him; since, until notice, he is not affected with the trust created thereby, and the rights of third persons may intervene to the prejudice of the assignee.1 The ground of this doctrine is, that the creditor has, in equity, a right to dispose of his own property as he may choose; and to require the debt to be paid to such person as he may direct, without any consultation with the debtor, who holds the debt, subject to the rights of the creditor. § 1057 a. It has, however, been recently held, that the assignee of a debt, not in itself negotiable, is not entitled to sue the debtor for it in equity, unless some circumstances intervene, which show that his remedy at law is, or may be, obstructed by the assignor; for, otherwise, the assignee, although he may not sue therefor in his own name in a court of law, yet may sue in the name of the assignor.2 But, if the assignor refuses to allow the assignee to sue for the debt in his name at law, or has done, or intends to do, some act, which may or will prevent the assignee from recovering in a suit at law in the name of the assignor, that, if alleged in the bill, will be sufficient to sustain a suit in equity in the name of the assignee against the debtor. This doctrine is apparently new, at least in the broad extent in which it is laid down; and does not seem to have been generally adopted in America. 1 See Williams v. Thorp, 2 Simons, 257; Tourville v. Naish, 3 P. Will. 307, 308; Langley v. Earl of Oxford, Ambler, 17; Ashcomb's case, 1 Ch. Cas. 232; Dearle v. Hall, 3 Russ. 1; Loveridge v. Cooper, id. 30; Wallwyn v. Coutts, 3 Meriy. 707; s. c. 3 Sim. 14; Collyer v. Fallon, 1 Turn. & Russ. 469; Foster v. Blackstone, 1 Mylne & Keen, 297; Garrard v. Lord Lauderdale, 3 Sim. 1; ante, § 399, note (1), § 421 a, 783, 1035 a, 1047; Elty v. Bridges, 3 Younge & Coll. New R. 486, 492. 2 But see Dhegetoft v. London Assur. Co., Moseley, 83; and Carter v. United Insur. Co. of New York, 1 Johns. Ch. 463, 461; post, § 1057 b. 8 Ibid.; Hammond v. Messenger, 9 Simons, 327. On this occasion the ViceChancellor (Sir R. Shadwell) said: "If this case were stripped of all special circumstances, it would be, simply, a bill filed by a plaintiff, who had obtained from certain persons to whom a debt was due, a right to sue in their names for the debt. It is quite new to me, that in such On the con a simple case as that, this court allows, in the first instance, a bill to be filed against the debtor, by the person who has become the assignee of the debt. I admit, that if special circumstances are stated, and it is represented that notwithstanding the right which the party has obtained, to sue in the name of the creditor, the creditor will interfere and prevent the exercise of that right, this court will interpose for the purpose of preventing that species of wrong being done; and if the creditor will not allow the matter to be tried at law in his name, this court has a jurisdiction in the first instance, to compel the debtor to pay the debt to the plaintiff; especially in a case where the act done by the creditor is done in collusion with the debtor. If bills of this kind were allowable, it is obvious that they would be pretty frequent; but I never remember any instance of such a bill as this being filed, unaccompanied by special circumstances." See also S. P. Rose v. Clarke, 1 Y. & Coll. New R. 446, 534. trary, the more general principle established in this country seems to be, that wherever an assignee has an equitable right or interest in a debt, or other property (as the assignee of a debt certainly has), there a court of equity is the proper forum to enforce it; and he is not to be driven to any circuity by instituting a suit at law in the name of the person who is possessed of the legal title.1 A cestui que trust may, ordinarily, sue third persons in a court of equity, upon his equitable title, without any reference to the existence of a legal title in his trustee, which may be enforced at law. § 1057 b. Cases indeed may exist, where, although the equitable title only has passed by the assignment, yet the remedy under ordinary circumstances may justly be held to remain at law. But these cases may constitute exceptions to the general rule, rather than expositions of it; for they turn upon the consideration that under the circumstances a court of equity does not possess as ample and appropriate means, to grant the proper relief as a court of law; or, what in effect amounts to the same thing, that a court of equity cannot administer entire justice without resorting to the same means, a trial by jury, as a court of law. Thus, for example, if the assignment be of a contract involving the consideration and ascertainment of unliquidated damages, as in case of the assignment of a policy of insurance, there, unless some obstruction exists to the remedy at law, it would seem that a court of equity ought not or might not interfere to grant relief; for the facts and the damages are properly matters for a jury to ascertain and decide. But the same objection would not lie to an assignment of a bond or other security for a fixed sum.3 * Dhegetoft v. London Assur. Co., Moseley,83; Carter v. United Ins. Co., 1 Johns. Ch. 463. These cases were on policies of insurance; and Mr. Chancellor Kent, in the latter case, said: "The demand is properly cognizable at law, and there is no good reason for coming into this court to recover on the contract of insurance. The plaintiffs are entitled to make use of the names of Gibbs and Titus, the original assured, in the suit at law; and the nominal plaintiffs would not be permitted to defeat or prejudice the right of action. It may be said here as was said by the Chancellor, in the analogous case of Dhegetoft v. The London Assurance Company, Moseley, 83, that, at this rate, all policies of insurance would be tried in this court. In that case the policy stood in the name of a nominal trustee; but that was not deemed sufficient to change the jurisdiction; and the demurrer to the bill was allowed, and the decree was afterwards affirmed in Parliament. 3 Bro. P. C. 525. The bill, in this case, states no special ground for equitable relief; nor is any discovery sought which requires an answer." Post, § 1250. [* § 1057 c. It will have been perceived that the subject of the assignment of rights of action, as tending to the common-law offences of champerty and maintenance, is here left in a state of considerable uncertainty. The subject was examined in a late case, and the following conclusion reached: That the bona fide purchaser of a bond, or note not negotiable, or other chose in action, which is of the nature of a debt, which is represented to be due, and which the purchaser believes to be due, may sue upon the same, and not incur censure from the law; and that all contracts founded upon any such consideration are perfectly valid. The same is true of any aid one may render another in a suit, by way of money, or advice, or other lawful assistance, if done under a bona fide belief in the justice of the cause. And in this case it was held that a claim for personal property, taken by way of tort, might be lawfully assigned while a suit was pending, and the assignee take the risk and expense of the suit, as from the beginning. And it has been held that one may lawfully sell land in the adverse possession of another, and that the vendee thereby acquires the right to sue for the same, in the name of the grantor, for his own benefit; and that even a court of law will take notice of and protect his equitable interest.2 It is upon these grounds that it is suggested, that the common-law notion of maintenance, as applicable to the assignment of rights of action, has become practically obsolete.*] 1 [* Danforth v. Streeter, 28 Vt. 490. 4 See Fetrow v. Merriwether, 53 Ill. 275; Schaferman v. O'Brien, 28 Md. 565. One who has made a deed voidable in equity may sell or settle the estate and convey as an incident the right to sue. Dickinson v. Burrell, L. R. 1 Eq. 337. Compare De Hoghton v. Money, L. R. 1 Eq. 154; 2 Ch. App. 164. And that the sale of land pending litigation concerning it is not champertous, if made to one having no connection with the suit, see Rowe v. Beckett, 30 Ind. 154. After biddings had been reopened, it was held, that the successful bidder at the sale which had been set aside could not assign his claim to enforce his bid. Newland v. Gaines, 1 Heisk. (Tenn) 720. And an agreement of an attorney to prosecute a claim at his own cost, for a part of the subject-matter of the suit, is void. Grell v. Levy, 16 C. B. (N. s.) 73; Martin v. Clarke, 8 R. I. 889; West v. Raymond, 21 Ind. 305; Boardman e. Thompson, 25 Ia. 487. But see Fogerty v. Jordan, 2 Robt. (N. Y.) 319; Voorhees v. Dow, 51 Barb. (N. Y.) 580; Martin v. Veeder, 20 Wisc. 466. That the fact that a party has made such a contract with his solicitor will not prevent his recovery in the suit, though it will affect costs, see Hilton v. Woods, L. R. 4 Eq. 432. Nor will equity restrain an action on ground of maintenance. Elborough v. Ayres, L. R 10 Eq. 367.] CHAPTER XXIX. WILLS AND TESTAMENTS. [* § 1058. Courts of equity enforce all trusts under wills. § 1059. In courts of equity, trusts never fail for want of a trustee. § 1060. Equity will find a trustee, or make one. § 1061. Will execute a power connected with trust. § 1061 a. Power to sell will not justify a mortgage. § 1061 b. Power to give to one of a class equity executes for the class. § 1062. How far joint power may be executed by survivor. § 1062 a. The execution must profess to follow power. § 1063. Perplexing questions arise in regard to powers under wills. § 1064-1064 c. Powers so construed as to effect their object. § 1065. The interference of courts of equity often required in the settlement of estates, to determine duty of executor, &c. § 1065 a. Distinction between perpetual and life annuities. § 1065 b. Construction of terms "relations," "next of kin," &c. § 1065 c. The terms "cousin," "nephew," "niece," &c. § 1065 d. Conflicting claims to bequests better settled in equity. § 1065 e. Lapsed legacies go to residuary legatee. § 1066. Construction of executed and executory trusts, in equity and at law. § 1067. Equity adopts the construction of ecclesiastical courts as to legacies. § 1067 a. Words creating estate tail construed differently with reference to real and personal estate. § 1067 b. Subject further discussed and illustrated. § 1068-1068 b. How far mere wish, or desire, creates a trust. § 1069. The courts now incline to give the words their natural force. § 1070. If objects, or subject-matter, indefinite, no trust arises. § 1071. Certainty may exist without use of names. § 1072. Illustrations of certainty and uncertainty. § 1073. Uncertainty of persons and subject-matter illustrated. § 1074. Illustrations of the subject from the civil law. § 1074 a. Cy pres: General intent prevails if special intent illegal. § 1074 -1074 g. Cases illustrating the construction of wills.] § 1058. In the next place, let us pass to the consideration of express trusts of real and personal property, created by LAST WILLS AND TESTAMENTS. These are so various in their nature and objects, and so extensive in their reach, that it would be impracticable to comprehend them within the plan of these commentaries. They are most usually created for the security of the rights and interests of infants, of femes covert, of children, and of other relations; or for the payment of debts, legacies, and portions, or for the sale or purchase of real estate for the benefit of heirs, or others having claims upon the testator; or for objects of gen eral or special charity. Many trusts, also, arise under wills, by construction and implication of law. But in whatever way, or for whatever purpose, or in whatever form, trusts arise under wills, they are exclusively within the jurisdiction of courts of equity. Indeed, so many arrangements, modifications, restraints, and intermediate directions are indispensable to the due administration of these trusts, that, without the interposition of courts of equity, there would, in many cases, be a total failure of justice.1 § 1059. The truth of this remark will at once be seen by the statement of a very few plain cases, to illustrate it. In the first place, trusts are often created by will, without the designation of any trustee who is to execute them; or it may be matter of doubt, upon the terms of the will, who is the proper party. Now it is a settled principle in courts of equity, as has been already stated, that a trust shall never fail for the want of a proper trustee ; 2 and, if no other is designated, courts of equity will take upon themselves the due execution of the trust. § 1060. Thus, for example, if a testator should order his real estate, or any part thereof, to be sold for the payment of his debts, without saying who should sell, in such a case a clear trust would be created. A court of law will not, in such a case, take cognizance of the trust. Nay; so strictly is this rule adhered to, that a court of law will not undertake to construe a will, so far as it regards mere trusts; and if a case be sent for the opinion of the judges, stating it as a trust, they will decline giving any opinion thereon.s But a court of equity will not hesitate in such a case, to declare who is the proper party to execute the trust; or if no one is designated, it will proceed to execute the trust by its own authority, and decree a sale of the land. In the case put, of a trust for the payment of debts, if executors are named in the will, they will be deemed, by implication, to be the proper parties to sell; because in equity, when lands are directed to be sold, they are treated as money; and, as the executors are liable to pay the 1 As to what words in a will will constitute a charge on real estate, for the payment of debts, see post, § 1246. [A trust created by a foreign will cannot be enforced in Massachusetts, unless the will has been allowed and filed there, under the State statutes. Campbell v. Wallace, 10 Gray, 162; 1 Perry on Trusts, § 93; and see Bromley v. Miller, 2 Thomp. & C. 575.] 2 Ante, § 976; Co. Litt. 290 b, Butler's note (1), § 4; Peter v. Beverly, 10 Peters, 532; 1 Howard, Sup. Ct. 134; [Adams v Adams, 21 Wal. 185]. 31 Mad. Pr. Ch. 436. [Adams v. Adams, 21 Wal. 185.] |