directed, that the tenant for life should be at liberty to cut timber from time to time with the approbation of the Master (n). PART I. Div. III. CHAPTER II. Trustees ap pointed by the court have no power of ap It has been previously observed, that where there is no power of appointing new trustees in the instrument creating the trust, the court cannot delegate to others its power of supplying vacancies in the trust; and therefore the trustee appointed by the court will not in pointing others general be empowered to nominate others to act in his place (o)*, in their place. although this may be done in settling a scheme for the administration Except in cases of a charity (p). of charity. appointed. Where circumstances render such a course desirable, the court, on In some cases a a motion in the cause, supported by an affidavit verifying the circum- receiver will be stances, will sometimes appoint a receiver of the trust estate, until a new trustee is appointed ;—and an affidavit, that the property has been misapplied, and is in danger in the hands of the existing trustee, will be sufficient to induce the court to accede to such an application (q). And a receiver has been appointed, where the trustee is guilty of laches or other misconduct, in administering the trust (r); or becomes bankrupt (s); or dies or goes abroad (t); or declines or is unable to act (u). But the court will not thus interfere with the management of the estate by a trustee unless a sufficient reason be assigned (x). any continuing Where there are two or more trustees, the court will not appoint a But if there are receiver upon the death, absence, disclaimer, or misconduct, &c., of some or one of them, nor as long as there remains any trustee to act in the trust; this however will be done by the desire or with the consent of the remaining trustees (y). But a receiver will necessarily ceiver. be appointed, where the co-trustees cannot act through disagreement amongst themselves (2). The fact, of a trustee and executor being What a suffi (n) Hewitt v. Hewitt, Ambl. 508. (0) Ante, p. 150; Bayley v. Mansell, 4 Mad. 226; Southwell v. Ward, Taml. 314; Brown v. Brown, 2 Y. & Coll. 395; 2 Sugd. Pow. 533; but see Joyce v. Joyce, 2 Moll. 276. (p) Att.-Gen. v. Winchelsea, 3 Bro. C. C. 373; S. C. Seton Decrees, 131; re 52 Geo. III. c. 101; 12 Sim. 262; 2 Sugd. Pow. 533. (q) Middleton v. Dodswell, 13 Ves. 266; Havers v. Havers, Barn. 23. (r) Att.-Gen. v. Bowyer, 3 Ves. 714; Bainbrigge v. Blair, 10 Law Journ. N. S., Chanc. 193. (s) Langley v. Hawk, 5 Mad. 46. (x) Barkley v. Lord Reay, 2 Hare, 308. (z) Bagot v. Bagot, 10 Law Journ, N. S., Chanc. 116. * But in a recent case, where both the trustees of a will had died in the testator's lifetime, and there was a suit for the appointment of new trustees, Lord Langdale, M. R., directed, that the Master should be at liberty to insert in the conveyance to the new trustees a power for them to appoint other trustees in the manner and under the circumstances mentioned in the will.— The will in this case contained the ordinary power for the appointment of new trustees. White v. White, 5 Beav. 221. And see Lampay v. Gould, 12 Sim. 426. reason for appointing a receiver. PART I. Div. III. CHAPTER II. Receiver dis poor, or not of affluent fortune, will not be a sufficient reason for the court to appoint a receiver (z). But a receiver has been appointed upon an affidavit, that the trustee is insolvent (a). Upon the appointment of new trustees the receiver will be discharged on ap- charged on the application of any party interested in the cause, although the discharge be opposed by some of the cestuis que trusts (b). pointment of new trustees. (z) Hathornthwaite v. Russell, 2 Atk. (b) Bainbrigge v. Blair, 10 Law Journ. N. S., Chanc. 103. DIVISION IV. OF THE ACCEPTANCE OR REFUSAL OF THE OFFICE OF TRUSTEE. THE mere gift of property by any mode of assurance to a person upon trusts, or the nomination or appointment of a party to be trustee, will not of itself invest him with the character of a trustee :For this purpose there must also be an acceptance of the office on the part of the donee. The law will not compel any person to accept an estate, either as trustee or otherwise, against his will; and he is consequently at liberty, at any time to disclaim or refuse the office, and the estate, to which it is annexed, provided that he has never done any act to show his assent to it. We will now proceed to consider, what acts or conduct of an intended trustee will amount to an acceptance of the office : and when, and how he may refuse or disclaim. PART I. Div. IV. CHAPTER I. CHAPTER I. WHAT WILL BE AN ACCEPTANCE OF THE OFFICE OF TRUSTEE. EVERY gift by deed or will or otherwise, is supposed primâ facie to be beneficial to the donee; consequently the law presumes, until there is proof to the contrary, that every estate is accepted by the person, to whom it is expressed to be given (a). Where the creation of the trust is by deed, the most obvious and effectual mode of testifying the acceptance of the trust by the trustees is their execution of the deed. All the provisions of the instrument will then be binding on those parties, by whom it is executed. Where the trust property consists of money or stock, which is placed under the exclusive controul of the trustees, and more especially if there be only a single trustee, it is peculiarly desirable, that he should testify his acceptance of the trusts by executing the deed (b). Acceptance of a trust presumed, trary be shown. until the con Execution of the trust deed by a trustee is an acceptance of the trust. Where the trust is created by will, and the same person is appointed Probate of the will by an exeexecutor and trustee, the probate of the will by him will be an accept-cutor is an ance of the trusts (c). (a) Per Ventris, J., in Thomson v. Leach, 2 Ventr. 198; Per Bayley, J., in Townson v. Tickell, 3 B. & Al. 36; 5 Mart. Conv. 607; 3 Jarm. Byth. Conv. 698; 4 Cruis. Dig. 404, 6. (b) Lord Montfort v. Lord Cadogan, 17 Ves. 488, 9; S. C. 19 Ves. 638; Small v. (c) Mucklow v. Fuller, Jac. 198; Booth acceptance. PART I. Div. IV. CHAPTER I. Acceptance proved from the conduct of the trustee. As-if he act in the trust. Although he acts only as to Where the same person is appointed both executor and trustee, it is difficult, though sometimes of importance, to determine when the office of executor has ceased, and that of trustee has commenced. The rule appears to be, that if a part of the assets has been clearly set apart and appropriated by the executor to answer a particular trust, he will be considered to hold the fund as trustee for those trusts, and no longer as a mere executor (d). In the absence of any such conclusive evidence, as the execution of the trust deed, or the probate of the will, the actions and conduct of the person, who is appointed trustee, may constitute equally binding proof of his acceptance of the office. Therefore if the persons, who are nominated trustees in a deed, in any way act in the management of the trust estate, they will be considered to have undertaken the trust, exactly as if they had executed the instrument (e): and the same rule obtains, where the trust is created by will (ƒ). And in such a case a trustee cannot limit his acceptance and consepart of the trust quent liability to any particular portion of the trust. But if he act at all, (though it be only as to part, and though he expressly disclaim the intention of interfering generally,) he will be fixed with the acceptance of the entire trust, and with all the responsibilities attending it (g). estate. Unless he acts only as the agent of another trustee. And if one of several trustees, with notice of his appointment, interfere in the management of the trust property, so as to render it ambiguous, whether he had accepted the trust or not; he cannot afterwards get rid of his liability to account as a trustee, by alleging that he acted merely as the factor or agent of the cestui que trust (h). If however one of several trustees and executors, who had never proved the will, or otherwise accepted the trust, should interfere in the disposition of part of the trust property, not from any intention of acting in the trust, but only as agent and under the immediate directions of the acting trustee, he will not be considered to have accepted the trust although he may not have executed any formal renunciation or disclaimer (i). In a case, where one of two trustees and executors named in a will formally disclaimed and renounced, but afterwards acted in the disposition of the trust estate, as the agent of the other trustee, who had accepted the trust, but who was not so competent to the management (d) Ex parte Dover, 5 Sim. 500; Vide post, Part II. Ch. I. sect. 2; Philippo v. Munnings, 2 M. & Cr. 309. (e) Lord Montfort v. Cadogan, 17 Ves. 488, 9; S. C. 19 Ves. 638. (f) Conyngham v. Conyngham, 1 Ves. 522; Doyle v. Blake, 2 Sch. & Lef. 231; James v. Frearson, 1 N. C. C. 370. (g) Doyle v. Blake, 2 Sch. & Lef. 231; see Read v. Truelove, Ambl. 417; and Urch v. Walker, 3 M. & Cr. 702. (h) Conyngham v. Conyngham, 1 Ves. 522; see Harrison v. Harrison, 1 P. Wms. 241, n. (y), 6th edit.; S. C. 1 Wms. Exors. 151. (i) Stacey v. Elph, 1 M. & K. 195; Lowry v. Fulton, 9 Sim. 115; and see Orr v. Newton, 2 Cox, 274; Balchen v. Scott, 2 Ves. jun. 678. PART I. Div. IV. of the property; and the renouncing party accounted with the other trustee for all his receipts and proceedings in the course of his dealing CHAPTER I. with the trust estate it was held by Sir John Leach, M. R., that the party who had renounced, had not by his subsequent conduct become accountable as trustee and executor, and his Honor dismissed a bill as against him with costs (k). lease or convey ance of the estate by a With regard to what acts or conduct of a trustee will be held an Whether a reacceptance of the trust; it is a question of considerable nicety, and one, which may still be considered as not altogether settled; whether the execution of a release or conveyance of the trust estate by a trustee, made with the intention of disclaiming or refusing the trust, will or will not amount to an acceptance of the trust by him. This doctrine, which at first sight may appear somewhat paradoxical, was established by Lord Rosslyn in the case of Crewe v. Dicken (1). In that case one of two surviving trustees for sale, being unwilling to act, by deed conveyed and released the estate and all his interest therein to the other trustee and his heirs; and it was held by Lord Rosslyn, that if the retiring trustee had merely renounced, the whole estate would have been in the remaining one; he would have been the only person but that, according to the way they had managed it, he had accepted the trust, and conveyed away the estate: and he was therefore bound to join in the receipt for the purchase-money (1). trustee, who refuses to act, is an accept ance of the Crewe v. The point came again before the court in the case of Nicloson v. Nicloson v. Wordsworth (m). There one of three trustees being desirous of dis- Wordsworth. claiming the trust, executed a conveyance and release of the estate to the other two trustees. The two acting trustees alone then entered into a contract for the sale of part of the estate to the plaintiff, who, being advised that the concurrence of the trustee, who had released, was necessary to perfect his title, filed his bill against all the three original trustees for a specific performance of the contract by them, and to restrain an ejectment, which had been commenced in the mean time (m). Lord Eldon in his judgment commented upon the decision of Lord Rosslyn in Crewe v. Dicken, and questioned the soundness of the distinction established by that case. "If," said his Lordship, "the essence of the act is disclaimer, and if the point were res integra, I should be inclined to say, that if the mere fact of disclaimer is to remove all difficulties, and vest the estate in the other trustees, a party who releases, and thereby declares, that he will not take as trustee, gives the best evidence, that he will not take as trustee. The answer, that the release amounts to more than a disclaimer, is much more technical than any reasoning that deserves to prevail in a court of equity." And his Lordship subsequently observed, " My opinion is, (k) Dove v. Everard, 1 R. & M. 231. (1) Crewe v. Dicken, 4 Ves. 101. (m) Nicloson v. Wordsworth, 2 Swanst. 365. |