not be allowed his costs (d). Although even in that case he will not be made to pay costs, even where there had been a decree in the suit, directing him to convey to the petitioner (e). And so if a trustee, though being an infant, oppose an application for a conveyance under the act without sufficient reason, as for instance because he had not been served with the order of reference or other orders in the petition-he will be liable to be deprived of his costs (f). PART II. CHAPTER IV. SECT. 3. chaser or of of deceased for a convey heir. In cases within the 16th section where a vendor has died, after the Relative liacontract but before the execution of the conveyance, leaving an infant bility of purheir, and a decree has been made in a suit for specific performance of representatives the contract, whereby the heir is ordered to convey; the costs of the vendor to costs suit have been ordered to be paid out of the purchase-money (g). And of application, the reason assigned by Sir L. Shadwell, V. C. E., in making this order ance from venwas, that the suit was occasioned by the laches of the vendor in dor's infant suffering the legal estate in the land sold to descend to his heir at law instead of devising it to a trustee to convey to the purchaser (h)*. However this reasoning will not apply, where only a very short interval has elapsed between the contract of sale, and the death of the vendor. In that case therefore, if there have been no other default on the part of the vendor the purchaser will have to bear his own costs, and the costs of the infant will be paid out of the personal estate of the intestate vendor (i). For that purpose however the administrator of the intestate must appear and consent to be bound by the decree (k). Who is liable to the costs, where the estate has a decree. Quære? Where an estate has been sold under a decree of the court, and an application under the act becomes necessary in order to obtain a conveyance of the legal estate; we have seen, that it is an unsettled been sold under point, whether the petition should be presented by the purchaser, or the persons having an interest in the application of the purchasemoney (1). The liability to the costs of the petition is equally unsettled. In Robinson v. Wood, where the purchaser presented the petition, the Master of the Rolls refused to order the trustee to pay costs, and therefore the petitioner must have borne his own costs at all events (m). In King v. Leach, the equitable mortgagees of the estate, who were the petitioners, were ordered to pay the purchaser his taxed costs (n). (d) Robinson v. Wood, 5 Beav. 246; vide supra, sect. 1 of this Chap. et post, Chap. [Costs]. Robinson v. Wood, ubi supra. Re Bradbourne, 12 Law Journ. N. S., Chanc. 353. (g) Prytharch v. Havard, 6 Sim. 9; Midland Counties Railway Company v. West comb, 11 Sim. 57. (h) 11 Sim. 58. (i) Hanson v. Lake, 2 N. C. C. 328. (1) Vide supra. * It is only the costs of the proceedings, requisite to enable the infant heir to convey, that will be borne by the vendor's estate in these cases, the expense of the conveyance itself will fall upon the purchaser according to the general rule. 11 Sim. 57. PART II. CHAPTER IV. Power of court to order costs, In that case it appears, that the purchase-money was insufficient to pay the petitioner's mortgage debt and the costs of the suit in full. Where an improper or irregular order has been upon an application under 1 Will. IV. c. 60, the court has jurisdiction to order payment where the case of his costs to the party resisting the order (o). And it has been is not within the special jurisdiction. Act extended to Colonies, ex decided, that the court may dismiss a petition, which it has no jurisdiction to entertain, with costs (p). By the 26th section of the act the powers given to the Lord Chancellor of Great Britain sitting in lunacy are extended to all land and cept Scotland. stock in the British dominions except Scotland, and Ireland. And by the 29th section the powers given to the Court of Chancery in England are extended to all land and stock in the British dominions except Scotland. The effect of the 27th, 28th, 30th, and 31st sections is to extend the powers of the act to the Court of Exchequer, and to the Lords Commissioners or Lord Keeper of the Great Seal, in England, and as to land and stock in Ireland to the Lord Chancellor, Keeper, and Commissioners, and Courts of Chancery and Exchequer in that country. Does not ex tend to foreign countries. 32d section. veyance to be executed in The previous acts had been held to extend to lands situated out of the jurisdiction of the court, but within the British dominions, as in the East and West Indies, and Ireland (q). This construction is expressly adopted by the present act, except that Scotland is excluded from its operation. However the act does not extend to lands in foreign countries which are not part of the British dominions (r). The 32nd section points out the persons, who in certain cases are to By whom con- be named in the order, as the persons to make the conveyance or transfer in place of the trustee. These are the committee of the place of trustee. estate of a lunatic trustee; or a co-trustee or co-executor (where there is one); or some officer of the company or society, in whose books the transfer was to be made; and (where the transfer is to be in the books of the Bank of England) the secretary, or deputy secretary, or accountant-general, of the bank, or his deputy. In other cases, where the appointment of a person to convey is part of the relief required, it will be part of the reference to the Master to appoint a proper person for that purpose. And it seems, that the order may be for the Master himself to be at liberty to execute the conveyance (s). The 33rd section provides for the indemnity of the bank and other companies and their officers in acting under the act. (0) Re King, 10 Sim. 605; see Calvert v. Godfrey, 6 Beav. 97. (p) Re Isaac, 4 M. & Cr. 11. (q) Evelyn v. Forster, 8 Ves. 96; ex parte Prosser, 2 Bro. C. C. 325; ex parte Ander son, 5 Ves. 240; ex parte Bosanquet, ib. (r) Price v. Dewhurst, 8 Sim. 617. CHAPTER V. OF THE LEGAL DEVOLUTION OF THE ESTATE OF TRUSTEES. WHERE more trustees than one are appointed, the trust property is almost invariably limited to them as joint-tenants; and even if the terms of the gift rendered this at all doubtful, the court for the sake of convenience would doubtless endeavour, if possible, to affix this construction to it. PART II. CHAPTER V. Estate limited to trustees as joint-tenants. the survivor. Therefore upon the death of one of the original trustees the whole Devolves upon estate, whether real or personal, devolves upon the survivors, and so on continually to the last survivor. Upon the death of a sole or last surviving trustee, who has not made any disposition of the trust estate, it devolves according to its legal quality upon his heir at law or personal representative (a). on death of estate goes sole trustee, to his heir or administrator. When surviving trustee or heir may execute discretion As a general rule the surviving trustees or trustee, or the heir or personal representatives of the sole or last surviving trustee, are as fully competent to act in the administration and management of the trust estate, as the trustees originally appointed. But, where discretionary powers are given personally to the original trustees, the same rule applies as in the case of devisees; and the surviving trustee or heir or administrator, as the case may be, will not be competent to execute such powers, unless authorized to do so by the trust instrument (b). A surviving trustee, who has never accepted or acted in the trust, Surviving trusmay execute a disclaimer, and thus dissent from the estate, which the law casts upon him; and in that case if the disclaiming party be the last surviving trustee, the legal estate, according to its quality, will devolve upon the heir or the personal representative of the deceased trustee (c). tee may disclaim. If the original trustee have accepted the trust in his lifetime, it is Heir or personal conceived that it is no longer competent for his heir or personal repre- of deceased representative sentative to make a valid disclaimer after his death; although the heir trustee may disor representative might unquestionably apply to the court to have claim. When? other trustees appointed in his place, without rendering himself liable to the costs of that proceeding (d). But where the trust has not been accepted by the original trustee, there seems to be no reason, why a (a) It has been already seen, that the title of the crown, or other superior lord, to take by escheat on the death of a trustee without heirs is now excluded, ante, p. 9, and Ch. II. of this Division. (b) Mansell v. Mansell, Wilm. 36; Peyton v. Beang, 2 P. Wms. 626; Townsend v. Wilson, 1 B. & Ald. 608; Dyer, 177, Pl. 32; see Sharp v. Sharp, 2 B. & Ald. 405; Cole v. Wade, 16 Ves. 27; Hall v. Dewes, Jac. (c) Stacey v. Elph, 1 M. & K. 199; ante, (d) Ante, Pt. I. Div. IV. Ch. II. Sect. 1. PART II. CHAPTER V. Marriage of female trustee vests trust estate in husband. She cannot act in the trust without his concurrence. Husband cannot exercise discretionary powers given to the wife. If feme have accepted trust, husband cannot disclaim. Semble. Secus. If she have not ac cepted. disclaimer may not properly be made by his heir or representative; although the point does not appear to have been ever expressly decided (e). Upon the marriage of a female trustee the legal interest in the trust property will become vested in the husband, either wholly or partially, according to the nature of the estate. If it consist of chattels personal in possession, they will devolve upon him absolutely by the fact of marriage, unless it be otherwise expressly provided; and if it consists of chattels real, the husband's legal interest in them will be subject to the title of the wife by survivorship. Where the trust property is real estate of inheritance, the husband will take either an estate by curtesy, if he have had inheritable issue, or otherwise a bare estate during the life of his wife jointly with her. It has been already stated, that the husband of a feme trustee is a trustee within Sir E. Sugden's act, 1 Will. IV. c. 60 (ƒ). As the husband will be liable personally for any breach of trust committed by his wife (g), it must follow as a necessary consequence that she cannot act in the administration of the trust without his concurrence or consent. The same principle, which prevents a surviving trustee or the devisee or heir of a sole trustee from exercising discretionary powers, which are given only to the original trustee personally, will also apply à fortiori to restrain the husband of a feme trustee from exercising any such power, where he is not expressly authorized to do so. Where the feme trustee has once accepted the trust, it would also seem that the husband cannot by means of a disclaimer avoid the estate cast upon him by the law and this doctrine depends on the same reasoning which prevents the heir of a trustee from making a valid disclaimer, if his ancestor had accepted the trust in his lifetime. If the feme have not accepted the trust, there can be no reason why she and her husband may not execute a valid deed of disclaimer of real estate duly acknowledged by her. Where the trust is of personal husband of per- estate a disclaimer by the husband would of course operate upon the whole legal interest. Disclaimer by sonal estate. Estate of bank rupt trustee does not pass There has been already occasion to observe, that the property, vested in a trader as trustee, does not devolve to his assignees upon his bankto his assignees. ruptcy, and the bankrupt will therefore retain his character of trustee, until another be appointed on application in his place (h). On refusal of one trustee estate devolves on the others. We have also seen, that upon the refusal or renunciation of one of several trustees, his estate, and whole interest, with the powers annexed to it, will devolve upon those who accept the office (i). (e) Goodson v. Ellisson, 3 Russ. 583, 7; ante, Pt. I. Div. IV. Ch. II. Sect. 1. (f) Moore v. Vinten, 10 Law Journ. N. S., Chanc. 345; 12 Sim. 161; S. C. Section 3 of preceding Chapter. (g) See Palmer v. Wakefield, 3 Beav. 227. (h) Ante, Ch. III. and post, [Bankruptcy]. (i) Ante, Pt. I. Div. IV. Ch. II. Sect. 3. PART III. OF THE DISCHARGE OF THE OFFICE OF TRUSTEE. DIVISION I. OF THE POWERS AND DUTIES OF TRUSTEES. CHAPTER I. OF THE POWERS AND DUTIES OF CO-TRUSTEES, AS BETWEEN EACH OTHER. I.-Of the necessity for the Concurrence of all the Trustees. II. Of the Liability of one Trustee for the Acts of the others. SECT. 1.-Where the Concurrence of all the Trustees is requisite in PART III. Acts for the Administration of the Trust. TRUSTEES have all equal power, interest, and authority, with respect to the trust estate. As a general rule therefore they cannot act separately, but they must all join in any sale, lease, or other disposition, of the trust property, and also in receipts for money, payable to them in respect of their office (a). And in this respect they differ materially from executors, who have a joint and entire authority, and any one of whom may effectually bind, or dispose of, the assets by his own individual act (b). The principle of law, as applied to the case of trustees, as well as other persons, holding as joint-tenants, is, that every act done by one of them for the benefit of the whole, shall bind the others, but not those acts, which might tend to their prejudice (c). On this principle one trustee alone could not have signed the certificate of a bankrupt in respect of a debt due to him and his co-trustee (d), according to the Bankrupt Law previously to the recent act (e). And so where there are three joint trustees of an estate, a notice to quit, given to a tenant by two of them only, is bad, even though the name of the third be (a) Crewe v. Dicken, 4 Ves. 97; Fellows v. Mitchell, 1 P. Wms. 83; S. C. 2 Vern. 516; Churchill v. Lady Hobson, id. 241; Leigh v. Barry, 3 Atk. 584; Belchier v. Parsons, Ambl. 219; Chambers v. Minchin, 7 Ves. 198; ex parte Rigby, 19 Ves. 463; 2 Fonbl. Eq. B. 2, Ch. 7, sec. 5; 1 Cruis. Dig. Tit. 12, Ch. 4, sec. 39. (b) Touchst. 484; Bac. Abr. (Exors.) C. (c) Rudd v. Tucker, Cro. Eliz. 803. Div. I. CHAPTER I. SECT. 1. Trustees have equal power. And must all join in acts of disposition, &c. |