of England, 2 Cox, 178, 179; but he afterwards changed his opinion, and conceived the executor's assent to be necessary, as in a specific devise of leaseholds. Bank of England v. Moffat, 3 B. C. C. 263; compare Bank of England v. Parsons, 5 Ves. 668. Lord Eldon said, that, as, by a clause in the act, stock could not be attached, sequestered, or taken in execution, during the lifetime of the holder, he had always doubted whether the legislature did not intend to give it a peculiar value, by enabling the party to devise it, like land, independently of the executor; but, his Lordship said, the construction adopted in practice was, that, though specifically bequeathed, it must have the executor's assent, and was liable, as assets, to the payment of debts; Bank of England v. Lunn, 15 Ves. 517, 518; and so the law is now clearly settled. 2ndly, There is no doubt, that, after the executor's assent, the specific legatee, if the will was attested by two witnesses, becomes the perfect legal proprietor, and may bring an action at law against the Bank for refusing to transfer into his name. See Bank of England v. Lunn, 15 Ves. 518, and following pages. 3rdly, If the stock be specifically bequeathed, but the will be not attested by two witnesses, then the legal property of the funds vests absolutely in the executor; but, as the act does not express how the executor shall apply it, the Court considers him to hold it upon trust, subject to the payment of debts, for the person to whom it was informally devised. The legatee can of course have no legal interest in the stock until the executor has made an actual transfer to him. See Bank of England v. Lunn, 15 Ves. 578; Rider v. Kidder, 10 Ves. 369; Ripley v. Waterworth, 7 Ves. 440, 452.

What will amount to a specific legacy of stock, it may sometimes be extremely difficult to determine. Lord Thurlow is said to have considered that a devise of stock, included in a general residue, could not be construed a specific bequest; Bank of England v. Moffat, 3 B. C.

As the Bank is not bound to notice even the contents of the will beyond the legal devise, so, a fortiori, it will pay no attention to agreements of parties inter se, by which the interests taken under the will have subsequently shifted from one person to another; as, if stock be devised to A. for life, with remainder to B., and A. assign to B., or B. release to A., though in equity the whole beneficial interest has thus become vested in A. or B., the Bank will not permit a transfer during the life of A. to the one or the other; but, on A.'s decease, will transfer to B. or his personal representative. However, a suit may be instituted for the purpose of compelling the Bank to transfer according to the equitable title; but, the refusal of the Company to act without the order of the Court will be considered as justifiable and proper,

C. 260; compare Bank of England v. Parsons, 5 Ves. 668; and Lord Loughborough put the same construction upon a general bequest of all the testator's personal estate; Bank of England v. Parsons, 5 Ves. 665; but Lord Eldon justly observed, that, if the testator had the stock at the date of the will, and the will was attested by two witnesses, the stock would pass as effectually as if it were given eo nomine, or as leasehold estate or any other property would belong to the general devisee or legatee. Bank of England v. Lunn, 15 Ves. 581. The act, speaking of persons" possessed" of stock, (which must be looked upon as equivalent to "having" in the statute of wills,) it follows, there can be no specific bequest, where the testator was not the proprietor of it at the date of the will. See Bank of England v. Lunn, 15 Ves. 577, 578. But though a general bequest would not pass the legal estate of stock subsequently acquired, it would serve as a direction to the executor to whom, after payment of debts &c., to transfer it. If a person possessed of stock desire the executor to set apart a certain portion of it in favour of A., and the executor make the appropriation, as by selling out the residue, and permitting A. to enjoy what is left standing in the testator's name, this, it seems, is a specific bequest, and the executor, by the appropriation of it, has given his assent to it. See Bank of England v. Lunn, 15 Ves. 582, 583.

and therefore the Bank in such suits will be allowed

their costs (r).

II. To whom the administration of the trust may properly be confided.

The fitness of a person to discharge the office of trustee must depend on his capacity to exercise the discretionary part of the trust, and his ability to join in the requisite assurances of the property.

It would not be advisable to select a feme covert as trustee (s); not that she has any want of sufficient discretion for the due execution of the trust, for a woman has no less judgment after marriage than before (t); nay, as was quaintly added by Sir John Trevor, she rather improves it by her husband's teaching (u). The reasons, upon which her disabilities are founded, are her own interest, or her husband's, or both (x); and, where these are not concerned, she possesses as much legal capacity as if she were perfectly sui juris: thus, she may execute powers simply collateral (y), and (somewhat contrary to principle) even powers appendant, or in gross (≈). Now, at

(r) Pearson v. Bank of England, 2 B. C. C. 529; Austin v. Bank of England, 8 Ves. 522; Marryatt v. The Bank, and Aynsworth v. The Bank, cited Ib. 524, note (b).

(s) Lake v. De Lambert, 4 Ves. 595, per Lord Loughborough.

(t) Compton v. Collinson, 2 B. C. C. 387, per Buller, J.; Hearle v. Greenbank, 1 Ves. 305, per Lord Hardwicke; Bell v. Hyde, Pr. Ch. 330, per Sir John Trevor; and see marginal note to Moore v. Hussey,

Hob.95; and see Needler v. Bishop of Winchester, Hob. 225.

(u) Bell v. Hyde, Pr. Ch. 330. (x) Compton v. Collinson, 2 B. C. C. 387, per Buller, J.

(y) Co. Lit. 112, a; Ib. 187, b; Lord Antrim v. Duke of Buckingham, 2 Freem. 168, per Lord Keeper Bridgman; Blithe's case, Id. 91, vid. 2nd resolution; Godolphin v. Godolphin, 1 Ves. 23, per Lord Hardwicke.

(z) See Sugden on Powers, c. 3, sect. 1.